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This Services Agreement (the “Agreement”) is
by and between Tarika Technologies Pvt. LTD. a Faridabad, Haryana based Corporation
and the party identified in the signature block (the “Customer”) of
the signed agreement.
WHEREAS, the Customer desires to retain TARIKA to provide certain services upon
the terms and conditions hereinafter set forth, and TARIKA is willing to perform
such services. In consideration of the mutual covenants and agreements hereinafter
set forth, the parties agree as follows:
1.0 DEFINITIONS:
Unless otherwise specified in the text, as used herein and the Exhibits hereto,
the defined terms set forth below shall have the meaning set forth below:
1.1 “Acceptance Period” means the thirty (30) day period (or such longer
period as may otherwise agreed upon by the parties in writing) commencing upon the
Installation Date within which Customer must either complete all steps in the Rejection
Procedure or be conclusively deemed to have accepted the Work Product.
1.2 “Agreement” means this Agreement and the Exhibits incorporated herein
by reference as the same may be modified from time to time pursuant to the terms
hereof.
1.3 “Business Day” means any day Monday through Friday except national
holidays in the countries of Tarika or Customer.
1.4 “Confidential Information” means the Work Product and shall also
include any other materials provided by one party to the other that is designated
in writing or orally as “Confidential” prior to its disclosure and conspicuously
marked as “Confidential Material” on all tangible copies provided by
the disclosing party. Confidential Information shall not include any materials or
knowledge that is: (i) expressly and in writing designated by the disclosing party
as materials or knowledge the other party may use without restriction; (ii) rightfully
in either party’s possession or known to either party without the duty of
confidentiality prior to receipt of such information from the other party; (iii)
rightfully disclosed to either party by a third party having proper possession of
such information without a duty of confidentiality; (iv) rightfully in the public
domain without breach of obligations of confidentiality imposed by this Agreement;
and (v) independently developed by either party without reference to the other party’s
Confidential Information. A party claiming any of the foregoing exceptions shall
have the burden of proof.
1.5 “Documentation” means any documentation in whatever form describing
the design, support, operation, use or functionality of the Work Product or containing
coding for the Work Product.
1.6 “Services” means maintenance and support of the Work Product and
any other information technology related consulting services as provided by Tarika
under the terms of Exhibits as the same may be modified from time to time pursuant
to the terms thereof.
1.7 “Project Location” means that physical location identified on the
Exhibits or any replacement site to which the Work Product may be relocated with
Tarika’s prior consent as provided for herein. If no physical location is
specified, such physical location shall be the Customer’s principal place
of business.
1.8 “Rejection Procedure” means, within the Acceptance Period, Customer:
(i) delivers to Licensor a written notice rejecting the Work Product; (ii) terminates
all use of the Work Product; (iii) removes the Work Product from all of its computers;
(iv) returns to Tarika the Work Product and all materials related thereto provided
by the Tarika to Customer; and (v) destroys all other copies or excerpts of the
Work Product in its possession.
1.9 “Work Product” means the computer programs listed in Exhibits, all
Work Product Enhancements and Documentation, and any other items custom developed
for Customer’s use in connection with this Agreement.
1.10 “Work Product Enhancements” means any changes to the Work Product
provided to Customer by Tarika or permitted to be made by or for the Customer including,
without limitation, all maintenance releases and upgrades provided pursuant to the
Exhibits.
1.11 “Guaranteed Refund Amount” means a percentage of the initial deposit
as agreed to between the parties and as stated in the Exhibit.
2.0 EQUIPMENT, SOFTWARE & LICENSES
All orders for hardware, software and license purchases shall be prepared by Tarika
and Customer shall process and purchase such orders directly with vendors. Tarika
will assist Customer, where possible in acquisition of any equipment and or software
licenses required.
3.0 INSTALLATION, ACCEPTANCE AND REJECTION
3.1 If during the Acceptance Period, Customer completes all steps of the Rejection
Procedure, Tarika shall promptly return to Customer the Guaranteed Refund Amount
and, thereupon, this Agreement and the license granted herein shall terminate and
the parties shall have no further obligations under this Agreement except as specifically
provided hereunder.
3.2 Unless all steps of the Rejection Procedure are completed within the Acceptance
Period, Customer shall be conclusively deemed to have accepted the Work Product
and found it to be suitable for Customer’s purposes.
4.0 SERVICES
4.1 Tarika shall provide Services in accordance with the terms and conditions of
this Agreement.
4.2 Quality of Services. The Services provided by Tarika under this Agreement will
be rendered by personnel who will perform the tasks assigned consistent with industry
standard practices.
4.3 Tarika will determine the Project Location, equipment, means, and personnel,
including the use of third parties for Tarika’s performance of Services and
providing Work Product to Customer. Tarika may receive a referral commission or
volume discount from such third party and Tarika shall disclose to the customer
of such commission upon request by the customer.
4.4 Tarika will be excused from any failure to perform hereunder that is caused
by Customer, a Group Company, or any other agent, subcontractor or employee of any
of the foregoing, or any other third party permitted access to any Services, by
any of the foregoing. Any Services required as a result thereof will be invoiced
to Customer on a time and materials basis. Tarika will make reasonable efforts to
mitigate such costs or expenses. Any Tarika deadline that is affected by any action
of the Customer, a Group Company, or any other agent, subcontractor or employee
of any of the foregoing, or any other third party permitted access to any Services,
shall be extended by an amount of time equal to the length of the effects of such
action plus an additional period of time, if reasonably necessary, to further compensate
for the effects of such action.
5.0 CONFIDENTIALITY AND PROTECTION OF CONFIDENTIAL INFORMATION
5.1 Customer shall: (i) prevent any person other than its authorized employees with
a need to do so from having access to the Work Product; (ii) permit the Work Product
to be used and copied only in the manner herein provided; and (iii) not allow the
Work Product or any excerpts there from or copies thereof to be removed from the
Project Location either physically or by electronic means without the prior consent
of the Tarika.
5.2 Customer shall not: (i) make available or distribute all or any part of the
Work Product or any excerpt thereof to any third party; (ii) reverse engineer, decompile,
disassemble, or modify the Work Product, in whole or in part; (iii) use the Work
Product to operate in or as a time-sharing, outsourcing, or in any other way allow
third party access to or use of the Work Product; (iv) externally disclose or publish
benchmark results for the Work Product without Tarika’s express prior written
consent; (v) export or use the Work Product in violation of applicable laws or regulations,
including any relevant regulations.
5.3 Each party agrees to only use Confidential Information of the other party only
in the manner herein permitted and, without limiting the foregoing, to take such
steps to protect the confidentiality of the other party’s Confidential Information
and proprietary interest therein as it takes to protect the confidentiality and
ownership of its own proprietary assets, but not below a reasonable standard of
care.
5.4 Each party shall immediately report to the other any facts coming to its attention
that indicate the other party's Confidential Information may be being used, or will
be used, in a manner contrary to this Agreement or any other manner that may jeopardize
or otherwise injure the owner’s interest therein or the value thereof. Should
a party, in connection with a judicial or administrative proceeding, be required
under law or court order to disclose the other party’s Confidential Information,
the party so required shall give the other party prompt and timely written notice
of such proceeding and requirement prior to disclosing the Confidential Information.
5.5 Each party hereby acknowledges that use of the other party’s Confidential
Information in a manner contrary to the provisions of this Agreement would cause
the other party irreparable harm for which money damages could not make the injured
party whole, and hereby consents, to the full extent that it is able to do so, to
any order entered by any court of competent jurisdiction prohibiting it from such
violation of this Agreement.
5.6 The obligations regarding Confidential Information set forth in this section
applied to Work Product or Tarika’s intellectual property shall be in effect
indefinitely. The obligations related to all other Confidential Information shall
continue for five (5) years from the date of initial disclosure.
6.0 INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP
Unless exceptions are made in the Exhibits, Tarika and its licensors are, and shall
remain, the sole and exclusive owners of all right, title and interest in the Work
Product including all Intellectual Property Rights therein. Tarika hereby grants
Customer limited license to use the Work Product.
7.0 WARRANTIES DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATIONS
As part of delivering the Services as described herein, Customer agrees that Tarika
shall not be responsible for the following:
7.1 The goods and/or equipment sold hereunder are sold subject to the applicable
manufacturer’s warranties, if any.
7.2 Tarika makes no warranties, express, implied or statutory. There are no implied
warranties of merchantability, workmanship or fitness for a particular purpose.
7.3 Tarika shall not be liable for any damages caused by delay in shipment, installation
or furnishing of goods and/or services under this Agreement.
