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”.

 

WHEREAS

 

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.

 

1.2           Interpretation

 

(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.               SERVICES

 

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.               CHANGES

 

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.

 

4.3.1         Change Initiation

                A change is initiated by a Request for Change (RFC) initiated by the Customer and informed to ESCONET in writing.

 

4.3.2         ESCONET Response

                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.

 

4.3.3         Customer Approval

                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.              INITIAL TERM

 

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.               SUSPENSION OF SERVICES

 

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.               CUSTOMER OBLIGATIONS

 

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.           USE OF SERVICES

 

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.           INDEMNIFICATION

 

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.           PERFORMANCE WARRANTIES

 

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.           LIMITATION ON LIABILITY

 

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.           TERMINATION

 

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.           EFFECT OF TERMINATION

 

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.           CONFIDENTIALITY

 

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.           DATA PRIVACY

 

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.           PAYMENTS AND TAXES

 

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.           NOTICES

 

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.           FORCE MAJEURE/VIS MAJOR

 

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.           OWNERSHIP

 

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.           MISCELLANEOUS

 

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.