Terms And Conditions
Application
These Terms and Conditions shall apply to the provision of IT Services by the Provider to the Client.
In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless expressly otherwise agreed by the Provider in writing.
Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Agreement”
means the separate IT Service Agreement entered into by the Client and the Provider to which these Terms and Conditions apply;
“Business Day”
means, any day (other than Saturday and Sunday) on which ordinary banks are open for business in India;
“Commencement Date”
means the commencement date for the Services and these Terms and Conditions as set out in the Agreement;
“Client”
means the client as detailed in the Agreement;
“Equipment”
means any equipment listed in the Agreement and shall include and any additional equipment supplied by the Provider;
“Fees”
means the Provider’s professional charges under the Agreement;
“Provider”
means Cybrlytics Technology OPC Pvt Ltd, a company registered in Pune,India the registered address being B U Bhandari Acolade, S. No. 25/1A to 26, Kharadi, Pune, Pune, Maharashtra, India, 411014
“Services”
means the services to be provided by the Provider to the Client as set out in the Agreement;
“Software”
means any and all programs, applications, instructions or similar that may from time to time be installed on the Client’s computer systems; and
Unless the context otherwise requires, each reference in these Terms and Conditions to:
“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
“these Terms and Conditions” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
a Schedule is a schedule to these Terms and Conditions; and
a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
Words imparting the singular number shall include the plural and vice versa.
References to any gender shall include the other gender.
Provider’s Obligations
With effect from the Commencement Date the Provider shall, in consideration of the Fees being paid in accordance with the terms of payment, provide the Services expressly identified in the Agreement, or otherwise prior agreed in writing by a director of the Provider and in accordance with these Terms and Conditions.
The Provider will use reasonable care and skill to perform the Services identified in the Agreement or otherwise prior agreed in writing by a director of the Provider and in accordance with these Terms and Conditions.
The Provider will, subject to Clause 4, use reasonable endeavors to maintain the functionality of any Software which may be installed or otherwise operative on the Equipment and undertakes to re-install any Software which may have been corrupted or otherwise made unavailable due to hardware failure and to render such technical assistance as may be necessary to secure the satisfactory operation of the Equipment and Software.
Upon receipt of the Client’s request for support or rectification of a defect, the Provider shall (subject to its then current commitments) normally begin work on such support or defect within 2 hours. Such response times are calculated and apply during Working Hours. The provider may without obligation respond within shorter times than those set out herein in the case of a situation deemed to be an emergency by the Provider. The provision of Services outside of the Working Hours is as per the Agreement and typically 5.30 am to 10.00 pm on weekdays and 8.30 pm to 10.00 pm on weekends. As per the Agreement out of hours work will attract additional charges. Response times apply strictly to existing clients who have entered into an Agreement containing no less than a 30-day term.
The Provider will not guarantee the performance of any Software which the Provider has undertaken to re-install under sub-Clause 3.3.
The Provider shall use all reasonable endeavors to complete its obligations under the Agreement. The Parties agree that time will not be of the essence in the performance of these obligations.
Client’s Obligations
The Client shall:
allow the Provider access to the Equipment and all relevant Software for investigation purposes;
provide adequate working space and facilities for the Provider’s staff; and
co-operate with them in the diagnosis of any defect or malfunction in the Equipment or Software.
The Client shall allow the Provider the use of any Equipment, computer systems, peripherals or other hardware necessary to enable it to provide the Services and shall be responsible for procuring, installing and maintaining all communications media not supplied by the Provider.
The Client will not allow any changes or modifications to the Software to be made by any party other than those authorized by the Provider. If such changes or modifications are carried out without authorization or appropriate notification, the Provider reserves the right to review these Terms and Conditions and make adjustments accordingly.
The Client will make freely available to the Provider all documentation associated with the Equipment, working documents, original Software installation media, current data backups, Equipment and any other relevant hardware for the efficient maintenance of the Equipment and the Software.
The Client shall create regular data backups in such a manner as to minimize any potential data loss and to ensure that these are made available to the Provider as required.
The Client shall take all reasonable precautions to ensure the safety and health of the Provider’s personnel while such personnel are at the Client’s premises.
The Client shall notify the Provider within 7 days of delivery if they are requesting a refund, refunds are not guaranteed and will be considered on a case by case basis.
Price
The Client agrees to pay the Fees in accordance with Clause 6 and the Agreement.
The Provider shall be entitled to recover from the Client his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
The Client shall pay the Provider for any additional services provided by the Provider that are not specified in the Agreement in accordance with the Provider’s hourly rate in effect at the time of the performance or such other rate as may be agreed. Any such charge for additional services shall be invoiced separately from any Fees due under the Agreement.
All sums payable pursuant to these Terms and Conditions are exclusive of any value added or other tax or other taxes on profit, for which that Party shall be additionally liable.
Payment
All regular payments for Services provided under the Agreement shall be paid by the Client monthly in advance without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law. Regular payments for services provided shall be invoiced on the 23rd day of the month and paid by direct debit collected 3 working days after the invoice date unless otherwise specified in the Agreement. All one-off payments for Services provided under an Agreement shall be paid on the due date specified in the Agreement.
Where payments due are not included in the monthly payment in accordance with Clause 6.1 above then such payments shall be made by the Client within 30 days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
Payments shall be made by direct debit, BACS, or as otherwise directed by the Provider in the Agreement.
The time of payment shall be of the essence of the Agreement. If the Client fails to make any payment on the due date in respect of any sum due under the Agreement or these Terms and Conditions, then the Provider shall have the right to charge the Client interest on any sum outstanding at the rate of 4% above the base rate from the due date for payment until the date on which the payment is received.
The Provider may from time to time increase the hourly rates (if applicable) referred to in the Agreement by such amount as is reasonable and unless the Client objects to such increased rates within seven days of notification in writing all services shall thereafter be provided at the increased rates notified. If the Client objects to the increased rates, the Client shall remain liable for the existing contractual rate payable in accordance with the Agreement plus such additional rate as shall be reasonable.
Variation and Amendments
If the Client wishes to vary any details of the services in the Agreement, it must notify the Provider in writing as soon as is reasonably possible. The Provider shall use all reasonable endeavors to make any required changes and any additional costs thereby incurred may be separately invoiced to the Client.
If, due to circumstances beyond the Provider’s control, it has to make any change in the arrangements relating to the provision of the Services it shall notify the Client forthwith. The Provider shall endeavor to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original arrangements as is reasonably possible in the circumstances.
Termination
The Provider may terminate the Agreement forthwith if:
the Client is in breach of any of its obligations under these terms or the Agreement;
the Client has entered into liquidation whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets;
the Client has become bankrupt or shall be deemed unable to pay its debts by virtue of Section 123 of the Insolvency Act 1986
the Client ceases or threatens to cease to carry on business; or
any circumstances whatsoever beyond the reasonable control of the Provider necessitate and justify the Termination of the Services.
In the event of Termination under clause 8.1 the Provider shall retain any sums already paid to by the Client without prejudice to any other rights may have whether at law or otherwise.
The Client may terminate the Agreement by providing the Provider with 30 days’ notice in writing.
Liability
The Client shall indemnify the Provider against all damages, costs, claims and expenses suffered by the Provider arising from loss or damage to any equipment (including that of third parties) caused by the Client, or its agents or employees.
Where the Client consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Client shall be joint and several obligations of such persons.
The Provider shall not be liable to the Client or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of the Provider’s obligations if the delay or failure was due to any cause beyond the Provider’s reasonable control.
The Provider shall not be liable whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss suffered by the Client in the form of lost revenue or profit or failure to achieve any benefit expected to be derived from the Agreement, loss of use of any asset, loss of data recorded on any computer or other equipment, loss which is not the direct and immediate consequence of the breach, business interruption or management time, or any other loss which is otherwise indirect, commercial, economic, special or consequential.
The Client acknowledges and accepts that the Provider shall not be liable for:
Any failure by the Provider to restore any back-up systems;
Any virus or other malware suffered by the Client.
The Client acknowledges and accepts that the Provider cannot guarantee 100% monitoring of its servers.
The total liability of the Provider – whether in contract, tort (including negligence), breach of statutory duty or otherwise – for any and all breaches and/or non-performance of its obligations or liability under this Agreement shall be limited to Rs 500,000 or the total Fees payable by the Client, whichever is the lesser sum.
