Software As a Service Agreement

BY CLICKING ON THE “I AGREE” BUTTON OR BY PURCHASING A SUBSCRIPTION TO THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED IN THIS SOFTWARE AS A SERVICE AGREEMENT FOR ACCESS TO THE COMMUNITY PORTAL.

THIS SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU, YOUR, LICENSEE”) AND BIOFUELCIRCLE PRIVATE LIMITED., A COMPANY REGISTERED UNDER THE LAWS OF INDIA, HAVING ITS REGISTERED OFFICE AT FLAT NO. 1, BUILDING D, S NO.164-1 B, 1A2, DP ROAD, AUND, PUNE – 411 007 (“US, WE, OUR, LICENSOR”, WHICH EXPRESSION SHALL INCLUDE ITS AFFILIATES, SUBSIDIARIES, SUCCESSOR IN INTEREST AND PERMITTED ASSIGNS).

THIS AGREEMENT GOVERNS YOUR SUBSCRIPTION, ACCESS, AND USE OF OUR SOFTWARE (AS DEFINED BELOW) AND SERVICES (AS DEFINED BELOW).

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR THE PURPOSES OF MONITORING THE AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OF THE SERVICES OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

WE MAY UPDATE THIS AGREEMENT FROM TIME TO TIME AND PUBLISH THE SAME ON OUR WEBSITE.

IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT ACCESS, OR USE THE SOFTWARE AND THE SERVICES.

The Licensor and the Licensee are hereinafter individually referred to as a “Party” and collectively as the “Parties”.

DEFINITIONS

Affiliate(s): shall mean any corporation, association, or other entity that directly or indirectly owns, is owned by, or is under common ownership with either Party, respectively, either currently or during the validity of this Agreement.

Documentation: shall mean any accompanying documents, content, data, user guides, online help, release notes, training materials, provided by Us to You along with the Software.

Enhancement(s): shall mean any modification, update, upgrade or addition to the Software that, when made or added to the Software, and its modules currently being used by You, provides minor functionality change or improvements to the Software but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Us to all Our customers as a part of Our License to Our Software as a part of the Services during the Subscription Term.

Error(s): shall mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the Documentation due to any programming defect in the Software, when used by You as specified under this Agreement or the Documentation by Us. The term “Error”, shall however, not include any failure or inability of the Software that (i) results from the misuse or improper use of the Software, (ii) does not materially affect the operation and use of the Software, (iii) results from any modification or change to the Software that is not authorized by Us, (iv) results from any cause beyond Our reasonable control, including third party cloud environment, hardware, software, firmware, malicious code like virus, trojan or malware.

Fix(es): shall mean any modification or addition to the Software that, when made or added to the solution or modules currently being used by You, corrects Errors but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Us to all its customers.

License: shall mean the fixed-term, non-exclusive, transferable, revocable, sublicensable and limited license to use or permit its Users to use and access the Software on a subscription basis as (a part of the Services) pursuant to the terms of this Agreement.

Licensee/Your Content: shall mean all data created by You or in any way originating with You, and all data that is the output of computer processing of or other electronic manipulation of any data that was created by or in any way originated with You, whether such data or output is stored on Your hardware, Our hardware, or exists in any system owned, maintained, or otherwise controlled by You or by Us.

Platform: shall mean the BiofuelCircle website and mobile application.

Registered User/s: shall mean those of You who have registered on the Platform by signing up for free and wish to avail the complimentary features of the Software.

SaaS: shall mean Software as a Service.

Services: shall mean the internet accessible and cloud-based subscription of the Software offered by Us on a SaaS basis, under which, the Software is Licensed to You during the Subscription Term. The details of the Services are more particularly detailed under Annexure A.

Software: shall mean the software Licensed by Us as a part of the Services under this Agreement and described in Annexure A. “Subscription Term” shall have the meaning ascribed to it under clause 13 (a) of this Agreement.

User(s): shall mean Your employee, or contractor, supplier or any other user of the Software and Services.

DELIVERY

Grant of License: During the Subscription Term, We as a part of the Services hereby grants You and Your Users, the License to the Software. Subject to the terms and conditions of this Agreement We hereby grant You a non-exclusive, non-transferable, revocable license to use the Service for the Term. You shall be provided access to the Service, and You may authorize Your employees to access it. You shall be responsible for use or misuse of the Services by Your Users. You understand and acknowledge that You shall not have the right to sublicense or re-distribute the Service to third parties. Nothing in this Agreement shall be considered as a grant of title or ownership in the Software to You.

Delivery: The Software (including Enhancements, if any) shall be electronically transmitted by Us via the internet. You

RESTRICTIONS

You, by yourself shall not and shall ensure that Your User, or its associated third party do not, directly or indirectly:

• i) Copy, modify, adapt, translate, reverse engineer, attempt to recover the source code, underlying structures, algorithms, decompile, disassemble, alter, reproduce, or otherwise make any changes to the Software or the Services create any derivative works thereof.

• ii) Use the Software or the Services in any manner to provide time-sharing, benchmarking, or other computer services to third parties, except as expressly provided herein.

• iii) Use the Software or the Services, or allow the transfer, transmission, export, or re-export of the Software or Documentation or any portion thereof, in violation of any applicable laws or regulations.

• iv) Allow the Software to be used for applications/instances in excess of the License purchased by You.

• v) Allow use of the Software by anyone other than Your Users.

• vi) Use the Software or the Services to develop any competing or similar product.

• vii) Use any of the Software’s components, add-ons, files, modules, externals, contents, including associated license material, separately from the Software.

• viii) Use the Software or the Services with any unsupported software or hardware in any manner not recommended by Us (as described in the applicable Documentation provided by Us).

You shall have no rights over the Software or the Services, other than as specifically granted herein. All rights not specifically and unequivocally granted to You are reserved by Us.

THE LICENSEE’S RESPONSIBILITIES

Account Management: You shall be responsible for managing Your User’s account and updating the same from time to time. As a condition for using the Services, Your Users may be required to register with Us and enter his/her email address and/or phone number. This account management will be facilitated through an admin appointed by You. You shall ensure that Your Users shall provide accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Your User’s account. Your User shall be responsible for maintaining the confidentiality of User’s account and password.

Compliance with Laws: You shall comply with and shall ensure that the Users comply with, all applicable local, state, national and foreign laws, in connection with its use and access of the Software or the Services, international communications, and the transmission, storage of technical or personal data. You acknowledge that We exercise no control over the content of the information transmitted by You or the Your Users through the Software or the Services.

Unauthorized Use; False Information: You shall: (i) notify Us immediately of any unauthorized use of any password or user id or any other known or suspected breach of security in relation to the Software or the Services, (ii) report to Us immediately and use reasonable efforts to stop any unauthorized use of the Software and/or the Services, that is known or suspected by You or any of Your Users, and (iii) not provide false identity information to gain access to or use the Software and/or the Services.

Access: To access the subscription to the Software, along with providing the log-in credentials by Your Users, You shall ensure that the Users abide by the terms of this Agreement, at all times, while accessing the Software and using the Services. You shall be solely responsible for the acts and omissions of Your Users. We shall not be liable for any loss of data or functionality, caused directly or indirectly by Your Users.

We improve our products and advertising by using Microsoft Clarity, Google Analytics to see how you use our platform. By using the platform, you agree that We and Microsoft, Google can collect and use this data. Our privacy notice has more details.

Licensee Content. You are solely responsible for collecting, entering and updating all Your Content i.e. the Licensee Content uploaded on, accessed using, or processed through the Software and/or the Services, and for ensuring that the Licensee Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Licensee acknowledges and agrees We use certain third-party tools for analytical purposes and may use Licensee Content and track Your usage of the subscription for any purpose including but not limited to research, analytics, and to improve Our Services.

REPRESENTATION AND WARRANTY OF THE LICENSEE

You warrant to Us that that You have the legal right and authority to enter into and perform Your obligations under this Agreement.

You hereby acknowledge and agree that in entering into this Agreement, You have had recourse to Your own skill and judgment to check the applicability of the Software and to validate if the Software is suitable for the task for which You intend it to be used, and have not relied on any representations made by Us or any of Our employees or agents.

FEES

You shall avail the services to the Software free of cost as a Registered User as per terms under Annexure A of this Agreement.

DISCLAIMER OF WARRANTY

EXCEPT AS SET OUT UNDER THIS AGREEMENT, THE SOFTWARE AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR COVENANTS WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY EXPRESS, STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY OR ARISING OTHERWISE IN LAW OR EQUITY OR COVENANT, BASED ON A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS, THAT THE OPERATION OF ANY OF THE SOFTWARE WILL BE UNINTERRUPTED OR THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR OR YOUR USERS’ CONTENT OR YOUR APP, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY US. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATION FACILITIES.

INTELLECTUAL PROPERTY RIGHTS

Any and all ownership rights to the Services, Software, Documentation, Enhancements, and branding thereof, including intellectual property rights such as copyrights, trademarks, service marks, and patents therein are Our sole and exclusive property. This Agreement does not grant You or any of Your Users any rights, title, and interest in and to Software, the Services, Documentation, its contents, and branding thereof including Our intellectual property rights, except where expressly and unequivocally licensed herein. Any rights not expressly and unequivocally granted to You or any of Your Users are reserved.

From time to time, You may provide feedback, suggestions, requirements, or recommendations (“Feedback”) regarding the Software or the Services. You hereby assign to Us all right, title, and interest to such Feedback and an exclusive right to create any developments based on such Feedback.

In between the Parties, You shall retain title to and all ownership rights in the Licensee Content. You shall grant to Us a worldwide, non-exclusive and non-transferable limited-term license to host, copy, transmit, analyze, process, display, store, configure, and perform the Licensee Content, solely as necessary to provide the Services to You or for the working of the Software.

You acknowledge and agree the Software may generate certain reports (the “Reports”) with the use of the Licensee Content provided by You, while availing the Services. All intellectual property rights in all such Reports generated during the provision of Services pertaining to the Software or the Services shall vest solely with Us.

CONFIDENTIALITY

“Confidential Information” shall mean information disclosed by one Party to the other and which includes, without limitation, the Software, Documentation, Enhancements, Fixes, financial, business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, the Services, and such other information. Confidential Information does not include information which: (a) is in the public domain without disclosure by the Party and without breach of any agreement or confidentiality obligation; (b) was known to the Party at the time such disclosure was made, or becomes known to the Party without breach of any confidentiality agreement; (c) is independently developed by either Party without violating any confidentiality obligations stated herein or access or use of the either Party’s Confidential Information, as evidenced by written records.

The receiving Party shall only use the Confidential Information for the purpose, for which it is disclosed. Furthermore, the receiving Party shall keep Confidential Information and data received from the disclosing Party, in strict confidence and shall not disclose it to any third Parties, except to a limited group of receiving Party’s directors, officers, agents, authorized representatives on a need-to-know basis.

Upon request by the disclosing Party, the receiving Party shall immediately return to the disclosing Party, all Confidential Information disclosed by the disclosing Party and all copies thereof. All such information shall be and shall remain the sole property of the disclosing Party.

The confidentiality obligations stated herein shall survive for a period of five (5) years from the date of termination or expiration of this Agreement.

The receiving Party agrees that any violation of the confidentiality obligations will cause irreparable injury to the disclosing Party, entitling the disclosing Party to obtain injunctive relief in addition to all legal remedies.

INDEMNITY

You shall indemnify, hold harmless and defend Our directors, officers, employees, representatives, and Our Affiliates against any costs or damages arising out of or in connection with any claim relating to (i) Your breach of or violation of applicable laws and regulations or (ii) use of the Software, or the Services other than as permitted under this Agreement, or (iii) any act or omission of Your User or (iv) any breach by You of Your confidentiality obligations, or (v) breach by You of its responsibilities or any representations and warranties under this Agreement, or (vi) a third party claim made against Us for infringement or misappropriation based upon Your following conduct: (a) Your combination or use of the Software or the Services with software, services, or products developed by You or third parties; (b) the Licensee Content infringes any patent, copyright or trademark, or misappropriates any trade secret; or (c) third party claim made against Us for accessing the personal information or any other data of Your Users.

LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, HOWSOEVER CAUSED, IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

NOTWITHSTANDING THE FOREGOING, OUR MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)) HEREUNDER FOR ALL DAMAGES, UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO INR 1000/-. NO CLAIM AGAINST US MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAVE ARISEN. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES IN THIS CLAUSE FORM AN ESSENTIAL BASIS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN.

SUBSCRIPTION TERM AND TERMINATION

The License is granted to You for a period of 1 (one) year from the date of Registration (the “Initial Subscription Term”). Unless the Agreement is terminated in accordance with its terms, the License shall automatically be renewed for a period of similar duration as that of the Initial Subscription Term (the “Renewal Subscription Term”). The Initial Subscription Term and the Renewal Subscription Term shall individually or collectively be referred to as the “Subscription Term.” The Subscription Term shall be effective from the actual date of the License to the Services.

Either Party may terminate this Agreement in the event that (i) the other Party is in default of any of its material obligations hereunder and such default is not remedied within sixty (60) days of receipt of written notice thereof, provided that We may terminate this Agreement immediately, if You are adjudicated bankrupt or become insolvent, make any assignment for the benefit of creditors, proceedings are instituted by You seeking relief, reorganization or rearrangement under any laws relating to insolvency, bankruptcy or similar laws of any jurisdiction, a receiver, liquidator or trustee is appointed in respect of any of Your property or assets or an order is made for the liquidation, dissolution or winding up for You.

Upon the expiry of the Subscription Term or any termination of this Agreement, Your right to use the Software, or the Services shall immediately cease and at Our discretion, You will return/delete/destroy any materials (including any copies of the Software and any Confidential Information) provided by Us to You.

NON-SOLICITATION

Each Party agrees that it will not, during the Subscription Term of this Agreement and for a period of one (1) year after the termination or expiration of this Agreement, directly solicit the services of (for employment, consulting or otherwise), accept the services of, or employ or engage any person who is employed by the other Party.

INTERPRETATION

This Agreement will in all events be construed as a whole, according to its fair meaning, and not strictly for or against a Party merely because that Party (or the Party’s legal representative) drafted the Agreement. The headings, titles, and captions contained in this Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neutral, and (b) the word “including” means “including, without limitation.”

FORCE MAJEURE

In any event or combination of events or circumstances beyond the control of a Party which cannot (a) by the exercise of reasonable diligence, or (b) despite the adoption of reasonable precaution and/or alternative measures be prevented, or caused to be prevented, and which materially and adversely affects a Party’s ability to perform obligations under this Agreement including but not limited to:

• Acts of God i.e. fire, drought, flood, earthquake, and other disasters;
• Epidemics, pandemics and consequences thereof; explosions or accidents;
• Demonetization and other government policy changes;
• Quarantine situations, governmental orders, state or nationwide lockdowns, strikes or lockouts;
• Any change in law; or
• Any event or circumstances analogous to the foregoing.

1. b)The Parties will not hold each other liable for their non-performance of its obligations as set out in this Agreement. Either Party shall have a right to suspend or terminate this Agreement in case such force majeure conditions persist for a period exceeding sixty (60) days. Nothing in this section shall apply to Your payment obligation under this Agreement.

SEVERABILITY

If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any respect, including because of the duration thereof, the area covered thereby, or the types of activities restricted thereby, by a court of competent jurisdiction (a) the validity, legality or enforceability of the remaining provisions contained herein shall not, in any way be affected or impaired thereby, and (b) the court of competent jurisdiction making such determination shall have the power to reduce the duration and/or area of such provisions or types of activities restricted and/or to delete specific words or phrases and in its reduced form, such provision shall then be enforceable. The Parties may, acting in good faith, adopt any and all actions required to cause such invalid, illegal and unenforceable provision to be validated and enforced, or, alternatively, to reach an agreement in relation to said null provision whereby each of the Parties receives, as far as possible, substantially the same benefits and obligations based on valid provisions, provided that the Agreement is not enforced in a form that materially affects the commercial agreement between the Parties.

ASSIGNMENT AND DELEGATION

You shall not assign this Agreement. We may assign this Agreement in conjunction with the sale of substantial assets, divestiture, merger or amalgamation, or to Our Affiliate, and may delegate or subcontract Our duties. Any unauthorized assignment of this Agreement is void.

PUBLICITY

You will provide Us the permission to use Your name or logo for promotional purposes or otherwise publicly announce or comment on this Agreement without prior written consent from You, subject only to compliance by Us of Our confidentiality obligations hereunder.

WAIVER

Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.

GOVERNING LAWS

This Agreement and all rights and obligations under this Agreement shall, in all respects, be governed by and construed and enforced in accordance with the laws of India and the courts of Pune shall have the exclusive jurisdiction to adjudicate any subject matter under this Agreement.

AUDIT

We shall have the right to audit Your use of the Software and Services during business hours and upon five (05) days’ prior notice in order to verify that the Software, and the Services are being used in compliance with this Agreement. You will use Your best efforts to promptly correct any deficiencies related to Your performance under this Agreement uncovered by any audit described in this clause.

NON-COMPETE

You shall not create any software, solutions or services thereof, where such platform, solution or services are the same or substantially similar to the Software or Services.

ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement, and may not be amended, supplemented, varied or otherwise changed except in writing. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty, other than as expressly set out in this Agreement. This Agreement may be modified in writing specifically referencing this Agreement and any such modifications must be signed by both the Parties.

Annexure A – Details of the Software and Services for Registered User/s

• BiofuelCircle’s Community Portal (the “Community Portal”) is a Platform for all Registered Users to access and ascertain information on upcoming and ongoing auctions, events, webinars, and community sharing of pictorial images and information to view and to trigger participation on the Platform.
• The Community Portal shall bear the name “My BiofuelCircle.”
• Registration to the Community Portal is free, as a way to build relevant community participation and interest.
• Access to the Community Portal can be availed through both the mobile app as well as web app.
• A Registered User can decide to mute the feeds/alerts etc. on the Biofuel Circle’s Community Portal; but cannot opt out from receiving the mailers and feeds.