This VisitorXsys VMS Software-as-a-Service Agreement (“Agreement”) sets forth the terms and conditions governing the use of the Services provided by VisitorXsys VMS, Inc. (“VisitorXsys VMS”), a corporation with its principal place of business at Unit No. 301, IRIS Tech Prak, Sector 48, Gurugram, HR- 122018 and the party agreeing to these terms, along with its affiliates (“Customer”). By completing an Order Form referencing this Agreement, clicking an “Accept” or similar button, or otherwise accessing or using the Services, Customer acknowledges and agrees to be bound by the terms of this Agreement. Customer is expressly prohibited from using the Services without first agreeing to this Agreement.
In the event of a separate written agreement executed by both VisitorXsys VMS and Customer regarding the use of the Services, the terms of such written agreement shall supersede and take precedence over this Agreement.
"Affiliate" means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
“Confidential Information” has the meaning set forth in Section 9.
“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
“Customer Equipment” means Customer’s and its Affiliates’ computer hardware, software and network infrastructure used to access the Services.
“Customer Data” means data, text, files, and the like that Customer inputs and/or loads into the Services or that VisitorXsys VMS otherwise processes on Customer’s behalf in connection with providing the Services.
“Documentation” means the description of the Services licensed by Customer contained in the official VisitorXsys VMS Services specifications.
“Effective Date” means the date this Agreement or an Order Form referencing this Agreement is first executed.
“Hardware” means any iPads, printers, printer stands, and the like provided by VisitorXsys VMS, if and as listed in an Order Form.
“Order Form” means an order for the Services signed by Customer and VisitorXsys VMS or its Reseller, or a VisitorXsys VMS-issued price quotation accepted by Customer. Acceptance occurs when Customer issues a corresponding purchase order (or similar document) which references the price quotation.
“Reseller” means a reseller authorized in writing by VisitorXsys VMS to provide the Services on VisitorXsys VMS’s behalf.
“Services” means any VisitorXsys VMS cloud solution, downloadable software, and APIs licensed by VisitorXsys VMS to Customer, together with all Updates, as further described in the Documentation and in an Order Form.
“Support” has the meaning set forth in Section 6.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” means the Term applicable to each of the Services specified on an Order Form, or if no such term period is defined, twelve (12) months, commencing on the effective date of the Order Form.
“Updates” means all Services updates and enhancements that VisitorXsys VMS generally makes available at no additional charge to its customers of the version of the Services purchased hereunder who are current in payment of applicable fees.
“Users” means Customer's and its Affiliates' employees, agents, contractors, and consultants who are authorized by Customer to use the Services.
Subject to the terms and conditions of this Agreement, VisitorXsys VMS hereby grants Customer and its Affiliates a non-exclusive, non-transferable license (except as permitted under this Agreement in the event of a transfer to a successor in interest) to access, use, and install the Services specified in an applicable Order Form during the Term. Installation rights apply solely to those portions of the Services expressly made available for download by VisitorXsys VMS. Customer’s right to use the Services is strictly limited to the location(s) and any other restrictions set forth in the applicable Order Form and Documentation.
Any sample language, templates, or agreements provided in connection with the Services (e.g., example confidentiality agreements or visitor terms) are furnished solely for illustrative and informational purposes. Customer acknowledges and agrees that it is solely responsible for customizing and ensuring the suitability of any language or agreement it implements in connection with the Services for its specific needs and purposes. The Services include optional functionality that enables Customer to send emails. Customer acknowledges and agrees that, for every email sent through the Services, VisitorXsys VMS may include a source identifier (e.g., a small logo, a “powered by” tagline, or similar attribution) within such emails.
Notwithstanding anything to the contrary in this Agreement, VisitorXsys VMS shall have the right to collect, analyze, and process data and other information relating to the provision, use, and performance of the Services, including related systems and technologies. VisitorXsys VMS may use such information and data (during and after the Term) to:
(i) improve, enhance, and develop the Services, and for diagnostic, corrective, and analytical purposes in connection with the Services and other VisitorXsys VMS offerings; and
(ii) disclose such data solely in aggregate or de-identified form in connection with its business operations, provided that such disclosure does not identify any individual or entity. To the extent VisitorXsys VMS processes Personal Data (as defined under the Digital Personal Data Protection Act, 2023).
VisitorXsys VMS shall provide the Hardware listed in the applicable Order Form. VisitorXsys VMS shall pass through any and all warranties provided by the applicable manufacturer(s) of the Hardware. The Hardware shall be subject to the shipping and returns policies found at www.visitorxsys.com
As between the parties, Customer shall be solely responsible for:
(i) all activities conducted under its User accounts or logins;
(ii) obtaining, maintaining, and ensuring the proper functioning of any Customer-owned equipment, ancillary software, and/or services required to connect to, access, install (limited to those portions of the Services made available for download by VisitorXsys VMS), or otherwise use the Services, excluding any Hardware provided by VisitorXsys VMS; and
(iii) ensuring that it possesses all necessary third-party licenses required for the lawful use of the Services.
Permitted Use and Restrictions: Customer shall use the Services solely for its internal business purposes and in compliance with all applicable laws, including but not limited to privacy and anti-spam regulations. Customer shall not:
(a) resell, sublicense, lease, time-share, or otherwise make the Services available to any third party, including its own customers;
(b) process, transmit, or store any material that is unlawful, infringing, or otherwise prohibited using the Services;
(c) attempt to gain unauthorized access to the Services or disrupt their integrity, performance, or the data contained therein;
(d) modify, copy, or create derivative works based on the Services;
(e) engage in “mirroring,” “framing,” or similar practices with respect to the Services, or create internet links to the Services that include log-in credentials, user names, passwords, or secure cookies;
(f) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Services;
(g) introduce or propagate any viruses, worms, Trojan horses, or other malicious code intended to harm any system or data;
(h) access or use the Services for the purpose of developing a competitive product or service, or copying any features or user interface of the Services;
(i) use the Services, or permit their use, for product evaluation, benchmarking, comparative analysis, or any other purpose intended for publication.
Customer shall retain all ownership rights in and to:
(i) all Customer Data transmitted through or generated by the Services; and
(ii) all Customer Confidential Information.
VisitorXsys VMS shall retain all ownership rights in:
(i) the Services; and
(ii) any work product or deliverables provided by VisitorXsys VMS in the course of delivering Support to Customer (if applicable).
VisitorXsys VMS hereby grants Customer a royalty-free, fully paid-up, non-exclusive license to use the foregoing (i.e., the Services and any work product) during the Term, subject to the same terms and conditions governing the use of the Services under this Agreement.
VisitorXsys VMS shall own any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the operation, functionality, or improvement.
The Fees for the Services shall be as specified in the applicable Order Form. Unless otherwise stated in the Order Form, Fees for the initial Term are due and payable net thirty (30) days from the date of electronic delivery of the Services by VisitorXsys VMS and shall be payable to either VisitorXsys VMS or the designated Reseller, as applicable. For any renewal Term, Fees shall be due and payable in accordance with the same terms, except that they shall be due net thirty (30) days from the effective date of such renewal.
Upon execution of this Agreement, all payment obligations under any Order Form are non-cancelable, and, except as expressly provided in this Agreement, all payments made by Customer are non-refundable.
If Customer is paying by credit card, Customer shall provide VisitorXsys VMS with complete and accurate credit card information prior to the provision of the Services. Customer represents and warrants that such information is true, accurate, and that Customer is authorized to use the designated payment instrument. Customer agrees to promptly update its account information with any changes, including but not limited to changes in billing address or credit card expiration date.
Customer hereby authorizes VisitorXsys VMS to charge Customer’s payment instrument in advance on a periodic basis in accordance with the terms set forth in the applicable Order Form or Services description. Customer further agrees to pay all charges incurred under this Agreement.
Any payment not received by the due date (except for amounts under reasonable and good faith dispute) shall accrue late charges at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, calculated from the date the payment was due until the date it is paid. Failure to make timely payments may result in the suspension of Customer’s access to or use of the Services until all outstanding amounts are paid in full.
If Customer issues purchase orders as part of its standard business practices, Customer shall provide VisitorXsys VMS with a valid purchase order upon execution of this Agreement or the applicable Order Form. If Customer fails to provide such a purchase order, Customer authorizes VisitorXsys VMS to accept this Agreement in lieu of a purchase order.
Customer is responsible for monitoring its use of the Services. If Customer becomes aware that its use of the Services exceeds the number of licensed locations or other metrics specified under this Agreement, Customer shall promptly notify VisitorXsys VMS or the designated Reseller of such excess use. Upon notification or identification of excess use by VisitorXsys VMS, VisitorXsys VMS or the Reseller shall invoice Customer for additional Fees corresponding to the period of excess use, beginning from the date such excess use occurred (as reported by Customer or otherwise identified by VisitorXsys VMS) through the remainder of the Term. Such unpaid Fees shall be payable in accordance with the payment terms set forth in Section 5.1.
Unless otherwise specified, the Fees stated under this Agreement do not include any Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder, including but not limited to sales, use, GST, VAT, or similar taxes, except for Taxes based solely on VisitorXsys VMS’s or Reseller’s net income or property. If Taxes are included on an invoice, Customer shall be responsible for paying such Taxes unless Customer provides VisitorXsys VMS with a valid tax exemption certificate authorized by the appropriate taxing authority at the time of executing this Agreement. For any Taxes not included on an invoice, Customer shall be solely responsible for remitting such amounts to the appropriate tax authorities as required by law.
VisitorXsys VMS shall provide Support in accordance with its standard Support services, provided Customer is current on all Fee payments. Support is contingent upon Customer’s compliance with payment obligations under this Agreement. Any failure to pay Fees may result in the suspension or termination of Support services. Support terms and conditions are subject to VisitorXsys VMS’s then-current policies. Additional or premium Support services may be available at an extra cost.
Each party represents and warrants that:
(i) it has the full legal right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(ii) it shall comply with all applicable laws, regulations, and legal requirements in the performance of its obligations under this Agreement.
VisitorXsys VMS warrants to Customer that the Services will substantially conform in all material respects to the specifications set forth in the Documentation (“Services Warranty”). This Services Warranty shall not apply if:
(a) the Services have been modified by any party other than VisitorXsys VMS; or
(b) the Services have been improperly used, installed, or operated in a manner inconsistent with the terms of this Agreement or the Documentation, to the extent such modification(s) or improper use/installation cause the nonconformity.
As Customer’s sole and exclusive remedy and VisitorXsys VMS’s entire liability for any breach of this warranty, VisitorXsys VMS shall, at its option:
(i) repair or replace the nonconforming Services to ensure they operate as warranted; or
(ii) if repair or replacement is not feasible, terminate the license for the nonconforming Services and refund or request the Reseller to refund the pro-rated license fees paid for such Services, calculated from the date of termination.
Except as expressly provided in this Agreement, neither party makes any warranties, whether implied, statutory, or otherwise, including but not limited to warranties of merchantability, fitness for a particular purpose, or non-infringement. VisitorXsys VMS specifically disclaims any warranty that the operation of the Services will be uninterrupted, error-free, or completely secure.
8.1. VisitorXsys VMS shall defend, indemnify, and hold harmless Customer from and against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with any claims, demands, suits, or proceedings (“Claims”) brought by a third party alleging that the use of the Services, as authorized under this Agreement, infringes such third party’s U.S. intellectual property rights. This indemnification obligation is conditioned upon Customer:
(a) promptly providing VisitorXsys VMS with written notice of the Claim;
(b) granting VisitorXsys VMS sole control over the defense and settlement of the Claim (provided that VisitorXsys VMS may not settle any Claim without unconditionally releasing Customer from all liability); and
(c) providing VisitorXsys VMS, at VisitorXsys VMS’s expense, with all reasonable assistance in the defense or settlement of the Claim.
8.2. VisitorXsys VMS may, at its sole discretion and expense:
(i) procure for Customer the right to continue using the Services in accordance with this Agreement;
(ii) replace or modify the Services to make them non-infringing while maintaining substantially equivalent functionality; or
(iii) if neither of the foregoing options is reasonably practicable, terminate the license for the affected Services and refund or request the Reseller to refund to Customer any prepaid Fees for the remainder of the then-current Term, calculated from the effective date of termination.
8.3. VisitorXsys VMS shall have no liability for any Claim to the extent such Claim arises from:
(i) the use of the Services in combination with any product, service, or device not furnished, recommended, or approved by VisitorXsys VMS, if the Claim would have been avoided by the use of the Services alone; or
(ii) Customer’s use of the Services in violation of this Agreement.
8.4. The provisions of Section 8 set forth VisitorXsys VMS’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to any claims of infringement or misappropriation of third-party intellectual property rights.
8.5. Customer shall defend, indemnify, and hold harmless VisitorXsys VMS from and against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with any claims, demands, suits, or proceedings (“Claims”) brought by a third party alleging:
(i) that Customer Data infringes such third party’s intellectual property rights under applicable Indian laws, including but not limited to copyrights, patents, or trademarks; or
(ii) that Customer’s use of the Services violates any applicable laws, including but not limited to the Information Technology Act, 2000, or the Digital Personal Data Protection Act, 2023.
This indemnification obligation is conditioned upon VisitorXsys VMS:
(a) promptly providing Customer with written notice of the Claim;
(b) granting Customer sole control over the defense and settlement of the Claim (provided that Customer may not settle any Claim without unconditionally releasing VisitorXsys VMS from all liability); and
(c) providing Customer, at Customer’s expense, with all reasonable assistance in the defense or settlement of the Claim.
9.1. As used in this Agreement, “Confidential Information” means all confidential and proprietary information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is either:
(i) designated as confidential; or
(ii) reasonably understood to be confidential given the nature of the information and the circumstances of disclosure.
Confidential Information includes, but is not limited to:
9.2. Exclusions: Confidential Information shall not include any information that:
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party, without breach of any obligation owed to the Disclosing Party;
(iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or
(iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
9.3. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written consent. The Receiving Party shall protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care. Notwithstanding the foregoing, VisitorXsys VMS may use anonymized data generated by the use of the Services for its business purposes, provided such data does not identify Customer or any individual. The Receiving Party shall promptly notify the Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality involving the Disclosing Party’s Confidential Information.
9.4. If the Receiving Party is compelled by law to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall:
(i) provide the Disclosing Party with prior notice of such compelled disclosure (to the extent permitted by law); and
(ii) provide reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.
9.5. Upon any termination of this Agreement, the Receiving Party shall:
(i) continue to maintain the confidentiality of the Disclosing Party’s Confidential Information for as long as such information remains confidential; and
(ii) upon the Disclosing Party’s request, either return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing the Disclosing Party’s Confidential Information.
10.1. Except for:
(i) Customer’s indemnification obligations under this Agreement;
(ii) Customer’s failure to pay any Fees due under this Agreement;
(iii) Customer’s unauthorized use, distribution, or disclosure of VisitorXsys VMS’s intellectual property; or
(iv) Customer’s material breach of Section 9 (Confidentiality),
in no event shall either party’s aggregate liability arising out of or related to this Agreement, whether in contract, tort, or under any other theory of liability, exceed the Subscription Fees paid by Customer to VisitorXsys VMS during the six (6) months immediately preceding the date the claim accrued.
10.2. In no event shall VisitorXsys VMS be liable to Customer for any lost profits, or for any indirect, special, incidental, punitive, or consequential damages, regardless of the cause of action (whether in contract, tort, or under any other theory of liability) and even if VisitorXsys VMS has been advised of the possibility of such damages.
11.1. This Agreement shall commence on the Effective Date and continue in effect until all licenses granted under this Agreement have either expired or been terminated. The term of each Order Form shall be as specified therein and shall automatically renew for successive terms unless either party provides written notice of termination or non-renewal at least thirty (30) days prior to the end of the then-current term.
11.2. A party may terminate this Agreement for cause:
(i) upon 30 days’ prior written notice to the other party of a material breach of this Agreement, if such breach remains uncured at the expiration of the notice period;
(ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors, or similar proceeding; or
(iii) as otherwise expressly provided in this Agreement.
11.3. The parties’ rights and obligations under Sections 4, 5, 7.3, 8, 9, 10, 11.3, 11.4, and 12 shall survive termination of this Agreement.
11.4. Within thirty (30) days after the termination of this Agreement, Customer shall provide VisitorXsys VMS with a written certification confirming that all copies of the Services (where applicable), Updates, and Documentation, including partial copies or modified versions, have been either destroyed or returned to VisitorXsys VMS.
12.1. The parties are independent contractors, and nothing in this Agreement shall be construed to create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between them.
12.2. All notices under this Agreement shall be in writing and delivered either by registered post, recognized courier service (with proof of delivery), or by email (with a read receipt or confirmation of delivery), provided that a hard copy is also sent via registered post or courier.
12.3. Each party may include the other's name and logos in its customer or vendor lists and other materials.
12.4. No amendment or waiver of any provision of this Agreement shall be effective unless made in writing and signed by both Customer and VisitorXsys VMS. In the event of any conflict between this Agreement and any other schedule, attachment, or document, the terms of this Agreement shall prevail, unless expressly stated otherwise in writing.
12.5. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of such right.
12.6. Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement (excluding payment obligations) due to a Force Majeure Event.
12.7. Neither party may assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party.
12.8. This Section 12.8 shall apply only if Customer is a government entity under Indian law.
12.9. Each party agrees to comply fully with all applicable laws and regulations of India.
12.10. This Agreement shall be governed by and construed in accordance with the laws of India. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts located in Gurugram, Haryana, India.
If you have any questions or comments about our Terms of Service as outlined above, you can contact us at: hello@wesoftek.com
Unit No. 301, IRIS Tech Park, Sector 48, Gurugram, HR - 122018
Unit No. 301, IRIS Tech Park, Sector 48, Gurugram, HR - 122018