IT Company India- UNIVERSAL TERMS OF SERVICE AGREEMENT

Last Revised: 01/01/2024

PLEASE READ THIS UNIVERSAL TERMS OF SERVICE AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.

CONTRACTED SERVICES

This Agreement shall apply to the delivery of services, and functions as described in Standard Service Agreement or quotes that may be proposed and approved by the parties.
Any such approved Service Agreement shall be incorporated herein by reference (the services and functions described in any Service Agreement or quote are hereafter referred to as the "Services").
If the scope of the Services is expanded, revised, or modified, for any Service Agreement incorporated herein, the parties shall prepare and sign an amended or generate new (or change order) or new quote, which likewise shall be attached hereto and incorporated herein by reference. This Agreement does not, in and of itself, represent a commitment by The Customer to receive any Services from IT Company India or pay IT Company India any fees.

TERMS OF AGREEMENT

• This Service Agreement ("Service Agreement") is between IT Company India and 'The Customer’

• (Concerning information provided above). WHEREAS, IT Company India is engaged in the business of providing services and; WHEREAS, The Customer desires to retain IT Company India to provide services and functions and; NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements contained herein.

• The term of this agreement will commence on the date set forth below and will continue until terminated by either party as provided below ("Term"). In the event that the SOW or quote provides for a different Term, the SOW Term will control for that specific SOW or quote only.

• Either party shall have the option to terminate this Agreement, without cause, by providing 4 weeks’ notice, in writing, of its intent to terminate the Agreement without cause. In the event that an SOW or quote provides for a different termination notice period, the SOW or quote termination clause will control for that specific SOW or quote only.

• In the event that there is a continuing need for any Services identified in an SOW or quote, after the expiration of this Agreement and the Customer requests, in writing, to have IT Company India complete the Services, this Agreement will automatically get renewed for the time that it takes for the completion of such Services.

• The Agreement can be terminated for cause, as defined in paragraph Termination for Cause herein, at any time provided the alleged breaching party is provided an opportunity to cure the alleged breach in the manner outlined in paragraph Termination for Cause below or a Permitted Delay, as defined in paragraph Permitted Delays herein, does not apply.

TERMS OF AGREEMENT

• In exchange for the Services performed by IT Company India, as outlined in any SOW,

• The Customer agrees to compensate IT Company India at the rates identified in the fee

• Schedule outlined in an SOW. However, these rates are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services rendered herein.

• The Customer will pay all undisputed invoices within fifteen (30) days of receipt thereof.

• 13. In addition, The Customer shall reimburse IT Company India for its actual out-of-pocket expenses as reasonably incurred by IT Company India in connection with the performance of Services.

• Additional expenses for materials, services, training, and hardware may only be incurred by IT Company India and charged to The Customer if prior written approval from The Customer has been obtained.

• A late charge of one and one-half percent (1.5%) per month, or the legal maximum if less, shall accrue on past due billings unless The Customer notifies of a billing dispute in writing before the payment due date. The Customer shall be responsible for any costs incurred by IT Company India in the collection of unpaid invoices including, but not limited to, collection and filing costs and reasonable attorney's fees of not less than fifteen percent (15%) of the outstanding balance due.

• After the contract has been concluded, the hourly rates agreed upon in the contract shall change.

To the extent that The Customer requires or requests additional services or services that exceed the Services outlined in any SOW incorporated herein, IT Company India will charge an additional fee for such additional services or out-of-scope work. Fees for such additional services or out-of-scope work will be set forth on a Change Authorization Order (CAO), which will also provide a description of the changed or additional service(s) being requested. Once a CAO is signed by both parties, it will be incorporated into the Agreement and have the same legal effect as the SOW that is incorporated into the Ownership of Materials Related to Services Agreement.
Within the framework of this contract, IT Company India strictly undertakes to provide services as defined in this proposal only. If the client changes their mind and requests changes in any phase of development, extra charges per hour will be applied, unless agreed otherwise.

OWNERSHIP OF MATERIALS

The parties agree that any materials prepared and delivered by IT Company India in the course of providing the Services shall be considered works made for hire. All rights, title, and interests of such materials shall be and are assigned to The Customer as its sole and exclusive property. Notwithstanding the foregoing, the parties recognize that performance of IT Company India hereunder will require the skills of IT Company India and, therefore, IT Company India shall retain the right to use, without fee and for any purpose, such "know-how", ideas, techniques, and concepts used or developed by IT Company India in the course of performance of the services of this Agreement.
Upon full payment of the agreed price, the Client shall be granted the right to use the software on the Client own systems and/or internally for the agreed purpose and to make backup copies thereof.

INDEPENDENT CONTRACTOR

The parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the parties. All IT Company India employees who are assigned to perform services at any The Customer-owned or leased facility shall be considered to be an employee of IT Company India oly and will not be considered an of all compensation owed to its employees, including all applicable federal, state, and local employment agent or employee of The Customer for any purpose. IT Company India will be solely responsible for the payment of taxes and will make deductions for all taxes and withholdings required by law. In no event will any IT Company India employee be eligible for or entitled to any benefits of The Customer.

The Customer understands and acknowledges that IT Company India may, from time to time, disclose "Confidential Information" to The Customer. For purposes of this Agreement, the term "Confidential Information" shall include, but not be limited to, any non-public and/or proprietary information or materials relating to IT Company India's promotional and/or marketing strategy and activity, IT Company India's pricing information (including but not limited to rates, margins, and budgets), IT Company India's financial and budget information, IT Company India's customer lists, information about the education, background, experience, and/or skills possessed by IT Company India employees, IT Company India employee compensation information, IT Company India's service and/or sales concepts/methodologies/techniques, IT Company India's customer satisfaction data or sales information, or any information which IT Company India marks or identifies as "confidential" at the time of disclosure or confirms in writing as confidential within a reasonable time (not to exceed thirty (30) days) after disclosure.
The Customer will not disclose IT Company India's Confidential Information to any third party at any time without the prior written consent of IT Company India and shall take reasonable
Measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. Further, IT Company India's Confidential Information shall include the terms outlined in this Agreement, all of which shall remain the property of IT Company India and shall in no event be transferred, conveyed, or assigned to The Customer as a result of the services provided under this Agreement. The foregoing duty shall survive any termination or expiration of this Agreement.
IT Company India also understands and acknowledges that The Customer may, from time to time, disclose to IT Company India proprietary ideas, concepts, expertise, and technologies developed by The Customer relating to computer application programming, installation, and operation (collectively " The Customer 's Confidential Information"). The Customer may further provide to IT Company India documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to The Customer’s business operations (collectively "Confidential Trade Information").
IT Company India agrees

• (i) Not to use any The Customer Confidential Information or Confidential Trade Information for its use or for any purpose other than the specific purpose of completing the Services;

• (ii) Not to voluntarily disclose any The Customer Confidential Information or Confidential Trade Information to any other person or entity; and

• (iii) To take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, The Customer Confidential Information and/or Confidential Trade Information to prevent it from falling into the public domain or the possession of persons other than those persons authorized.

Hereunder to have such Customer Confidential Information and/or Confidential Trade Information. The foregoing duty shall survive any termination or expiration of this Agreement.
In no event shall The Customer use IT Company India's Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Owner.
The following shall not be considered Confidential Information for purposes of this Agreement:

• (i) Information that is or becomes in the public domain through no fault or act of the receiving party;

• (ii) Information that was independently developed by the receiving party without the use of or reliance on the disclosing party's Confidential Information;

• (iii) Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party; or

• (iv) Information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the party whose Confidential Information is involved.

The parties agree that the disclosure of any of the foregoing Confidential Information by either party shall give rise to irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the non- disclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.

NON-SOLICITATION OF EMPLOYEES

The Customer will not, either directly or indirectly (except through IT Company India) solicit, hire, or contract with any IT Company India employee during the term of this Agreement and for one (1) year following termination thereof (hereafter the "Non-Solicitation Term"). If The Customer desires to directly hire any IT Company India employee during the Non- Solicitation Term, The Customer must first seek IT Company India's consent to directly hire the employee and to speak with the IT Company India employee about the employment opportunity.
If IT Company India grants The Customer the option to directly hire an IT Company India employee and the IT Company India employee accepts an offer of employment from The Customer, the parties shall discuss issues related to the employee's transition to The Customer. The employee's start date will be mutually agreed upon by The Customer and IT Company India in writing. Provided the parties agree to the IT Company India employee's transition terms, The Customer shall pay IT Company India a placement fee of no less than 30% of offered annual salary before the IT Company India employee commencing work as an employee of The Customer. Unless the parties agree otherwise, The Customer shall not directly hire more than two IT Company India employees during the Non-Solicitation Term.
If The Customer hires an IT Company India employee without first obtaining the consent of IT Company India, The Customer shall pay IT Company India liquidated damage equal to 100% of the employee's fair market salary, as determined by IT Company India in its sole discretion. This provision is considered a material term that allows for accelerated termination rights under paragraph Termination of this Agreement.

TO BE SUPPLIED BY THE CLIENT

In addition to any obligations and responsibilities described in the SOW or elsewhere in this Agreement, The Customer shall have shared responsibility with IT Company India regarding the following:

• (i) To ensure that the necessary business and application knowledge is available and conveyed from the Customer’s existing support team to the IT Company India's support team.

• (ii) Provide ready access to all appropriate computing platforms, documentation (e.g., program source, copybooks, tables, subroutines), and personnel (i.e., end- users and technical representatives) necessary to fully understand the current business systems and environments throughout the life of the engagement.

• (iii) Provide at its facility, office space, and equipment for IT COMPANY's on-site employees.

• (iv) Access will also be provided to the Customer’s source libraries, test systems, and test data.

• (v) Provide external communications capability and/or access to its work facility to enable IT Company India's on-site project team to access the Customer’s information technology system for after-hours or weekend Services as required.

• (vi) The Customer shall assign an employee or representative to be present at the work facility for any after-hours or weekend Services. If The Customer declines or fails to assign an employee or representative to be present during such hours, The Customer waives any and all claims for any property damage or loss that occurs during such time that IT Company India's employee(s) is on the Customer’s work facility.

• (vii) Provide computer passwords and access to IT Company India employees as needed.

• (viii) If the Customer wishes to re-engage the services of IT Company India within 12 months from the end of the Term, IT Company India and The Customer shall enter into a new contract of which these Terms and Conditions together with any amendments or alternations thereto or any reissue thereof shall be incorporated. The customer is required to refer to IT Company India any inquiry for direct negotiations with the Client or negotiations with the Client through any other party for a period not exceeding twelve months from the date of the ending of the Client contract or any extension thereof.

• (ix) For conducting the project, the Client shall nominate a contact person (project manager) who has the competencies required to coordinate the project at the Client’s and is authorized to make the necessary decisions, and is the sole person authorized to report errors and problems. If the project manager is not the subject-matter contact person at the same time, such contact person shall be appointed as well.

• (x) When the services are already progressing and if the ‘single point of contact’ changes, then per hour charges may apply for re-presentation or reassessment of the project.

• (xi) Individual organization concepts and programs shall be developed contingent upon the type and scope of binding information, documents, and aids made available by the Client in due time and to the full extent. This also includes test data fit for use in practice as well as sufficient testing opportunities which Client shall make available in due time, during regular business hours and at Client's own expense. If the system made available by the Client for testing is in live operation, the responsibility for live data lies exclusively with the Client.

• (xii) Delays by Client in duly collaborating in program creation are it in providing documents or testing possibilities, verifying, and submitting preliminary and detailed concepts, etc., shall release IT Company India from accountability for any time, delays resulting therefrom. This shall also apply to information, requirements or documents changed subsequently.

• (xiii) Extra expense and effort incurred by IT Company India on account of such circumstances shall be charged to the client at the applicable hourly rates. Services provided timeline may extend for unforeseen reasons therefore we only present this timeline as an estimate only.

WARRANTY OF SERVICES

Any warranty offered by IT Company India for Services provided herein shall be set forth in the SOW. In the absence of any warranty stated in the SOW, IT Company India warrants that all Services performed pursuant to this Agreement will be performed in accordance with the general standards to this Agreement will be performed in accordance with the general standards and practices of the information technology industry in existence at the time the and practices of the information technology industry in existence at the time the Services are being performed.
IT Company India doesn’t provide the “software testing” service in fixed quote price unless otherwise agreed upon but it will be strictly client’s responsibility to fully test the site and its functionality on every phase that is 10 days of handover. Delays by Client in duly collaborating in program creation, or in providing documents or testing the software etc., shall release IT Company India from accountability for any time delays resulting there from. Every (phase) end product has to be accepted in writing within the agreed timeframe, which is within 10 days of handover unless agreed otherwise.
IN THE EVENT THAT THERE IS NO WARRANTY SET FOR THIN THE SOW, THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE.

LIMITATION OF LIABILITY

The Customer agrees that IT Company India shall not be liable to The Customer, or any third party, for:

• (i) Any liability claims, loss, damages, or expense of any kind arising directly or indirectly out of services provided herein for;

• (ii) Any incidental or consequential damages, however, caused and The Customer agrees to indemnify and hold IT Company India harmless against such liabilities, claims, losses, damages (consequential or otherwise) or expenses, or actions in respect thereof, asserted or brought against IT Company India by or in right of third parties or for;

• (iii) Any punitive damages. For the purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings; loss of or damage to business reputation or good will; loss of Customers; loss of business or financial opportunity; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the laws of laws of the country where the business of the customer belongs to, IT Company India's liability for any damages here under shall in no event exceed the amount of fees paid by The Customer to IT Company India as of the date the alleged damages were incurred.

Ensure that it is valid and adequate Customer’s and Employer’s Liability Insurance remain in force throughout the duration of the Agreement.

INDEMNIFICATION

Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holder so fan ownership interest, as the case maybe) and agents, from and against any third-party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused solely by the negligence or willful conduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder. To the extent that such claim arises from the concurrent conduct of The Customer, IT Company India and/or any third party, it is expressly agreed that IT Company India’s liability shall be limited be the terms and provisions of ‘Limitation of Liability’ herein and that, with respect to any remaining obligations to pay any third party claims, demands, losses, damages or expenses that are not limited by the terms and provisions of ‘Limitation of Liability’ herein, each party's obligations of indemnity under this paragraph shall be effective only to the extent of each party's pro-rata share of liability. To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party's expense) and full authority to defend or settle the claim or suit. The indemnifying party shall have no obligation to indemnify the indemnified party under any settlement made without the indemnifying party's written consent.

EQUAL OPPORTUNITY EMPLOYER

IT Company India is an Equal Opportunity Employer and does not discriminate in recruitment, hiring, transfer, promotion, compensation, development, and termination of its employees on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran's status or other protected category as required by applicable Federal, State, and local laws. The Customer likewise represents that it will not discriminate in the referral or acceptance of Consultants hereunder on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran's status, or other protected category as required by applicable federal, state and local laws.

TERMINATION

• Termination for Cause

  If either party believes that the other party has failed in any material respect to performing its obligations under this Agreement (including any Exhibits or Amendments hereto), then that party may provide written notice to the other party's management representative describing the alleged failure in reasonable detail. If the alleged failure relates to a failure to pay any sum due and owing under this Agreement or if The Customer makes an unauthorized solicitation of an IT Company India employee under the provisions of ‘Non-Solicitation of Employees’ herein, the breaching party shall have ten (I0) business days after notice of such failure to cure the breach. If the breaching party fails to cure within ten (I0) business days, then the non-breaching party may immediately terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party. With respect to all other defaults, if the breaching party does not, within thirty (30) calendar days after receiving such written notice, either

  • (i) Cure the material failure or

  • (ii) If the breach is not one that can reasonably be cured within thirty (30) calendar days, then the non-breaching party may terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party.

• Termination for Bankruptcy

  Either party shall have the immediate right to terminate this Agreement, by providing written notice to the other party, in the event that

  • (i) The other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or

  • (ii) A substantial part of the other party's property becomes subject to any levy, seizure, assignment or sale for or by any creditor or government agency.

• Payments Due

  The termination of the Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.

• Permitted Delays

  Each party hereto shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any services pursuant hereto in whole or in part, as a result of delays caused by the other party or an act of God, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions, including failures or fluctuations in electric power, heat, light, air conditioning or telecommunication equipment, and such non-performance shall not be a default hereunder or a ground for termination hereof IT Company India's time of performance shall be enlarged, if and to the extent reasonably necessary, in the event:

  • (i) That The Customer fails to submit information, instructions, approvals, or any other required element in the prescribed form or in accordance with the agreed-upon schedules; of a special request by The Customer or any governmental agency authorized to regulate, supervise, or impact IT Company India's normal processing schedule;

  • (ii) That The Customer fails to provide any equipment, software, premises or performance called for by this Agreement, and the same is necessary for IT Company India's performance hereunder. IT Company India will notify The Customer of the estimated impact on its processing schedule if any.

• Continuation of Services

  • (i) IT Company India will continue to perform Services during the notice period unless otherwise mutually agreed upon by the parties in writing. In the event that The Customer provides the notice of termination and directs IT Company India not to perform the services through the notice period, The Customer agrees to pay IT Company India an amount equal to the amount normally due to IT Company India for the notice period. Upon termination by either party, The Customer will pay IT Company India for all services performed and charges and expenses reasonably incurred by IT Company India in connection with the services provided under this Agreement through the date of termination.

ACCEPTANCE

Every service has to be accepted in writing within the agreed timeframe, which is within 10 days of handover, unless agreed otherwise. If client delays in approving a given service, the agreed time schedule shall become invalid and the product submitted for acceptance be deemed accepted. Individually tailored software and/or program adaptations have to be accepted by Client not later than 4 weeks from delivery/supply. Acceptance shall be confirmed by Client in an acceptance report. If Client does not accept a program within 4 weeks, the software shall be deemed accepted. If, during acceptance procedures, Client makes unjustified claims concerning errors or defects, any resulting expense and effort incurred by IT Company India may be charged to the Client in addition to the agreed compensation.

MISCELLANEOUS CLAUSES

• Non-Restrictive Relationship

  IT Company India may provide the same or similar services to other customers and The Customer may utilize other information technology service providers that are competitive with IT Company India.

• Waiver

  The rights and remedies provided to each of the parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failure in the exercise by either party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other party shall not prejudice such party's rights of termination or enforcement for any further or other's default or violation or is deemed a waiver or forfeiture of those rights.

• Force Majeure

  Neither party will be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including and without limitation: strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or inability to obtain transportation or necessary materials in the open market.

• Notices

  All notices required under or regarding this Agreement will be in writing and will be considered if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile (confirmed by certification of receipt) or sent by courier (confirmed by receipt) addressed to the above given address.

• Severability

  If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.

• Captions

  The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

• Entire Agreement

  This Agreement and the SOW(s) and/or CAO(s) incorporated herein constitute the entire agreement between the parties and supersede any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement.