DEFINITIONS AND INTERPRETATIONS

In this TOS, unless the context otherwise requires, the following capitalized terms have the meaning ascribed to them herein:

1. "Affiliate" shall mean, any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such entity, and shall also include any group company of the Parties, subsidiaries, parent company whether by operation of law or by contract or otherwise.

2. "Applicable Agreement" means any applicable SOW, Quotation, Addendum or any other relevant agreement to which this TOS applies.

3. "Applicable Law" means all provisions of laws, statutes, rules, regulations, by-laws, guidelines, notifications, policies, directives, permits, ordinances, orders, treaties, judgments, decrees, injunctions, judicial precedents, permits, grants, decisions or orders of any governmental authorities, governing the Applicable Agreement.

4. "Change of Control" means any change in the ownership (wherein any individual or entity, or group of persons or entities acting in concert, acquire ownership or control of more than fifty percent (50%) of the voting securities of the Client entity), merger, acquisition, reorganization, consolidation, or sale of assets of the Client entity.

5. "Confidential Information" means all information written or oral (if confirmed in writing within 7 (seven) days of such oral disclosure) that is disclosed by a Party (the "Discloser") to the other Party (the "Recipient") in connection with the Purpose. Specifically for Searce, Confidential Information additionally includes: (i) this TOS and all Applicable Agreements; (ii) product offerings and proprietary products (iii) any non-publicly available documentation related to Searce's proposal, rate cards, invoices, Searce Services, and product offerings.

6. "Deliverables" shall mean any software, solution, material or item developed by Searce under this Agreement for the Client, including any specifications, design documents, documentation, manuals, process descriptions, reports, products, software, source codes, drawings, and data and databases, to be provided by Searce as part of Searce Services under the Applicable Agreement.

7. "End Users" shall mean the individuals whom Client permits to access and/or use the Services.

8. "Force Majeure" means any act of God and any circumstance which is beyond the reasonable control of the Parties, including without limitation earthquake, hurricane, tornado, floods, fire, epidemics, pandemics, or other natural disasters, war, invasion, hostilities, civil unrest, riots, national or regional emergency, sabotage, embargo, strikes, lock-outs, labour issues, terrorist activities, actions by any governmental authority, laws, sanctions, regulations, orders.

9. "High Risk Activities" means sensitive and high-risk uses including but not limited to operation of nuclear facilities, air traffic control or life support systems, where the failure of the Services could lead to death, personal injury, or environmental damage.

10. "Intellectual Property Rights" shall mean all rights over the creations of a person's intellect, such as inventions (patent rights); literary and artistic works (copyright); designs (design rights); and symbols, names, and images used in commerce (trademarks). Intellectual Property Rights may belong to Searce, the Client, or the OEM.

11. "OEM" means the Original Equipment Manufacturer which shall include without limitation, any ISVs (Independent Software Vendors), SaaS (Software-as-a-Service), IaaS (Infrastructure-as-a-Service) or PaaS (Platform-as-a-service), hardware providers, public cloud companies.

12. "OEM Services" means any services provided by the OEM and resold by Searce specified under any Applicable Agreement.

13. "Personal Data" means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

14. "Pre-Existing Material" includes, without limitation, all Intellectual Property Rights, information, knowledge, experience and know-how (including processes, ideas, concepts, methodologies, tools and techniques), device, object or source code, reports, writings, flow charts, templates, outlines, exhibits, diagrams, sketches, inventions, discoveries, designs, methods, illustrations, drawings, models, reports, material, protocols and Residual Information developed or conceived, independent of and/or prior to the rendition of Searce Services.

15. "Quotation" shall mean a document between Searce and Client, detailing scope of Services, payments and other relevant terms, to which this TOS is applicable.

16. "Resources" shall mean all full-time and part-time personnel, employees, advisors, independent contractors, associates, partners, vendors, representatives and consultants (including leased consultants) of Searce or its Affiliates who are involved in providing Searce Services and/or who are deployed either on the Client's site or at the location where Searce Services are performed.

17. "Searce Services" shall mean the services and/or products provided by Searce directly to the Client under any Applicable Agreement, and excludes OEM Services.

18. "Services" shall mean OEM Services and/ or Searce Services, which shall further be described in any Applicable Agreement.

19. "Statement of Work" or "SOW" shall mean a document detailing scope of Services, payments and other relevant terms, to which this TOS is applicable.

20. "Term" shall mean the duration of the Applicable Agreement.

21. "Third Party" shall mean any individual or entity who is not a party to any Applicable Agreement.

CLIENT OBLIGATIONS & RESPONSIBILITIES

1. Consents: The Client is responsible for any consents, information, and notices required to permit (a) Client's access and use of the Services and (b) Searce's or OEM's access, storage and processing of data provided by the Client and its End Users.

2. Conduct, Content and Security: The Client agrees, on behalf of itself and its End Users, to use the Services only for the purpose of its intended use. Client shall remain fully responsible for the actions and inactions of its End Users. The Client shall use all reasonable efforts to prevent and terminate any unauthorized access or use of the Services or of any data related to the Services, and immediately notify Searce on becoming aware of any unauthorized access or use.

3. Use Restrictions: The Client shall not, and shall ensure that its End Users do not, (a) copy, adapt, alter, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any source code of the Services; (b) perform or disclose any of the following security testing of the Services/ Deliverables environment or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; (c) sell, resell, sublicense, transfer, distribute, or make the Services available to a Third Party except the authorized End Users; (d) access or use the Services in a manner intended to avoid incurring fees or breach any Applicable Law. If the Client avails any OEM Services, the Client shall comply with the OEM's acceptable use policies related to the OEM Services, failing which the OEM has the right to suspend or require Searce to suspend the OEM Services.

4. Licenses and Approvals: The Client shall obtain and maintain all licenses, permits, approvals and other permissions required under Applicable Law to: (a) enter into the Applicable Agreement; and (b) perform its obligations under this TOS and the Applicable Agreement. The Client shall ensure that by entering into the Applicable Agreement or performing any obligations herein, it is not breaching any agreement to which the Client is a party, or violating any rights of Third Parties arising from those agreements.

5. The Client shall provide all necessary cooperation and infrastructure (including the Client's premises) to facilitate the provision of the Services.

6. The Client shall not use the Services to perform any activity or incur any obligation or indebtedness or create any encumbrance or lien in such manner as might, in any way, make OEM or Searce liable to any Third Party.

7. Client's Affiliate/s may avail Services hereunder, provided: (i) all terms, conditions, and Client's obligations under this TOS and the Applicable Agreement apply to the Client's Affiliate(s) as if they were executing the Applicable Agreement; and (ii) If any Affiliate of the Client fails to make timely payments, including interest and penalties, the Client is liable to settle such payments upon demand or invoice from Searce.

FEES, EXPENSES, TAXES, AND PAYMENT

1. Payment Term: Searce will invoice Client as per the fees and invoicing terms set out in the Applicable Agreement for the Services. Client shall pay Searce all invoiced amounts as per the payment due date and currency set out in the relevant invoices.

2. Taxes: Client shall be liable to pay fees and expenses plus all applicable taxes invoiced by Searce unless Client provides a valid tax exemption certificate. Client may withhold taxes under Applicable Law if Client provides Searce with a valid receipt evidencing the taxes withheld. Each Party is responsible for collection and/or payment of all taxes (including penalties and interest) as per the responsibilities imposed on it by any applicable governmental authority in the territory where the Services are delivered or elsewhere in connection with the use, subscription, transfer, delivery, or resale of the Services under the Applicable Agreement, including, sales tax, VAT, withholding tax, excise, import, export or other duty, tax, or other charges of any kind.

3. Invoice Disputes:

   1. The Client shall submit any invoice disputes to client.operations@searce.com within 7 (seven) days of the receipt of the invoice. If no dispute is raised within such time, it shall be deemed that the invoice is accepted by the Client and the Client shall pay the invoiced amount by the payment due date, as per the terms of the Applicable Agreement.

   2. In case of an invoice dispute, the Parties shall expeditiously enter into discussions and make all efforts to resolve the invoice dispute within 15 (fifteen) days of the dispute notification. While the dispute resolution is in progress, the Client shall pay the undisputed portion of the invoiced amount by the payment due date, as per the terms of the invoice and/or Applicable Agreement.

   3. If the Parties agree that the disputed amount was incorrectly invoiced, then Searce shall issue a rectified invoice for the corrected amount. If the disputed amount withheld is ultimately found payable, the Client shall process such amount and pay the same to Searce within 7 (seven) days of resolution of the invoice dispute.

   4. If the Parties fail to resolve the invoice dispute within 15 (fifteen) days of dispute notification, it shall become a Dispute, falling within the meaning of the term under the Applicable Agreement and its resolution shall proceed under the "Dispute Resolution" and "Governing Law and Jurisdiction" clauses of the Applicable Agreement, unless the Parties agree otherwise in writing.

4. Overdue Payments:

   1. In the event payment is overdue from Client, Searce may: (a) charge 1.5% (one and a half percent) interest compounded monthly (or the highest rate permitted by Applicable Law, whichever is higher) on such overdue amounts, from the payment due date until paid in full, and (b) suspend the Services until the overdue amount and interest are settled in full.

   2. Client shall reimburse Searce for all reasonable costs and expenses (including attorneys' fees) incurred by Searce in collecting overdue payments except where such payments are due to Searce's invoicing inaccuracies.

REPRESENTATIONS AND WARRANTIES

1. Representations and Warranties: Each Party represents and warrants that it (i) has full power and authority to enter into the Applicable Agreement; (ii) shall comply with this TOS and Applicable Laws; (iii) the execution and delivery of this TOS and the Applicable Agreement has been duly authorized and does not breach any other agreement to which it is bound.

2. Disclaimer: Searce accepts no liability for any errors or omissions of the OEM, any data privacy, confidentiality, Intellectual Property rights or any other breach by the OEM and does not guarantee the performance of OEM Services on behalf of itself or the OEM. Searce does not hold any right, title or interest over the OEM Services nor shall Searce have any obligations or liabilities in respect thereof.
   Except as expressly stated in the Applicable Agreement, to the fullest extent permitted by Applicable Law, Searce and OEM disclaim and do not make any representations and warranties of any kind, whether implied or expressed, regarding (1) content or information accessible through the Services; (2) meeting the Client's requirements, merchantability, satisfactory quality, fitness for a particular purpose, or quiet enjoyment arising out of use of the Services; (3) the Services being uninterrupted, error free, or free of harmful components; or (4) any Services, Client's content or Third Party content being secure or not otherwise lost or damaged. The Services are not intended to be used for High Risk Activities and any use thereof by the Client or its End Users will be at the Client's own risk, and the Client shall be solely liable for the results of such use of the Services.

3. Client's Representations and Warranties: The Client represents and warrants that: (i) it owns and is authorized to permit the use or delivery of, certain materials, that are required for Searce and its subcontractors to perform the Services; (ii) such materials do not and shall not violate or infringe any Applicable Laws or Intellectual Property Rights of any Third Party; (iii) it shall maintain a safe work environment for Searce's personnel working for the Client, whether or not at the Client's site, at the Client's sole expense; (iv) it is not a party to any litigation or judicial, administrative or arbitration proceeding which could have any adverse effect upon performance of the Client's obligations under the Applicable Agreement; (v) it shall not do or fail to do any act that would tarnish or affect the goodwill, reputation or brand name of Searce or the OEM.

