SOFTWARE SERVICES AGREEMENT (Effective Date: 1, JANUARY 2020)
This Software Services Agreement (Agreement) constitutes a legal agreement between you, an individual in the business of providing scheduled services hereinafter referred as “Customer” and Fudo Technologies (Private) Limited, a company registered under the Companies Act No.7 of 2007 and having its registered office at 18, N M Perera Mawatha, Colombo 8, Sri Lanka
Fudo Technologies (Private) Limited provides Customer the Fudo Mobile Application for the purpose of providing scheduled services. Customer acknowledges and agrees that Fudo is a technology services provider that does not provide any listed item on the Fudo Mobile application nor function as a delivery agent.
Fudo Technologies (Private) Limited, a software development company, has developed the Fudo Mobile application which facilitates scheduled service of its Customer. You agree to use the Fudo Mobile application on the following terms and conditions. Upon your execution of this Agreement you shall be bound by the terms and conditions set forth herein.
PROVISION OF SERVICES
Subject to this Agreement, Fudo Technologies (Private) Limited grants the Customer a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Fudo Mobile application for the purpose of managing and delivery of scheduled orders with Users of the Fudo Mobile application(Hereinafter referred to as “Users”) resulting Fees. All rights not expressly granted to Customer are reserved by Fudo Technologies (Private) Limited.
During the Term of the Agreement, Fudo Technologies (Private) Limited may update or modify the Fudo Mobile application, to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of a third-party program.
Customer shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Fudo Mobile application in any way; (b) modify or make derivative works based upon the Fudo App; (c) improperly use the Fudo App, including creating Internet “links” to any part of the Fudo App, “framing” or “mirroring” any part of Fudo Mobile application on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Fudo App; (d) reverse engineer, decompile, modify, or disassemble the Fudo App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, Customer shall not, and shall not allow any other party to, access or use the Fudo Mobile application to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Fudo Mobile application an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Fudo App; or (iv) attempt to gain unauthorized access to the Fudo Mobile application or its related systems or networks.
The Fudo Mobile application and data accruing there from, including all intellectual property rights shall remain the property of Fudo Technologies (Private) Limited. Neither this Agreement nor Customer’s use of the Fudo Mobile application or such data conveys or grants to Customer any rights: (a) in or related to the Fudo Mobile application or such data , except for the limited license granted above; or (b) to use or reference in any manner Fudo Technologies (Private) Limited’s name, logos, product and service names, trademarks service marks or other indicia of ownership. Additionally, Customer acknowledges Fudo’s rights in its trademarks and names, including the name “Fudo”, alone and in combination with other letters, punctuation, words, symbols and/or designs. Customer agrees not to try to register or otherwise claim ownership in any of the Fudo Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark or name.
FEES AND PAYMENT
In consideration of Fudo Technologies (Private) Limited provision of the Fudo Mobile application, Customer agrees to pay Fudo Technologies (Private) Limited App (software) related charges as set forth on the Fudo Technologies (Private) Limited’s Terms and Conditions.
If you fail to pay the above mentioned service fee, Fudo Technologies (Private) Limited shall be entitled, at its sole discretion, to: (a) suspend provision of the Fudo Mobile application until you fulfill your pending obligations; and/or (b) terminate this Agreement and take necessary legal action to recover the outstanding payments.
PRIVACY AND CONFIDENTIAL INFORMATION
Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party. Confidential Information includes Fudo Technologies (Private) Limited data, Driver IDs, Information of the Users, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information on Fudo Technologies (Private) Limited (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons”) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Fudo Technologies (Private) Limited, its internal record-keeping requirements). Provided that Fudo Technologies (Private) Limited may use any data generated as a result of the use of the Fudo Mobile application in anonymized form for its internal or other commercial or developmental purposes.
Subject to all applicable laws, Fudo Technologies (Private) Limited may provide to a third party any information (including personal data and any Fudo Technologies (Private) Limited Data) about Customers provided hereunder if:(a) there is a complaint, dispute or conflict, including an accident, between a Customer and a User; (b) it is necessary to enforce the terms of the Agreement; (c) it is required, in Fudo Technologies (Private) Limited’s sole discretion, by applicable law or regulation; (d) it is necessary, in Fudo Technologies (Private) Limited’s sole discretion, to (1) protect the safety, rights, property or security of Fudo Technologies (Private) Limited, Fudo Technologies (Private) Limited Services or any third party, (2) detect, prevent or otherwise address fraud, security or technical issues, and/or (3) prevent or stop activity which Fudo Technologies (Private) Limited or any of its Affiliates, in their sole discretion, consider to be, or to pose a risk of being, illegal, unethical or legally actionable; or (e) it is required or necessary, in Fudo Technologies (Private) Limited’s sole discretion, for insurance or other purposes related to Customer’s ability to qualify, or remain qualified, to use the Fudo Mobile application. Customer understands that Fudo Technologies (Private) Limited may retain Customer’s personal data for legal, regulatory, safety, and other necessary purposes after this Agreement is terminated.
Customer hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it has not entered into, and during the term will not enter into, any agreement that would prevent it from complying with this Agreement; (c) it will comply with all applicable laws in its performance of this Agreement.
Fudo Technologies (Private) Limited provides, and Customer accepts, the Fudo Mobile application and other ancillary services (if any) on an “as is” and “as available” basis. Neither Fudo Technologies (Private) Limited, warrants or guarantees that Customer’s access to or use thereto :(a) will be uninterrupted or error free; or (b) will result in any requests for scheduled services.
Fudo Technologies (Private) Limited functions as an scheduled solutions provider and related service only and makes no representations, warranties or guarantees as to the actions or inactions of the Users who may request or receive items listed from Customer, and Fudo Technologies (Private) Limited need not screen or otherwise evaluate Users.
Fudo Technologies (Private) Limited does not guarantee the availability or uptime of the Fudo Mobile application. Customer acknowledges and agrees that the Fudo Mobile application may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Fudo Mobile application may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Fudo Technologies (Private) Limited is not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
RELATIONSHIP OF THE PARTIES
Except as otherwise expressly provided herein with respect to Fudo Technologies (Private) Limited acting as an intermediate Solutions Provider for scheduled services listed by its customers, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship (including from the perspective of labor law, tax law or any other in Sri Lanka), between Fudo Technologies (Private) Limited and a Customer and (b) no joint venture, partnership, or agency relationship exists between Fudo Technologies (Private) Limited and Customer.
Customer shall indemnify, defend (at Fudo Technologies (Private) Limited’s option) and hold harmless Fudo Technologies (Private) Limited its respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, and taxes arising out of or related to: (a) Customer’s breach of its representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to Customer’s provision of scheduled services through the use of the Fudo Mobile application.
LIMITATION OF LIABILITY
Fudo Technologies (Private) Limited shall not be liable under or related to this Agreement for any of the following, whether based on contract, delict or any other legal theory, even if a party has been advised of the possibility of such damages: (i) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (ii) Customer’s or any third party’s property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use or other economic advantage. Except for Fudo Technologies (Private) Limited’s obligations to pay amounts due to Customer pursuant to its Service Provider Terms and Conditions (addendum to this Agreement) attached below, but subject to any limitations or other provisions contained in this Agreement which are applicable thereto, in no event shall the liability of Fudo Technologies (Private) Limited under this Agreement exceed the amount of Service Fees actually paid to or due to Fudo Technologies (Private) Limited hereunder in the three (3) month period immediately preceding the event giving rise to such claim.
Customer acknowledges and agrees that any and all claims Customer has or purports to have against Fudo Technologies (Private) Limited should be notified to Fudo Technologies (Private) Limited within Thirty (30) days after the event(s) that gave rise to such claim and that Customer forfeits all rights in respect of that claim if Customer fails to do so. Nothing in this Section purports to limit or exclude liability that cannot be limited or excluded by applicable law.
This Agreement shall commence on the date that the Agreement is executed by Customer and shall continue until terminated as set forth herein.
Either party may terminate this Agreement: (a) without cause at any time upon fourteen (14) days prior notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party.
Upon termination of the Agreement, Customer shall immediately delete and fully remove the Fudo Mobile application from any applicable Devices. All Addendums to this agreement shall automatically terminate upon the termination of this agreement. All outstanding payment obligations and Sections of this agreement shall survive the termination of this Agreement.
Modification – Fudo Technologies (Private) Limited reserves the right to modify the terms of this Agreement, effective upon publishing an updated version of this Agreement, as applicable, on the Fudo Technologies (Private) Limited Website or the Fudo App. Fudo Technologies (Private) Limited reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Continued use of the Fudo Mobile application after any such modifications or updates shall constitute Customer’s consent to such change.
Addendums – Addendums may apply to Customer’s use of the Fudo Mobile application to provide mobility services, such as use policies or terms related to certain features and functionality, which may be modified from time to time. Customer may be presented with certain Addendums from time to time. Addendums are in addition to, and shall be deemed a part of, this Agreement. Addendums shall prevail over this Agreement in the event of a conflict.
Severability – If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of this Agreement.
Entire Agreement – This Agreement, including all Addendums, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.”
Assignment – Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party. Fudo Technologies (Private) Limited may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement from time to time without consent.
No Third-Party Beneficiaries – The parties acknowledge that there are no third-party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any thirdparty beneficiary claims.
Notices – Any notice delivered by Fudo Technologies (Private) Limited to Customer under this Agreement will be delivered by posting on the Fudo Mobile application. Any notice delivered by Customer to Fudo Technologies (Private) Limited under this Agreement will be delivered by contacting Fudo Technologies (Private) Limited at http://www.fudo.world in the “Contact Us” section. Additional Territory-specific notices may be required from time to time.
Force Majeure – Fudo Technologies (Private) Limited will not be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; labor disputes; industrial disturbances; systematic electrical, telecommunications or other utility failures; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; and war.
GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of Sri Lanka.
If any dispute arises between the Customer and Fudo Technologies (Private) Limited, in connection with, or arising out of, this Agreement, the dispute shall be referred to arbitration under the Arbitration Act. No. 11 of 1995 (Sri Lanka) to be adjudicated by a sole arbitrator to be appointed by Fudo Technologies (Private) Limited. Arbitration shall be held in Colombo. The proceedings of arbitration shall be in the English language. The arbitrator’s award shall be final and binding on the Parties.
In addition to above remedies, Fudo Technologies (Private) Limited shall be entitled to an interim injunction, restraining order or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate to restrain Customer from committing any violation of the covenants and obligations set out in this Agreement. These equitable remedies are cumulative and are in addition to any other rights and remedies Fudo Technologies (Private) Limited may have at law or in equity.
By clicking “I accept” or signing below (as such may be required by applicable law), Customer expressly acknowledges that Customer has read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that Customer agrees to be bound by the terms and conditions of this Agreement, and that Customer is legally competent to enter into this Agreement with Fudo Technologies (Private) Limited.