VERSION 2

Last updated on: 01st January 2022

Effective from: 01st January 2022

This Master Subscription Agreement (“Agreement” or “MSA”) governs your acquisition and use of services made available by Soft Gallery (Pvt) Ltd. (“Soft Gallery”, “We”, “Us” or “Our”), including on galleryerp.com and any of Our other websites, products and/or services that explicitly indicate the applicability of this Agreement (collectively, “Service(s)”), by all natural persons (humans) and juristic persons whether incorporated or not (companies, organisations, etc.). Collectively, such natural or juristic person, as the case may be, is referred to below as “You” and “Your”.

Please read the contents of this document carefully before using any of Our Services.

By undertaking any of the following actions, You demonstrate that You have read, understood and agree to this Agreement:

1. By creating an account on or through the Service or a website operated by Soft Gallery;
2. By clicking a box indicating acceptance;
3. By executing an Order Form that references this Agreement; and/or
4. By signing this Agreement, whether digitally or physically.

In addition, when using certain parts of the Service(s), you will be subject to additional terms and conditions, policies, rules, or guidelines, that may be posted on the relevant part of the Service from time to time. You agree not to use such parts of the Service without reading, understanding, and accepting such additional terms as may be provided. In case of a conflict between this Agreement and the terms posted for a specific part of the Service, the latter shall have precedence with respect to Your use of that part of the Service. In addition to any terms and conditions as provided for above or herein, the following terms and conditions, and policies, as updated from time to time, apply to your interactions on the Service:

1. Privacy Policy. The collection, use, storage, processing and transfer and deletion of Your personal information is governed by the Privacy Policy, available at: https://galleryerp.com/privacy/policy, as updated from time to time.
2. Service Level Agreement. Additional terms and conditions are applicable to GalleryERP.com support and maintenance under the Service Level Agreement, incorporated herein by reference, and available at: https://galleryerp.com/support-sla as updated from time to time.

This Agreement is effective between Customer (as defined below) and Soft Gallery as of the date of Your accepting this Agreement.

                                                              DEFINITIONS.

• “Agreement” means this Agreement together with any annexes and schedules which where the context so admits may be sometimes referred to as the Master Subscription Agreement (MSA);

• “Customer” means the entity or individual that has consented to this Agreement by execution of an Order Form that refers to the terms and conditions or by any other legally binding method of acceptance of this Agreement.

• “Confidential Information” of a Party means any information in a tangible form that is disclosed by that Party pursuant to this Agreement and that (a) is identified “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; or (b) would reasonably be considered to be confidential. This Agreement and its contents shall also be considered Confidential

• “Data Subject” is a natural person who can be identified, directly or indirectly, in particular by referencing 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

• “Documentation” means any standard SGPL documentation distributed by SGPL as a part of the

• “Initial Term” shall have the meaning set forth in Section 1.

• “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or

• “Order Form” means the Subscriber’s purchase order for the Products, as accepted by SGPL or one of its authorized

• “Personal Data” means any information relating to a Data

• “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, whether transmitted, stored, or otherwise

• “Products” shall have the meaning set forth in Section 1.

• “Processing” means any operation or set of operations that is performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction. “Process” and “Processed” will have a corresponding meaning.

• “Renewal Term” shall have the meaning set forth in Section 1.

• “Software” means the computer programs (including but not limited to web-based applications) referenced in the Order

• “Standard Technical Support” shall have the meaning set forth in Section 2.

• “Subscriber Data” means any electronic data provided by Subscriber to

• “Subscriber End User(s)” means customer(s) of Subscriber authorized to use the Subscriber

• “Subscription” shall have the meaning set forth in Section 1.

• “Subscription Fees” means the fees payable by Subscriber for the

• “Term” means collectively, the Initial” Term and any Renewal

• “Transfer” means to disclose or otherwise make the Personal Data available to a third party (including to any affiliate or sub-processor of SGPL), either by physical movement of the Personal Data to such third party or by enabling access to the Personal Data by other

• “User” means each person who is authorized by Subscriber to access or use the Products, directly or

• “Beta Features” means the new features of the Software developed by SGPL and specifically marked at “Beta Features”.

• “Beta Trial” shall have the meaning set forth in Section 1.

• “Website” means galleryerp.com, www.softgallery.io.

2 GRANT OF LICENSE.

Subject to the terms and conditions of this Agreement, SGPL agrees to provide Subscriber the subscription services as described in the Subscriber’s Order Form (“Subscription”). SGPL grants to Subscriber as part of the Subscription, a non-exclusive, nontransferable right to use SGPL Software (the “Software, together with applicable Documentation and the accompanying media, if any, (collectively, the “Products”)), to create Subscriber Applications for use by Subscriber End Users. Subject to the terms of this Agreement, Subscriber may allow its employees and independent consultants to use the Products to create Subscriber Applications solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of the Products by the Subscriber or any other person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.