Where the Provider enters into an agreement with a third party to supply services to the Client or where the Client engages a third party to provide services to the Client such third parties warrant that they have all necessary professional indemnity insurance cover with respect to the work undertaken by such third parties. Such third parties shall provide proof of their professional indemnity insurance when so asked to by the Provider and/or Client.
Nothing in these Terms and Conditions or the Agreement shall limit or exclude the Provider’s liability for death or personal injury or any other liability which cannot be excluded by law.
Confidentiality
The following obligations shall apply to the party disclosing confidential information (‘the Disclosing Party’) to the other party (‘the Receiving Party’).
Subject to sub-Clause 10.3, the Receiving Party:
may not use any confidential information for any purpose other than the performance of his obligations under these Terms and Conditions;
may not disclose any confidential information to any person except with the prior written consent of the Disclosing Party; and
shall make every effort to prevent the use or disclosure of the confidential information
The obligations of confidence referred to in the provisions of this Clause shall not apply to any confidential information that:
is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain before its receipt by the Receiving Party;
is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
is required to be disclosed by any applicable law or regulation;
is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other Party to these Terms and Conditions in respect of it and who imposes no obligations of confidence upon the Receiving Party.
Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which he may be entitled.
The obligations of the Parties under the provisions of this clause shall survive the expiry or the termination of the Agreement for whatever reason.
Intellectual Property
The Provider undertakes not to cause or permit anything which may damage or endanger the intellectual property of the Client or the Client’s title to it or assist or allow others to do so.
All intellectual property rights including copyright which are capable of existing in any documents, computer software, process or any other materials created oy provided pursuant to the Agreement by the Provider shall be and remain the Provider’s property.
The Client undertakes to keep all materials, documents and information provided to it by the Provider confidential, and not to distribute any product of the services provided under the Agreement to any third party without the Provider’s prior written consent.
Any materials produced to supplied to the Client by the Provider in which intellectual property rights are capable of subsisting shall be licensed to the Client for internal use only in connection with the purposes of the terms of reference and such license shall forthwith terminate if notice is given by the Provider terminating this contract pursuant to clause 8.
The Client and the Provider undertake with each other not during the course of the Agreement to infringe the intellectual property rights of any third party.
Sub-Contracting and Assignment
The Provider may sub-contract to third parties all or any part of the work to be performed hereunder.
The Client shall not assign to a third party any or all of its rights or obligations under these Terms and Conditions without the prior written consent of the Provider.
Force Majeure
Neither Party to these Terms and Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
Waiver
No waiver by the Provider of any breach of these Terms and Conditions and/or the Agreement by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Terms and Conditions and/or clause(s) of the Agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which any waiver is given.
No failure or delay on the part of any Party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
Severance
1 If any provision of these Terms and Conditions and/or clause(s) of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and/or the Agreement and the remainder of the provision and/or clause in question shall not be affected thereby.
Notices
All notices under these Terms and Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorized officer of the Party giving the notice.
Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid.
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
Service of any document for the purposes of any legal proceedings concerning or arising out of these Terms and Conditions shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time.
Non-Solicitation
The Client shall not for the term of the Agreement and for a period of 12 months after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the Provider at any time in relation to the Agreement without the express written consent of the Provider.
The Client shall not for the term of the Agreement and for a period of 12 months after its termination or expiry, solicit or entice away from the Provider any Client where any such solicitation or enticement would cause damage to the business of the Provider without the express written consent of the Provider.
Third Party Rights
No part of these Terms and Conditions is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms and Conditions and/or the Agreement.
Law and Jurisdiction
These Terms and Conditions shall be governed by the laws of Pune,India.
Any dispute between the Parties relating to these Terms and Conditions shall fall within the exclusive jurisdiction of the courts of India.
Recruitment of the Company’s Staff
The Client undertakes that it (including for this purpose any subsidiary or associated organisation) or any person connected with it will not directly or indirectly recruit as an employee or engage as an independent contractor any person employed or so engaged by the Provider in connection with the services provided hereunder for a period of 12 months after such person last provided services to the Client.
If the Client is in breach of condition 19.1, the Client, recognising that the Provider will suffer substantial damage, will pay to the Provider by way of damages (and not as a penalty) a sum equal to the annual salary for the immediately preceding 12 months of the person concerned or such sum on a pro rata basis where the person concerned was employed by the Provider or was performing services for the Provider for less that the preceding 12 months.