This Terms of Service (the “Agreement”) is made and entered into between Tatvic and the entity or person agreeing to these terms (“Customer”) and comes into effect, once the Order Confirmation Form or equivalent is signed by the Customer. 

The Service Provider and the Client are hereinafter individually referred to as a “Party” and collectively as “Parties”.

1. Definitions And Interpretation

1.1 Definitions

In this Agreement, the following capitalized terns shall have the meanings set forth below unless otherwise specified:

I. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control of other entity under this Agreement.

II. “Agreement” means this Agreement along with the Statement of Work, terms, conditions, annexures, appendix, and any amendments thereto.

III. “Applicable Law” includes all applicable Indian statutes, enactments, acts of the state legislature or the parliament, and laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any governmental authority, statutory authority, tribunal, regulatory, board or a court, as may be applicable to Client or the Service Provider.

IV.“Business Day” means a day on which banks are open for business and excludes a Saturday, Sunday or public holiday.

V. “Client Content” means all data, materials, information, writings and other input provided by the Client to the Service Provider for the performance of the Services under this Agreement.

VI. “Confidential Information” means all non-public information disclosed by one Party to another under this Agreement and marked as confidential or would normally be considered confidential (eg. products or business plan).

VII. “Fees” mean the amounts payable by the Client under this Agreement for the Services provided by the Service Provider calculated in accordance with the Statement of Work.

VIII. “Intellectual Property Rights” means and includes all software, software code, software tools, computer programs, patents, trademarks, service marks, brands, trade names, trade secrets, patents, patentable inventions, proprietary information and knowledge, technology, databases, copyrights, licenses, designs, technical data, know-how, research, reports, documentation and other confidential information related thereto.

IX. “Services” means the services of digital analytics to be provided by the Service Provider to the Client pursuant to this Agreement and as more particularly described in the Statement of Work.

X. Statements of Work/ SOW” means a document entered into between the Service Provider and the Client in the format substantially set out in the Schedule to this Agreement describing inter alia the scope of the Services.

1.2 Interpretation

In this Agreement:

(i)  the words “hereof”, “herein”, hereto, and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(ii)  words denoting the singular shall include the plural and words denoting any gender shall include all genders;

(iii)  the headings to clauses, sub-clauses, and paragraphs of this Agreement shall only serve the purpose of easier orientation and shall not affect the contents and interpretation of this Agreement;

(iv)  references to recitals, clauses or annexures are, unless the context otherwise specifically requires, to recitals of, to clauses of, or annexures to, this Agreement, and

(v)  reference to days, months, and years are to calendar days, calendar months, and calendar years respectively unless otherwise specified.

2.  Scope of Services

2.1  On and subject to the terms and conditions of this Agreement, the Client hereby engages the Service Provider to provide and perform the Services and the Service Provider hereby accepts the same.

2.2  The scope of the Services shall be mutually agreed between the Parties and shall be set out in the Statement of Work. The Statement of Work shall set forth (i) a description of the Services to be provided by the Service Provider to the Client, (ii) the specifications, (iii) the deliverable materials, (iv) delivery schedule, (v) the method, details and means of performance of the Services by the Service Provider, (vi) the Fees and (vii) any other additional information regarding the details of the performance of Services as may be deemed necessary by the Parties.

2.3  Each Statement of Work shall be governed by the general terms set out in this Agreement and the specific terms as detailed in the Statement of Work.

2.4  The Parties acknowledge that they may enter into multiple Statement of Work as and when required for providing any new/fresh services. The terms of this Agreement shall apply to each such Statement of Work and this Agreement shall continue to be in force till such time that any Statement of Work executed between the Parties pursuant to this Agreement is in force.

2.5  Further, the Parties acknowledge that in light of actual experience gained in the course of providing the Services, certain changes in the Statement of Work may be deemed appropriate/ become desirable. Accordingly, either of the Parties shall be entitled to propose changes to such terms by issuing a written notice to the other Party. If such changes are mutually agreed by Parties, a revised/ new Statement of Work shall be signed by both the Parties which shall be governed by terms of this Agreement.

2.6  In case the Client is desirous to avail a service from Service Provider which is out of the scope of the services being provided to the Client at that time (i.e such service is not covered under the existing Agreements and/or Addendums/SOW) then the Service Provider shall prepare the draft proposal/Statement of Work for the additional services so required by the Client. On approval of such proposal/Statement of Work through an official e-mail id of the Client, the same shall be considered as an express acceptance of such proposal/Statement of Work and shall be deemed to form part of the Services that the Service Provider is authorised to render to the Client and the Client shall become legally bound and liable to adhere to the terms of such proposal/Statement of Work including but not limited to making timely payments for the services defined in such proposal/Statement of Work. Each such proposal/Statement of Work will be supplementary to/in addition to the existing Statement of Work unless otherwise stated by the Parties in writing.

3.  Duties And Obligations of the Service Provider

During the course of its engagement and as may be required in the performance of its duties, the Service Provider shall:

(i)  not use any illegal means in the performance of services for the Client, and not adopt any means that shall tantamount to breach/theft of Confidential Information or Intellectual Property Rights of any Person, and

(ii)  keep the Client fully informed, if so requested by the Client in writing, of the conduct and progress of the Services and provide the Client such further and other information as the Client may reasonably require.

4.  Duties and Obligations of the Client

4.1  Client shall pay the Fees due to the Service Provider promptly in accordance with the terms of this Agreement and as provided under the Statement of Work.

4.2  Client shall cooperate with the Service Provider and provide all necessary assistance to the Service Provider to allow the Service Provider to render the Services under this Agreement, including without limitation timely access to accurate data, information, and personnel of the Client. The Client acknowledges that such cooperation and assistance is necessary to enable the Service Provider to perform the Services and Service Provider shall not be held liable in case they are unable to provide Service in a timely manner due to Client’s failure to provide such assistance.

4.3  Client shall designate 1 (one) employee as the point of contact who will be responsible to provide information to the Service Provider as and when required by the Service Provider for the performance of Services under this Agreement.

4.4  It is expressly agreed that the Client’s Affiliate(s) will be eligible to utilise the Services under this Agreement, provided that the Client shall, at all times, be responsible for any and all actions of such Affiliates and for ensuring that any such Affiliate(s) comply with all the terms and conditions of this Agreement. The Client shall be held responsible for any breach of the terms of this Agreement by the Affiliate, and shall indemnify the Service Provider from any losses, claims, costs, expenses, damages incurred by the Service Provider as a result of breach of the provisions of this Agreement by an Affiliate of the Client including any actions that shall be in breach of this Agreement if performed by the Client.

5.  Travel and accommodation

5.1  The Client shall arrange and pay for the flight and accommodation expenses of the employees/ personnel of the Service Provider for an onsite visit at the Client’s place of work. All other out-of-pocket expenses and costs incurred by the Service Provider while performing the Services shall be reimbursed by the Client.

6.  Invoices & Payments

6.1  In consideration of providing the Services by the Service Provider, the Client will pay Service Provider the Fees as set forth in the applicable Statement of Work.

7.  Taxes

7.1  All applicable indirect taxes as may be applicable time to time (for e.g. goods and services tax (GST) will be invoiced to Client in addition to the agreed Fees. The Client shall be responsible for the payment of all taxes and agrees to pay the Service Provider for the Services without any reduction in taxes, save and except any deduction of Tax Deducted At Source (TDS) applicable under the Income-Tax Act, and no other deductions shall be made from the Fees payable to Service Provider. Any additional amount deducted by the Client from the Fees shall be reimbursed by the Client to the Service Provider within 07 (seven) days from the end of the respective month or the Client shall be liable to indemnify the Service Provider. The Client shall provide the TDS Certificates to the Service Provider within 7 (seven) days of the expiry of the statutory limitation period for depositing the TDS with the income tax authorities.

7.2  If the Client is required by law to withhold any taxes from Client’s payments to the Service Provider, the Client must intimate the Service Provider in advance and provide the Service Provider with an official tax receipt/certificate or other appropriate documentation to support the reduction in payments.

8.  Confidentiality

8.1  All Confidential Information that is made known by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) during and after the execution of this Agreement shall be received in confidence by the Receiving Party and the Receiving Party shall not disclose or use or copy or reproduce the same for any purpose, except for complying with its obligations under this Agreement. In particular, the Confidential Information shall not be used for the benefit, financial or otherwise of the Receiving Party, its employees and directors, or any third party.

8.2  The restrictions set out under clause 8.1 above shall not apply in the following circumstances:

(a)  where the Receiving Party had access to the Confidential Information prior to the execution of this Agreement.

(b)  where the Confidential Information becomes public through no fault of the Receiving Party;

(c)  where the Confidential Information was independently developed by the Receiving Party;

(d)  where the Confidential Information was rightfully given to the Receiving Party by a third party without any obligation to maintain confidentiality of the same, or

(e)  where disclosure of such Confidential Information is required under law or by such legal constituted authority.

8.3  Notwithstanding the obligations contained in clause 8.1 above, where the Receiving Party is the Service Provider, the Service Provider shall be entitled to use, process and/or store all information and the data of the Client for research, creating comparative databases, statistical analysis, case studies, report or other studies as it may deem fit without the requirement of obtaining the consent of the Client.

8.4  Information shall be deemed to be confidential whether the same comes to the knowledge of the Receiving Party via e-mail or is contained in tangible or fungible form and whether contained in a floppy disc, computer system, brochure, booklet or otherwise.

8.5  The Client shall keep Service Provider informed of any breach of the Confidentiality Obligations and shall provide necessary assistance and co-operation to Service Provider as may be required in this regard.

9.  Privacy:

In respect of the Client’s relation with the Client’s visitors or customer and the usage of the customer data and giving access of the same to the Service Provider, it shall be the duty of the Client to ensure compliance with any and all privacy related Applicable Laws including posting of a privacy policy on its application/ website where its users can access information regarding the information collected, stored, disclosed and all other information that is required to be disclosed under the laws applicable to them. The Service Provider shall not be liable for any information of third parties provided to it by the Client in breach of any applicable law/ applicable privacy policy.

10.  Representations and Warranties

10.1  Each Party represents and warrants to the other that:

(a)  it has the power to execute, deliver, and perform its obligations under this Agreement;

(b)  the execution, delivery, and performance of its obligations under this Agreement does not and will not:

   (i)  contravene any law, regulation or order of any governmental or other official body or agency or any judgment or decree of any            court having jurisdiction over it; or

   (ii)  conflict with or result in any breach or default under any other agreement, instrument, regulation, licence or authorisation                        binding upon him or any of its assets, and

(c)  there are no pending litigations, actions, suits or proceedings against it or affecting any of its assets and there has been no event or occurrence which, in each case, might reasonably be expected to have a material adverse effect on its ability to perform its obligations hereunder.

10.2  The Client represents and warrants to the Service Provider that:

(a)  the Client Content is accurate and complete in all material respects.

(b)  the Client Content does not and shall not contain any information that is obscene, threatening, harassing, defamatory, libellous, infringing or unlawful.

(c)  it owns, or has the valid authority to use all of the Client Content and is duly authorised to furnish the Client Content to the Service Provider.

(d)  it has all necessary rights, and has obtained all necessary consents, to furnish/upload the Client Content and use the Client Content in connection with the Services, and to grant the rights and licenses required by the Service Provider hereunder in order to render the Services.

(e)  the Client Content does not and will not infringe, violate, or misappropriate any right of any third party, including, without limitation, any intellectual property rights of any third party.

(f)  the acquisition of the Client Content by the Client is in compliance with the Applicable Laws including the Information Technology Act, 2000 and the rules and regulations framed thereunder.

(g)  The Client shall not engage in any illegal or deceptive trade practices or any other activities prohibited under law.

10.3  The Service Provider represents and warrants to the Client that:

(a)  It has obtained the necessary authorisations to comply with its obligations under this Agreement.

(b)  It shall perform the Services in conformance with the requirements mentioned under the Statement of Work.

(c)  It has obtained or shall obtain all the necessary rights and licenses including governmental licenses and other approvals needed to perform the Services.

11.  Indemnity

11.1  Each Party (“Indemnifying Party”) undertakes to indemnify, pay and hold harmless the other Party, its directors, officers, employees and agents (each an “Indemnified Party”), against any and all demands, liabilities, losses, costs and claims, including reasonable attorneys’ fees (“Losses”) suffered or incurred by the Indemnified Parties that arises or results from a breach of the representations provided by it under clause 10 above.

11.2  In the event of a claim pursuant to clause 11.1 above, the Indemnified Party shall provide a letter in writing to the Indemnifying Party (“Indemnity Claim Letter”), which letter shall state specifically the representation with respect to which the claim is made, the facts giving rise to an alleged basis for the claim and the amount of liability asserted against the Indemnifying Party by reason of the claim (“Indemnity Claim”). The failure to give any notice under this Agreement shall not relieve the Indemnifying Party of any liability under this clause 11 or otherwise.

11.3  Upon receipt of the Indemnity Claim Letter, the Indemnifying Party shall within 15 (fifteen) Business Days from the date of the Indemnity Claim Letter, either (i) accept the Indemnity Claim (“Agreed Claim”), in full or in part, and accordingly pay to the Indemnified Party the amount claimed by the Indemnified Party as set out in the Indemnity Claim Letter; or (ii) issue a notice to the Indemnified Party stating that the Indemnifying Party is disputing, in full or in part, the Indemnity Claim raised by the Indemnified Party under the Indemnity Claim Letter and denying, in full or in part, the liability to indemnify the Indemnified Party for the alleged breach and, or the Loss alleged to have been suffered by the Indemnified Party (“Indemnity Dispute Letter”).

11.4  In the event the Indemnifying Party accepts the Indemnity Claim, the Indemnifying Party must pay to the Indemnified Party an amount equal to the Agreed Claim, within 45 (forty-five) Business Days of any amounts being deemed or determined as Agreed Claims.

11.5  In the event the Indemnified Party: (i) issues an Indemnity Dispute Letter; or (ii) fails to respond and, or, pay, then the Indemnifying Party and, or, the Indemnified Party shall be entitled (but not obligated) to issue notice to the other Party initiating arbitration proceedings in accordance with clause 14 (Settlement of Dispute & Governing Law) below.
Limitations of Liability
Where the Indemnifying Party is the Service Provider, its cumulative aggregate liability to the Client for any Loss under this Agreement shall not exceed one-month Fees paid by the Client to the Service Provider in the immediately previous month.

12.  Intellectual property rights

12.1  All the pre-existing intellectual property rights owned by the respective Party shall vest and continue to vest with its respective owner and the other Party agrees and undertakes not to set up any adverse claims to the ownership or right in respect of the same.

12.2  All the Intellectual Property Rights in respect of the software code, tools, methodology or technology used by the Service Provider for the performance of Services under this Agreement and/or developed or conceptualised by the Service Provider during the course of its performance of Services under this Agreement shall remain with the Service Provider and solely belong to it and the Client agrees and undertakes not to set up any adverse claims to the ownership or right to use in respect of the same.

12.3  The Client hereby authorises the Service Provider to use its brand name and trademark for the purpose of its marketing activities and/or in connection with any research, case studies, reports or other studies relating to the Client Content that the Service Provider may make public. In addition to this, the Client hereby authorises the Service Provider (i) to use its reference when required and /or to make a reference of existing clients to another potential customer (ii) to feature the Client in a case study or industry whitepaper/research (iii) to publish news about its engagement with Client (e.g., announcing the relationship commencement) with or without the formal information to Client.

13.  Termination

13.1  The term of this Agreement shall commence from the Effective Date and shall remain valid for the period of 01(year) year or till such time that any Statement of Work executed between the Parties pursuant to this Agreement is in force, whichever is later. Upon the expiry of the initial Term, this Agreement shall automatically renew every year (each, a “Renewal Term”) unless either Party provides written notice to the other Party, at least 30 (thirty) days before the expiration of the then-current term, of its intention not to renew the Agreement.

13.2  Subject to clause 13.3 below, the Client and the Service Provider shall be entitled to terminate this Agreement with or without any cause by issuing a prior written notice of at least 90 (Ninety) days to the other Party.

13.3 Failure to make timely payment shall be considered as material breach of the Agreement by Client and it shall entitle the Service Provider to terminate this Agreement after providing a prior written notice of fifteen (15) days in advance to the Client.

13.4  It is hereby clarified that in case of termination of this Agreement by the Client, the Client shall not be entitled to any refunds of any Fees paid to the Service Provider and all payments owed by the Client to the Service Provider for Services rendered up to the date of termination shall become immediately due and payable.

13.5   Clause 13.3(in relation to survival of obligation to pay the all amounts outstanding), 8 (Confidentiality), 12(Intellectual Property Rights) shall survive the termination/expiry of this Agreement.

14.  Settlement of Dispute & Governing Law.

14.1  Any dispute, controversy or claim arising out of or in connection with the Agreement (“Dispute”) shall be first be referred in writing by an authorized person of the Party making the claim (the “Claimant”) to an authorized person of the other Party (the “Respondent”). The Parties shall discuss in good faith a fair resolution of dispute and resolve the dispute amicably.

14.2  If for any reason the Dispute is not resolved in within 30 (thirty) days from the date the notice of claim was received by the Respondent, then the Dispute may be referred by either Party for resolution to arbitration, such arbitration to be conducted in accordance with the Arbitration and Conciliation Act, 1996 through a sole arbitrator to be appointed by the mutual consent of the Parties and if the Parties fail to reach consensus on the appointment of such sole arbitrator then the same shall be appointed by a reference made to the court by either of the Parties as provided in the Arbitration and Conciliation Act, 1996. The seat and venue of arbitration shall be Ahmedabad. 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.

14.3  The Parties agree that a final determination in such arbitration proceeding shall be final and binding and shall be enforced in the exclusive jurisdiction of the courts in Ahmedabad.

15.  Miscellaneous

15.1  Exclusive Remedy. For any breach of a warranty with respect to the quality of the Services provided hereunder, the Client’s exclusive remedy, and Service Provider’s entire liability, shall be the re-performance of the Services. If the Service Provider is unable to re-perform the Services as warranted, the Client shall be entitled to recover the Fees paid to the Service Provider for the deficient Services.

15.2  Compliance with Laws. Each Party shall be individually responsible for ensuring compliance by them with all relevant laws or legal obligations relating to the subject matter of this Agreement and those required for performance of their obligations under this Agreement.

15.3  Non-Solicitation : The Client shall not during the term of the Agreement (including renewal term if any) and for a period of at least 02 (two) years from the expiry/ termination of this Agreement because of any reason, directly or indirectly (a) solicit for employment or employ or hire on consultancy basis or as a freelancer or otherwise any person who is employed by the Service Provider (or such Service Provider’s affiliates, agents, representatives or subsidiaries, Clients, customers, suppliers) at the time of such expiry or termination and/or who was employed by the Service Provider (or Service Provider’s affiliates, agents, representatives, subsidiaries, Clients, customers, suppliers) any time during the 01 (one) year period preceding the termination/expiry of the Agreement (“Restricted Person”) (b) divert or attempt to divert any business from the Service Provider or the Restricted Person by any means.

15.4  Successors and Assigns. Neither Party shall 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 other Party. This shall, however, not affect any transfer or assignment 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 the Client.

15.5  Further Assurances. Each Party shall do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

15.6  Relationship. 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.

15.7  Waiver. 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 either 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. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement does not constitute a waiver of any other breach or default and will not affect the other terms of this Agreement.

15.8  Severability. 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.

15.9  Modification of Agreement. This Agreement including the Statement of Works may be supplemented, amended, or modified only by the mutual Agreement of the Parties. No supplement, amendment, or modification of this Agreement including the Statement of Works or any other terms and conditions shall be binding unless it is in writing and signed by both the Parties unless otherwise expressly mentioned in this Agreement.

15.10  Notice. 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 nationally-recognized express courier or registered post (iii) once out of the control of the sender when sent through an electronic mail (e-mail).

15.11  The addresses, e-mail addresses and phone numbers of the Parties for the purpose of sending any notices, requests, demands or other communications pursuant to this Agreement is as under (which may be modified by the concerned Party by sending a prior written notice of 10 (ten) days’ to the other Party) shall be the same as mentioned in the Order Confirmation Form.

15.12  Force Majeure. The Parties shall not be liable for any failure to perform any of its obligations under this Agreement (except for a failure to pay Fees for the Services already rendered by the Client) 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 Party of the existence of a Force Majeure Event and the nature of such Force Majeure Event.

Force Majeure means an unforeseeable event or circumstance beyond the reasonable control of a Party, including without limitation: a) an act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire or any other natural calamity; b) strikes or [other action of the employees where they refuse to work or report to work or any other action of the employees leading to a stoppage of work] (c) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic or (d) unavailability of any communication system, unauthorized use or unavailability of the Client data or virus, computer hacking, unauthorized access to computer data and storage devices, computer crashes etc.

15.13   Entire Agreement. This instrument and the instructions and directions that may be issued by Service Provider from time to time constitutes the entire Agreement between the Parties and shall supersede all earlier and prior arrangements and Agreements, oral or written. It is expressly agreed that the right of the Parties to terminate, rescind or agree to any amendment, variation, waiver or settlement under this Agreement is not subject to the consent of any person that is not a party to this Agreement.

15.14  Data Ownership. As between the Service Provider and the Client, the Client’s Data shall be owned by the Client provided the Client and/or its affiliates make timely payment as mentioned in Clause 6 of this Agreement. If Client fails to make timely payment for the Services used under this Agreement, then Client shall abandon its right to its data and will lose its right to use/access any Solutions prepared by the Service Provider during the Agreement and any Intellectual Property rights associated with it, post 7 days from the due date of Payment.