Effective date: January 1, 2019
Following are the "Terms and Conditions" which govern the delivery of the consulting services provided by Aisomex Consultancy Services Pvt. Ltd. (Henceforth identified by its brand name "WebFlux") to the client which is executed by and between the parties and references these Terms and Conditions.
The "Services" provided under these Terms and Conditions will be those set forth in any mutually agreed services schedule, WebFlux quotation ("Quote"), order form, statement of work or other document executed by the WebFlux and Client referencing these Terms and Conditions (each, a "Services Schedule"). The Services may include
Each Services Schedule shall be governed by these Terms and Conditions. Client warrants that the individual executing the Services Schedule is a duly authorized representative of Client.
Services fees are invoiced in full upon receipt of an order, with payment terms of Net 7, except as otherwise specified on the applicable Services Schedule. The fees specified in the Services Schedule are the total fees and charges for the Services and will not be increased during the term of the Services Schedule except as the parties may agree in writing. Client is responsible for all applicable government, state and local sales, use or other taxes due on the Services rendered hereunder, except for taxes based on WebFlux's income. If any change affects the time or cost of performance under the applicable Services Schedule, an adjustment in the time and/or compensation to be paid thereunder shall be agreed to in writing by the parties before such modification shall be effective. WebFlux shall be reimbursed for the travel expenses specified in the Services Schedule, if any. If dates WebFlux is scheduled to be onsite are changed or cancelled by Client within fourteen (14) days of the scheduled date, Client shall be assessed a cancellation fee of INR 1,000 in addition to any travel related fees and penalties.
These Terms and Conditions shall remain in effect from the effective date specified in the Services Schedule through the completion of the Services contemplated in the Services Schedule. Each Services Schedule, with respect to the Services, shall become effective on the effective date specified in the applicable Services Schedule ("Services Effective Date") and shall expire on the date that Services are completed thereunder ("Services Completion Date"). Either party may terminate the Services Schedule upon written notice given to the other party, if the other party materially breaches the Services Schedule and fails to cure such breach within thirty (30) days following receipt of notice describing the breach. Upon termination by Client for WebFlux's material breach, Client shall be liable only for payment for the Services rendered through the termination date, and shall receive from WebFlux a pro-rata refund of any unused, prepaid fees for Services. Client shall be assessed a refund processing fee of INR 500 for every individual refund issued by WebFlux to the Client.
WebFlux will perform Services based on a schedule mutually agreed to by the parties. Services will expire unless the Services are scheduled and delivered within six (6) months from the date they were ordered. Services will ordinarily be performed by a WebFlux service representative or other authorized representative of WebFlux. Client agrees, however, that WebFlux, in its sole discretion, may provide the Services through a third party representative.
Client shall provide WebFlux with access to data, materials, software and hardware as reasonably required for WebFlux to perform the Services ("Client Materials"). Client hereby grants WebFlux a limited right to use such Client Materials solely for the purpose of performing Services hereunder. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to WebFlux for such purpose. Client shall provide WebFlux with safe access to Client's premises as reasonably required for WebFlux to perform the Services, if onsite performance of Services is needed and agreed to by Client. WebFlux personnel shall comply with the reasonable written rules and regulations of Client related to use of its premises, provided that such written rules and regulations are provided to WebFlux prior to commencement of the Services. WebFlux shall not be responsible for failures or delays in performing Services due to Client's failure or delay to provide access to Client Materials or Client premises or due to Client-imposed or government-imposed security requirements.
