The Highest Standards of Data Governance
General Terms and Conditions of TLC SaaS Products
Please read the following information carefully before using any of the TLC SaaS Products (as defined below) and the TLC Services(as defined below) which have been or will be made available to you pursuant to execution of the Sales Order (as defined below).
All TLC SaaS Products and TLC Services are owned and provided by TLC Digitech Private Limited, a company incorporated under the Companies Act, 2013 with its registered office at 501 Salcon Aurum, Jasola District Center, New Delhi, 110025 India (“TLC”) in accordance with the Sales Order. By executing the Sales Order, you hereby agree to follow and be bound by the terms and conditions of the Sales Order, these terms and conditions of license (the “General Terms”), the TLC SaaS Product-specific terms and conditions incorporated and hyperlinked in the Sales Order, terms and conditions of Payment Gateway (as defined below) and any other documents which may be agreed or executed between the Parties (as defined below) from time to time (collectively, the “Governing Documents”).
1. Definitions and Interpretation
1.1. Definition: Unless otherwise stated therein, capitalized terms used in the Governing Documents shall have the meaning ascribed to such terms as set forth below.
(a) “Affiliate” means, in relation to any Person, another Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such first Person, and where such Person is an individual, shall include the relatives of such Person.
(b) “Applicable Law(s)” means all applicable statutes, enactments, acts of legislature or parliament, ordinances, rules, by-laws, regulations, judgments, orders, decrees, authorizations or any published directives, guidelines, requirements or governmental restrictions having the force of law or any determination by or interpretation of any of the foregoing by any regulatory, legal, statutory or judicial authority, having jurisdiction over each Party, or the services rendered, under the Governing Documents.
(c) “Confidential Information” of any Party shall include without limitation any and all materials, trade secrets, know-how, formulae, processes, algorithms, ideas, strategies, inventions, data, innovations, network configurations, system architecture, designs, flow charts, drawings, proprietary information, business and marketing plans, financial information, operational information, business methods, underwriting ideas and information and all other non-public information, material or data relating to the past, current and/or future business and operations of such Party.
(d) “Contract End Date” has the meaning ascribed to such term in the Sales Order.
(e) “Contract Start Date” has the meaning ascribed to such term in the Sales Order.
(f) “Control” means, in relation to a Person that is a body corporate, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise, and includes (i) the ownership, directly or indirectly, of more than 50% of the shares in issue or other equity interests of such Person, (ii) the possession, directly or indirectly, of more than 50% of the voting power of such Person or (iii) the power to elect, nominate or appoint at least 50% of the directors of such Person.
(g) “Client” means the Person identified in the Sales Order who wishes to procure the license to access and use the TLC SaaS Products on the Platforms and avail the TLC Services in accordance with the terms of the Governing Documents.
(h) “Client Materials” means all information and materials of the Client developed or acquired independently of the Governing Documents including Client’s name, establishment name(s), menu, menu items and descriptions/images, trademarks, trade names, logos, word marks, marketing materials and other intellectual property or information of the Client used on the Platforms or in the TLC SaaS Products and/ or for provision of the TLC Services, including information and materials specifically required by TLC for enabling access to and usage of TLC SaaS Products and TLC Services by the Client through the Platforms. All Client Materials shall be deemed Client’s Confidential Information.
(i) “Customers” means the individuals Persons who purchase the products and/or the services offered by the Client.
(j) “Customer Data” has the meaning ascribed to such term in Clause 8.
(k) “Insolvency Event” has the meaning ascribed to such term in Clause 10.1.
(l) “Party” means TLC or Client, as applicable.
(m) “Payment Gateway” means the online payment gateway facility provided on the Platforms by third party payment aggregators / payment gateways, pursuant to their arrangements with TLC, to enable the Customers to make payments for the purchase of goods and services offered by the Client.
(n) “Person” includes any individual, firm, corporation, partnership (limited or general), company, trust, association, joint venture, economic interest group or organization, governmental authority or other enterprise or entity of any kind, whether or not having a separate legal personality.
(o) “Platform(s)” means the customized website and/or applications designed and/or managed by TLC for the Client, and owned by the Client, through which Client will access the licensed TLC SaaS Products and avail the TLC Services, and offer its products and services to the Customers.
(p) “Sales Order”or“SO” means the sales order form, statement of work, or other written document or commercial arrangement executed between TLC and the Client in relation to the provision and licensing of the TLC SaaS Products and TLC Services.
(q) “Tax” or “Taxes” means any taxes, duties, levies, tariffs, and other governmental charges paid or payable directly to any government or governmental authorities.
(r) “TLC Services” has the meaning ascribed to such term in Clause 3.
(s) “TLC Materials” means (a) the TLC SaaS Products, information, materials, source codes, software codes and other underlying technology, intellectual property, platforms, and related designs, templates, trademarks, service marks and logos of TLC and its Affiliates, developed or acquired or licensed independently of the Governing Documents, including in the TLC SaaS Products and TLC Services, and (b) derivative works thereof including Customer journeys, life cycles and trends/preferences. All TLC Materials shall be deemed TLC’s Confidential Information.
(t) “Third-Party Materials” means the software programs, applications and related content made available to TLC by third parties such as Salesforce, Heroku, Adobe, etc. under their respective licenses, and which are utilized by TLC for developing the TLC SaaS Products.
(u) “TLC SaaS Product(s)” means the software-as-a-service products developed by TLC and licensed to the Client in accordance with the relevant Sales Order for using on the Platforms and includes (i) the underlying intellectual property of such software and/or technology products built by TLC on global platforms like Salesforce, Heroku, MuleSoft, Adobe, Ionic, etc., and (ii) any other updates and upgrades to the TLC SaaS Products and any software, systems and locally-installed software agents and connectors that interact with the TLC SaaS Products on the Platforms or as may be provided by TLC in connection with the TLC SaaS Products.
1.2. Interpretation
(i) Unless the context requires otherwise:
(a) where a word or phrase is defined, other parts of speech and grammatical forms and the cognate variations of that word or phrase shall have corresponding meanings;
(b) the singular shall include the plural, and the plural shall include the singular;
(c) the words “include”, “including”, and similar expressions are not expressions of limitation and shall be construed as if followed by the words “without limitation”;
(d) references to any person shall also include such person’s successors in interest and permitted assigns or heirs, executors, administrators and successors, as the case may be, under any agreement, instrument, contract or other document;
(e) references to number of days shall mean such number of calendar days unless business days are specified. When any number of days is prescribed in any document, such number of days shall be determined exclusive of the first day and inclusive of the last day;
(f) time is of the essence in the performance of the Parties’ respective obligations hereunder;
(g) references to statutes or statutory provisions include such statutes or statutory provisions and any orders, regulations, instruments or other subordinate legislation made under them as amended, supplemented, extended, consolidated, re-enacted or replaced from time to time;
(h) references to any document shall, where appropriate, be construed as references to such document as amended, restated, varied, supplemented, novated and/or replaced in any manner from time to time;
(i) the headings of particular provisions in any of the documents are inserted for convenience only and shall not be construed as a part of such document or serve as a limitation on or expansion of the scope of interpretation of any term or provision of such document;
(j) references to “writing” and “written” include any mode of reproducing words in a legible and non-transitory form including electronic communications; and
(k) unless otherwise specified, whenever any payment is to be made or any action is required to be taken pursuant to the documents on a day other than a business day, such payment shall be made or action shall be taken on the next business day.
(ii) If there is any conflict or inconsistency between any terms of the Governing Documents, the terms of the Sales Order shall take precedence, unless otherwise agreed between the Parties.
2. License to TLC SaaS Products
2.1. Grant by TLC: Subject to the terms and conditions of the Governing Documents, TLC hereby grants to the Client, and the Client hereby accepts from TLC, a limited, non-transferable, non-exclusive, non-assignable, non-sub-licensable and revocable license, during the Term, to access and use the TLC SaaS Products for the Term, solely for and in connection with matters set forth in the Sales Order. The Client agrees that the TLC SaaS Products on the Platforms shall be used and accessed by only the employees and users of the Client who have been approved by TLC from time to time (“Approved Client Users”). At all times the Client shall ensure that the Approved Client Users comply with the Client’s obligations under the Governing Documents.
2.2. Grant by Client: The Client hereby grants to TLC an unrestricted, non-exclusive, non-sub-licensable, royalty-free and worldwide license, during the Term, to:
2.2.1. use and include the Client Materials on the Platforms as required pursuant to the Sales Order and for provision of TLC SaaS Products and TLC Services.
2.2.2. use the Client Materials in advertising and promotional campaigns to promote the TLC SaaS Products and for preparation of derivative works or incorporation into other works, all or any portion of the Client Materials which will be made by TLC for the purposes of its business.
2.2.3. use, copy, modify, adapt, translate, publish and distribute world-wide any Client Materials for the purposes of providing TLC Services under the Governing Documents or for the purposes of advertising and promoting the Client if stated in the SO. The Client agrees that all Client Material that is published on the Platforms may be relied upon and viewed by Customers to enable them to make informed decisions.
2.3. Delivery of TLC SaaS Products and TLC Services: The TLC SaaS Products and TLC Services shall be accessed by the Client digitally via the Platform through usernames and passwords once the necessary authentications and installations are complete. The TLC SaaS Products and TLC Services shall be deemed to have been delivered and accepted by the Client on the date on which the Client has been provided access to the TLC SaaS Products and TLC Services on the Platforms pursuant to the completion of the authentication and installation process. The Client shall be solely responsible for protecting the password and for any authorized or unauthorized use made of the password.
3. Services by TLC
3.1. Services by TLC: As part of its provision of the TLC SaaS Products, TLC may provide the following services (collectively, the “TLC Services”) to the Client in accordance with the terms set forth in the Sales Order:
3.1.1. Training: Subject to the written request of the Client, TLC shall provide adequate training to the Approved Client Users through video-conferencing in relation to operation and management of the Platforms and or TLC SaaS Products.
3.1.2. Technical Support: TLC shall provide technical support to the Client to support the use of the TLC SaaS Products on the Platforms. TLC shall be responsible for continued technical performance and management of the TLC SaaS Products on the Platforms.
3.1.3. Customer Support: Subject to Clause 7 below, TLC will redress the Customer complaints and grievances in respect of functioning of the Platforms and TLC SaaS Products as received from the Client and in accordance with the product-specific terms and conditions.
3.1.4. Implementation: TLC shall configure the Platforms and TLC SaaS Products (“Implementation”) in accordance with and as specified in the Sales Order. Implementation includes account setup and provisioning of TLC SaaS Products.
3.1.5. Reports and MIS: TLC shall provide standard reports to the Client in accordance with the product-specific terms, and additional monthly/quarterly reports/analytics and MIS in relation to the purchase of the Client’s products and services by the Customers through the use of TLC SaaS Products, Customer trends and preferences, and other customized reports at such additional fees as agreed in the Sales Order. Such reports shall be deemed TLC Materials.
3.1.6. Promotion and Advertising: The Client may advertise and promote its products and services on the Platforms and send promotional e-mails or notifications to its Customers, at such additional fees as agreed in the Sales Order. Client shall ensure that all advertising and promotional materials published on the Platforms or otherwise communicated to the Customers comply with all Applicable Laws, and TLC shall not be liable or responsible for such materials in any manner.
3.1.7. any other services in relation to the relevant TLC SaaS Product in accordance with the Sales Order and product-specific terms and conditions.
3.2. The Client agrees and acknowledges that TLC may use subcontractors in the performance of the Services.
3.3. The Client undertakes and acknowledges that the Client shall be responsible for ensuring compliance by the Approved Client Users, its employees, agents and representatives, of its obligations under the Governing Documents.
3.4. The Client undertakes to immediately inform TLC of any suspected unauthorized use of the TLC SaaS Products and TLC Services. The Client agrees and acknowledges that TLC has the right to suspend Client's access and use of the TLC SaaS Products if there is an unusual and material spike or increase in Client’s use of the TLC SaaS Products and TLC reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the TLC SaaS Products.
3.5. The Client acknowledges that TLC will not be delivering copies of the underlying intellectual property to the Client as part of the TLC SaaS Products and TLC Services.
3.6. Product-specific features of the TLC SaaS products. The scope of features and TLC Services in relation to the TLC SaaS Products shall be determined based on the Sales Order.
3.7. Changes to TLC SaaS Products: TLC may, in its sole discretion and without providing prior notice to Client, make any changes, modifications or updates to the TLC SaaS Products that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of TLC SaaS Products or TLC Services, (b) the competitive strength of, or market for, TLC SaaS Products, (c) cost efficiency or performance of such TLC SaaS Product and TLC Services, or (ii) to comply with Applicable Law.
3.8. Third-Party Materials: The TLC SaaS Products include Third-Party Materials, use of which is subject to their respective licenses. TLC warrants that the inclusion of such Third-Party Materials in the TLC SaaS Products will not prevent the Client from exercising the license rights provided to Client herein in respect of the TLC SaaS Products or limit Client’s ability to use the TLC SaaS Products. For the avoidance of doubt, TLC has no control over, and is not responsible or liable in any manner, for the performance, operation and security of such Third-Party Materials. TLC does not review, approve, monitor, endorse, warrant, or make any representations with respect to the Third-Party Materials.
4. Fees and Payment Terms
4.1. In consideration of the license granted to the Client herein, the Client shall pay to TLC the fees in accordance with the payment terms set forth in the relevant Sales Order and the Governing Documents.
4.2. Payment Gateway: TLC provides the Payment Gateway to the Client on the Platforms to enable the Customers to make payment towards the purchase of products and services offered by the Client on the Platforms. Payments made by the Customers on the Payment Gateway shall be settled between the TLC and the Client in accordance with the payment terms agreed in the Sales Order.
4.2.1. In cases where TLC and the Client have inter-alia agreed under the applicable SO that payments made by the Customers on the Payment Gateway will be credited directly to the bank account of the Client, all such payments made by Customers on the Payment Gateway will be settled in the bank account of the Client only upon deduction of applicable payment gateway charges as agreed between TLC and the Payment Gateway service provider and will be processed and credited into the bank account of the Client within two business days.
4.2.2. Client shall maintain the confidentiality of each transaction routed through the Payment Gateway.
4.2.3. Refunds to Customers will be permitted in accordance with the Customer-facing terms of service. If a refund request is made by a Customer within the permissible cancellation window, TLC will inform the Payment Gateway to: (A) refund the relevant order amount as chargeback to the Customer in the same payment mode through which the Customer had made the payment after deducting the (i) applicable charges of the Payment Gateway service provider (if any) and (ii) cancellations fees (if any), and (B) deduct the amount in the same ratio from the Client as was credited by the Payment Gateway for the relevant order.
4.2.4. TLC shall not be liable or responsible for: (a) any errors in relation to incorrect details including incorrect personal and bank account details being quoted by the Client relating to the transactions on the Platforms; and (b) any refusal of payment or declining of the transaction by the credit/debit card supplier for any reason. If the credit/ debit card supplier refuses or declines any payment, TLC shall be under no obligation to inform the Client of such refusal or failure of the payment. The Client should itself check with its bank if there are transaction failures.
4.2.5. In no event will TLC be liable for any damages whatsoever arising out of the use, down-time, inability to use, or the results of use of the Payment Gateway, any websites linked to this Payment Gateway, or the materials or information contained at any or all such sites, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages.
4.3. All fees will be invoiced from the applicable Contract Start Date. Unless otherwise agreed between the Parties, TLC will raise an invoice to the Client on a monthly basis. All invoices shall be delivered electronically to the Client.
4.4. All payments to TLC shall be made by the Client by way of electronic transfer in the bank account designated by TLC and as specified in the SO.
4.5. All payments to TLC shall be made by the Client within 30 days from the date of issuance of invoice to the Client by TLC. Late payments by the Client to TLC shall attract a penal interest of 2% per month or the maximum rate permitted by Applicable Law from the due date of payment. Any fees which is unpaid as of the date of termination or expiration shall become immediately due and payable.
4.6. In the event a dispute arises regarding the fees payable to TLC by the Client, the Client shall pay any undisputed amounts as provided in the Sales Order within the stipulated period as defined in the Sales Order and provide a statement of the disputed amount and cause of dispute. Any dispute regarding the fees payable by the Client shall be resolved in accordance with the dispute resolution procedure set forth in these General Terms. Further, in case of disputed payments, TLC reserves the right to suspend or terminate Client’s access to TLC SaaS Products by giving a 30 (thirty) days prior written notice to the Client.
4.7. Unless otherwise specified in the Sales Order, fees payable by the Client to TLC shall be payable in Indian Rupees for a Client based in India and in US Dollars for a Client based outside of India.
4.8. Taxation:
4.8.1. All fees for the TLC SaaS Products and TLC Services shall be exclusive of Taxes.
4.8.2. Any Taxes paid or payable by TLC on the supply of TLC SaaS Product and TLC Services to the Client shall be recovered from the Client and deposited with the relevant government or governmental authorities. Any Taxes payable on the supply of goods or services or both to Customers shall be paid by the Client.
4.8.3. Goods and services Tax as applicable in accordance with the Applicable Laws, on any invoiced amount, shall be separately stated in, and invoiced by TLC as part of, the invoice to the Client, in accordance with Applicable Law in a manner that entitles the Parties to receive the benefit of any set-off or credit for such goods and services Tax. The Parties shall take necessary steps to ensure that they receive the benefit of any set-off or credit of any Taxes paid pursuant to supply of TLC SaaS Product and TLC Services.
4.8.4. Parties shall make all necessary efforts in making available to each other all requisite documents in the manner prescribed under goods and services Tax laws, including but not limited to invoices, advance receipt vouchers, credit notes, debit notes, revised invoices, e-way bills. Any request for debit notes, credit notes by TLC or the Client shall only be issued to the other in permissible scenarios and timelines as prescribed under the goods and services Tax laws.
4.8.5. After receiving an invoice, if the Client is liable to withhold Tax at source, it shall provide its Tax Deduction Number along with a copy of TAN allotted by the Tax authority in accordance with the Indian Tax laws and regulations. The TDS Certificate shall be issued in favor of TLC and shall be emailed to [email protected].
4.8.6. The Client acknowledges and agrees that (i) the invoices will be issued to the GSTIN and the Billing Address as stated in this Sales Order and (ii) in circumstances where the GSTIN is invalid, active, blocked or otherwise unfound or unavailable, TLC reserves the right to not report such GSTIN in the invoice and report the same as an unregistered goods and services Tax invoice.
4.8.7. The Client hereby undertakes to provide TLC any necessary information and documents which TLC may require under Applicable Law to ensure its compliance with applicable Tax laws. The Client shall be liable to pay (or indemnify) for any Taxes, interest, penalties, or fines arising out of any mis-declaration by the Client.
5. Term
The Governing Documents (including the license and right to use and access TLC SaaS Products and TLC Services granted therein) shall be effective from the Contract Start Date and shall be valid until the Contract End Date (“Initial Term”) and thereafter, shall renew automatically for terms of 1 (one) year each (“Renewal Term(s)”) unless either Party provides the other Party with a written notice of at least 60 (sixty) days prior to the expiration of the then-current Renewal Term of its intent not to renew. The Initial Term and the Renewal Term shall collectively be referred to as the “Term”. The rights and obligations of the Parties under the Governing Documents pursuant to Clauses which by their nature survive the expiry of the Term shall survive the expiry of the Governing Documents.
6. Audit and Verification
6.1. TLC may, at its own expense, appoint its own personnel or an independent third party (or both) to verify that Client’s use of the TLC SaaS Products complies with the Governing Documents and the Client agrees to provide all the required assistance and support during such verification, including access to all records and documents relating to Client’s obligations under the Governing Documents.
6.2. Any verification pursuant to Clause 6.1 above may include an audit conducted at Client’s relevant places of business upon 2 (two) days’ prior notice, during regular business hours. If the verification shows that the Client or the Approved Client Users are using the TLC SaaS Products and/or availing the TLC Services in any way
(i) which is in excess of the scope of the license granted and/or
(ii) which is not permitted or in a manner inconsistent with the terms of the Governing Documents, then, without limiting the rights of TLC under law or equity, the Client shall,
a. co-operate in good faith with TLC to correct any practices which are found to be deficient as a result of any such audit within a reasonable time, and
b. pay TLC’s reasonable costs of conducting the verification and, if required by TLC, the additional fees to which TLC would have been entitled had the scope of the license to the TLC SaaS Products been to the extent used by the Client or its employees, agents or representatives.
7. Client Responsibilities & Covenants
7.1. The Client shall publish, or shall provide such information to TLC (if required) for publication, on the Platforms:
(a) all information and notices/certifications about the goods and services required to be disclosed under Applicable Laws;
(b) any relevant warranties/guarantees applicable to the goods or services;
(c) total price in single figure of any good or service, along with a breakup showing all the compulsory and voluntary charges such as delivery charges, handling charges, conveyance charges and the applicable Tax (as applicable);
(d) relevant details about delivery of the goods or services;
(e) expiry date of the goods offered (where applicable);
(f) name, contact number and designation of the grievance officer; and
(g) all other relevant details about the goods and services, including details of importer, guarantees related to authenticity or genuineness of imported products (where applicable), for enabling the Customers to make informed decisions at the pre-purchase stage. The Client shall ensure that such information is and remains true, accurate and updated.
7.2. Client shall provide accurate and updated information to TLC on its legal name, the name of its business, registration status, address of its headquarters and all branches, customer care number/number of the grievance redressal officer and any rating or other aggregated feedback about such Client. Client acknowledges that TLC may, on a request in writing made by a Customer after the purchase of any goods or services through Platforms, provide the Customer with information relating to the addresses of Client’s headquarters and all branches, e-mail address and any other information necessary for effective communication and dispute resolution between the Client and Customer.
7.3. The Client shall not falsely represent itself as a Customer on the Platforms and/or post reviews about goods and services or misrepresent the quality or features of any goods or services. The Client shall not adopt any unfair trade practices in the course of offer of its products and services on the Platforms.
7.4. The Client shall not refuse to take back goods (where applicable) or refuse to refund the consideration paid by the Customer, if the goods or services are defective, deficient or spurious, or if the goods or services are not of the characteristics or features as advertised or as agreed to, or if such goods or services are delivered late or not delivered.
7.5. The Client shall have obtained all requisite licenses, approvals, certificates, and/or registrations required under Applicable Laws including in relation to its business operations prior to using and accessing the TLC SaaS Products and TLC Services. The Client represents, warrants and undertakes that it complies with and will remain compliant with all Applicable Laws and regulations relating to the business operations of the Client.
7.6. The Client shall address and be responsible for any queries, grievances, and complaints from the Customers in relation to the products, services and experiences offered by the Client to the Customers on the Platforms and their delivery/provision and fulfilment thereof. The Client or its grievance officer shall also promptly and in accordance with Applicable Laws redress all Customer complaints/ticket numbers referred by TLC to the Client in relation to the quality, delivery, efficacy or adequacy of the products, services and experiences provided by the Client to the Customers.
7.7. Client shall not manipulate the prices of goods and services offered on the Platforms in such a manner as to gain unreasonable profit by imposing on Customers any unjustified price having regard to prevailing market conditions, essential nature of the good or service, any extraordinary circumstances under which the good or service is offered, and any other relevant consideration in determining whether the price charged is justified.
7.8. Client shall ensure that the Client Materials published on the Platforms are updated, true and accurate and shall promptly update such Client Materials as and when required or inform TLC of any modifications required to be made to such content. Client shall ensure that the descriptions, images and other content pertaining to goods and services published on the Platforms correspond directly, at all times, with the appearance, nature, quality, purpose and other general features of such good or service.
7.9. Client shall ensure that all advertising and marketing materials uploaded on the Platforms, or provided to TLC, or communicated to the Customers one-on-one, comply with all Applicable Laws and advertising guidelines, including the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, and are consistent with the actual characteristics, access and usage of Client’s goods or services.
7.10. The Client agrees that TLC shall not be responsible and liable in any manner and shall not provide or be deemed to provide any guarantee or assurance in respect of inter alia
(a) the product and/or services offered by the Client to the Customers;
(b) the quality, due performance and discharge of Client’s duties and obligations vis-à-vis the Customers;
(c) the arrangements entered into by the Client with the Customers (if any);
(d) payments, if any, to be made by the Customers to the Client directly (including payments routed through the Payment Gateway) for the products and services provided to the Customers through the TLC SaaS Products;
(e) deficiency, defects, cancellations, delays, if any, in the products and/or services provided by Client to the Customers or any loss or damage suffered or personal injury caused to the Customers pursuant to the products and/or services provided by Client; and
(f) Customers’ compliance with any terms and conditions of the products and/or services provided by Client and with Applicable Law.
7.11. The Client acknowledges that in the event it is not in compliance with Applicable Laws or these General Terms, TLC reserves the right to take appropriate actions in accordance with its policies, including: (i) removing or deleting any contentious or non-compliant Client Materials from the Platforms in accordance with Applicable Laws; and (ii) suspending or terminating Client’s access to the TLC SaaS Products and TLC Services. The Client shall also indemnify, defend and hold TLC harmless from and against any claims, costs, damages, liability or losses suffered by TLC.
7.12. Unless expressly specified in the Sales Order, the Client shall not allow its Affiliates or any third party to use and access the TLC SaaS Products and TLC Services. In case permitted in writing by TLC, the Client shall be responsible for ensuring that any third party or Affiliate using or accessing the TLC SaaS Products and TLC Services on the Client’s behalf complies with the terms of this the Governing Documents. The Client shall always remain liable for the acts or omissions of such Affiliate or third party as if they were Client’s acts or omissions.
7.13. The Client shall always remain responsible for complying with any applicable terms and conditions of any third-party data, products, services, and platforms used by the Client in conjunction with the TLC SaaS Products and TLC Services.
7.14. Client acknowledges that TLC has no obligation to review any Client Materials. However, TLC has the right to do so for the purpose of operating and improving the TLC Services and Platforms (including without limitation for fraud prevention, risk assessment, investigation and customer support), to ensure Client’s compliance with these General Terms and to comply with Applicable Law.
7.15. Client shall not display, upload, modify, publish, transmit, store, update or share any information on the Platforms that:
7.15.1. belongs to any other Person and to which the Client does not have any right;
7.15.2. is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing on the basis of gender, libelous, racially or ethnically objectionable, relating to or encouraging money laundering or gambling, or promoting enmity between different groups on the grounds of religion or caste with the intent to incite violence;
7.15.3. is harmful to children or minors;
7.15.4. infringes any patent, trademark, copyright or other proprietary rights;
7.15.5. deceives or misleads the Customers about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature but may reasonably be perceived as a fact;
7.15.6. threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence, or prevents investigation of any offence, or is insulting any other nation;
7.15.7. contains a software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of the TLC SaaS Products or Platforms;
7.15.8. impersonates another Person;
7.15.9. is written or published in any form, with the intent to mislead or harass a Person, entity or agency for financial gain or to cause injury to any Person; or
7.15.10.violates any Applicable Law.
8. Data Privacy & Governance
8.1. The Customer Data and other data regarding installation, registration and use of the TLC SaaS Products and TLC Services on the Platforms, shall be collected by TLC. “Customer Data” means any and all identifiable information and personally identifiable information about a Customer provided by such Customer via the Platforms, including but not limited to Customer’s name, delivery addresses, email addresses, phone numbers Customer preferences and details of the transactions made on the Platforms.
8.2. Usage Data. The Parties recognize that it is possible for other kinds of data to be collected from users of the Platforms or from the use of the TLC SaaS Products which may, directly or indirectly or in combination with other information, be capable of identifying an individual (e.g., hits, clickstream data, cookies, browsing history and the like).
8.3. All Customer Data and any other personal information (including sensitive personal information, if any) collected by TLC shall be stored, handled, processed and transferred in accordance with the privacy policy of TLC. The Client acknowledges that the privacy policy is subject to change at TLC’s discretion.
8.4. Further, at the time of registration/enrollment on the Platforms, TLC shall take specific consent from the Customers (through a checkbox, pop-up or other clear notice) that their personal information and data shall be transferred to the Client and shall be used, disclosed, stored and processed in accordance with the Client’s privacy policy as well. The Client acknowledges that TLC has no control over the Client’s privacy policy and practices, and TLC shall not be liable or responsible in any manner for collection, storage, use, processing, and handling of the Customer Data by the Client.
8.5. Both Parties shall ensure that the Customer Data is safely and securely stored and protected at all times in accordance with Applicable Laws. TLC may access or disclose information about the Client and/or its Customers if required or authorised by Applicable Laws.
8.6. TLC may use, copy, transmit, index and model Customer Data for the purpose of
(i) developing, improving or customizing its products, platforms and services including the TLC SaaS Products and TLC Services, and
(ii) publishing, displaying and distributing any anonymous information derived from Customer Data (such as, but not limited to, web browser, screen resolution, mobile device-type information, image resolution and number of pages in a document). TLC may also develop, modify, improve, support, customise and operate its products and services based on Customer’s use, as applicable, of any TLC SaaS Products.
8.7.TLC may use the Customer Data to create Developed Data, including the discovery of relationships, trends and patterns, and data analytics through the use of programming, machine learning, artificial intelligence or any other means available to TLC. Any Developed Data not reduced to the form of a report, including data models, architecture and inventions, to the extent that they result from TLC’s independent use or analysis of the Customer Data, shall be TLC’s trade secret, and shall be treated as TLC’s Confidential Information. “Developed Data” for the purpose of this Clause means any new compilation formed by TLC by collecting and combining portions of primary data, and any new data structure or table formed by TLC by making modifications to or combinations of portions of data structures or tables that constitute part of the primary data.
8.8. TLC shall provide monthly/quarterly reports to the Client, as specified in the Sales Order. Such reports shall be deemed TLC Materials. The Client and TLC may discuss any other specific customized reporting requirements of the Client which shall be chargeable at an additional fee as may be mutually agreed between the Parties in the Sales Order.
8.9. The Client agrees that TLC is not responsible for any fraud committed by or misrepresentation made by the Customers to TLC, the Client or any other party.
9. Intellectual Property
9.1. The Client Materials shall be and remain owned solely, completely and exclusively by the Client, free and clear from all claims of any nature relating to TLC’s contributions or other efforts. The name, trademarks and branding of the Platforms and all logos and derivatives are the sole property of the Client. The Client hereby agrees and acknowledges that TLC may list the Client as a its client on its website and marketing materials. For this purpose, the Client grants to TLC a non-exclusive, non-transferable, sublicensable right to use its trademarks, service marks, logos, name, branding, and equivalent identifiers. The Client and/or TLC shall do all acts and execute any further documents, including obtaining of any required approvals, as may be reasonably required, to give effect to and/or perfect this license.
9.2. The TLC Materials shall be and remain owned solely, completely and exclusively by TLC, free and clear from all claims of any nature relating to Client’s contributions or other efforts. The Client shall not copy, modify, reproduce, distribute, retransmit, transfer, sell, license, sub-license, lease, reverse engineer, decompile, or disassemble the TLC SaaS Products and/or the TLC Services.
9.3. The Client acknowledges and agrees that it shall not during the term of the Sales Order or at any time thereafter:
(a) register, or seek or counsel or procure or assist any third party to register, any trademark nor any word mark or device mark similar to any trademark of TLC, in any country;
(b) dispute or impugn the validity of TLC’s rights in TLC Materials, whether registered or unregistered, or question TLC’s ownership and title to its intellectual property and/or set up any claim adverse to TLC’s rights in relation to such intellectual property;
(c) not directly or indirectly, use the TLC Materials in any way which would or could reasonably be expected to allow it to become generic, to lose its distinctiveness, to become liable to mislead the public or which would otherwise be detrimental to or inconsistent with the good name, goodwill, reputation or image of TLC; and
(d) cause, suffer or do any act, deed, matter or thing which would or is likely to, adversely affect or prejudice, directly or indirectly, TLC’s interests, rights, power or authority, title and interest to, or in respect of, its intellectual property.
9.4. Except to the extent expressly permitted under the Governing Documents, the Client agrees and undertakes that the Client shall not use the TLC SaaS Products and TLC Services for any other purpose including but not limited to:
(a) using TLC SaaS Products or availing the benefit of the TLC SaaS Products in violation of any Applicable Laws;
(b) rent, lease, share, distribute, or sell the TLC SaaS Products to any third party;
(c) in a manner which causes or is likely to cause any risk to the TLC SaaS Products, TLC Services and/or security or operations of TLC;
(d) copy, use, distribute, republish, download, display, transmit, sell, rent, lease, host, or sub-license the TLC SaaS Products;
(e) modify, create derivative works of, adapt, translate, reverse engineer (including monitoring or accessing the inputs and output flowing through a system or an application), decompile, or otherwise attempt to discover within any TLC SaaS Products and TLC Services, the source code, data representations, or underlying algorithms, processes and methods;
(f) remove, obscure, or alter any proprietary notices associated with the TLC SaaS Products;
(g) use any software components, modules, or other services that may be delivered with the TLC SaaS Products and TLC Services, but which are not licensed to the Client and identified in the Sales Order; and
(h) allow unauthorized access of TLC SaaS Products to any other person other than the Client and the Approved Client Users.
9.5. The Client acknowledges and agrees that TLC may take any actions it deems reasonable, including denying access to Client to the TLC SaaS Products and TLC Services, for any breach of this Clause 9.
10. Representations & Warranties
10.1. Each Party hereby represents and warrants to the other Party that:
(a) it is a company duly incorporated and is validly subsisting under the laws of India;
(b) it has the necessary power, authority and capacity to enter into the Governing Documents and to perform its obligations hereunder;
(c) the Governing Documents constitute valid and binding obligations of such Party, enforceable against such Party, in accordance with its terms;
(d) the execution, delivery and performance of the Governing Documents by such Party and the consummation of the transactions contemplated under the Governing Documents shall not:
(i) violate any provision of the charter documents of such Party or any Applicable Law;
(ii) require such Party to obtain any consent, approval or action of (whether corporate, statutory, contractual or otherwise), or make any filing with, or give any notice to, any governmental authority or any other Person;
(iii) conflict with or result in any material breach or violation of any of the terms and conditions of, or constitute (or with notice, or lapse of time, or both) a default under any instrument, contract or other agreement to which it is a party or by which it is bound; and/or
(iv) violate any order, judgment or decree against, or binding upon, such Party;
(e) it is not subject to an Insolvency Event, and no petition has been presented to that effect, and there are no grounds on which a petition or application could be based to this effect. For the purposes of the Governing Documents, an “Insolvency Event” means, with respect to either Party the occurrence of any of the following events: (a) an order is made that a Party be wound-up; (b) the appointment of a liquidator, provisional liquidator or receiver to a Party under an order; (c) a Party resolves to wind itself up, or otherwise dissolves itself, or gives notice of intention to do so except to reconstruct or amalgamate while solvent on terms approved by the other Party or is otherwise wound up or dissolved; (d) a Party disposes of or is required to dispose of or is deprived of the whole or any significant and substantial part of its assets, business or undertaking; or (e) a Party is or states that it is unable to pay its debts as and when they fall due under applicable insolvency and bankruptcy laws;
(f) all intellectual property rights licensed to the other Party under the Governing Documents, as and when used by such other Party, do not infringe any intellectual property rights of any third party.
10.2. The TLC SaaS Products and TLC Services are being provided by TLC on an “as-is” basis and TLC does not warrant that the TLC SaaS Products and TLC Services will be uninterrupted, virus-free and error-free. The representations and warranties set forth in the Governing Documents constitute and express the entire understanding of the Parties with respect to warranties. TLC does not make and expressly disclaims to the fullest extent permitted by Applicable Law any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, title, noninfringement of the TLC SaaS Products, Platforms and TLC Services. TLC shall not be liable for unauthorized alteration, theft or destruction of Client’s data, files, or programs.
11. Confidentiality
11.1. Each Party shall ensure that it shall, at all times, keep confidential, (and shall ensure that its respective employees and agents keep confidential) any Confidential Information which is in its possession or which it acquires in relation to the other Party pursuant to the Governing Documents, including information pertaining to the business of either Party and disputes between the Parties (if any), and shall not use or disclose such Confidential Information except
(i) with the prior written consent of such other Party (e-mail is acceptable); or
(ii) for the purpose of the Governing Documents.
11.2. The recipient of Confidential Information shall not (i) divulge or communicate to any Person, except to its Affiliates, directors, employees, officers, consultants, professional advisors, authorised agents or representatives on a need-to-know basis and/or (ii) use or exploit the Confidential Information for any purpose whatsoever, other than as contemplated under the Governing Documents.
11.3. However, the obligations and restrictions in the Governing Documents shall not apply to Confidential Information which:
(i) was in the possession of the receiving party through legally permissible means at the time of such disclosure;
(ii) was independently developed by the receiving Party without the reference to the Confidential Information;
(iii) was disclosed to the receiving Party by a third party having a lawful right to disclose the information and being under no obligation of confidentiality with regard to a Party;
(iv) is or subsequently comes into the public domain (other than as a result of a breach of the Governing Documents); or
(v) is required to be disclosed by the receiving Party to comply with Applicable Laws or governmental regulations or orders, provided that the said Party provides prior written notice of such disclosure to the other Party and takes reasonable lawful actions to minimize the extent of disclosure.
11.4. Either Party may, at any time during the Term or upon expiry of the Term or upon termination under these General Terms, direct the other Party to return the Confidential Information, or any part thereof, and to cease using the Confidential Information to be returned. Upon receipt of such direction, the receiving Party shall (at its selection) promptly either (i) return the requested Confidential Information without retaining any copies or excerpts thereof; or (ii) destroy the same and certify that the same have been destroyed. If a Party chooses to destroy the Confidential Information in accordance with this Clause 11.4, then the receiving Party shall have complied with these General Terms, if, in relation to electronically stored Confidential Information, it can show it has taken reasonable steps to delete such Confidential Information. Notwithstanding the foregoing, the receiving Party may request to the disclosing Party for use of the Confidential Information for the purpose of addressing any legal claim which may arise under the Governing Documents and to comply with any Applicable Law, regulatory or supervisory body or governmental authority, in each case which shall remain subject to the obligations set forth in these General Terms.
12. Liability & Indemnification
12.1. Neither Party nor their respective directors, officers, employees, representatives, or agents shall be personally liable to the other Party for any debts or liabilities arising under or related to the Governing Documents.
12.2. The Client acknowledges that it is solely responsible for rendering all services and delivering all products to the Customers, purchased through the Platforms. The Client agrees to indemnify and keep TLC and its directors, officers, employees, representatives or agents indemnified against any claims, demands, proceedings and liabilities and losses arising on account of any such claims from Customers in relation to the quality, adequacy, performance, delivery or delays of the products or services the Customer may have received from the Client.
12.3. Each Party (“Indemnifying Party”) shall indemnify, defend and hold the other Party and its Affiliates, (collectively, “Indemnified Parties”) harmless from and against any claims (including Third Party Claims), loss, cost, damage, liability or expense (including reasonable attorneys’ fees) which any Indemnified Party directly incurs, or which are asserted against any Indemnified Party, with respect to any material breach of such Party’s representations, obligations, warranties and covenants set forth under the Governing Documents.
