This Agreement is made at Mumbai dated this day [DATE].
BY & BETWEEN
Embee Software Pvt Ltd., a company incorporated under the Companies Act, 1956 and having its Registered Office/principal place of business at No. 8 A.J.C. Bose Road, Circular Court, 2nd Floor, Near : Kala Mandir, Kolkata: 700 017. W.B and Branch office at 701, 7th Floor, Advent Atria, Opp. Kingstone Tower, Chincholi bunder Road, Chincholi, Malad (W) Mumbai – 400 064, bearing Company Identification Number U72200WB1992PTC055123, Permanent Account Number:AAACE6958L, hereinafter referred to as the Service Provider, (which expression shall, unless it be repugnant to the context or meaning thereof, be deemed and include its respective heirs, executors, administrators and assigns),
AND
XYZ Ltd, a company having its Registered Office at [XXXXXXXX] India, hereinafter referred to as “CUSTOMER”, (which expression shall, unless it be repugnant to the context or meaning thereof, be deemed and include its respective heirs, executors, administrators and assigns).
Both CUSTOMER and the Service Provider may hereinafter be referred to as a Party and collectively as "the Parties", as applicable.
And WHERAS the Service Provider is, inter-alia, engaged in the business of
providing Licenses and Managed Services.
AND WHEREAS CUSTOMER has decided to avail the
services of the Service Provider for providing Managed IT Services.
1. The descriptive headings of clauses are inserted solely for convenience of reference and are not intended as complete or accurate descriptions of content thereof and shall not be used to interpret the provisions of this Agreement
2. Words denoting persons shall include bodies corporate, unincorporated associations and partnerships.
3. The use of words in the singular or plural, or with a particular gender, shall not limit the scope or exclude the application of any provision of this Agreement to any person or persons or circumstances except as the context otherwise permits.
4. References to the word “include” or “including” shall be construed without limitation unless stated otherwise.
5. Reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, and any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision.
6. The terms “hereof”, “herein”, “hereby”, “hereto” and derivative or similar words refer to this entire Agreement.
a. This Agreement shall be for a period of 1year and commence from [DATE] and will expire on [DATE].
b. Service Provider will provide Managed Services as per scope defined in Annexure-A for one-year for CUSTOMER environment on Azure i.e. from the date of execution of the Agreement.
c. This Agreement may be extended / renewed / amended with mutual consent of the Parties formalized in writing, signed by both the Parties to this Agreement.
d. Notwithstanding anything contained hereinabove, CUSTOMER shall be entitled to terminate this Agreement with or without any cause by issuing a thirty (30) days’ notice to the Service Provider. The Service Provider will be able to terminate this agreement by issuing a thirty (30) days’ notice to CUSTOMER in the event CUSTOMER has not made the payment by due date and has failed to make the payments, post expiry of the period as detailed in the notice.
e. Notwithstanding anything contained hereinabove, Service provider shall also be entitled to terminate this Agreement with or without any cause by issuing a thirty (30) days’ notice to CUSTOMER
f. Notwithstanding the generality of the above, if Service Provider commits a breach of its obligations under this Agreement, this Agreement shall be terminated upon 30 days’ notice by CUSTOMER to the Service Provider provided the Service Provider is unable to cure such breach during the notice period without prejudicing any claims or damages accrued to CUSTOMER and the relevant Affiliates prior to such termination.
g. in case of non payment of undisputed overdue invoices for more than 3 months, Service provider can terminate the contract immediately and demand for dues. In such event Service provider shall not be liable for any loss, damage, due to service termination.
a. CUSTOMER shall, during the term of this Agreement, use Managed services as agreed and detailed under Annexure A of the Agreement and leverage the benefit of the Azure Public Cloud Solution provided by the Microsoft.
b. Service Provider to deploy the finalized Managed Services as agreed and more specifically detailed under Annexure A to this Agreement.
c. Service Provider shall be responsible for operation, and administration of the Application and shall be provided secure access to the applications via the Internet by the Service Provider. The Service Provider shall maintain, manage, and monitor the hosting site communications, hardware availability and its performance. Service Provider shall provide administrator accounts to CUSTOMER for secure administrator access to the Application and will further provide CUSTOMER with the necessary tools to enable its administrator(s) to set up additional users for access to the Application. The Services to be provided and availed under this Agreement are more specifically detailed under Annexure A to this Agreement. If the Application or Services incorporated herein requires any equipment, supplies, facilities, computer code, work product, inventions or materials of any other party, then the Service Provider will inform CUSTOMER on the same and help CUSTOMER to obtain necessary access to enable CUSTOMER to use the application and services and to enable CUSTOMER to perform its obligations under this Agreement, including without limitation the granting of the rights herein.
d. Security:
i. While on the premises, carry any security pass (such as a picture ID) that has been issued by CUSTOMER. Such pass must be presented to security personnel prior to entering the elevator banks or escalator areas, and at any time on request.
ii. Immediately report the loss of any security-related item (such as keys or a security pass) to CUSTOMER’s security department.
iii. Leave the premises at the agreed time (i.e., the official end of the individual's work day, unless otherwise arranged).
iv. Enter only those portions of the premises where his or her presence is necessary for the proper performance of duties under this Agreement.
v. Comply with any direction given by CUSTOMER's security department and, in particular, permit such searches as required under CUSTOMER’s policy. Under current policy, CUSTOMER the Firm reserves the right to search the premises and all objects and persons on the Premises (including desks, closets, and business and personal mail, including that in electronic form).To the extent that Service Provider has access to CUSTOMER’s systems or internal database(s) in order to provide the services, Service Provider agrees to take reasonably appropriate measures to ensure that security of CUSTOMER’s database(s) and other confidential information is maintained, including, but not limited to compliance with the requirements as may be provided by CUSTOMER from time to time.
a. Service Provider will provide the support based on the Agreed SLA detailed under Annexure A attached hereto.
b. Service Provider will deliver the services within the timeframe as may be agreed between the parties from time to time.
To immediately inform the Service Provider for any urgent requests required either by way of written, telephone, e-mail, or through facsimile;
a. The applicable rates are given in “Annexure B” to this Agreement.
b. Terms of Payment shall be as detailed under “Annexure B” annexed hereto.
The parties hereto acknowledge that they have read this Agreement, understood its contents, and agree to be bound by its terms. The parties further agree that this Agreement is the complete and exclusive statement of their Agreement relating to the subject matter hereof and supersedes all proposals (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the parties relating hereto.
This Agreement can only be amended by a subsequent writing that specifically refers to this Agreement and is signed by the parties, and no other act, document, usage, or custom shall be deemed to amend this Agreement.
No modification or amendment of any of the terms of this Agreement shall be valid and binding unless signed by or on behalf of both parties hereto.
8. It is expressly understood that CUSTOMER, is entering into this agreement on the confirmation and undertaking by the Service Provider, that the Service Provider has requisite compliances, infrastructure, expertise, mechanism, licenses and approvals in place to offer the proposed services, and will also keep intimating CUSTOMER about its obligations, if any, due to amendments in relevant travel regulations, inter-alia, pertaining to providing of the said services
Service Provider shall report incidents affecting security through appropriate management channels, as quickly as possible after the incident occurs. All Personnel of service provider must be made aware of the procedures for reporting different types of incidents (security breach, threats, vulnerabilities, or security-related software malfunction) that might have an impact on the CUSTOMER operations. All Personnel must be required to report any observed or suspected threats, vulnerabilities, or incidents as quickly as possible to the designated point of contact Mr. Harish Balakrishna
10.1 The Service Provider shall ensure that the Service Provider Staff are duly trained to render the Services in the manner contemplated herein.
10.2 Service Provider shall be solely responsible for the supervision and control of its employees, agents, contractors including but not limited to representative which are engaged for providing services to CUSTOMER their safety, security, proper behavior and conduct.