For certain Services, the Client may provide WebFlux with access to certain data and materials ("Third Party Data") accessed through Clients' accounts ("Third Party Accounts") with third party application platforms through which Client offers its Site to end users ("Third Party Platforms"). "Site" means those websites, Third Party Platforms, applications or devices owned or controlled by Client or a third party for which Client wishes to, and has the authority to, use the WebFlux tracking code, WebFlux APIs, third party APIs, or any other collection methods to collect or upload data in connection with the Services. For these Services, WebFlux will need rights to access, upload and view the Third Party Data by using Client's credentials to access Third Party Accounts. Client acknowledges and agrees that Services related to any Third Party Data or Third Party Platforms are conditioned and dependent upon the applicable Third Party Platform allowing access to Client's Third Party Account and Third Party Data by WebFlux, as a service provider of Client. Client shall provide WebFlux with timely and appropriate access to its Third Party Account credentials and password ("Third Party Account Information") to enable WebFlux to access Client's account on Third Party Platforms. Client acknowledges and agrees that WebFlux's provision of the Services related to any Third Party Data is conditioned upon WebFlux's receipt of correct and accurate Third Party Account information from Client, and to the continuing practices, policies, APIs and/or terms of use of applicable Third Party Platform providers making data available in the format necessary to retrieve through the Services free of charge or restrictions. WebFlux is not responsible for any changes or dysfunction of the results of the Services, including, without limitation, any data visualization dashboard and/or the data contained in the data visualization dashboard, arising from any changes to practices, policies, APIs or terms of use of the Third Party Platform providers. Client hereby grants WebFlux the right to, for the sole purpose of providing Services, if such right is necessary to provide the Services as described in the Services Schedule:
Client shall ensure that the optimization, collection, uploading, transmission, processing and storage of Third Party Data and any other data provided by Client in connection with Client's use of the Services at all times comply with
Client has and will retain sole and exclusive right, title and interest in and to all Client Confidential Information, Client Materials, Third Party Data, and Third Party Account Information (collectively, "Client Property"), including any and all intellectual property rights therein. WebFlux has and will retain sole and exclusive right, title and interest in and to all WebFlux Confidential Information, WebFlux products, WebFlux service, and all WebFlux technology, platforms, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing, including any and all intellectual property rights therein, (collectively, "WebFlux Property"). However, WebFlux's ownership rights do not extend to Client Property embedded or incorporated in the foregoing items. Unless expressly stated otherwise in Services Schedule, WebFlux will retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services of the type described in Section 1(a) above, excluding any and all Client Property, including any and all intellectual property rights therein ("Configuration Services Results"). Upon full and final payment of all fees and expenses owing to WebFlux under the applicable Services Schedule, WebFlux hereby grants to Client the same rights to use the Configuration Services Results as the rights granted to Client under the WebFlux agreement with respect to the WebFlux software or "software as a service" product to which such Configuration Services Results pertains. Unless expressly stated otherwise in the applicable Services Schedule, WebFlux hereby assigns to Client, upon full and final payment of Fees due hereunder, all right, title and interest in and to the data delivered or made available to Client as result of Services of the type described in Section 1(b) above ("Client Data"). Unless expressly stated otherwise in the applicable Services Schedule, WebFlux will retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services of the type described in Section 1(b) above, including all intellectual property rights therein ("Digital Marketing Services"), but excluding all Client Property and all Client Data. If applicable, based on the description included in the applicable Services Schedule, upon full and final payment of all fees and expenses owing to WebFlux under the applicable Services Schedule, WebFlux hereby grants to Client a non-exclusive, worldwide, non-transferable, royalty-free license to access and use the Digital Marketing Services provided to Client, during the term specified in the applicable Services Schedule, for the purpose of accessing and viewing Client Data.
Provided that Client performs its obligations to WebFlux under these Terms and Conditions and the applicable Services Schedule, WebFlux warrants to Client that the Services performed by WebFlux will be performed consistent with generally accepted industry practice. WebFlux's warranty shall expire 90 days after the applicable Services Completion Date or earlier termination. WebFlux's warranty shall only be effective if Client notifies WebFlux of the breach of warranty within 90 days after the applicable Services Completion Date. WebFlux's sole and exclusive obligation for breach of warranty shall be, at WebFlux's option, to
The remedies set forth in this paragraph are Client's exclusive remedies for any breach of warranty.
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 8 OF THESE TERMS AND CONDITIONS, THE SERVICES ARE PROVIDED "AS IS". WEBFLUX EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, OR QUALITY OF SERVICE. WITH RESPECT TO THE PROJECT OR ANY GOODS, SERVICES OR OTHER MATERIALS DELIVERED BY WEBFLUX, WEBFLUX DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS AND REPORTS IT PRODUCES ARE ACCURATE. NO WARRANTIES SHALL ARISE UNDER THESE TERMS AND CONDITIONS FROM COURSE OF DEALING OR USAGE OF TRADE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF WEBFLUX'S REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS SHALL APPLY WITH RESPECT TO THIRD PARTY DATA OR THIRD PARTY PLATFORMS. WEBFLUX MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD PARTY DATA, INCLUDING THE ACCURANCY OR LEGALITY OF ANY THIRD PARTY DATA. ALL SERVICES WITH RESPECT TO THIRD PARTY PLATFORMS AND THIRD PARTY DATA ARE PROVIDED "AS IS" AND "AS AVAILABLE", AND MAY BE DISCONTINUED AT ANY TIME BY WEBFLUX.
NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS TO THE CONTRARY, THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THESE TERMS AND CONDITIONS FOR THE SERVICES PERFORMED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT TO WEBFLUX UNDER THE APPLICABLE SERVICES SCHEDULE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 10 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS AND CONDITIONS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WebFlux is willing to enter into these Terms and Conditions and the Services Schedule and perform Services for Client only in consideration of and in reliance upon the provisions of these Terms and Conditions limiting WebFlux's exposure to liability, including but not limited to the provisions contained above. Such provisions constitute an essential part of the bargain underlying these Terms and Conditions and the Services Schedule and have been reflected in the consideration specified therein.
WebFlux is, and throughout the term of these Terms and Conditions and the Services Schedule shall be, an independent contractor, and not an employee, partner or agent, of Client. WebFlux shall not be entitled to nor receive any benefit normally provided to Client's employees such as, but not limited to, vacation payment, retirement, health care or sick pay. Client shall not be responsible for withholding income or other taxes from the payments made to WebFlux employees or authorized representatives.
Each party may have access to information that is confidential and proprietary to the other party ("Confidential Information"). "Confidential Information" shall include any and all technical and non-technical information of each party, including but not limited to
Each party agrees not to make Confidential Information available in any form to any third party except to such party's employees, contractors, agents or service providers who are required to know to allow such party to exercise its rights or perform obligations under these Terms and Conditions or to use the Confidential Information for any purpose other than in the performance of these Terms and Conditions. Each party agrees to take all reasonable steps to ensure that Confidential Information is secure and not disclosed or distributed by such party's employees or agents in breach of this Section 12. Upon request of the disclosing party, the receiving party will destroy the disclosing party's Confidential Information, other than archival back-up copy. The obligations of this provision shall not apply to any such Confidential Information which, after the date hereof, becomes publicly available without a breach of these Terms and Conditions, or is disclosed to a third party without similar restriction on the third party's rights, or is already known in the relevant industry. This Section 12 will survive termination of these Terms and Conditions and the applicable Services Schedule
Neither party may assign or delegate its rights and obligations under these Terms and Conditions and the Services Schedule to any third party without the prior consent of the other party to these Terms and Conditions (which consent shall not be unreasonably withheld); provided, however, that a "change of control" transaction shall not be deemed assignment or delegation under these Terms and Conditions.
This Terms shall be governed and construed in accordance with Indian Law. Any controversy or claim arising out of or in any way connected with these Terms and Conditions or the Services Schedule, or the alleged breach thereof shall be brought in the courts located at Rajkot city of Gujarat state of India. The language of arbitration proceedings shall be English. The arbitral award shall be final and binding upon the Parties. The Parties further agree that the arbitration costs and expenses of the other Party/Parties (including, but not limited to, lawyer's fees) shall be borne by the losing Party.
An Event of Force Majeure means any event that is beyond the reasonable control of a Party and unavoidable or unpreventable after it gives due attention, including, but not limited to, government act, act of God, fire, explosion, storm, flood, earthquake, tide, lightning or war, but insufficiency of credit standing, funds or financing shall not be deemed an Event of Force Majeure. The Party seeking the exemption from its liabilities under this Agreement owing to an Event of Force Majeure shall, without undue delay, inform orally or in written form at the other Party/Parties of such event and the steps needing to be taken to perform its liabilities. Should the performance of this Terms be delayed or prevented due to any Event of Force Majeure, the prevented Party shall be exempt from its liabilities only to the extent being delayed or prevented. The prevented Party shall take suitable measures to lower or eliminate the impact of such Event of Force Majeure, and make endeavors to resume the performance of the obligations delayed or prevented by Event of Force Majeure. The Parties agree to make their best to resume the performance of this Terms once the Event of Force Majeure is eliminated.
These Terms and Conditions, together with all applicable Services Schedule executed by the parties constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of these Terms and Conditions shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of these Terms and Conditions, and all such terms or conditions shall be null and void. If any provision of these Terms and Conditions is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable.