Master Services Agreement
THIS MASTER SERVICES AGREEMENT was last updated on December 14, 2022.
This Master Services Agreement governs the access and use of Cogneau’s SaaS Services (defined hereinafter) and Professional Services (defined hereinafter) by the Client.
Cogneau provides its Services to you, subject to this Master Services Agreement (“MSA”), which may be updated by Cogneau from time to time without notice to you. You can review the most current version of the MSA at any time on this page. In addition, when using particular Services, you shall be subject to any posted guidelines or rules applicable to such services, which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the MSA. Unless otherwise specified by Cogneau, all alterations, additions and deletions shall take effect automatically and be binding on and from the day they are posted on the website www.verdis.ai. By continuing to access or use the Verdis Services, you will be deemed to have agreed to accept and be bound by such altered, added to or deleted MSA. If you do not agree to the alterations, additions or deletions, you should discontinue accessing or using the Cogneau Service (other than those which have already been availed of by you prior to such alterations, additions or deletions).
“Agreement” means this master services agreement executed herewith along with the Order Form, annexures, appendixes, exhibits and schedules hereto.
“Acceptance” means the acceptance of deliverables as per process specified in clause 5(a) hereinafter.
“Arbitration Act” means the Arbitration and Conciliation Act, 1996 and the rules 7 regulations thereunder.
“Business Day” a day other than a Saturday, Sunday or public holiday in India when banks in Gurgaon are open for business.
“Change Request” as defined under clause 1 (e) of this Agreement.
“Change Order” as defined under clause 1 (e) of this Agreement.
“Claims” as defined under clause 7(a) of the Agreement.
“Client” means the Client as identified in the Order Form.
“Cogneau” means Cogneau Systems Services Private Limited having CIN U72900HR2015PTC057452 with its registered office presently situated at C – 30, SF, Mayfield Gardens, Sector 50, Gurugram – 122018, Haryana.
“Confidential Information” means all information that is proprietary or confidential, recorded or preserved, disclosed by a Party or its representatives to the other Party and that Party’s representatives whether before or after the date of this Agreement in connection with Services, including but not limited to:
a) the existence and terms of this Agreement or any agreement entered into in connection with this Agreement
b) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing Party
(ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing Party
c) any information developed by the Parties in the course of carrying out this Agreement and the Parties agree that:
(i) details of the Services, and the results of any performance tests of the Services, shall constitute Cogneau’s Confidential Information;
(ii) Client data shall constitute Client’s Confidential Information;
“Deliverables” means and includes all documents, reports, user manuals, finding, evaluations, data, charts, diagrams and other materials developed by the Service Provider or its agents, contractors and employees as part of or in relation to the Services in specified in the applicable SOW.
“Intellectual Property” or “IP” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information including know-how and trade secrets and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Liabilities” as defined under clause 7(a) of the Agreement.
“Licensed Software” means Cogneau IP licensed or subscribed to by Client incorporated or as an underlying part of SaaS Services and as specifically mentioned in the Order Form including all subsequent amendments and updates to such licensed software including by way of Updates as may be provided under this Agreement.
“Licensed Software Customization” means and includes all updates, extensions, configurations, modifications, integrations, translations and/or additions to the Licensed Software.
“Order Form” means the order document mutually executed by the Parties, including the electronic orders submitted by the Client purchasing the Services and setting out the Services to be provided by Service Provider to Client and also specifying (1) the Fees payable by Client to Cogneau for provision of the Services, (2) the duration of the Services to be provided by Cogneau to Client, (3) the number of Users authorized to access the Services, (4) billing and payment information regarding Cogneau’s provision of the Services to Client, and (5) any other applicable quantity specifications regarding Client’s purchase of the Services.
“Party” means Cogneau or Client referred individually and Parties mean both Cogneau and Client referred collectively.
“Professional Services” means the services set out in clause 1(c) of the Agreement and the Annexure – B of the Order Form.
“SaaS Services” means the Verdis AI – SCM or other proprietary software as a services as subscription specified by the Service Provider in the Order Form, from time to time.
“Services” means the SaaS Services and / or Professional Services including the Deliverables to be provided by Service Provider to Client under the Agreement.
“Service Provider” means Cogneau.
“Similar Enhancements” means as defined under clause 4(b)(1)(g) of the Agreement.
“SOW” means the statement of work executed between the Parties for defining the Services under the Agreement.
“Third Party IP” means the third party intellectual properties used by the Service Provider as an underlying part of or in addition to Licensed Software, for providing the Services under this Agreement.
“Update” means patches, bug fixes or new releases of the Licensed Software including associated documentation that improve function or performance by changes in system design or coding within the same product line.
“Users” means the employees and contractors that Client authorizes to access and use the Services as a part of its business operations, acting under Client’s direction and for whom Client is fully responsible hereunder.
1. STATEMENTS OF WORK
Verdis AI – SCM software, as a service by Cogneau (hereinafter referred as the “SaaS Services”) shall be set forth in the Annexure A (SaaS Services). Other professional, consultancy or customized IT services requested by Client shall be set forth in Annexure B (Professional Services) of the Agreement duly executed by the Parties. The Annexure A (SaaS Services) and Annexure B (Professional Services) are hereinafter severally called and referred to as Statement of Work (SOW).
Any SOW signed and executed by authorized signatories of both Parties, pursuant to this Agreement shall be deemed covered by the terms and conditions mentioned in this Agreement. Any amendment to the Agreement (as per process laid out under this Agreement) shall be applicable for all SOW executed post such amendment.
b. SaaS SERVICES
The Annexure A (SaaS Services) shall specify and further describe the Licensed Software (defined hereinafter) as a service to be provided to Client in accordance with terms and conditions set forth herein and may include but not limited to subscription fees, deliverables, client inputs and other applicable terms and conditions
The Annexure B (Professional Services) describe the IT consulting and customized IT services to be provided to Client which may include the development, preparation and provision of software, software applications, customizations, and software programs (whether in object code, source code or any other format), software modules and any updates or enhancements thereto, software set up and installations, IT infrastructure design and planning, data preparation, business process configuration and all documentation with respect thereto (hereafter the “Professional Services”).
The Professional Services shall be set out in one or more signed SOW, which may be executed by Cogneau and Client from time to time. The SOW may include the project background, scope of services, project milestones, staffing model, deliverables, inputs required from Client, Client responsibilities, timeline for deliverables, service fees and all documentation with respect thereto.
d. ORDER OF PRECEDENCE
In the event of a conflict between the terms of this Agreement and the Order Form, the terms of this Agreement shall control, except that the provisions of an Order Form shall take any specific deviation apart from this MSA.
No terms, provisions or conditions of any purchase order, acknowledgement, invoice or other business form that Client may use in connection with the transactions contemplated under this Agreement shall have any effect on or shall otherwise modify the rights, duties, or obligations of either Party under this Agreement, regardless of any failure of Customer to object to such terms, provisions or conditions.
e. SOW CHANGE REQUEST
Either Party may, at any time, by delivery of prior written notice to the other Party based on the form attached to the Order Form as Exhibit C, request changes in any SOW or any other document included in this Agreement and/or any SOW (hereinafter referred to as “Change Request”).
If such changes as specified in the Change Request, initiated by any Party, affect delivery schedule of SaaS Services, Professional Services and/or Deliverables or amount to be paid by Client, Cogneau shall promptly notify Client of such an effect in writing. Upon such notification, the Parties shall enter into negotiation for adjustment to the scope of Services, delivery schedule and/or pricing, as applicable.
The Parties’ mutual consent for the change shall be effective upon the execution of a change order to the applicable SOW (hereinafter referred to as “Change Order”)
2. TERM AND TERMINATION.
a. TERM OF AGREEMENT
This Agreement shall remain in full force and effect commencing from Effective Date until terminated by either of the Parties as provided in Section 2(b).
Either Party may terminate this Agreement by giving an advance written notice of three months, with or without assigning any reasons.
Either Party may terminate this Agreement at any time if (A) the other Party materially breaches any of its obligations hereunder and such breach has not been cured within forty five (45) days followed by serving of a written notice by the suffering Party specifying the nature of the breach; or (B) any assignment is made of the other Party’s business for the benefit of its creditors, or if a petition of bankruptcy is filed by or against the other Party and is not vacated within forty five (45) days, or if a receiver or similar officer is appointed to take charge of all or part of the other Party’s property, or if the other Party is adjudicated as bankrupt or if the financial position of the other Party deteriorates.
ii. TERMINATION OF SOW
Either Party may terminate a SOW at any time, if the other Party materially breaches any of its obligations thereunder and such breach has not been cured within thirty (30) days followed by serving of a written notice by the suffering party, specifying the nature of the breach. Termination of a SOW shall not affect nor result in termination of this Agreement or any other active SOW.
c. CONSEQUENCES OF TERMINATION
(i) Upon expiration or termination of this Agreement or respective SOW, Cogneau shall immediately stop providing the Services and all usage rights granted under this Agreement or respective SOW shall be terminated on immediate basis.
(ii) Upon written request from the Client, Cogneau shall promptly destroy, all copies of Confidential Information disclosed by the Client in its possession. Cogneau shall certify in writing that it has returned or destroyed all such information to the Client and abided by the terms of this provision.
(iii) If Cogneau terminates this Agreement or respective SOW due to a breach by the Client, then Client shall immediately pay to Cogneau all outstanding amounts due under all SOW’s, then in force and about to become due, during the remaining term of this Agreement or respective SOW, but for such termination.
d. Cogneau acknowledges that Client may work with one or more other third party consultants and service providers in connection with the services and Cogneau shall reasonably cooperate with all such third parties (except service providers who are engaged in offering competitive services with the business of Cogneau unless agreed by Cogneau in writing) as Client may request from time to time.
3. INVOICES AND PAYMENTS
Cogneau shall render invoices for SaaS Services and/or Professional Services provided to Client and Client shall pay all the undisputed portion of such invoices in full within thirty (30) days of receipt of invoice. If Client fails to pay any undisputed amount within thirty (30) days of receipt of invoice, Cogneau will have the right, at its option, to suspend subscription of the SaaS Services and/or suspend delivery or access of the Professional Services, without limitation or waiver of any other right or remedy available under this Agreement or at law. If there is any dispute pertaining to any specific invoice, Client shall raise the same to Cogneau within ten (10) days of receipt of invoice along with supporting documents / clarifications to support its claim. The Parties shall work together to resolve all such invoice disputes within 15 (fifteen) days from the date of receipt of complaint regarding disputed invoice.
Notwithstanding anything to the contrary, in the event the project has a “system go-live” when the system will be put into production, all amounts invoiced to Client which are outstanding for more than thirty (30) days, must be paid prior to the system go-live date.
b. TAXES AND OTHER CHARGES
All amounts payable for the SaaS Services and/or Professional Services, rendered by Cogneau to Client, under this Agreement shall be exclusive of goods and service tax and other applicable taxes, duties, cess and charges etc. The withholding charges, as applicable, shall be deducted from the fees payable under this Agreement. All payments under this Agreement shall be made to Cogneau after deduction of tax at source as per the rates applicable under the Income Tax Act.
c. DISPUTED INVOICES
If Client disputes all or any portion of any invoice, then it shall promptly (but no more than 10 days after receipt of the invoice) notify Cogneau in writing of the nature of the dispute and the Parties will use commercially reasonable efforts to resolve the dispute expeditiously and amicably.
4. DELIVERABLES AND INTELLECTUAL PROPERTY
a. Client Intellectual Property – Client will retain exclusive ownership of Client IP and the Client IP shall be treated as Client’s Confidential information. Client hereby grants Cogneau a right to use Client IP as necessary platform to perform SaaS Services and/or Professional Services. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use all Client IP.
b. Cogneau Intellectual Property – Notwithstanding anything in Section 4(a) to the contrary, Cogneau will retain exclusive ownership of Cogneau IP. As between Cogneau and Client, Cogneau IP shall be deemed to Cogneau’s Confidential Information for purposes of Section 9.
(i) Licensed Software – The Licensed Software shall be governed by the license terms specified herein below or as set out in the applicable SOW, attached hereto and incorporated herein by reference.
a. Grant of Right to Use – Subject to the terms and conditions of this Agreement and limited to the License Period and number of Users set forth in the applicable Order Form/SOW, Cogneau grants to Client a non-exclusive, non-transferable, non-exclusive, royalty-free, worldwide right to permits its users to (a) access and use the Licensed Software and/or the third party IP embedded therein solely for its internal business purposes (which shall not include commercial time-sharing, rental, outsourcing, service bureau or similar use); and (b) use, host, display and print the Deliverables for internal business purposes.
b. User Access – The Client shall use best endeavors, including reasonable security measures relating to account access details, to ensure that no unauthorized person may gain access to the services using an account. Any breach or non-compliance of the terms and conditions of this Agreement by any authorized User shall be deemed to be a breach or non-compliance by the Client.
c. Updates – For SaaS Services, Client shall be entitled to receive any Updates developed by Cogneau during the License Period. Cogneau makes no representations or warranties that any Update provided will function in the manner in which Client has configured, customized or extended any prior version of the Licensed Software. Cogneau does not make any warranty with respect to the frequency of any Updates.
d. Restrictions – Client agrees not to (i) decompile, disassemble or otherwise seek to reduce the object code of the Licensed Software to its source code form or otherwise derive the source code or logic therein; (ii) alter or modify the Licensed Software and/or the third party IP or create derivative works based on the Licensed Software and/or the third party IP; (iii) sell, transfer, lease, license or sublicense, rent, use, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Licensed Software and/or the third party IP available to any third party other than the authorized user without Cogneau’s prior written consent; (iv) combine or distribute the Licensed Software in any manner which requires disclosure or distribution of the combined software in source code form, or distribution at no charge (i.e., open source software); (v) shall not create internet “links” to the SaaS Services or frame or mirror any part of the SaaS Services, including any content contained therein, on any other server or device; (vi) publish or provide any results of tests, including without limitation benchmark tests, run on the Licensed Software to any third party without Cogneau’s prior written consent; (vii) access all or any part of the Services in order to build a product or services which compete with the Services and/or Service Provider; (viii) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as permitted under this Agreement; and (ix) introduce or permit the introduction of any virus, malware or vulnerability into the Service Provider’s network and information systems.
e. No indirect access – The Client agrees not to access the Licensed Software in an indirect manner. Indirect Access occurs when devices, bots, automated systems, etc. directly access Verdis AI – SCM or when humans, or any device or systems indirectly use Verdis AI – SCM via a non-Verdis AI – SCM intermediary software, such as a non-Verdis AI – SCM front-end, a custom-solution, or a third-party application which leads to processing within Verdis AI – SCM software.
f. Ownership – The Licensed Software (including Updates), any documentation, including all copies thereof and Licensed Software Customization thereto made by or for Cogneau, are and shall remain the property of Cogneau, and its suppliers, regardless of when and for whom it is created. Client does not acquire any rights in the Licensed Software or any Licensed Software Customizations, express or implied regardless of whether such Licensed Software Customizations are identified as a Deliverable or otherwise implemented within the scope of a SOW. It is clarified herein that Deliverables shall not be treated as work made for hire and ownership thereof shall vest with the Client only upon payment of fees.
g. Similar Enhancements – Client acknowledges that if Cogneau at any time develops features or functions to the Licensed Software that include similar or comparable code or functionality as those developed for Client (“Similar Enhancements”), the development of such Similar Enhancements by Cogneau will not constitute a breach of any intellectual property rights of Client and Cogneau shall have all rights in such Similar Enhancements.
(ii) Embedded IP in Deliverables – For Cogneau IP and/or third-party IP embedded in Deliverables, Cogneau grants Client, a non-exclusive, non-transferable (except to Client’s Affiliates and permitted assigns), limited, royalty-free, worldwide right to use such Cogneau IP and/or third party IP for Client’s internal business purposes solely in connection with such Deliverables with no rights to separate Cogneau IP and/or third party IP from the Deliverable into which it is incorporated, or to market or commercially exploit such Cogneau IP and/or third-party IP on a stand-alone basis, or to otherwise sublicense or grant to any other party any rights to use, copy or otherwise exploit, or create derivative works from Cogneau IP and/or third-party IP.
5. ACCEPTANCE; WARRANTIES
b. Warranties –
i. Services – Cogneau warrants that it shall perform all of the SaaS Services and / or Professional Services in a workman manner and will meet the functional or technical specifications laid out expressly in the applicable SOW.
ii. Cogneau warrants that the execution, delivery and performance of this Agreement by Cogneau do not conflict with any agreement to which it is a party or by which it is bound and do not materially violate any applicable law.
iii. Cogneau has and will have full and sufficient right to assign or grant the rights and/or licenses granted in and to the Deliverables as set forth in this Agreement.
iv. Vulnerability & Penetration Tests Recommendations – Cogneau warrants that it will provide fix for any defects, found through vulnerability assessments & penetration testing conducted by the Client and notified to Cogneau in writing.
v. Warranty for SaaS Services – Cogneau warrants that the SaaS Services will operate materially in accordance with Cogneau’ published specifications. Client’s sole remedy with respect to this limited warranty is the provision of a patch or Update to address any demonstrable material defects in the Licensed Software
vi. Deliverables – Cogneau warrants that each Deliverable shall conform in all material respects to the manner in which it was accepted by Client for a period of fifteen (15) days after Acceptance thereof (the “Warranty Period”).
vii. Non-Conformance – In the event that any Professional Services and/or Deliverablethereunder does not conform to the warranties in this Section 5(b), and provided that (A) Client notifies Cogneau in writing specifying the nature and extent of the non-conformity during the Warranty Period and (B) Cogneau verifies that the claimed non-conformity is due to a failure of the applicable Professional Services and/or Deliverable thereunder within the control of Cogneau, Cogneau shall re-perform the applicable Professional Services and/or correct the applicable Deliverable to cure the non-conformity as promptly as possible, in any case occurring within such period as agreed upon by the Parties in writing.
viii. Remedy – The remedies set forth in this Section 5(b) for a breach of the warranty set forth herein represent Cogneau’s sole and exclusive liability, and Client’s sole and exclusive remedy, for such breach.
c. DISCLAIMER – THIS SECTION 5 STATES THE FULL EXTENT OF WARRANTIES PROVIDED BY COGNEAU IN CONNECTION WITH THE SERVICES AND DELIVERABLES AND COGNEAU MAKES NO OTHER REPRESENTATION OR WARRANTY. THESE WARRANTIES ARE IN LIEU OF ANY OTHER EXPRESS, AND ALL IMPLIED OR STATUTORY, WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COGNEAU DOES NOT DIRECTLY OR INDIRECTLY WARRANT THE FINANCIAL SOUNDNESS, SERVICES OR PRODUCTS OF ANY THIRD PARTY VENDORS OR SERVICE PROVIDERS, EXCEPT THAT COGNEAU IS RESPONSIBLE FOR THE SERVICES AND DELIVERABLES PROVIDED BY ANY OF ITS SUBCONTRACTORS HEREUNDER TO THE EXTENT OF THE WARRANTIES SET FORTH IN THIS SECTION 5. COGNEAU DOES NOT WARRANT ERROR-FREE, BUG-FREE OR DEFECT FREE OPERATION OF ANY DELIVERABLE OR THAT COGNEAU WILL CORRECT ALL DEFECTS. COGNEAU DOES NOT WARRANT THAT ANY LICENSED SOFTWARE WILL MEET ANY CLIENT REQUIREMENTS OR THAT ITS OPERATION OR USE WILL BE ERROR-FREE, AND COGNEAU MAKES NO WARRANTIES REGARDING THE VALIDITY, ACCURACY OR ENFORCEABILITY OF (I) ANY OUTCOME PURPORTED TO BE GENERATED OR ENTERED INTO USING THE LICENSED SOFTWARE OR (II) ANY DATA OR OTHER INFORMATION TO BE TRANSFERRED OR PROCESSED USING THE LICENSED SOFTWARE.
5A STAFF AUGMENTATION
i. If Cogneau provides skilled human services for the performance of Services, Cogneau will recruit, interview, select, hire, and engage employees who are reasonably qualified and are competent to perform the Saas Services and/or Professional Services requested by Client (“Cogneau Employees”). Cogneau will inform Client by way of writing and in advance of the identity of all Cogneau Employees providing Services on behalf of Cogneau under this Agreement. At all times staffing of Cogneau Employees in connection with the Services shall be based upon the mutual agreement of the Parties. To the extent permitted by applicable local laws, Client may ask for the replacement of any employee of Cogneau engaged on the Services set forth under an SOW at any time with written notice to Cogneau.
ii. Cogneau may subcontract the performance of any Services without the express prior written consent of Client, and any such subcontractor and its employees shall be considered “Cogneau Personnel” for purposes of this Agreement.
iii. Cogneau Personnel shall not hold themselves out to be employees of Client, nor will Client exercise partial or complete employer’s authority over any Cogneau Personnel. At no time during the provision of the Services shall the relationship of the Cogenau Personnel with Client be based on an employment agreement with Client. Cogneau shall be solely responsible for all compensation and reimbursement of expenses owed to Cogneau Personnel in connection with the Services, and Cogneau Personnel will not receive any compensation or benefits of any kind from Client or its customers, including any benefits available to employees of Client or its customers.
6. CLIENT RESPONSIBILITIES
a. Coordination –
Client acknowledges that Cogneau’s performance is dependent on Client’s performance of the responsibilities identified as being those of Client in the applicable SOW and on timely decisions and approvals by Client. If any delays in Cogneau’s performance under a SOW occur as a result of failure or untimely performance by or on behalf of the Client, then all deadlines applicable to Cogneau shall be extended by the number of days of the delay caused by Client’s failure or untimely performance and Client shall pay all kinds of additional fees and expenses associated therewith/incurred by Cogneau because of the delay caused by the Client. The Client shall ensure that Cogneau is promptly informed of anything of which it becomes aware that may have an adverse impact on its ability to fulfil its obligations under this Agreement and/or respective SOW.
b. Project Administration –
The Client will designate one of its employees as Client Project Co-ordinator to whom all pertinent communications will be addressed. In particular, the Client Project Co-ordinator will be responsible for providing the assistance to Cogneau. Cogneau will in turn designate one of its employees as Cogneau Project Manager. The Client Project Co-ordinator and the Cogneau Project Manager shall be the persons specified in Statement of Work.
c. PROJECT STANDARDS –
Cogneau will carry out the Services in accordance with the SOW or the established standards and procedures of the Client provided that such standards have been supplied by the Customer in advance of starting a particular Services as part of the SOW. Cogneau will require the cooperation of the Client at an early stage in the Services to facilitate an understanding of those standards and procedures. Modifications to the standards required by Cogneau will be subject to the Change Request procedure as contained in the SOW.
d. PROGRESS REPORTS –
Cogneau will produce reports indicating progress against the schedule at intervals to be agreed between the Parties and as stated in the SOW. Meetings will be held between the Client’s Project Co-ordinator, and Cogneau Project Manager from time to time at an interval to be agreed between the Parties and recorded in the SOW but in any event at least once in every four weeks. Such meetings will produce a progress report and agreed actions for both the Parties.
e. PROJECT AMENDMENTS –
The fees quoted by Cogneau in the SOW/Order Form will be based upon the effort required to complete the Services as described in such SOW/Order Form. No change to the specification will be undertaken unless both the Parties agree in writing. The Parties shall make any departure from an agreed specification by using the Change Request Procedure.
f. Client shall be responsible for the use and application of the Licensed Software and related equipment in its organization, as well as for sufficient back-ups, security measures and adequate system management.
g. Warranty –
Client hereby represent and warrant that (i) Client have all of the rights in the content and data necessary for the Client to upload, use, display, publish, share, perform, and distribute the content in the course of using the Service and to grant the rights without infringement or violation of any third party intellectual property rights, privacy rights, publicity rights or any other intellectual property or proprietary rights, and (ii) the storage, display, publication, performance, integration use or transmission of content or data through SaaS Services and/or Professional Services does not violate any law or any agreement.
h. Unauthorised use –
The Client must immediately notify Cogneau in writing of any unauthorized use of any (i) content, Licensed Software or application, (ii) User Account or (iii) the Services that comes to Client’s attention. In the event of any such unauthorized use by any third party that obtained access through Client, Client will take all steps necessary to terminate such unauthorized use. Client will provide Cogneau with all possible cooperation and assistance related to any such unauthorized use as Cogneau may reasonably request.
i. Reporting –
On Cogneau’ reasonable request, but not more frequently than annually, Client shall furnish Cogneau with a disclosure verifying that the Licensed Software is being used pursuant to the provisions of the Agreement and identifying the scope and the number of Client’s Users using the Licensed Software, including all development and testing environments. Cogneau shall, at any time during the License Period, be entitled to audit the utilization of the Licensed Software upon thirty (30) days’ written notice in order to confirm the accuracy of the above disclosure; provided, that no more than one such audit may be conducted in any one (1) year period. Any such audit shall be performed during normal business hours at Cogneau’ expense except if such an audit reveals utilization inconsistent with the above disclosure that reveals an underpayment by Client of more than five percent (5%). In this case the cost of the audit will be paid by Client. Client shall pay to Cogneau the amount of any underpayment within ten (10) business days, and the License Fees shall be adjusted accordingly thereafter.
posted by such third party at:
k. Client represents, warrants and covenants that is duly established, incorporated, formed or organized and validly existing under applicable laws of its jurisdiction; (b) has all the requisite corporate power, authority and capacity to enter into this Agreement, and to perform its obligations hereunder and to undertake the transactions contemplated herein; (c) this Agreement constitutes legal, valid and binding obligations of the Client, enforceable in accordance with its terms; and (d) the execution and delivery of, and the performance of obligations under and in compliance with the provisions of this Agreement, shall not result in violation of any provision of its constituent/charter documents, where applicable, or violate or breach any applicable laws, rules and regulations or order of any court, tribunal, arbitrator or governmental authority or contract to which it is a party or by which it or its assets are bound.
l. Cogneau shall be entitled to process the Service Data as follows –
(i) For its own business purposes including but not limited to
1. Accessing the benefits provided by the SaaS Services and/or Professional Services and communicating these to Client;
2. Improving and developing the SaaS Services and/or Professional Services; and
3. Marketing the SaaS Services and/or Professional Services provided that the Service Data is anonymized either on individual or on aggregate basis.
(ii) To modify, distribute and combine the Service Data with other data (including from other clients) on an anonymous basis to create derivative works for Cogneau’s internal business use and for external marketing and sale to third parties
Service Data includes all data, whether technical or otherwise, processed, generated and collected via the SaaS Services and/or Professional Services as a result of the Client’s ordinary use of the SaaS Services and/or Professional Services under this Agreement.
m. Vulnerability Assessments & Penetration Testing –
If the Client wishes to carry out vulnerability assessments and/or penetration tests on Verdis AI – SCM cloud infrastructure, hosted by a third party provider, itself or through an independent vendor, Client will be responsible for all commercial and non-commercial engagements required for such testing. In such case, Client should refer and comply with the penetration testing policy posted by such third party at:
Cogneau shall indemnify and hold harmless the Client, and the directors, officers, and employees, from and against any demands, claims and actions by third Parties (individually and collectively, “Claims”), and all liabilities, judgments, damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees, costs and expenses) incurred by such third Parties (individually and collectively, “Liabilities”), Cogneau arising from a Claim by a third party alleging that the Deliverables infringe a validly existing Indian patent or copyright, or other intellectual property right of a third party. Should the Deliverable become, or be likely to become, in Cogneau’ opinion, the subject of infringement of such patent, copyright or other intellectual property right, and without limiting Cogneau’ infringement indemnity obligations in the immediately preceding sentence, Cogneau shall procure for Client (i) the right to continue using the same, or (ii) replace or modify to make it non-infringing. In the event that Cogneau shall reasonably determine that neither (i) nor (ii) above is commercially practicable, Client shall return the infringing Deliverables and Cogneau shall refund the fees paid by Client to Cogneau for such Deliverables during last two months. Cogneau shall have no obligation or liability for any Claim or Liabilities based upon or resulting from (A) the use, operation or combination of the Deliverable with programs, data, equipment or documentation not supplied or approved in writing by Cogneau if such infringement would have been avoided but for such use, operation or combination; (B) modification of the Deliverables, unless such modification has been performed by or on behalf of Cogneau; (C) the non-compliance with Cogneau’ written designs, specifications or user documentation supplied to Client; or (D) information, direction, specifications or materials provided by Client or by a third party not under Cogneau’ control. This Section 7(a) states the entire liability of Cogneau and the exclusive remedy of Client with respect to infringement of any third-party intellectual property rights by the Deliverables, whether under theory of indemnity, substituted performance, breach of contract, warranty or otherwise.
b. Indemnification by Client –
Client shall indemnify, defend and hold Cogneau harmless from: (i) any Claims that the integration of the SaaS Services with any software, systems or materials by Client, or the delivery of any Professional Services pursuant to Client’s specifications, violate any third party’s patent, copyright or other right and against all related damages and costs; (ii) any claim relating to the success, failure, accuracy, validity or enforceability of any agreement, transaction or result purported to be entered into or achieved using the Licensed Software, or any data or other information to be transferred or processed using the Licensed Software, or (iii) any breach of the restrictions on use of the Licensed Software in this Agreement committed by either Client or any third party acting or purporting to act on behalf of Client or as a result of Client’s actions, whether intentional or unintentional, including but not limited to misuse or unauthorized use by Client employees or consultants or other third parties that may access the Licensed Software from Client, including reasonable attorneys’ and/or legal advisor’s fees that may be assessed in any such claim; (iv) any fraud or willful misconduct of Client, or any death or personal bodily injury of any person or damage or destruction of real or tangible personal property of Cogneau in connection with the performance of the Services.
c. Procedures –
The Indemnitees shall give the Indemnifying Party prompt written notice of any Liabilities and reasonable assistance, at the Indemnifying Party’s expense, in defending the Claims and/or Liabilities. The Indemnifying Party shall have sole authority to defend or settle such Liabilities.
8. LIMITATIONS OF LIABILITY
b. NEITHER PARTY’S LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SHALL INCLUDE ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, COSTS OR EXPENSES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OR CORRUPTION OF DATA, COST OF SUBSTITUTE PROCUREMENT AND LOSS OF SAVINGS OR REVENUE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR IF SUCH DAMAGES ARE FORESEEABLE OR FOR ANY CLAIM OR DAMAGES ASSERTED BY ANY THIRD PARTY. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY OF ITS ESSENTIAL PURPOSE.
9. CONFIDENTIAL INFORMATION
9.1. Both Parties acknowledge that the information provided by one party (“Disclosing Party”) to the other party (“Receiving Party”) contains Confidential Information of Disclosing Party.
9.2. The provisions of this clause shall not apply to any Confidential Information that:
a) is or becomes generally available to the public other than as a result of its disclosure by the Receiving Party or its representatives in breach of this clause;
b) was available to the Receiving Party on a non-confidential basis before disclosure by the Disclosing Party;
c) was, is or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party’s knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Receiving Party
d) the Parties agree in writing is not confidential or may be disclosed; or
e) is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party.
9.3. The Receiving Party shall keep the Disclosing Party’s Confidential Information secret and confidential and shall not:
a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (“Permitted Purpose”);
b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 9.
9.4. The Receiving Party may disclose the Disclosing Party’s Confidential Information to those of its representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
a) it informs such representatives of the confidential nature of the Confidential Information before disclosure; and
b) at all times, it is responsible for such representatives’ compliance with the confidentiality obligations set out in this clause.
9.5. The Receiving Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.5, it takes into account the reasonable requests of the Disclosing Party in relation to the content of such disclosure.
9.6. The Disclosing Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.
9.7. On termination or expiry of this Agreement, Receiving Party shall:
a) destroy or return to the Disclosing Party all documents and materials and any copies containing, reflecting, incorporating or based on the Disclosing Party’s Confidential Information.
b) erase all the Disclosing Party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties to the extent technically and legally practicable.
c) certify in writing to the Disclosing Party that it has complied with the requirements of this clause, provided that a Receiving Party may retain documents and materials containing, reflecting, incorporating or based on the Disclosing Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
9.8. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties such consent not to be unreasonably withheld or delayed, except as required by law, any governmental or regulatory authority, any court or other authority of competent jurisdiction.
9.9. Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
9.10. The above provisions of this clause 9 shall survive for a period of two years from termination or expiry of this agreement.
(a) Personal Data – In relation to all Personal Data provided by or through Client to Cogneau, Cogneau shall be a data processor and Client will be responsible as a sole data controller for complying with all applicable data protection or similar laws that regulate the processing of Personal Data. By submitting Personal Data to Cogneau, Client authorizes and agrees that Cogneau and its Affiliates may process, transmit and/or store Personal Data only in accordance with applicable law and to the extent necessary for and for the sole purpose of, enabling Cogneau to perform its obligations under this Agreement. Each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the Personal Data or its accidental loss, destruction or damage.
(b) Third Party/External Data Connections/API – Cogneau uses external data sources and connections/API specific to supply chain domain, and Client acknowledge that the data sources/API owners control access to these data and APIs, and Cogneau may discontinue availability of any external data (as part of any module) to which access is no longer permitted by the respective data or API owner or licensor. Cogneau shall have no liability for the external data, or loss of access to any data, if any third party data owner or API are changed or discontinued by the respective third parties, nor any liability for any third-party data that may be used in conjunction with the external data. Client acknowledge that use of the external data to access may be governed by third-party terms and conditions (including such third Parties’ attribution & privacy polices). Client is solely responsible to comply with such third-party terms and that Cogneau shall have no liability for any claims relating to third-party web-based applications, services or data sources. Further, certain external data source requires a valid subscription directly with the API owner. Cogneau shall have no responsibility or liability if Client cannot access the external data due to Client failure to obtain or maintain the applicable subscription with the data or API owner.
(c) External data addition/deletion/updation – Any request to create/delete/update any external data is managed by a process. Request raised by authorised requester (Client), followed by an approval from authorised approver (Client). Request to be sent to authorised admin of Verdis-
(e) Data Security – Cogneau warrants that it will use commercially reasonable efforts to comply withClient’s security guidelines, as provided to Cogneau in writing.
(f) User Limited License – Subject to the timely payment of all fees due for Verdis Cloud Services, each user has a nonexclusive, non-transferable, non- sublicensable righ and license to access
and interact with the Verdis AI – SCM.
(g) User access to content – User access (e.g., basis hierarchy and geography) to a content and content sharing policies are defined as per user creation process.
(h) Responsibility – Users are responsible to give right and timely feedback to Verdis for learning environment and for best performance and results.
(i) Support – During Client Subscription Term, Verdis shall provide the Verdis Cloud Services maintenance and support as per Verdis Cloud Support Policy, annexed as Exhibit – A.
(j) Independent Contractor – This Agreement is being entered by the parties on principal to principal basis and there is no relationship of employer-employee, agent – principal or any joint venture, or fiduciary relationship between the Parties.
(k) Survival – Sections 3 (Invoices and Payments), 4 (Deliverables: Intellectual Property), 5(b) (Warranties), 5(c) (Disclaimer), 6 (Client Responsibilities), 7 (Indemnities), 8 (Limitation of Liability) and 9 Miscellaneous and any other provisions that by their nature reasonably should be deemed to survive and shall survive after the expiration or termination of this Agreement for any reason.
(l) Assignment – Client shall not assign this Agreement or the rights or obligations hereunder without the express written consent of Cogneau. Cogneau may assign or sub-contract this Agreement or the rights or obligations hereunder without the express written consent of the Client. Further Cogneau may get, certain Services performed by subcontractors to Cogneau, provided that Cogneau shall remain responsible for the Services and Deliverables provided by such subcontractors hereunder.
For all purposes of this Agreement, the Courts at Gurugram, Haryana shall have sole and exclusive jurisdiction for all disputes arising pursuant to or in connection with this Agreement or any SOW executed hereunder.
(n) Force Majeure – Except for payment obligations, neither party will incur any liability to the other party resulting from any delay or failure to perform all or any part of this Agreement, if such delay or failure is caused, in whole or in part, by events, occurrences or forces beyond the reasonable control and without the negligence or other fault of such party.
(o) No Third Party Beneficiaries. Except as expressly set forth herein, the provisions of this Agreement are for the benefit of the Parties and not for any other person.
(p) Waivers and Amendments – No provision of this Agreement shall be deemed waived by either party unless such waiver is in writing and signed by an authorized representative of the waiving party.
Cogneau reserves the right at any time and from time to time, at its sole discretion, to modify or discontinue, temporarily or permanently, in part or in whole, the Service, MSA or policies regarding the use of the Services with or without notice. Client agrees that Cogneau shall not be liable to Client or to any third party for any modification, suspension or discontinuance of the Service. Your continued use of the Service shall be deemed as an unconditional acceptance of these changes.
(r) Severability – If any provision, or any portion of any provision, contained in this Agreement is determined to be invalid under any statute or rule of law, then it shall, to that extent alone, be deemed omitted, and the remainder of this Agreement shall remain in full force and effect.
(s) Publicity – Cogneau may use Client’s logo in sales presentations, marketing materials and press releases, and develop a brief Client profile for use by Cogneau for trade marketing and promotional purposes.
(t) Notices – All notices or other communications to be given or that may be given by Client to Cogneau shall be deemed to have been duly given at the addresses specified hereinbelow
To Cogneau: Cogneau Systems Private Limited
801, Tower C, 8th Floor, Business Zone, Nirvana Country,
Sector – 50, Gurugram – 122018, Haryana
(u) Counterparts – To facilitate execution, this Agreement may be executed in as many counterparts as may be required. All counterparts shall collectively constitute a single Agreement.
Exhibit – A
Verdis Cloud Support Policy
1.1 This Support Policy (“Policy”) applies to Client (“User”) use of the paid Verdis Supply Chain Services (VERDIS Supply Chain Standard Subscription) (the “VSCSS Services”). Unless otherwise expressly set forth herein, all references in this Policy to response times or communications from Cogneau shall only apply during Cogneau’s Standard Business Hours regardless of when a support matter is reported to Cogneau.
For purposes of this Policy, “User” means the individual user created by user creation process as defined in Annexure A.
1.2 Any support services provided by Cogneau hereunder will be provided in the English language or the Hindi language.
Error Reporting and Response Times
– Reporting: Users are required to report all Severity 1 Errors via telephone, and all other Errors via the Verdis Support Portal or Verdis Support Email, verdis-
⁃ Severity Level Definitions:
a. “Error” means any verifiable and reproducible failure of the VSCSS Services to materially conform to the Documentation.
b. “Documentation” means the then-current documentation published and made generally available by Cogneau for the applicable VSCSS Services in the form of manuals and function descriptions in printed or electronic form, as the same may be modified by Cogneau from time to time.
c. A Severity Level 1 Error means that that business critical functionality is inoperable resulting in a halt in or critical impact on business operations or the VSCSS Services are down or not available due to a server-side failure (which shall not include any period of unavailability due to either scheduled maintenance and/or upgrades, or any event beyond the reasonable control of Cogneau, including but not limited to any external interruption of power or telecommunications; the failure or substantial failure of the Internet; the internet service provider or internal telecommunications equipment of User; User’s browser or network configurations, hardware and/or software.)
d. A Severity Level 2 Error means that major functionality is impacted or significant performance degradation is experienced and there is no reasonable workaround.
e. A Severity Level 3 Error means a non-critical Error which does not prevent normal operation of the VSCSS Services, or there is an available workaround.
⁃ Response Time: Cogneau will use commercially reasonable efforts to respond within the initial response times set forth in the table above, to Errors reported to Cogneau via the Support Portal/Email/telephone. Cogneau will respond via the Support Portal or Email or telephone. Cogneau shall use commercially reasonable efforts, consistent with industry practice, to investigate such reports to determine whether there is an Error present. If Cogneau determines that an Error is present, Cogneau will use commercially reasonable efforts to correct the Error and/or provide a workaround.
⁃ Resolution Time: Cogneau does not guarantee resolution times, and a resolution may consist of a fix, workaround, service availability or other solution Cogneau deems reasonable. Cogneau will use commercially reasonable efforts to resolve within the target response times set forth in the table above and will provide continuous efforts (24x7x365) to resolve Severity Level 1 Errors until a workaround or resolution can be provided or until the incident can be downgraded to a lower severity.
⁃ Upgrade/Downgrade of Severity Level. If, during the Support request process, the issue either warrants assignment of a higher severity level than currently assigned or no longer warrants the severity level currently assigned based on its current impact on the production operation of the VSCSS Services, then the severity level will be upgraded or downgraded accordingly to the severity level that most appropriately reflects its current impact.
⁃ Error Resolution. An Error is considered to be resolved upon the earlier to occur of the following: (i) Cogneau and User mutually agree in writing or otherwise mutually confirm that the issue or problem is resolved; (ii) Cogneau has provided User with an update; (iii) Cogneau is able to provide a reasonable and technical work-around solution; (iv) User requests that Cogneau close the support case; or (v) the support case has been left open for ten (10) consecutive business days, during which period Cogneau has not received a response from User. Notwithstanding anything in this Policy to the contrary, Cogneau will have no obligation to provide any Support services in connection with any issue or problem that Cogneau determines is not due to any error or deficiency in the VSCSS Services (e.g., without limitation, issues or problems caused by the Internet or other communications, or User network or browser matters, or login issues).
⁃ Updates and Schedule Maintenance: “Update” means a subsequent release of the VSCSS Services which Cogneau generally makes available for its VSCSS Services at no additional fee. Updates do not include any release, option, service or program that VSCSS licenses separately. Updates may address security fixes, critical patches, general maintenance functionality, and documentation and shall be made available at Cogneau’s discretion. Cogneau is under no obligation to develop any future functionality, programs, services or enhancements. If an update for the VSCSS Services is made available to Client pursuant to this Support Policy, it shall automatically replace the previous version of the VSCSS Services. Scheduled Maintenance times for the VSCSS Services will be posted on the Support Portal. VSCSS endeavours to provide at least forty-eight hours prior posting of any scheduled maintenance for the VSCSS Services.
⁃ Changes to Policy: Cogneau reserves the right, at its discretion, to change this Policy at any time based on prevailing market practices and the evolution of Cogneau’s products and services.
⁃ Disclaimer: THIS POLICY DEFINES A SERVICE ARRANGEMENT AND NOT A WARRANTY. THE VSCSS SERVICES ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE APPLICABLE AGREEMENT. THIS POLICY DOES NOT CHANGE OR SUPERSEDE ANY TERM OF ANY SUCH AGREEMENT. TO THE EXTENT THERE IS A CONFLICT BETWEEN A TRANSLATED VERSION OF THIS POLICY AND THIS ENGLISH VERSION, THIS ENGLISH LANGUAGE VERSION WILL PREVAIL.