10.3 The Service Provider shall cover all the Service Provider Staff deputed to CUSTOMER to render the Schedule Services under the provisions of the Employees State Insurance Act, Employees Compensation Act, Employees Provident Fund and Miscellaneous Provisions Act and all other applicable laws under its own code/registration number. The Service Provider shall be responsible and answerable for payment of wages, all statutory contributions or other legal dues that may be payable on account of the Service Provider Staff engaged by the Service Provider for rendering the Schedule Services . It shall be the sole responsibility of the Service Provider to engage, supervise, retain, terminate or otherwise discharge the Service Provider Staff engaged by it and CUSTOMER shall in no way be responsible, liable or answerable to the said staff or to any statutory , governmental or other authority for the same.
10.4 The Service Provider shall not act or attempt to act or represent itself as an agent of the Company and shall not use the Company’s name or reputation for procuring any loan, credit, advantages or otherwise.
10.5 The Service Provider shall ensure that the Service Provider Staff while in the premises of the Company for rendering the Schedule Services shall always abide by the rules and regulations of the Company and shall always carry with them the identity card issued by the Service Provider and show the same to the officers of or persons authorized by, the Company on demand. The Service Provider and the personnel employed by it shall not do or permit to do any act or things in or on the premises of the Company which may be in any way be detrimental to the interest of the Company or become a nuisance or annoyance or cause or result in damage or disturbance to the employees, agents, servants, customers, clients of the Company or to or of any adjoining premises or otherwise. Such Service Provider Staff deputed by the Service Provider shall not carry, bring in or store in the premises of the Company any lethal weapons or fire arms or intoxicant substance or materials or any other contraband items. The Service Provider Staff deputed by the Service Provider are liable for physical search at the entry points to and exit points from the Company premises while entering or leaving the premises of the Company or at any time while in the premises of the Company by any officer or person authorized by the Company on this behalf.
10.6 This Agreement shall be on a "principal to principal" basis. The relationship of the Service provider, with the CUSTOMER shall be that of independent contractor and nothing in this Detailed Agreement constitutes or may be deemed to constitute a relationship of employer and employee, partnership, agreement of Agency or joint venture between the parties.
11.1 has necessary experience, expertise, ability, infrastructure and personnel to render the Services as contemplated herein.
11.2 has the necessary approvals, registrations and licenses required for rendering the Services.
11.3 has, where applicable, obtained necessary internal approvals for executing this Agreement and the person executing this Agreement is authorized to execute this Agreement for and on behalf of the Service Provider.
11.4 shall on request provide necessary proof of the compliance in this regard. A copy of such license, and copies of the renewals thereof, shall be furnished to CUSTOMER from time to time.
11.5 will ensure that it conducts its business and activities in such a manner that the reputation, standing and goodwill of CUSTOMER is in no way adversely affected or compromised.
11.6 confirms that satisfactory performance of services to the satisfaction of the CUSTOMER is the essence of this agreement. This agreement is for provision of services only.
12.1 The Service Provider shall render the Services in a timely, efficient and professional manner and to the satisfaction of CUSTOMER as per specifications provided by CUSTOMER. All such services shall be rendered as per instructions and directions issued by CUSTOMER from time to time. Such instructions and directions shall be deemed to be part and parcel of this Agreement.
12.2 The Service Provider shall address all complaints and observations made by CUSTOMER in respect of the Services.
12.3 The Service Provider shall ensure that only suitable and reliable persons, if required, are deputed by it for rendering services to CUSTOMER. The Service Provider shall be responsible and liable for all the activities of the Service Provider Staff and the damage if any caused by them to any person and property.
12.4 The Service Provider shall ensure compliance with all applicable laws in rendering the Services.
12.5 Only in cases where there is any on-site services provided by the Service Provider, and If there is a replacement of the Service Provider Staff on account of resignation/ termination of the Service Provider Staff, the Service Provider should make alternate arrangements within 30 days without affecting the Services. If any of the Service Provider Staff are granted leave by the Service Provider, CUSTOMER shall be intimated of the same and suitable alternative arrangements shall be made for the same.
13.1 All confidential and proprietary information of CUSTOMER that is made known to Service Provider during the term of this Agreement shall be received in confidence and the receiving Party shall not disclose or use the same for any purpose, except for complying with its obligations under this Agreement. In particular such information shall not be used for the benefit, financial or otherwise of the Service Provider, its employees and directors or any third party. However, such obligation shall not cover information that (i) is publicly available without restriction; (ii) is lawfully acquired by the Service Provider from an independent source having no obligation to maintain the confidentiality of such information; (iii) was known to the Service Provider prior to its disclosure under this Agreement; or (iv) is required to be disclosed by governmental or judicial order, in which case the Service Provider so required shall give CUSTOMER prompt written notice, where possible, and use reasonable efforts to ensure that such disclosure is accorded confidential treatment and also to enable CUSTOMER to seek a protective order or other appropriate remedy. Upon termination of this Agreement or on a demand from the disclosing party, the receiving Party shall promptly return to the disclosing Party, all correspondence, documents and all materials or items belonging to such Party. The Service Provider shall also execute an agreement of Confidentiality and Non-Disclosure to the satisfaction of CUSTOMER on as and when required basis. On the execution of such Agreement, the obligations of confidentiality and non-disclosure shall be in addition to the obligations hereunder. The Service Provider shall also provide a certificate to CUSTOMER confirming destruction of data, as and when required.
13.2 The expression confidential information shall, without limitation, include confidential or proprietary information received by Service Provider whether directly from the other party or otherwise. Information shall be deemed to be confidential whether the same comes to the knowledge of Service Provider orally or is contained in tangible or fungible form and whether contained in a floppy disc, computer system, brochure, booklet or otherwise. Unless otherwise specified, all information received by the Service Provider and pertaining to the other party shall be deemed to be Confidential Information. The terms of this Agreement are confidential and shall only be disclosed on a need to know basis.
13.3 The Service Provider shall keep confidential information relating to applicants, and ensure that such confidential information, where not mandated by law, is not used for research, creating comparative databases, statistical analysis, or other studies without appropriate and prior authorization from CUSTOMER.
13.4 The Service Provider shall keep CUSTOMER informed of any breach of the confidentiality obligations and shall provide necessary assistance and co-operation to CUSTOMER as may required in this regard.
13.5 This clause shall survive One year post termination/expiry of this Agreement.
The intellectual property rights (in the nature of trademark or copyright or any other right) in the brand name, product names, logos, designs, color schemes, names, marks, designs, drawings, color, artistic work / manner, learning material within the scope of this Agreement created by the Service Provider and customized specifically for CUSTOMER or any other learning material which is mutually agreed in writing between the parties, etc. (hereafter collectively referred to as "Marks") as may be allowed by CUSTOMER to be used by the Service Provider shall vest solely and exclusively and at all times in CUSTOMER. It is clarified that any rights in intellectual property otherwise created by the Service Provider in the course of performing the services shall vest solely and exclusively and at all times in the Service Provider.
Service Provider agrees that all the information, documents, reports, of any nature whatsoever delivered by CUSTOMER or produced by or developed by the Service Provider as a result of any of the services rendered hereunder shall be the sole and exclusive property of CUSTOMER. In furtherance thereof, the Service Provider hereby irrevocably grants, assigns, transfers all rights, title and interest of any kind to CUSTOMER and it shall not be entitled to make use of any of the materials except as may be expressly permitted under this Agreement or with prior consent of the Service Provider. Service Provider further warrants that information imparted by the CUSTOMER with respect to its employees, organizational data, are proprietary information of CUSTOMER and shall not be directly or indirectly utilized by the Service Provider for its business or for any other purpose otherwise than as provided in this Agreement.
16.1 This Agreement will inure to the benefit of and be binding upon any successors and permitted assigns of the Parties hereto; Provided, however, that the Service Provider will not be entitled to assign, delegate or otherwise transfer its rights, duties, liabilities and obligations under this Agreement to any third party without the prior written consent of the CUSTOMER which shall not be unreasonably withheld. This shall, however, not affect any transfer or assignment by CUSTOMER of any division or business as a going concern. The Services being rendered to any such division or business shall also automatically stand assigned and the assignee shall have the same rights and liabilities as are applicable to CUSTOMER under such Order. Without prejudice to the above, the Service Provider shall also not be entitled to sub-contract its obligations under this Agreement without the prior written approval of CUSTOMER.
16.2 Nothing contained in this Agreement shall be deemed to imply or constitute either Party as the agent or representative of the other Party or both Parties as parties to a joint venture or partners for any purpose and as such neither Party will have any authority to bind or commit the other. The employees of either party shall also not constitute or be considered as employees or agents of the other party under any circumstances.
16.3 All rights and remedies, whether conferred hereunder, or by any other instrument or law, unless otherwise expressly stated, shall be cumulative and may be exercised singularly or concurrently. The failure of any Party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such Party thereafter to enforce such provisions.
16.4 If any provision of this Agreement is held to be invalid, illegal or unenforceable, it shall be enforced to the maximum extent possible or as mutually agreed between the parties, and the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. The parties shall nevertheless agree and settle upon terms and conditions that are as close to the original intent of the parties and which are valid, legal and enforceable.
16.5 All notices, requests, demands or other communications which are required or may be given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been duly given: (i) on the date of delivery if delivered by hand; (ii) upon the date of the courier’s/postal departments verification of delivery at the specified address if sent by a internationally-recognized express courier or registered post.
If CUSTOMER:
Ground Floor, Exchange Plaza B Wing, National Stock Exchange, Bandra Kurla Complex, Bandra East, Mumbai, Maharashtra 400051
For the attention of: ________________________
If Service Provider:
Embee Software Pvt Ltd.
________________________,
________________________,
________________________.
For the attention of: ________________________
16.6 This Agreement will inure to the benefit of and be binding upon any successors and permitted assigns of the Parties hereto; Provided, however, that the Service Provider will not be entitled to assign, delegate or otherwise transfer its rights, duties, liabilities and obligations under this Agreement to any third party without the prior written consent of the CUSTOMER which shall not be unreasonably withheld. This shall, however, not affect any transfer or assignment by CUSTOMER of any division or business as a going concern. The Services being rendered to any such division or business shall also automatically stand assigned and the assignee shall have the same rights and liabilities as are applicable to CUSTOMER under such Order. Without prejudice to the above, the Service Provider shall also not be entitled to sub-contract its obligations under this Agreement without the prior written approval of CUSTOMER.
This Agreement has been executed in two counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. 17.7 Neither Party shall be in default if its failure to perform any obligation hereunder is caused solely by supervening conditions beyond that party’s reasonable control such as Acts of God or any other Force Majeure. 17.8 This instrument constitutes the entire agreement between the parties regarding the subject matter and shall supersede all earlier and prior arrangements and agreements, oral or written. 17.9 The parties agree that the Schedule and Annexure shall be read as part and parcel of this Agreement. In the event of conflict between the terms of this Agreement and the Schedule, the terms and conditions set out in the Schedule to the extent that they cannot be reconciled with the terms of this Agreement shall prevail over the terms and conditions set out in this Agreement. 17.10 Any of the tangible or intangible property prepared/ created/ generated/ built out of this arrangement by service provider, CUSTOMER shall have the absolute and sole right of ownership over the property and service provider in no case shall be entitled to claim for its ownership. 17.11 In the event of termination or expiration of the agreement, the provisions of this agreement which by their nature extend beyond the termination or expiration of the agreement will remain in effect beyond such termination or expiration. 17.12 The Parties shall not be liable for any failure to perform any of its obligations under this agreement if the performance is prevented, hindered or delayed by a Force Majeure event (as defined below) and in such case its obligations shall be suspended for so long as the Force Majeure Event continues. Each party shall promptly inform the other of the existence of a Force Majeure Event and shall consult together to find a mutually acceptable solution. “Force Majeure Event” means any event due to any cause beyond the reasonable control of the Party, including, without limitation, unavailability of any communication system, unauthorized use of the Website or virus, sabotage, fire, flood, explosion, acts of God, civil commotion, strikes or industrial action of any kind, riots, insurrection, war, acts of government, computer hacking, unauthorized access to computer data and storage devices, computer crashes, etc. 17.13 Notwithstanding anything to the contrary elsewhere contained in this or any other contract between the parties, neither party shall, in any event, be liable for any indirect or speculative or consequential or penal damages, irrespective of whether it had an advance notice of the possibility of any such damages. Neither party shall also be liable for any third party claims, other than as expressly provided elsewhere in this agreement. 17.14 The total direct liability of either party under this Agreement, shall not, in any circumstances, exceed three months of amount paid to Embee Software Pvt. Ltd under this Agreement. 17.15 In no event shall Service Provider be liable for any failure to provide the services in accordance with this Agreement to the extent that it is prevented from doing so as a result of any act or omission of CUSTOMER. 18. Conflict Of Interest Service Provider represents and warrants that no officer, director, employee, or agent of CUSTOMER has been or will be employed, retained or paid a fee, or otherwise has received or will receive any personal compensation or consideration, by or from Service Provider or any of Service provider's officers, directors, employees or agents in connection with the obtaining, arranging or negotiation of this Agreement or other documents entered into or executed in connection with this Agreement. 19. Anti-Bribery a) Each of the Parties hereby represents, warrants and undertakes that, in connection with i. the transactions contemplated by this Agreement, ii any matter pertaining directly or indirectly to this Agreement, including without limitation to the Parties’ obligations hereunder, or iii. arrangements arising out of, or in connection with the performance of this Agreement: b) it has not violated and undertakes that it will not violate any applicable anti-corruption and anti-bribery laws and regulations in force in the jurisdiction where either Party is domiciled and/or operate, including, but not limited to the Anti-Corruption Laws in India either in force or as may be enacted from time to time such as Prevention of Corruption Act (hereinafter referred to as the "Anti-Corruption Law"); c) it has not and undertakes that it shall not engage in the following conduct: making of payments or transfers or the promise of payment or transfers of value, offers, promises or giving of any financial or other advantage, or requests, agreements to receive or acceptances of any financial or other advantage, either tangible or intangible, including gifts or kick-backs, or permit or authorize any of the aforesaid acts, either directly or indirectly, which have the purpose or effect of public or commercial bribery or acceptance of or acquiescence in bribery, extortion, facilitation payments or other unlawful or improper means of obtaining or retaining business, commercial advantage or the improper performance of any function or activity; d) it shall procure the compliance with the above obligations from its associated persons, officers, employees, agents, subcontractors or independent consultants as may be used for the fulfilment of its obligations under this Agreement; and e) If it gains knowledge of any conduct by any of its associated persons, officers, employees, agents, subcontractors or independent consultants which constitutes the actions as set out in paragraph (b) above, or if it has reasonable suspicion of the existence of such conduct, it shall immediately inform the other party of such knowledge and if requested by the other Party, provide to the other Party information it may reasonably require regarding such conduct. 20. Dispute Resolution & Jurisdiction Any dispute between the Parties arising out of or related to this Agreement shall be settled through arbitration of a sole arbitrator to be appointed by mutual consent of the Parties. The seat of arbitration shall be at Mumbai. The arbitration proceedings shall be conducted in English and a record of the proceedings shall be maintained in English. This Agreement shall be governed by and construed in accordance with the laws of India. Disputes between the parties shall be subject to the exclusive jurisdiction of the courts at Mumbai. V. TESTIMONIUM: IN WITNESS WHEREOF the parties have hereinto set their respective hands on the day and year first herein above written. Signed and delivered by the within named