2.2 Restriction on Use.

Use of the Product shall be only by Users and only for Subscriber’s own internal business operations (not for the benefit of any other person or entity) for the duration of the Term, provided that Subscriber has and continues to pay the applicable Subscription Fees. Access to the Products is only for the maximum number of authorized Users for whom Subscriber has paid the Subscription Fees. All Subscription Fees paid for the Products are nonrefundable. Subscriber may only exceed the number of ordered Users if Subscriber increases its order and pays additional Subscription Fees. Other than as expressly authorized in this Section 2 or as expressly permitted by applicable law, Subscriber may not: (a) copy the Software or any portion thereof;

(b) use the Software to store or transmit Malicious Code, or infringing, tortious or otherwise unlawful materials; or (c) interfere with the business or operations of SGPL.

2.3 Delivery of the Products.

The Products shall be accessed by the Subscriber through the Website.

2.4 Audit Rights.

SGPL may, at any time, audit Subscriber’s use of the Products by accessing the Products through the SGPL servers to ensure compliance with the terms of this Subscription Agreement. Unless specifically authorized in writing in advance by SGPL, Subscriber may not rent, lease or timeshare the Products or provide subscription services for the Products or permit others to do so.

2.5 Documentation.

SGPL hereby grants to Subscriber a non-exclusive, non-transferable, non-sub-licensable, internal use only license to use the Documentation solely for the purposes of utilizing the licenses granted in Section 2.1 above.

3 PRICES AND PAYMENTS.

• Prices and Payment.

The Customer shall pay a subscription fee monthly in advance equivalent to the number of active plants. Such fees paid by the Customer are non-refundable and non-cancellable. However, at the beginning of each billing cycle SGPL will verify the number of active plants and adjust the billing for the next billing cycle accordingly.

The subscription price for the Software can be adjusted annually, with a maximum increase equivalent to the cloud infrastructure price index, with prior notification. Any increase takes place in January of each calendar year, based on the increase in the cloud infrastructure price index in the preceding calendar year, effective from the beginning of the next subscription period.

In the event of non-payment of any fees due to SGPL from the Customer and such outstanding fees are outstanding for more than sixty (60) days from the date of the bill, then PMS provided by SGPL to the Customer shall be suspended. Further, if PMS is suspended for more than Ninety (90) days (3 months) during which time the Customer has not settled the outstanding fees, the Customer account will be completely suspended and/or terminated and/or made dormant.

3.2 Taxes.

Prevailing government taxes will be applicable at the time of invoicing.

3.3 No Refunds.

Upon termination of this Agreement for any reason, Subscriber shall not be entitled to a refund of any prepaid or other fees.

4 SUPPORT AND TRAINING.

• Product Support

SGPL or its authorized Reseller shall provide Standard Technical Support services to Subscriber during the Term, in accordance with the terms of this Agreement.

4.2 Standard Technical Support.

Standard Technical Support shall be as set forth in Schedule B below, and may be amended from time to time by SGPL. Any such amendment shall be effective as of the date it is posted on the Website.

4.3 Updates and Upgrades.

SGPL may from time to time conduct updates and upgrades to the Software, which may temporarily affect the use of the Software. To the extent that the use of the Software will be affected during such SGPL updates and upgrades, SGPL will provide prior notice of such updates and upgrades to Subscriber and will, to the extent possible, be conducted outside of regular business hours.

5 CONFIDENTIALITY.

Each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information except as set forth in this Agreement, and shall use best efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the Parties shall use at least the same degree of care that it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information.

5.2 Exceptions.

Notwithstanding Section 5.1, neither Party shall have liability to the other with regard to any Confidential Information of the other that the receiving Party can prove: (a) was in the public domain at the time it was disclosed or has since entered the public domain through no fault of the receiving Party; (b) was known to the receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed with the prior written approval of the disclosing Party; (d) was independently developed by the receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; or (e) becomes known to the receiving Party, without restriction, from a source other than the disclosing Party without breach of this Agreement by the receiving Party and otherwise not in violation of the disclosing Party’s rights.

6 TERM AND TERMINATION.

This Agreement shall be effective as of the Effective Date and remain in effect for the duration of the initial term indicated on the Order Form (the “Initial Term”). Thereafter, this Agreement shall renew automatically for additional twelve month periods (each a “Renewal Term”), unless either party provides written notice of their intent to terminate the Agreement, no later than sixty

(60) days prior to the end of the then-current term.

6.2 Termination for Cause.

In the event of breach of this Agreement by either Party, the non-defaulting Party may give written notice of such default to the defaulting Party. If the non-defaulting Party gives such notice and the default is not cured within a 30-day period following receipt of the notice by the defaulting Party, then this Agreement shall automatically terminate. Notwithstanding the foregoing, if Subscriber breaches the provisions of Sections 2, or 5 and such breach is not curable, then SGPL shall be entitled to terminate this Agreement effective immediately upon delivery of written notice to Subscriber.

6.3 Effect of Termination.

Upon termination by either Party, all of Subscriber’s rights and licenses with respect to the Software shall terminate. Subscriber shall cease using the Products, and shall destroy or return to SGPL copies of the Products, if any, in its possession, and certify in writing that all copies thereof, including backup copies, if any were authorized, have been destroyed.

Furthermore, all copies of SGPL Confidential Information in Subscriber’s possession at the time of termination or expiration of this Agreement shall, at SGPL’ option, be promptly destroyed or returned to SGPL.

7  LIMITATION OF LIABILITY. 

EXCEPT FOR LIABILITY RESULTING FROM A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR A BREACH OF SECTIONS 2.2 or 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF DATA, LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL SGPL’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL SUBSCRIPTIONS FEES RECEIVED BY SGPL FROM SUBSCRIBER HEREUNDER IN THE PREVIOUS TWELVE MONTHS FROM THE DATE OF THE CLAIM. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE AMOUNTS PAYABLE HEREUNDER BY SUBSCRIBER ARE BASED IN PART UPON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8 BETA FEATURES.

• Beta Trial

Subscriber may choose to participate in testing of the Beta Features in their live environment and under normal operating conditions as further set forth herein (the “Beta Trial”). Subscriber will subject the Beta feature to normal workload and cooperate in the identification, isolation, documentation and reporting of any and all problems encountered. If Subscriber encounters a significant problem with or deficiency with a Beta Feature, it shall report the same to SGPL personnel as soon as practicable. SGPL may contact Subscriber during normal business hours by telephone or e-mail and Subscriber agrees to completely and accurately respond to questions and surveys regarding the performance of the Beta Features. Subscriber acknowledges and agrees that SGPL is under no obligation to incorporate into the Beta Features or the Software, any changes, suggestions, or comments made by Subscriber; Subscriber further waives any and all proprietary right or interest in any such changes, suggestions, or comments communicated by Subscriber to SGPL and assigns to SGPL any and all rights therein.

8.2 Beta Features.

Subscriber acknowledges that the Beta Features are test versions of certain features of the Software which have not been released for commercial use, that some Beta Features may be disabled or otherwise fail to function properly, that any Beta Features as a whole may fail to function in accordance with its specifications and that the specifications of all Beta Features are subject to change and may be different from the specifications of the final version of the product. SGPL makes no warranties or representations concerning the pricing or future availability, if any, of the Beta Features.

8.3 Limitation of Liability with Respect to Beta Features

Without limiting the generality of the Limitation of Liability Section set forth above, SGPL shall have no liability to Subscriber or any other party, whether in contract, tort, or negligence, for any claim, loss, or damage, including but not limited to lost profits or systems interruption or damage, business interruption, equipment damage, or for any indirect, special, incidental, or consequential damages of any kind or nature whatsoever arising out of or in connection with Subscriber’s use of or inability to use the Beta Features. Without limiting the foregoing, Subscriber agrees that neither SGPL shall have no liability for errors or omissions in the output of the Beta Features, whether such errors or omissions are caused by errors or inaccuracies in the conversion of data as inputs to the Beta Features, in the processing of such data by the Beta Feature or other the Software, in the display of such data, or otherwise. For damage, in any way arising out of or related to the Beta Features, SGPL’ maximum liability shall not exceed one hundred dollars.

9 PRIVACY AND DATA PROTECTION

• Scope of Process. SGPL shall only Process or Transfer Personal Data as authorized by Subscriber and as necessary to perform services pursuant to this

• General Obligations. SGPL, in its capacity as a processor or sub-processor of Personal Data, will:
  1. Process or Transfer the Personal Data only on written instructions from Subscriber, unless required to do so pursuant to laws or regulations to which SGPL is subject. In such case, to the extent legally possible, SGPL will inform Subscriber of the necessity of such Processing or Transfer;
  2. restrict access to Personal Data to those authorized persons who need such information to provide services pursuant to this Agreement. SGPL will ensure such authorized persons are obligated to maintain the confidentiality of any Personal Data;
  3. implement, using all measures required in accordance with good industry practice, technical and organizational measures to ensure the security of the Personal Data Processed by SGPL. Such measures shall also be in compliance with all applicable Data Protection Laws;
  4. not engage another entity to Process the Personal Data unless approved in writing by Where SGPL engages a third party for carrying out specific Processing activities, the same data protection obligations as are applicable to SGPL will be imposed on that other processor by way of contract or other legal act, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such manner that the Processing will meet the requirements set forth herein. Where that other processor fails to fulfill data its protection obligations, SGPL will remain fully liable to the Subscriber for the performance of that other processor’s obligations;
  5. taking into account the nature of the Processing, insofar as possible, implement and maintain appropriate technical and organizational measures needed to enable Subscriber to respond to requests from Data Subjects to access, correct, transmit, limit Processing or delete any relevant Personal Data held by
  6. retain Personal Data received from Subscriber only for so long as may be required in connection with SGPL’ performance pursuant to this Agreement or otherwise required under applicable law.
  7. at the choice of Subscriber, without undue delay, delete or return all the Personal Data to Subscriber after the end of the provision of services relating to Processing, and delete existing copies unless European Union or any Member State law requires storage of Personal Data;
• Once per calendar year, upon request, SGPL shall make available to Subscriber all information necessary, and allow for and contribute to audits, including inspections, conducted by Subscriber or another auditor mandated by Subscriber, to demonstrate compliance with applicable Data Protection Laws. For clarity, such audits or inspections are limited to SGPL’ Processing Personal Data only, not any other aspect of SGPL’ business or information systems. Subscriber will provide SGPL with written notice at least sixty (60) days in advance of such audit or inspection. Such written notice will specify the things, people, places or documents to be made available. Such written notice, and anything produced in response thereto (including any derivative work products), will be considered Confidential Information and, notwithstanding anything to the contrary in this Agreement, will remain Confidential Information in perpetuity or the longest time allowable by applicable law after termination of this Agreement. Such materials and derivative work product produced in response to Subscriber’s request will not be disclosed to anyone without the prior written permission of SGPL unless such disclosure required by applicable law. If disclosure is required by applicable law, Subscriber will give SGPL prompt written notice of that requirement and an opportunity to obtain protective order to prohibit or restrict such disclosure except to the extent such notice prohibited by applicable law or order court or governmental agency. Subscriber will make every effort to cooperate with SGPL to schedule audits or inspections at times that are convenient to SGPL. Subscriber acknowledges and agrees that it will be solely responsible for all costs incurred in relation to such additional audits or inspections.

• Breach Notification. Upon becoming aware of Personal Data Breach, SGPL will notify Subscriber without undue delay the nature of the breach; the number and categories of Data Subjects and Personal Data affected; and the name and contact details for the relevant contact person at SGPL’ office.

• Transfer of Personal Data; Appointment. Subscriber authorizes SGPL to transfer, store or Process Personal Data in Sri Lanka or any other country in which SGPL maintain facilities. Subscriber appoints SGPL to perform any such transfer of Personal Data to any such country and to store and Process Personal Data in order to provide the services pursuant to this SGPL will conduct all such activity in compliance with this Agreement, all applicable laws and Subscriber instructions.
• Assistance with Third Party Claims. Where Subscriber faces an actual or potential claim arising out of or related to violation of any Data Protection Laws (e.g., Article 82 of the GDPR) concerning the services, SGPL will promptly provide all materials and information requested by Subscriber that is relevant to the defense of such claim and the underlying circumstances concerning the

10 MISCELLANEOUS.

 Subscriber may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without SGPL’ prior written consent; any attempted assignment or transfer in violation of the foregoing will be void.

10.2 Waivers.

All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.3 Marketing Activities.

Subscriber agrees that SGPL, may with the expressed written consent of the Subscriber, from time to time identify Subscriber (with its name, logo and/or trademark) as a SGPL Subscriber on its Website, sales and marketing materials or press releases.

10.4 Governing Law.

This Agreement will be governed by the laws of the Province of Sri Lanka, without regard to its conflicts of law provisions. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in the courts of Sri Lanka and each Party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding. This Agreement will be written and construed in the English language.

10.5 Amendment.

This Agreement may be amended only by a written document signed by both Parties. The terms on any purchase order or similar document submitted by Subscriber to SGPL will have no effect.

10.6 Entire Agreement.

This Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.

10.7 Supersedes Prior Agreements.

This Agreement supersedes any and all prior agreements entered into by and between Soft Gallery and the Customer.

10.8 Contact Information.

If You have any questions or comments about this Agreement, You can contact Our grievance officer at hello@softgallery.com.