DATA PRIVACY

In the event Searce receives Personal Data from the Client and/or processes Personal Data on the Client's behalf, to the extent required, Searce shall: (a) comply with, and only act on, instructions from or on behalf of the Client regarding the processing of such Personal Data of the Client; (b) not process such Personal Data for any purpose other than for the performance of its obligations under the Applicable Agreement; (c) ensure that appropriate technical and organizational measures are taken to avoid unauthorized or unlawful processing, loss, damage or destruction of Personal Data; (d) ensure the reliability of, and be responsible for, all of Searce's employees, agents and contractors who have access to the Personal Data; (e) not, by any act or omission, place the Client in breach of Applicable Law; (f) inform the Client immediately of any suspected or confirmed data breaches or unauthorized or unlawful processing, loss, destruction, or damage to, the Personal Data; (g) ensure that any Third Party subcontractor engaged by Searce to process Personal Data on behalf of the Client only uses and accesses the data in accordance with the terms of this TOS and the Applicable Agreement and is bound by written obligations requiring it to provide at least the level of data protection required Applicable Law.

PUBLICITY

Each Party may use and display the other Party's brand/ entity names and logos in accordance with the trademark usage guidelines, if made available. During the Term of the Applicable Agreement, the Parties may state their relationship publicly, engage in joint marketing/ publicity activities such as Client testimonials, press engagements, public speaking events, analyst interviews etc. A Party may revoke the other Party's right to use its brand/ entity names and logos in the future with a written notice of 45 (forty five) days.

CHANGE OF CONTROL

If a Change of Control or any change in the entity/brand name of the Client occurs, or the Client files for insolvency, bankruptcy or liquidation, the Client shall notify Searce at least 30 (thirty) days prior to formally filing for such insolvency, bankruptcy, liquidation or Change of Control. Change of Control does not in any way affect any payment obligation of the Client.

NON-EXCLUSIVITY

Nothing shall preclude or limit Searce from developing or providing products/ services of any kind to any individual or entity as Searce in its sole discretion deems appropriate.

FORCE MAJEURE

Neither Party shall be liable or be in default for any delay or failure in performance under the Applicable Agreement (other than payment obligations) or interruption of Services resulting directly or indirectly from the occurrence of a Force Majeure event; provided the non-affected Party shall resume performance as soon as such causes are removed.

LIMITATION OF LIABILITY

1. Unless provided otherwise in the Applicable Agreement and subject to the payment and indemnification obligations under this TOS and the Applicable Agreement, each Party's total aggregate liability for direct damages arising out of or relating to the Applicable Agreement is limited to the fees paid by the Client under the Applicable Agreement during the 3 (three) months before the event giving rise to the liability arose, provided that no claim against Searce shall be brought 6 (six) months after the event giving rise to such claim has arisen.

2. Notwithstanding the foregoing and to the extent permitted by Applicable Law neither Party shall have any liability arising out of or relating to any Applicable Agreement for:

   1. indirect, exemplary, consequential, special, incidental, or punitive damages;

   2. loss of anticipated revenues, profits, savings, or goodwill;

   3. unavailability of the OEM Services.

INDEMNIFICATION

1. Searce Indemnification Obligations: To the extent, it is solely and directly attributable to Searce, Searce will indemnify, defend and hold harmless the Client and its directors, officers, employees and agents, from and against any Third Party action brought against them with respect to any claim, demand, cause of action, debt or liability, including without limitation, reasonable attorneys' fees, to the extent that such action is based on (i) Searce Services infringing on Intellectual Property Rights of Third Parties; (ii) gross negligence, willful misconduct or failure to comply with Applicable Laws on part of Searce while performing the Services. Notwithstanding anything to the foregoing, Searce will not be liable wherein any Services or Deliverables are: (a) used by Client or End Users for any unlawful and unauthorized purposes, (b) performed or created on the instructions and specifications of the Client, (c) not used as per the instructions of Searce, (d) integrated with such hardware or software that is not approved by Searce.

