Master
Services Agreement
This Master Services Agreement is entered into on the day the subscriber has
signed up for the services by and between Esconet Technologies Pvt. Ltd., a company incorporated under the Companies Act, 1956
and having its registered office at D-147, Okhla Industrial Area, Phase-I, New
Delhi 110020, India (hereinafter referred to as “Esconet" which expression shall, unless
repugnant to the context, include its successors in business, administrators,
liquidators and permitted assignees or legal representatives) and Customer (name and details as entered by the
subscriber during the sign-up process) and having its office at the address entered by the customer during
the sign-up process (hereinafter referred to as the “Customer" which expression shall,
unless repugnant to the context, include its successors in business,
administrators, liquidators and permitted assignees or legal representatives).
ESCONET
and Customer shall individually be called a “Party” and jointly as the
“Parties”.
A.
ESCONET
commercially offers online services inter alia accessible through internet
world wide web and/or other modes of Internet Protocol communication link;
B.
The Customer wishes to avail the Services from ESCONET and ESCONET has
agreed to provide the Services to the Customer;
C.
The Parties have mutually agreed that the purveyance of the Services by
ESCONET to the Customer shall be governed by the terms and conditions of this
Agreement.
1.
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms: Capitalized terms used in this Agreement shall have the meanings
assigned to them hereunder or in the relevant clauses of this Agreement:
(a) “Affected Party” means the Party
claiming the benefit of Force Majeure.
(b) “Agreement” shall mean all this Master Services Agreement and the
Service Level Agreement ‘SLA’ and the Acceptance User Policy ‘AUP’
collectively.
(c)
“AUP” shall mean the
Acceptable User Policy attached to this Agreement as Annexure–2 hereto.
(d) “Business Day” shall mean all working days of ESCONET except
national and or declared Holidays.
(e) “Due Date” shall mean seven calendar days from the date of invoice
by Esconet =.
(f) “Initial Term” shall mean the agreed period of provision of Service by ESCONET and
thereby availing of provided service by Customer as mentioned in the Service
Order Form from the Service Commencement Date.
(g) “Renewal Term” shall mean rolling periods of mutually agreed period between the parties
or the same length as the Initial Term which shall automatically commence
without perceptible interruption of the purveyed Service by ESCONET, after the
expiry of the Initial Term unless notice is given by either Party in the manner
described in Clause 20 (Notices) of this Agreement to stop the Services, at
least thirty (30) days prior to expiry of Initial Term.
(h) “Service Catalogue” shall contain a list of all or any of the services/facilities viz.,
backup facility, dedicated firewall facility, hardware monitoring
facility, help desk support, server load balancer, network and power uptime, OS
management and shared firewall services etc. described in Schedule-A to the
SLA.
(i)
“Service Commencement Date” shall mean the date of
acceptance by ESCONET of the first purchase order issued by Customer under this Agreement.
(j)
“Credits” shall
mean the entitlement of the extension of services to the customer
(k) “Service Credits” shall mean the credits which the Customer would be entitled to receive,
on account of failure of the ESCONET to provide Services as per the standards
mentioned in the SLA.
(l)
“Service Level
Agreement (SLA)” shall mean the Service
Level Agreement annexed hereto as Annexure-1 .
(m) “Service Order Form (SOF)” shall mean the
customer accepted proposal document of services by Esconet.
(n)
“Services”
shall
mean
(i) services
such as the hosting services, provision of servers and other devices and other
related services, and
(j) provisioning
of virtual servers using hypervisor software out of a cluster of physical
servers with/without operating system and other software
(k) colocation
of customer owned servers and related devices.
(ii) facilities
detailed in the Service Catalogue, and
(iii) Supplemental
Services, in all situations as set out in the written purchase order(s) raised
by the Customer on ESCONET and accepted by ESCONET.
(o) “ZeaCloud™” shall mean the public or
private cloud services being offered by ESCONET including all the “Services” as
defined above.
(p) “Supplemental Services” shall mean additional services which are requested for in writing by the
Customer other than those already agreed to be provided by ESCONET, as set out
in the written purchase order(s) raised by the Customer on ESCONET and accepted
by ESCONET.
(q) “Territory” means the geographical territory within union of India.
(r) “Project Manager” shall mean the
authorized representative or nominee of each party involved and or responsible
of successful performance of the obligations under this agreement.
(a) The headings used in this
Agreement are for convenience only and shall not in any manner and or way
define, confine or limit the scope of this Agreement.
(b) In this Agreement, where a
word or phrase is defined, other parts of speech and grammatical forms of that
word or phrase shall have harmoniously contextual meaning.
2.
TERMS GOVERNING PROVISION OF SERVICES
2.1
The Parties agree that this Agreement shall be read conjunctionally with
the purchase order(s) for Services issued by the Customer and accepted by ESCONET,
and together they shall constitute the terms and conditions on which the
Services shall be provided by ESCONET to the
Customer.
3.1
Customer shall raise service orders on ESCONET for provision of
Services. Subject to Clause 3.3, ESCONET agrees to provide Services, as set out
in the purchase orders issued by Customer, from the Service Commencement Date
until the end of the Initial Term, in accordance with the terms of this Agreement.
3.2
ESCONET may also provide Supplemental Services as and when requested
for by the Customer and accepted by ESCONET. Consideration for
such Supplemental Services shall be mutually agreed between the Parties in
advance.
3.3
ESCONET shall have the right to reject the service order(s) on
occurrence of any one of the conditions hereinafter (a) that is/are not in
accordance with this Agreement, or (b) that is/are issued for services /
facilities not covered in the Service Catalogue or (c) that contain terms and
conditions or prices that are contrary to the understanding of the Parties or
(d) at its sole discretion.
4.1
If Customer makes requests for any change whatsoever in the Services,
and such change results in increased cost of any nature to ESCONET, or will
require additional time for performance of ESCONET’s obligations, or if ESCONET
is otherwise adversely affected by such change, the schedule, warranty, price
and other terms and conditions of the purchase order and Agreement may be
equitably amended by mutual agreement of
the Parties as detailed in clause 4.3. In no event shall ESCONET be obligated
to proceed with any change unless the foregoing amendments have been agreed
upon in writing by the Parties.
4.2
Notwithstanding anything contained in this Agreement, at any time during
the performance of this contract in the event of material changes with prior
consent of Customer, ESCONET reserves the right to make changes in design,
construction, arrangement and provision of Services; provided such changes do
not result in any increase in the price or time for performance or alter any
performance guarantees or warranty obligations set forth herein. Customer shall
fully cooperate and not unreasonably withhold its consent in the event of said
material changes.
4.3
Change
Request Procedure
The
following process shall be followed in the event of a change in Scope of this
document is required and or desired:
i.
A
Change Request Procedure (“CRP”) will be the vehicle for communicating change.
The CRP must describe the change; the reasonable reason for the change and the
foreseeable effect the change will have on the project.
ii.
The
designated Project Manager of the requesting party will review the proposed
change and determine whether to submit the request to the other party.
iii.
Both
Project Managers will review the proposed change and recommend it for further
investigation or reject it. ESCONET will specify any charges for such
investigation. A CRP must be signed by Authorized Representatives from both
parties to authorize investigation of the recommended changes. The
investigation will determine the effect that the implementation of the CRP will
have on price, SLA and other terms and conditions of the Agreement.
iv.
A
written Change Authorization and/or CRP must be signed by Authorized
Representatives from both parties to authorize implementation of the
investigated changes.
A
change is initiated by a Request for Change (RFC) initiated by the Customer and
informed to ESCONET in writing.
ESCONET,
shall within fourteen (14) days of receiving the RFC, provide an estimation of
the time and effort required in analyzing the RFC. Following receipt of the
written approval of the estimate and agreement to pay the cost, if any, ESCONET
shall within thirty (30) days or the time specified in the estimate, perform
the analysis and effect the change.
Customer approval is required for the assessment of
Change Impact submitted by ESCONET. When the RFC requires a change in the cost
or SLA or when a change is required in the Agreement successfully executed
between Customer and ESCONET, the change must be expressly approved by the
Customer authorized representative in writing. Once approved by Customer, the
RFC is added to the Agreement. If the RFC is not approved by the appropriate
authority, the ESCONET will take no action on the same.
5.1
The Initial Term for the Services shall commence on the Service
Commencement Date. Customer acknowledges and accepts that the provision of
Services by ESCONET shall be subject to a minimum service period as mentioned
in the Service Order Form from the Service Commencement Date (“Minimum Service Period”). The Customer
shall not be entitled to terminate this Agreement during the Minimum Service
Period for any reasons whatsoever except for the sole reason as specified in
Clause 14.1(a). Notwithstanding anything contained herein, if the Customer
terminates this Agreement before the expiry of Minimum Service Period, then the
Customer undertakes and agrees to pay ESCONET, on or before the effective date
of termination of this Agreement, an early termination compensation of an
amount equivalent to the fee payable for the balance period of the Minimum
Service Period, calculated from the effective date of termination of this
Agreement.
5.2
On expiration of the Initial Term and in absence of any communication in
contrary from either Party, the Renewal Term shall automatically
commence/continue, upon the same terms and conditions mentioned in this Agreement.
5.3
In the event a Party does not wish to extend/renew this Agreement after
the expiry of the agreed term, that Party shall send a written notice of at
least thirty (30) days prior to the expiry of the agreed term to the other Party.
Upon receipt of said notice by the other Party on expiry of the Initial Term or
a Renewal Term (as the case may be), the Agreement shall be deemed to have
expired.
6.1
Temporary Suspension of Services Without Prior Notice:
Whereas
ESCONET shall by all means ensure perpetuity and continuity of services by the
Customer however under unforeseeably contingent circumstances, beyond the
realm, of ESCONET, Customer agrees and accepts that ESCONET shall be entitled
to suspend Services without any prior notice, inter alia including but not
limited to any of the following circumstances:
(a) The ESCONET datacenter being
affected by viruses/malware;
(b) “Network flooding” or
“Distributed Denial of Services” attacks at ESCONET’s datacenter or work
premises;
(c) Hardware fault at ESCONET’s datacenter;
(d) The Services being used by the
Customer in violation of the terms and conditions mentioned in the AUP or this Agreement;
(e) To protect the servers
maintained by ESCONET in the event of a threat of breakdown or where there is a
valid reason to believe that not suspending the Services would cause loss to
the other customers of ESCONET;
(f) Earthquake, Fire, natural and manmade disaster
or any act of God under vis major.
(g) In cases where suspension is required
by law; and
(h) In such other circumstances as
ESCONET may reasonably determine and
appropriately act upon.
ESCONET
shall inform the Customer, as soon as possible, the reason of such suspension.
6.2
Subject to Clause 6.1 above, Customer agrees that the Services may be
suspended by giving at least Seven (7) days prior notice for Customer to remedy
a situation under circumstances such as the
following:
(a) ESCONET has reason to believe
that Services are being used by the Customer in violation of the terms and
conditions mentioned in the Agreement including the AUP;
(b) ESCONET believes that the
Services provided by ESCONET to Customer are being used by unauthorized persons
without the consent of ESCONET;
(c)
In situations where there is no co-operation from Customer during
investigation of suspected violation of the Agreement; and
(d) In such other circumstances as
ESCONET may reasonably determine
and deem fit in larger interest to act upon.
6.3
Without prejudice to ESCONET’s rights of termination under Clause 14.2,
if the Customer fails to fulfill its payment obligations, ESCONET may at its
discretion (i) suspend performance of Services, or (ii) continue performance of Services
if ESCONET deems such continuance to be appropriate. Notwithstanding the
foregoing, in the event of default in payment obligations by the Customer, the
Customer shall not be entitled to claim Service Level Credits as set out in the
SLA during such period of default. In the event of suspension of the Service
for the reasons as specified in this clause, the Services shall be reactivated
only upon payment of pre-estimate of liquidated damage of Rs. 5000 by the Customer
to ESCONET.
6.4
In the event suspension of Services is required (a) other than as
provided in Clauses 6.1, 6.2 and
6.3 above,
and (b) as a result of ESCONET being unable to provide Services due to reasons
not attributable to Customer, Customer shall be entitled to Service Level
Credits as set out in the SLA. However, in the event of suspension of Services
for the reasons as provided in Clauses 6.1,
6.2 and
6.3 above, Customer shall not be entitled to any Service Level Credits as set
out in the SLA.
6.5
Customer agrees and acknowledges that in the event of suspension of
Services for the reasons as specified in Clauses 6.1, 6.2 and 6.3 mentioned
herein above, the Customer shall be responsibly liable for payment of all fees
and charges for the Services incurred throughout the suspension period.
Customer understands that ESCONET’s aforesaid right to suspend is in addition
to its right to terminate under Clause 14 of this Agreement.
6.6
In the event suspension of Services is for the reasons specified in
Clause 6.3, ESCONET does not guarantee and shall not be responsible/liable for
availability of the data and files of the Customer after such suspension.
ESCONET shall not be liable for any loss of business, data, content or files of
the Customer upon such suspension.
7.1
Maintenance of Security
(a)
Customer shall take all reasonable measures to ensure that the information
transmitted to or from the servers of ESCONET with respect to the Services
required by the Customer is secure. Customer shall duly authorize its employees
and all third parties required to have any access to such servers. Customer
shall require each person having access to such services to apply/ follow all
reasonable security and safety measures. ESCONET shall not be liable for any
action taken by (i) such authorized person on the
assets deployed for the Customer and (ii) individuals who were not authorized
to have access to the servers and the Services but who were able to gain access
owing to Customer’s fault/negligence (including disclosing of the usernames,
passwords or accounts details and other security breaches by Customer as
specified in Clause 10 below). Customer shall be solely responsible for the
activities that occur under the Customer’s usernames, passwords or accounts or
as a result of Customer’s or its authorized person’s access to the Services.
Customer agrees to fully indemnify and hold harmless ESCONET for any claims or
actions if any, arising out of the breach of this provision by the Customer.
(b)
Customer shall not use or permit use of the Services, inter alia
including by uploading, emailing, posting, publishing or otherwise transmitting
any data or content or material, including Customer Data, for any purpose that
may (a) harass any person or cause damage or injury to any person or property,
(b) involve defamatory, harassing, untrue or obscene materials, (c) violate privacy
rights or promote hatred or harm, (d) constitute unsolicited bulk e-mail, spam
or junk; (e) constitute an infringement of intellectual property or other
proprietary rights of a third party, or (f) violates applicable laws for the
time being in force. Without prejudice to the rights of ESCONET accrued under
this Agreement and future rights, ESCONET reserves the right without any
liability whatsoever in advising the Customer to take remedial action if any
data or content or material violates the foregoing restrictions including the
removal or disablement of access to such data or content or material. Customer
agrees to fully indemnify and hold harmless ESCONET against any claims arising
out of a violation of this provision by the
Customer
(c) The accuracy, veracity,
legality and validity of the data or contents provided by the Customer and/or its authorized person and transmitted to or
from the servers of ESCONET, by
virtue of being hosted on ESCONET servers and in the database of ESCONET shall
be the exclusive responsibility of the Customer. The Customer acknowledges that
ESCONET is solely hosting data and/or information on the Customer’s and/or its
authorized representative’s instructions, and any action on such instructions
and the result thereof shall be the sole liability of the Customer. ESCONET
shall not be liable for (i) any false and/or
inaccurate and/or illegal data transmitted to or from the servers of ESCONET
or by virtue of being hosted on ESCONET
servers, and (ii) any outcome and/or result of such processing, transmitting to
or from the servers of ESCONET, by virtue of being hosted on ESCONET servers
and in the database of ESCONET.
7.2
Compliance with law
Customer
shall ensure that it has taken all necessary and applicable permissions,
approvals, licenses from concerned authority(ies) as
applicable within or outside the Territory for availing the Services to be
provided by ESCONET. Customer shall at all times comply with all applicable laws.
8.
ACCEPTABLE USER POLICY (AUP)
8.1
Customer shall utilize the Services in accordance with the ‘AUP’. The
existing ‘AUP’ is annexed to this Agreement as Annexure-2. ESCONET shall be
entitled to modify the ‘AUP’ from time to time and such amended ‘AUP’, shall be
made available on the website of ESCONET, applicable in relation to provision
of the Services by ESCONET to Customer.
9.
REPRESENTATIONS AND WARRANTIES:
9.1
Customer represents and warrants to ESCONET as follows;
(a) It has the legal right and authority
to enter into this Agreement and is not barred by any agency or authority in or
outside the Territory to enter into this Agreement.
(b) All the information and
disclosures made in respect to this Agreement are true and accurate.
(c)
It has taken all necessary authorizations and approvals for the purpose
of execution of this Agreement.
(d) Customer shall not authorize
any third person to have access to the Services unless itis approved in writing
by ESCONET.
(e) It owns and has the right,
title, ownership and interest in the contents, materials and the data
(including the Customer Data) which runs on the Services or causes to interface
with the Services or which is uploaded for the Services or posted or submitted
or otherwise used during availing of the Services by the Customer
9.2
ESCONET represents and warrants to Customer as follows:
(a) It has legal right, authority
and authorization to enter into the agreement and to provide the Services as
required by the Customer.
(b) Services provided by ESCONET
are not in violation of any law or regulation(s) in force.
(c)
All the information and disclosures made in respect to this Agreement
are true and accurate.
(d) It has taken all necessary
authorizations and approvals for the purpose of execution of this Agreement.
(e) It shall take all reasonable
measures to ensure that information transfer (within ESCONET’s area of
influence and Domain) to and from Customer’s materials is secure and it shall
not use, analyze or access Customer data traffic or any other data except for
the limited purposes necessary for undertaking its contractual obligations as
set out herein.
(f)
It shall not derive any end user identifiable information from the
Customer’s services / Customer’s data flow.
10.1
Both Customer and ESCONET agree that each party shall ensure that
specific security measures (if opted for by the Customer) such as maintaining
fire walls, confidentiality of passwords to the servers, not providing access
to the Services to any third party, etc., are scrupulously implemented. Each
Party shall be responsible for breach of foregoing security measures, to the
extent such breach has been caused by such Party’s default in maintaining the
above security measures.
10.2
Customer acknowledges and understands that the software and software
applications including content, materials, data, images, text, audio, video
etc. provided by a third party (whether directly by third party or ESCONET
procuring the same on Customer’s instruction and or behalf) (“Third Party
Materials”) for the provision of Service shall be at sole liability of Customer.
10.3
Customer
also acknowledges that in case the Customer is not satisfied with the delivered
services, Customer shall responsibly inform ESCONET of the deficiency within 3
days of the Commissioning Date. Upon receipt of the said deficiency, ESCONET
shall suspend all Services, make good the deficiency and release the
environment once again with a new Commissioning Report. In such case, the
latter shall be regarded as the Billing Start Date. Further, if the Customer
uses the commissioned set-up, though he has a few outstanding requests,
Customer shall pay full charges from the first Commissioning Report, unless
partial billing is mutually agreed between the parties, before the Customer
starts using the Services. If no partial billing agreement has been reached and
if Customer uses the Services even after raising objections, Customer shall pay
in full without any deductions whatsoever from the first date of Commissioning Report
11.1
The Customer agrees to indemnify ESCONET their directors, employees,
agents and contractors against any breach committed under the Agreement, or any
third party claim, compensation, damages arising out of or in relation to
infringement and or infraction of any third party’s copyright, intellectual
property, trade secret, patent, trade mark or any other propriety rights.
11.2
The Indemnifying Party shall not be liable to indemnify the Aggrieved
Party under Clause 11.1 in respect of an infringement and or infraction claim
for compensation, damages mentioned therein in relation to materials, services,
information or other work (“Items”)
provided by the Indemnifying Party (a) arising as a result of the Aggrieved
Party modifying the Items, or (b) to the extent that the infringement and or
infraction claim for compensation, damages arises as a result of the Aggrieved
Party’s use of the Items together with products and or Services not delivered
and or provided by the Indemnifying Party or (c) as a result of an application
or use of the Items by Aggrieved Party that is not agreed between the Parties
under this Agreement.
11.3
The Customer shall not enter into compromise and or settlement of any
claim for compensation, damages or make any admission ascribing any liability
whatsoever on ESCONET without the express consent of ESCONET, unless such
compromise or settlement has the effect of relieving ESCONET from all claims of
compensation, damages made against it.
12.1
ESCONET warrants that the Services shall be performed as per reasonable
industry standard and substantially in accordance with any and all mutually
agreed specifications. The foregoing warranty shall be valid, provided any
breach and or deviation thereof is notified within one (1) year from the
completion of the relevant Service or prior to termination/expiry of this
Agreement, whichever is earlier (hereinafter “Warranty Period”). Notwithstanding anything contained herein, no
agent, or employee of ESCONET is authorized to make any modification,
alteration, extension or addition to said warranty or offer a different
warranty. Upon any breach of such warranty, the only liability of ESCONET is to
re-perform, correct and or make good any defective Services to the extent
necessary and technically and commercially feasible.
12.2
In no event does the above warranty apply to (i)
any failure or nonconformance of the Services with specifications (as provided
in the Agreement or otherwise) caused by or attributable to any associated or
complementary products not supplied, delivered, provided under the Agreement,
(ii) the quantity or quality of the products used by the Customer to avail the
services of Esconet , (iii) damage, fault, failure or malfunction due to Force
Majeure/Vis Major or normal wear and tear, (iv) any attempt by any person other
than the ESCONET personnel or any person authorized by ESCONET, to perform all
or part of the Services and. The warranty and remedies are conditional upon (a)
conformance with any applicable recommendations of ESCONET, and (b) Customer
promptly notifying ESCONET of any defects and or shortcomings in Services. The
Customer acknowledges that there are inherent risks in internet connectivity
outside the purview of ESCONET’s sphere and or domain of influence that may
result in the loss inter alia of Customer's privacy, confidential information,
and property. Customer acknowledges that ESCONET does not control the transfer
of data over communications facilities, including the internet, and that the
Services may be subject to limitations, shortcomings, delays, and other
problems inherent in the use of such communications facilities. ESCONET shall
not be responsible in any manner for any delays, delivery failures, or other
damage resulting from such problems. It is well understood between the parties
that ESCONET shall not be responsible for any issues whatsoever related to the
performance, operation or security of the Services that arise from and or are
attributed to the Customer’s content, applications or third-party materials whatsoever.
12.3
The Customer acknowledges and understands that ESCONET shall not be
privy to any data and/or information of the Customer (“Customer Data”) on account of provision of Services as it is solely
responsible for hosting of the Customer Data only. ESCONET shall not be liable
in any manner for any loss of Customer Data
in any manner while availing
the Services from ESCONET unless until the Customer has opted for
and availed the Services from
ESCONET for the data backup along with the data assurance services. Under no
circumstances will ESCONET have any liability or responsibility for (i) the loss of Customer Data or other information unless caused
by the proved gross negligence or willful misconduct of ESCONET; and (ii)
security breaches, viruses, hacked servers, worms, or corrupted data including
Customer Data, unless caused by the proved gross negligence or willful
misconduct of ESCONET.
12.4
The foregoing paragraphs set forth the exclusive remedies available to
the Customer and the sole liability of ESCONET for claims of compensation,
damages arising out of the failure of, or defect in, Provisioned Services,
whether such claim for compensation, damages are based on contract, law, indemnity, warranty,
specific performance tort (including negligence), strict liability or
otherwise. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED (BY STATUTE, COMMON LAW, TRADE
USAGE, COURSE OF DEALING OR OTHERWISE) OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. ESCONET does not provide any
representations or warranties other than or besides those set out expressly in
preceding Clause 12.1.
12.5
ESCONET does not provide herein any representation or warranty in
respect of any products or services provided by others and or parties not
signatory to this Agreement. ESCONET shall have no obligation for loss,
liability or damage which is as aresult of, because
(1) Customer fails to utilize, operate or maintain the Services or any
materials or equipment in connection with the Services in accordance with (i) applicable law and generally approved industry
practices or (ii) the provisions
of this Agreement
or (iii) the
provisions of any storage, operating or maintenance instructions
furnished to Customer or (2) Customer breaches applicable law. Customer agrees
to fully indemnify ESCONET against any loss, liability, harm or damage that
ESCONET may suffer as a result of Customer’s failure or breach as described in
this clause.
13.1
The total liability of ESCONET, its employees, subcontractors, or
suppliers on all claims for compensation. damages of any kind and or sort,
whether based on contract, law, indemnity, warranty, specific performance, tort
(including negligence), strict liability or otherwise, resulting from this
Agreement, its performance or breach, or from any services covered by or furnished
under or in relation to this Agreement or any extension or expansion thereof
(including remedial warranty efforts), shall in no case exceed in any manner
the average price or fee exclusive of GST or similar Tax payable by Customer
paid for Services over a three (3) month period
during the period of one (1) year immediately before the liability arose.
13.2
In no event, whether in contract, indemnity, warranty, specific
performance, tort (including negligence),
strict liability or otherwise,
shall ESCONET, its employees, subcontractors or suppliers be liable for any
indirect, remote, special, consequential, incidental or exemplary damages, loss
of profits or revenue; loss of use of equipment being worked on or any
associated equipment or facilities; cost of capital; cost of purchased power;
cost of substitute equipment, facilities or services; downtime costs; any
special, consequential, incidental or exemplary damages; or claims of customers
of Customer for any of the foregoing items, and Customer shall fully indemnify
ESCONET, its employees, subcontractors and suppliers against any such claims
from Customer’s customers.
14.1 Termination by Customer
Customer
may terminate the Agreement by immediate written notice to ESCONET if:
(a) ESCONET fails to provide the
Services as agreed; or
(b) ESCONET fails to comply with
any other terms of this Agreement other than provision of Services, and fails
to cure, remedy the defect in the Services or its non- compliance with any
other terms of this Agreement, within a period of thirty (30) days from the date of written notice issued by the
Customer asking it to cure such defect or non-compliance.
14.2 Termination by ESCONET
ESCONET
has the right to terminate the Agreement on immediate written notice to the Customer
when
(a) any payments to ESCONET
payable by Customer have not been received by ESCONET within seven (7) days of
the Due Date; or
(b) when the Customer fails to
comply with the terms of this Agreement and fails to cure such non-compliance
within a period of seven (7) days from the date of written notice issued by
ESCONET asking it to cure such non-compliance.
14.3 Termination for convenience
Subject
to Clause 5.1 herein above, Customer may terminate this Agreement for its
convenience without providing any reasons by giving the other at least ninety
(90) days prior or advance written notice. ESCONET is also reciprocally
entitled to terminate the Agreement for its convenience without providing any
reasons by giving the Customer at least ninety (90) days prior or advance
written notice
15.1 Upon the termination of this
Agreement becoming effective:
(a)
ESCONET shall immediately cease providing the Service(s) to the Customer;
(b)
any and all payment obligations of Customer under this Agreement for
Service(s), in proportion to the Services rendered till the effective date of
termination, notwithstanding to any previously agreed credit period between the
parties shall immediately become due;
(c)
within three (3) days of termination of this Agreement, each Party shall
be under an obligation to return all Confidential Information of the other
Party in its possession without trustfully retaining any copies of such
Confidential Information except as required in compliance with any applicable
legal or accounting, record keeping requirement.
(d)
Customer shall remove all its equipment and materials from ESCONET’s premises
within ten (10) days of the
effective date of termination. Unless ESCONET agrees otherwise in writing,
failure to remove Customer’s equipment and materials, by the Customer within
ten (10) days from the effective date of termination, shall constitute
abandonment of Customer’s equipment and material and it is well understood that
Customer shall lose all rights whatsoever in respect thereof. ESCONET shall be
entitled to pursue available legal remedies, including, without limitation and
at Customer’s risk and expense: (i) immediately
removing Customer’s equipment and material and storing it at Customer’s expense
at an on-site or off-site location; (ii) shipping it to Customer; or (iii) upon
thirty (30) days’ prior written notice to Customer, liquidating it, and
retaining/appropriating to itself the proceeds thereof.
15.2
Termination shall not affect in any manner the liabilities of a Party
that accrued before the effective date of termination.
16.1
Each Party (“Receiving Party”)
agrees that it will not disclose to third party(ies)
any information belonging to the other Party (“Disclosing Party”) which is provided to it by the Disclosing Party
before, during and after the execution of this Agreement. All such information
belonging to the Disclosing Party and provided to the Receiving Party shall be
considered Confidential Information. Confidential Information includes prices,
quotations, negotiated issues made before the execution of the Agreement,
server configuration, design and other related information and information
relating to the contents to be transmitted to and from the servers of ESCONET
or Customer. All information provided by a Party to the other shall be
considered confidential even if it is not conspicuously marked as confidential.
16.2
Notwithstanding the foregoing, neither Party shall have any obligations
regarding non-use or non-disclosure of any confidential information which (i) is already known to the Receiving Party at the time of
disclosure; (ii) is or becomes part of the public domain without violation of
the terms hereof; (iii) is shown by conclusive documentary evidence to have
been developed independently by the Receiving Party without violation of the
terms hereof; (iv) is disclosed by the Disclosing Party to a third party
without similar restrictions on the third party's rights; or (v) is received
from a third party without similar restrictions and without violation of this
or a similar agreement.
16.3
Each Party agrees not to disclose any of the Confidential information
obtained from the other under any circumstances to any third party unless it is
so required by law to be disclosed or if it falls under any of the exceptions
mentioned in Clause 16.2 above. Any disclosure to be made by the Customer as
per the requirements of law shall be so disclosed on providing reasonably
advance notice to ESCONET with the reasons for such disclosures.
16.4
The terms and conditions of this Agreement, and all annexes, attachments
and amendments hereto and thereto shall be considered Confidential Information.
No news release, public announcement, advertisement or publicity concerning
this Agreement and/or its contents herein shall be made by either Party without
the prior written approval of the other Party unless such disclosure or public
announcement is required by applicable law. Notwithstanding any provision
to the contrary, ESCONET shall be permitted
to freely disclose
the information that it is providing / has provided the Services
to the Customer in its marketing, promotion or other materials.
17.1
The Customer acknowledges that ESCONET may require to disclose
information and data provided to it by Customer, including information that
identifies an individual or a person either directly or indirectly and alone or
in combination with other information available (such identifying information
being referred to as “Personal
Information”), such as a person’s name, phone number and email address, to
ESCONET’s affiliates and associates to carry out Services under this Agreement.
ESCONET may also disclose Personal Information obtained from Customer if
required under applicable laws including in connection with law enforcement,
fraud prevention, or other legal action, or as required by law or regulation,
or if it reasonably considers it necessary to protect ESCONET, its customers,
or the public.
17.2
In addition, Customer agrees that ESCONET may disclose such Personal
Information to its business partners in order to perform acts that help ESCONET
to customize, analyse and/or improve its Services and
its communications with Customer, provided that all such business partners
observe in letter and spirit the ESCONET’s commitment to protect such Personal Information.
17.3
The Customer shall be deemed to have consented to disclosure of Personal
Information by ESCONET to its affiliates and business partners by providing
such Personal information to ESCONET in the course of ESCONET’s performance of
the Services.
17.4
ESCONET may disclose any Personal information provided by Customer (a)
if required to do so by an order/subpoena/summon under applicable law; or (b)
to government agencies mandated under law to obtain such information for the
purpose of verification of identity, or for prevention, detection or
investigation including of any real or suspected event in relation to
cyber-security. No further consent will be required to be obtained by ESCONET
from the Customer for any of the aforesaid disclosures.
18.
ASSIGNMENT AND SUBCONTRACTING
18.1 Customer shall not be entitled
to assign the benefit of the Services or any of its obligations under this
Agreement to any third party without the prior written consent of ESCONET.
18.2 ESCONET may after notice to
the Customer, engage a subcontractor to provide Services to Customer.
19.1 The fees that ESCONET shall
charge for its’ Services shall be agreed upon by the Parties from time to time
and set out in the relevant purchase order.
19.2 Customer shall pay the fees in
accordance with ESCONET’s invoices and any fees charged for Supplemental
Services provided on or before the Due Date.
19.3 ESCONET shall send invoices to
the Customer through email/fax /post/courier to the designated invoicing
address of the Customer as provided in Clause 21.
19.4 Delay in Payments
(a) In the event Customer receives
an invoice, and is of an opinion that there is a dispute in the same, the
Customer is required to notify ESCONET in writing within seven (7) calendar
days of its receipt, and make payments for the undisputed amount on or before
the Due Date.
(b) In case the invoices are
undisputed, and there are any delays in its payment, the Customer is liable to
pay compensatory interest at a rate equivalent to eighteen percent (18%) per
annum on the unpaid amount from the date that the amount becomes due for
payment till the date of receipt of payment by ESCONET in its account. Further,
ESCONET (if applicable) shall be entitled to an extension of time for its
performance under this Agreement equal to the period of Customer’s non-
fulfillment, whether or not ESCONET elects to suspend performance.
(c) In case the invoices are undisputed, and are not
paid by the Due Date, ESCONET reserves its right to rightfully approach
National Company Law Tribunal (“NCLT”)/ Debt Recovery Tribunal (“DRT”) for
recovery, or any other court of law as it deems fit, or follow the Dispute
Resolution procedure prescribed herein.
19.5
In the event the Customer needs to provide any information/documents to
enable ESCONET to avail any benefits (including any tax benefits, reduced or
concessional tax rates, incentives etc.), the Customer shall provide the same
on a timely manner to enable ESCONET to obtain/avail such benefits. Upon any
failure of the Customer in fulfilling its obligations under this clause
(including failure to provide the requisite information/documents on a timely
basis), ESCONET shall, without prejudice to its rights and remedies, be
entitled to claim and recover the amount of the benefit(s) lost on account of
such failure/delay from the Customer.
19.6 If Customer is an unlisted company, ESCONET
shall, at its option, reserve the right to conduct credit check on the
Customer. In cases where ESCONET requires to conduct such credit checks, the Customer shall provide credit check
reports from Dum & Bradstreet (“D&B”), or Credit Information Bureau of
India Limited (“CIBIL”) or other similar agencies. In case the Customer credit
report is not as per the expectations of ESCONET, ESCONET shall notify the
Customer; thereafter the payment terms shall be amended to the effect that the
Customer will be required to pay monthly in advance to avail the agreed
Services. In the event the Customer does not agree to pay monthly in advance,
ESCONET shall reserve the right to immediately terminate the Services.
19.7 Taxes:
i.
The
Customer shall be responsible to remit all taxes to the concerned appropriate
authorities including any cess imposed, surcharge, fine, penalty, interest applicable
to ESCONET’s fees for Services and/ or in connection with the transactions to
be undertaken under this Agreement.
ii.
ESCONET
shall fully co-operate with Customer by furnishing all information on timely
basis as may be required by Customer from ESCONET, including but not limited to
confirmation of booking/accrual of income.
iii.
The
Customer shall be required to provide the GST details as required under the
Goods and Services Tax Act, 2016, along with the Purchase Order. ESCONET shall
raise tax invoices based on the GST details made available in the Purchase
Order. The Customer alone shall bear the consequences, including any loss of
input credit, penalties or any other charges, of failure to provide requisite
GST details or of any inaccuracy therein.
20.1
All communications by Customer with respect to this Agreement should be
sent to the sales department of ESCONET via electronic mail/fax/registered
post/courier at the address below or email address as shown on the web site:
ESCONET Technologies Pvt Ltd.
D-147, Okhla Industrial Area, Phase-I, New Delhi
110020, India
Attn:
Director
Email: [email protected]
20.2
All communications by ESCONET with respect to this Agreement should be
sent to the Customer via electronic-mail/registered-post/courier at the address
or email address or fax number given below:
Full Legal Name of Customer:
Full
Address of Customer:
Customer Authorized Contact Person:
Email ID
of the Authorized Contact Person:
20.3
A Party to this Agreement shall notify the other Party of any changes to
the address or any of the other details as specified in this Clause 20.2. The
Customer acknowledges and understands that the Services provided by ESCONET and
availed by the Customer is of such a nature that requires urgent and immediate
communication between the Parties. In the event the Customer fails to notify
any change of its address or any of its other details as specified in this
Clause 20, the same shall be considered a material breach of this Agreement and
shall entitle ESCONET to terminate the Agreement without any liability whatsoever.
21.1
A Party shall not be liable to the other Party if, and to the extent,
that the performance of any of its obligations under this Agreement is
persistently prevented, restricted, delayed or interfered with due to
circumstances beyond the reasonable control of that Party, including, but not
limited to, circumstances such as change in legislation, fire, flood,
earthquake, explosion, epidemic, pandemic accident, act of God, war, riot,
terrorist activities, strike, lockout and/or act of government (Force Majeure). The Party claiming an event of Force Majeure as aforesaid shall
promptly notify within reasonable time the other Party in writing, and provide
full particulars of the event of Force
Majeure/vis major and the date of first occurrence thereof, as soon as
possible after the event and also keep the other Party informed of any further
developments. The Party so affected shall use its commercially reasonable
efforts to remove the cause of non-performance, and shall, unless otherwise
agreed to by the other Party in writing, resume performance hereunder with
utmost dispatch when such cause of non-performance is removed.
21.2
On the occurrence of Force
Majeure/Vis Major the Affected Party shall be excused from performance of
its directly affected obligations (save and except payment obligations) to the
extent performance of such obligations is affected by Force Majeure/Vis Major.
21.3
On the occurrence of Force
Majeure/Vis Major either Party may terminate this Agreement by written
notice to the other in the event the Force
Majeure/Vis Major situation continues for more than thirty (30) days,
without any liabilities whatsoever other than those that may have arisen and or
accrued before the occurrence of the Force
Majeure/Vis Major event.
22.1
Each Party acknowledges and agrees that the other Party retains
exclusive ownership
and rights in its trade secrets, inventions, copyrights, and
other intellectual property and any hardware provided by such Party in relation
to this Agreement.
22.2
Neither Party shall remove or misuse or modify any copyright, trade mark
or any other proprietary right of the other Party which is known by virtue of
this Agreement, in any circumstances.
23.
GOVERNING LAW AND ARBITRATION
23.1 This Agreement shall be governed by the
laws of the Republic of India.
23.2 In case of any disagreement
and or dispute whatsoever between the Customer and ESCONET under this
Agreement, the dispute shall be resolved in the manner as outlined here under.
23.3
The Customer and ESCONET shall make every effort to resolve amicably by
direct informal negotiations any disagreement or dispute between them on any
matter connected with this Agreement or in regard to the interpretation
thereof. If, after thirty (30) days from the commencement of informal
negotiations, the Customer and ESCONET have not been able to resolve the
dispute amicably, such differences and disputes shall be referred, at the
option of either Party, to arbitration by a sole arbitrator to be mutually
agreed upon and in the event of no consensus between the parties, then the High
Court of Delhi shall have sole jurisdiction to appoint an Arbitrator under the provisions of the Arbitration and
Conciliation Act (1996) and its amendments/ordinances thereafter (“Act”). Such
arbitration shall be conducted in accordance with the Arbitration and
Conciliation Act, 1996 and its amendments/ordinances thereafter. Upon every or
any such reference the costs of and incidental to the reference and award shall
be borne equally by the parties. The arbitration shall take place in New Delhi,
India unless otherwise mutually agreed by the Parties and shall be conducted in
the English language.
24.1 Solicitation
Customer
agrees that (a) it will not compete with ESCONET in any manner, and (b) it will
not solicit any of the employees of ESCONET, including those who have directly
or indirectly been involved in providing Services to Customer, for employment
with the Customer and/or any of its associates, affiliates, group companies or
third parties, during the validity of this Agreement and up to twenty four (24)
months from the expiry or date of termination of this Agreement.
24.2 Intellectual Property in Services
ESCONET
is the sole owner of all patents, copyrights, trademarks, industrial designs,
trade names and trade secrets and all other intellectual property rights in the
Services and the Customer agrees that nothing contained herein shall be deemed
to result in any transfer of such intellectual property to the Customer.
24.3 Modification of Services and Amendment
(a) Customer agrees that any
change in the Services other than as accepted by both the Parties under this
Agreement, shall be effected only after a written confirmation
is received from ESCONET on the request of
Customer.
(b) Any modifications accepted by
ESCONET may attract different fees and amendment of certain terms of this
Agreement. On acceptance of such terms and fees in writing the modifications
requested by the Customer shall be brought into force.
(c)
This Agreement may be amended only by the written agreement of both Parties.
24.4 No third-party beneficiaries
There
shall be no third-party beneficiaries to this Agreement.
24.5 Relationship between Parties, Subcontractors
(a) The relationship of ESCONET
and Customer created by this Agreement is that of independent contractors and
no partnership is created. Nothing contained in this Agreement shall be
construed to give either Party the power to direct and control the day-to-day
activities of the other.
(b) Neither Party shall be
considered an agent of the other Party and neither Party may represent to any
person that it has the power to bind the other on any agreement. The Agreement
is non-exclusive and allows both Parties to conduct its business in a manner
that is not against the terms and spirit of this Agreement.
24.6 Micro, Small and Medium Enterprises Development
Act, 2006
The Customer shall
notify ESCONET, in writing within thirty (30) days, if the Customer is
qualified or gets qualified during the term of this Agreement as a micro, small
or medium enterprise as defined under the Micro, Small and Medium Enterprises
Development Act, 2006 (“MSME Act”), and agrees to waive its rights under the
MSME Act. In the event it fails to comply with the aforementioned requirement,
ESCONET shall assume that the Customer does not fall under the ambit of the
MSME Act to the extent provided above. The Customer shall defend, indemnify and
hold ESCONET harmless against any claims, costs and legal liability incurred by
Customer as a result of ESCONET’s failure to notify Customer or comply with the
requirements of this provision.
24.7 Stamp Duty
The Parties
agree that the stamp duty as applicable and payable on the Agreement shall be
borne by Esconet.
24.8 Severability
The
Parties acknowledge that if any provision of this Agreement is unenforceable in
any respect, such unenforceability shall not affect any other provisions of
this Agreement and this Agreement shall be construed as if such unenforceable
provision had never been contained herein.
24.9 Non-Disparagement.
The
Customer hereby understands, acknowledges and agrees that it will not and will
ensure that its representatives, employees, agents, contractors, associates,
group companies etc. do not in any form or manner carry out disparagement,
negative characterization, defamation and/or any adverse public criticism of
the Services, or question the business, integrity, veracity or personal or
professional reputation of ESCONET.
24.10
Agreement
All
annexures to this Agreement are hereby incorporated in this Agreement. The
Agreement is the complete and exclusive agreement between the Parties regarding
its subject matter, supersedes, and replaces any prior agreement, understanding
or communication, written or oral. In the event of any conflict or
inconsistency between the provisions of the Master Services Agreement, SLA,
AUP, Purchase Order, or any other agreement entered between the Parties, the
provisions of the Master Services Agreement shall prevail.
24.11 Cumulative-Remedy
No right or remedy
made available to Customer under or pursuant to this Agreement is intended to
be exclusive of any other right or remedy provided to Customer hereunder or
available under Applicable Law, or in equity or under contract or otherwise.
24.11 Waiver
No failure or delay on the part of either Party
in the exercise of any right, power, privilege or remedy provided under this
Agreement shall operate as a waiver of such right, power, privilege or remedy
or as a waiver of any preceding or succeeding breach by the other Party to this
Agreement nor shall any single or partial exercise of any right, power,
privilege or remedy preclude any other or further exercise of such or any other
right, power, privilege or remedy provided in this Agreement (all of which are
several and cumulative and are not exclusive of each other) or of any other
rights or remedies otherwise available to a Party at law or in equity. Waiver,
if any, has to be in writing by authorized personnel of the respective Party.
24.12
Survivability
In
addition to any provisions of this Agreement that by their terms or nature are
intended to survive termination of this Agreement, shall survive the
termination of this Agreement, and the parties shall remain bound thereby. More
specifically, it is mutually agreed between the parties that all provisions
under this Agreement regarding indemnification, liability and limits thereon,
and confidentiality and or protections of proprietary rights and trade secrets
shall survive the termination of this Agreement.