12.4. In the event that an Indemnified Party has a claim including a Third Party Claim (“Indemnity Claim”) against the Indemnifying Parties under Clause 12.3 above, the Indemnified Party shall notify the Indemnifying Parties in writing of such Indemnity Claim, which notice (“Indemnity Notice”) shall state: (a) a description of the facts and circumstances giving rise to a loss (to the extent such information being available), and (b) if quantifiable and if possible to be estimated at that time, the aggregate amount being claimed with respect to the loss, and if such amount claimed is not available with the Indemnified Party, an estimate in the reasonable judgment of the Indemnified Party.
12.5. Subject to Clause 12.6 below, the Indemnifying Party shall, within 10 (ten) days from the date of receipt of such Indemnity Notice pay the indemnification amounts as stipulated under the Indemnity Notice to the Indemnified Party in cash (or such other manner agreed in writing between the Indemnified Party and Indemnifying Party). Any disputes in relation to an Indemnity Claim and/or the losses specified in the Indemnity Notice shall be settled by the Parties in accordance with Clause 15 of these General Terms.
12.6. Third Party Claims: If the Indemnity Claim relates to or arises out of or is in connection with or is suffered on account of any demand, claim, legal action, proceeding, suit, litigation, prosecution, mediation or arbitration by a third party (“Third Party Claim”), then the following provisions shall apply:
(a) Within 10 (ten) days of receipt of the Indemnity Notice, the Indemnifying Party shall be obligated, at its own cost, to take control of the defence and settlement of the Third Party Claim specified in the Indemnity Notice and to employ and engage attorneys and advisors mutually agreed by the Indemnifying Party and the Indemnified Party, at the Indemnifying Parties’ cost and expense. The Indemnified Party shall also have the right to participate in the defense of such Third Party Claim, at the cost and expense of the Indemnifying Party.
(b) Notwithstanding anything to the contrary, in the event the Indemnifying Party fails to assume such defense within the period set out in Clause 12.6(a) above, (i) the Indemnified Party shall have the right to assume the defense or compromise such Third Party Claim and the Indemnifying Party shall remain liable for the costs and expenses of such Third Party Claim including all court costs, posting of any security, payment of any interim amounts as required by any governmental authority in relation thereto; (ii) the Indemnified Party shall have the right to contest, settle, compromise or otherwise dispose of such Third Party Claim without the consent of the Indemnifying Parties.
(c) The Indemnifying Party and the Indemnified Party shall cooperate in all reasonable respects with each other and their respective attorneys in the investigation, trial and defence of the Third Party Claim and any appeal arising from any Third Party Claim and shall provide such information and access as may be reasonably requested in a timely manner. The Indemnifying Party shall keep the Indemnified Party informed as to the status of such Third Party Claim and shall promptly send copies of all pleadings to the Indemnified Party and in any event within 3 (three) days of filing any such pleadings.
(d) The Indemnifying Party shall make the indemnity payment to the Indemnified Party upon occurrence of earlier of the following: (i) the Indemnifying Party failing to assume defence within 10 (ten) days from the receipt of the Indemnity Notice or such other period within which such defense ought to be assumed to comply with requirements mandated by the third party claimant’s notice or otherwise as required under Applicable Law; or (ii) having assumed the defence of the Indemnity Claim, where a payment obligation under a Third Party Claim becomes due and payable including pursuant to a judgement, order by any governmental authority or arbitral award, in each case, which is not subject to any stay or other legal suspension or postponement, or a settlement or compromise having been consummated in accordance with the provisions of this Clause.
(e) Notwithstanding anything contained in this Clause 12.6, the Indemnifying Party shall not be entitled to settle any such Third Party Claim, without the prior written consent of the Indemnified Party, where such settlement: (i) involves monetary payment by the Indemnified Party; (ii) involves admission of liability on the part of the Indemnified Party; (iii) involves reputational risk to the Indemnified Party; (iv) in case of the Third Party Claim arising on account of a fraud or gross negligence.
12.7. The Client agrees and acknowledges that (a) the TLC SaaS Products and TLC Services may be subject to limitations, interruptions, delays, cancellations, and other problems inherent in the use of the communications facilities; and (b) TLC, its Affiliates, and its third-party providers are not responsible for any interruptions, delays, cancellations, delivery failures, data loss, content corruption, packet loss, or other damage resulting from these problems.
12.8. Neither Party shall be liable hereunder or under any contract, negligence, strict liability or other legal or equitable theory, for any indirect or consequential or punitive damages (including loss of profits, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation or loss or corruption of data or interruption of use) even if it has been advised of their possible existence and whether or not such losses or damages are foreseeable, except that the foregoing shall not restrict a Party’s ability to recover actual damages for breach hereof.
12.9. The liability of a Party for any loss suffered or incurred by the other Party under the Governing Documents (including under any indemnity) will be reduced proportionately to the extent that any wrongful (including negligent) act or omission of the other Party or its personnel directly caused or contributed to the loss.
12.10. The maximum aggregate liability of TLC for any under the Governing Documents shall be limited to (a) in case of an Indemnity Claim or a Third Party Claim relating to or arising out of a claim made by a Customer, the monetary value of the transaction in question or Rs. 10,000 (Rupees ten thousand), whichever is lower; and (b) in all other cases, an amount equal to the aggregate of the fees paid by the Client to TLC in the preceding month under the applicable Sales Order.
13. Termination
13.1. TLC may terminate the Governing Documents for convenience and without cause or penalty and without assigning any reason therefor by providing a 60 (sixty) days’ prior written notice. This right of termination is in addition to whatever rights TLC may have herein, at law or in equity.
13.2. Upon expiration or termination of the Governing Documents in respect of a Client,
(i) all rights and licenses granted to the Client hereunder shall, without further act or instrument, revert to TLC, and Client shall immediately and permanently refrain from any and all further use of the TLC SaaS Products and TLC Services and any other trademark, trade name or logo that is confusingly similar or comparable or otherwise associated with TLC in any way,
(ii) all outstanding fees and payments will immediately become due and payable by the Client, and
(iii) the Client shall cease to use and return all TLC Materials and Confidential Information to TLC at its own expense within 30 (thirty) days from the date of expiry or termination of the Governing Documents. The Client shall not make or retain copies of any of the above items, information or processes that may have been entrusted to it. The Client shall have no right, title or interest in or to the TLC SaaS Products and the TLC Services, and the Client will execute any instruments requested by TLC, which are necessary to accomplish or confirm the foregoing.
13.3. TLC may terminate the Sales Order (and consequently the Governing Documents) by written notice with immediate effect upon the occurrence of one or more of the following events
(i) the Client becomes subject to an Insolvency Event;
(ii) any breach of confidentiality obligations hereunder by the Client, which cannot or has not been remedied to the satisfaction of TLC within 30 (thirty) days; or
(iii) a material breach of the Governing Documents by the Client that remains un-remedied for a period of 30 (thirty) business days from the date on which the TLC notifies the Client of such breach. The Client acknowledges and agrees that there would be no adequate remedy at law for its failure to cease the use of the TLC SaaS Products and TLC Services covered by Governing Documents upon the expiration or termination of the Governing Documents, and the Client agrees that in the event of such failure, TLC shall be entitled to equitable relief by the way of temporary and permanent injunction and such other and further relief as any court with jurisdiction may deem just and proper, without the requirement of the posting of any bond or security.
13.4. The Parties shall use best efforts to co-operate with each other in relation to any transition required leading up to, as well as after, the expiration or termination of the Governing Documents (including, but not limited to, the execution of a termination agreement (if any) setting out in detail the transition process).
13.5. The rights and obligations of the Parties under the Governing Documents pursuant to Clauses which by their nature survive the termination of the Governing Documents, shall survive termination of the Governing Documents.
14. Force Majeure
Notwithstanding anything in the Governing Documents, if either TLC's or Client’s failure to perform or satisfy any obligation set forth in the Governing Documents is caused in whole or in part by one or more Force Majeure Events, such failure shall not constitute a default under the Governing Documents and such failure shall be excused for as long as the failure is caused in whole or in part by such Force Majeure Event(s). In order to have any such failure excused pursuant to this Clause, the Party claiming that a Force Majeure Event caused such failure must notify the other party in writing within thirty (30) days after the Force Majeure Event first begins to affect its performance. For the purpose of the Governing Documents, “Force Majeure Event” means any of the following events, regardless of where it occurs or its duration: acts of nature (including hurricanes, typhoons, tornadoes, cyclones, other severe storms, winds, lightning, floods, earthquakes, volcanic eruptions, fires, explosions, disease, endemic, pandemic or epidemics); acts of war, attack, invasion or other acts of hostility by foreign enemies; civil war, rebellion, revolution, insurrection or usurpation of sovereign power; riots or other civil commotion; terrorism (including hijacking, sabotage, bombing, murder, assault and kidnapping); and any other events beyond the control of TLC or the Client.
15. Governing Law & Dispute Resolution
15.1.The Governing Documents shall be governed by, and construed in accordance with, the laws of India, without reference to any conflicts of laws provisions. The courts in New Delhi, India shall have exclusive jurisdiction in relation to any matter arising under the Governing Documents, and the transactions contemplated herein.
15.2. In the event of any claim, dispute, question or controversy (“Dispute”) arising out of or in connection with or in relation to Governing Documents (including the validity, interpretation, performance or termination of the Governing Documents), the Parties shall first attempt to resolve such Dispute through mutual discussions in good faith for a period of thirty (30) days. In the event that the Parties fail to resolve the Dispute within 90 (ninety) days of the delivery of a notice of Dispute by a Party to the other Party (specifying in reasonable detail the nature and details of the Dispute), then either Party may approach the competent courts in New Delhi, India for dispute resolution.
16. Miscellaneous
16.1. Non-Exclusive License: The Client acknowledges that TLC SaaS Products and TLC Services are being provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict TLC’s ability to provide the TLC SaaS Products and TLC Services or other technology, including any features or functionality first developed for the Client, to other parties including competitors of the Client.
16.2. Amendment/Variation: TLC may modify these General Terms from time to time. Such changes shall be effective immediately upon the modifications being reflected on TLC’s website. The Client agrees to be bound by any such changes or modifications and understands and accepts the importance of regularly reviewing these General Terms.
16.3. No partnership or agency: The Governing Documents shall not constitute a joint venture between TLC and Client, nor shall the Governing Document constitute TLC as an agent of the Client. TLC is an independent contractor. The arrangement between the Parties pursuant to the Governing Documents is on principal to principal basis and does not create and shall not be deemed to create any employer – employee or principal-agent relationship between TLC and Client and/or its employees, agents and representatives.
16.4. Entire Agreement: The Governing Documents constitutes the entire agreement between the Parties in relation to the subject matter hereof and supersedes all previous agreements, written or oral, between the Parties hereto.
16.5. Notices: Any notice or any other communication to be given by one Party to any other Party under or in connection with the Governing Documents shall be made in writing and signed by or on behalf of the Party giving it. It shall be (i) directed to the recipient’s address specified in the Sales Order; and (ii) hand delivered or sent by registered post with acknowledgment due on the address mentioned in the Sales Order or by electronic mail. A notice given under this Clause shall be deemed to be received: (i) if hand delivered, on delivery; (ii) if sent by registered post with acknowledgment due, on delivery; and (iii) if sent by electronic mail, on being received by the recipient. All notices to be given under the Governing Documents shall be sent by registered post on the addresses of the Parties mentioned in the Sales Order.
16.6. Assignment: The Client shall not assign the Governing Documents or any part hereof without the prior written consent of TLC, which shall not be unreasonably withheld or delayed. TLC may assign its rights and obligations under the Governing Documents without the consent of the Client. Subject to the foregoing, Governing Documents shall be binding upon and inure to the benefit of the Parties hereto, their successors and permitted assigns.
16.7. Severability: In the event that any provision of the Governing Documents is considered illegal or becomes, or is declared by a court of competent jurisdiction to be, invalid, illegal or unenforceable, then such provisions shall be stricken from the Governing Documents and the remainder of the Governing Documents shall be enforced as if such invalid, illegal or unenforceable clause or provisions had (to the extent not enforceable) never been contained in the Governing Documents, and such declaration shall not apply to any other circumstances or to any other party not controlled by such determination. It is hereby clarified that if the illegality has retrospective effect then such provision(s) shall be deemed to be ineffective from its incorporation in the Governing Documents or from when such illegality has taken effect, whichever is later.
16.8. No benefits: Acceptance of the Sales Order shall be deemed to be a confirmation by the Client, that no benefit, either in cash or kind has been provided to any director or employee of TLC in order to secure the Sales Order and a confirmation by TLC that no benefit, either in cash or kind has been provided to any employee of the Client in order to secure the Sales Order.
16.9. No Waiver: Neither Party's failure to insist on performance of any of the terms and conditions herein, exercise any right or privilege granted hereunder or enforce its rights in the event of a breach by the other Party or any course of dealing or performance shall constitute a waiver of any other right or privilege, whether of the same or similar type.
16.10. Further Assurances: Each Party shall execute and deliver or do (or procure to be executed and delivered or done by any other Person) all such deeds, documents, acts and things as may be required by Applicable Law or as may be reasonably required in order to give effect to Governing Documents and the transactions contemplated hereunder.
16.11. No Third-Party Rights: Except as otherwise expressly stated hereunder, a person who is not a Party to the Sales Order may not enforce any of the terms contained herein.