2. Client Indemnification Obligations: Client will indemnify, defend and hold harmless Searce and OEM, and their directors, officers, employees, representatives and agents, from and against any action brought against them with respect to any claim, demand, cause of action, debt or liability, including without limitation, reasonable attorneys' fees, to the extent that such action is based on (i) Client's representations, warranties and covenants under this TOS and the Applicable Agreement; (ii) Client's or End Users' use of the Services; (iii) uncured breach of any terms of this TOS and the Applicable Agreement; (iv) gross negligence, willful misconduct or failure to comply with Applicable Law by the Client; (v) taxes/charges/cess/levies (and interest or penalties thereon) that are the obligations of the Client pursuant to the Applicable Agreement or Applicable Law and are levied against Searce; (vi) any illegal or wrongful act or omission, misconduct, negligence, misuse or unauthorized use of Services or failure to follow the established procedures/rules by the Client.

3. Indemnification Conditions: The Party to be indemnified ("Indemnified") shall give notice as promptly as possible but no later than 10 (ten) days from the date of the claim, to the other Party (hereinafter referred to as "Indemnifier"), informing Indemnifier of any loss/injury/damage and/or commencement of any action against or by the Indemnified; provided that failure to notify the Indemnifier on the occurrence of such loss or on commencement of any action against or by it shall not release the Indemnifier from the liability contained herein. Upon such notification, the Indemnifier shall assume the liability and shall indemnify and hold harmless the Indemnified against actions/ claims/ losses/ damages/ judgments/ costs/ expenses by Third Party. Any litigation or negotiation or settlement requiring the Indemnifier to make any statements or submissions, enter into any binding agreement or arrangement, admit liability, pay money, or take (or refrain from taking) any action, undertake any obligation, waive any legal, professional or other privilege attached to the matter/claim or any records, documents, or other information in relation to such claim, will require the Indemnified's prior written consent, not to be unreasonably withheld, conditioned, or delayed. The Indemnifier shall provide the Indemnified such assistance as may be reasonably required.

CONFIDENTIALITY

1. Ownership: All Confidential Information is proprietary to the Discloser, and will remain their sole property.

2. Use and Disclosure of Confidential Information: The Recipient shall only use the Discloser's Confidential Information to exercise its rights and fulfill its obligations under the Applicable Agreement, and shall use reasonable care to protect the Confidential Information against disclosure and misuse. The Recipient may disclose the Discloser's Confidential Information (a) to its employees, personnel, subcontractors and representatives who are bound by confidentiality obligations at least as protective as those in this clause, on a need-to-know basis; and (b) to any Third Party with the Discloser's prior written consent.

3. Confidentiality Exceptions: The above shall not apply to Confidential Information that: (i) is publicly available at the time of disclosure; (ii) becomes publicly available through no fault of the Recipient; (iii) is communicated to the Recipient by persons not bound by confidentiality obligations; (iv) is already in the Recipient's possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the Recipient; or (vi) is approved for release or disclosure by the Discloser. Notwithstanding the foregoing, each Party may disclose Confidential Information to the extent required: (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that, wherever possible and legally feasible, the Party making the disclosure pursuant to the order shall give prior written notice to the other Party; (ii) to establish a Party's rights under the Applicable Agreement or this TOS, including court filings, notices etc. as may be required.

NON-COMPETE

During the Term and for 24 (twenty-four) months after the termination/expiry of the Applicable Agreement, Client shall not, directly or indirectly, establish or assist in establishing or otherwise engage in any business activity which is competitive with Searce.

NON-SOLICITATION

During the Term of the Applicable Agreement and for 24 (twenty-four) months thereafter, Client shall not, without the prior written consent of Searce, directly or indirectly contact, solicit, engage, recruit, any Resources, former Resources, customers or any entity or individual introduced directly or indirectly by Searce.

INTELLECTUAL PROPERTY

1. Each Party retains exclusive ownership to its Pre-existing Material.

2. If any Pre-existing Material of a Party is integrated into any Services/ Deliverables, such Party hereby grants to the other Party, a perpetual, non-exclusive, limited license to use such Pre-existing Material to the extent it is incorporated into and used with the Services/ Deliverables.

3. All Intellectual Property Rights in the Deliverables shall be owned by the Client (excluding Searce's Pre-existing Material and Third Party software, which shall be in accordance with the terms of any license agreement relating to that software). In the event that any Deliverables do not qualify as works made for hire, Searce, upon receiving full payment, shall assign to Client, all rights, title and interests (including Intellectual Property Rights) in the Deliverables.

4. Searce shall not be liable for any claims of infringement arising from: (i) the combination of Deliverables with any hardware, software, data, or other materials not provided and approved by Searce; (ii) Searce's compliance with the Client's specifications, information, designs or requirements; (iii) Client's use of Deliverables for purposes other than those specified under the Applicable Agreement or for any illegal purpose; (iv) Client's failure to comply with Searce's instructions related to Deliverables.

5. At its will, the Client may provide feedback and suggestions about Services to Searce ("Feedback"). Searce and/or OEM will own the Intellectual Property Rights over such Feedback and may use that Feedback at their discretion, including for the on-going and subsequent provision of Services.

TERMINATION FOR CAUSE

1. Searce shall have the right to terminate the Applicable Agreement for cause by giving written notice if the Client:

   1. materially breaches the Applicable Agreement or this TOS, and fails to cure such breach within 30 (thirty) days after receiving written notice thereof;

   2. breaches any Applicable Laws;

   3. files for insolvency or bankruptcy, liquidation or undergoes a Change of Control.

2. Except in cases where the Client commits to a minimum commitment period/ usage of Services in the Applicable Agreement, the Client shall have the right to terminate the Applicable Agreement upon written notice to Searce if:

   1. OEM (if applicable) materially breaches any of its obligations related to the resold/ OEM Services and fails to cure such breach within 30 (thirty) days after receiving written notice thereof from the Client; and/or

   2. Searce materially breaches the Applicable Agreement in the provision of Searce Services and fails to cure such breach within 30 (thirty) days after receiving written notice thereof.

ASSIGNMENT

Neither Party may assign the Applicable Agreement without the written consent of the other Party, except to an Affiliate; provided that: (a) the assignee has agreed in writing to be bound by the terms of the Applicable Agreement, (b) the Party assigning the rights remains liable for obligations under the Applicable Agreement if the assignee defaults on them.

MISCELLANEOUS

1. Relationship between the Parties: The Client acknowledges that OEM Services are provided by Searce as an authorized reseller of the OEM wherein OEM and Searce are independent contractors. The relationship between OEM, Searce and the Client shall not constitute a partnership, joint venture, employment or agency. Neither Party shall have authority to bind the other except to the extent expressly authorized herein.

2. Severability: If any provision of this TOS or the Applicable Agreement is invalid by Applicable Law, the remainder shall be considered as valid and binding.

3. No Waiver: No delay or failure by either party to exercise any right under the Applicable Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.

4. Amendment: No amendment of the Applicable Agreement shall be valid unless executed in writing by the Parties.

5. Language: This TOS and the Applicable Agreement is in English language only, which shall be controlling in all respects. No translation, if any, shall be used to interpret or determine the intent of either party.

6. Third Parties: Searce shall be entitled to engage Third Parties (including but not limited to software engineers, technicians, industry experts/ specialists) for the performance of the Applicable Agreement.

7. Counterparts: The Applicable Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of the Applicable Agreement.

SURVIVAL

The following clauses shall survive expiration or termination of the Applicable Agreement and shall apply to either Party's successors or assigns: (i) Definitions and Interpretation; (ii) Effects of Termination; (iii) Fees, Expenses, Taxes, and Payment; (iv) Limitation of Liability; (v) Indemnification; (vi) Non-Compete; (vii) Non-Solicitation; (viii) Dispute Resolution; (ix) Governing Law and Jurisdiction; (x) Intellectual Property; (xi) additional clauses intended to survive in the TOS or any Applicable Agreement.