7.4 Tarika, its agents and employees, shall not be held liable in tort whether based
on negligence, strict liability or other theory for any act or omission in connection
with the sale, service, or the delivery of the equipment sold hereunder and/or for
the Services provided hereunder.
7.5 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,”
AND TARIKA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND
NON-INFRINGEMENT. TARIKA DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S
REQUIREMENTS OR THAT THE OPERATION OF THE TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE,
OR THAT ALL ERRORS WILL BE CORRECTED.
7.6 EXCLUSIONS OF REMEDIES; LIMITATION OF LIABILITY. IN NO EVENT WILL TARIKA BE
LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF
LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM
ANY SOURCE, EVEN IF TARIKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER
OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
IN ANY EVENT, THE CUMULATIVE LIABILITY OF TARIKA TO CUSTOMER FOR ALL CLAIMS ARISING
FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF
ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE AMOUNT
ACTUALLY PAID TO TARIKA HEREUNDER. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY
WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED
OR HAVE PROVEN INEFFECTIVE.
7.7 Indemnifications: Each party agrees to indemnify, defend and save the other,
its successors and assigns harmless from any suits, liabilities, claims or demands
(including costs, expenses, and attorney's fees on account thereof) that may be
made by (1) anyone, for injuries, including death to persons or damage to property
(including theft), resulting from the indemnifying parties acts or omissions or
those of persons furnished by such party, by (2) persons furnished by indemnifying
party or any subcontractor under Worker's Compensation or similar acts. Each party
shall maintain adequate insurance to cover such obligations noted above, and shall
provide the other party evidence of such insurance upon request, (3) any copyright
violation or claim of infringement of any licensing, patent, trademark, copyright,
trade secret or other proprietary interest based on the possession, use or sale
or any material services, information, programs, or equipment ("item") furnished
to the other party, or (4) any failure by its employees or agents to maintain the
confidentiality of the Confidential Information in the manner here in provided under
this Agreement or in contemplation of this Agreement.
7.8 This section states the entire liability and obligations of Tarika, and the
exclusive remedy of Customer with respect to any actual or alleged infringement
or misappropriation of any intellectual property or other proprietary rights.
7.9 Any refund of fees paid in accordance with this Section will terminate any license
to the Work Product.
8.0 FEES AND TERMS OF PAYMENTS
8.1 In consideration for the license herein granted, Customer shall pay to Tarika
at the time of execution of this Agreement the fees specified in the Exhibits.
8.2 Customer shall reimburse Tarika for all reasonable out-of-pocket expenses incurred
by Tarika at Customer’s request and compensate Tarika for all services provided
by Tarika at Customer’s request and not specified under this Agreement (including
the Exhibits) on a time and material basis at Tarika’s then current time and
material rates. Such expenses shall include, but not be limited to, travel (train,
air, hotel, rental car, meals, tolls, parking, communication-cell, remote access)
and hardware and software expenses.
8.3 Except as provided above, all fees and other charges due hereunder shall be
paid within forty-five (45) days of date of invoice therefore.
8.4 Customer shall pay any taxes, however designated, levied or based, upon such
charges or on this Agreement or the Work Product or its use, including national,
state and local value added tax, import, export, sales, use, privilege or excise
taxes based on gross revenue or value, and any taxes or amounts in lieu thereof
paid or payable by Tarika in respect of the foregoing, exclusive, however, of taxes
based on the net income of Tarika charged by the Federal or any state or local government.
In the event that Customer is required to withhold such taxes, Customer shall deliver
to Tarika all required receipts and documentation substantiating such payment.
8.5 Tarika shall be entitled to interest from Customer on amounts due under this
Agreement that are not paid within three (3) days at the lesser of the highest rate
allowed by law or one and a half percent (1.5%) per month from the date such payment
was due to the date of payment.
8.6 All parties to this Agreement agree that in any payment dispute the losing party
shall pay for the prevailing party’s attorney fees and interest of one and
one-half percent (1.5%) per month on all outstanding balances due whether or not
legal action is formally filed.
9.0 TERM, TERMINATION AND REMEDIES.
9.1 This Agreement shall become effective upon the execution of this Agreement by
both parties hereto and, unless earlier terminated pursuant to the terms hereof,
shall remain in effect so long as Customer continuously obtains Services for the
Work Product from Tarika or as provided in the Exhibits.
9.2 Notwithstanding any provision herein to the contrary, if Customer: (i) fails
to honor its obligations hereunder to protect the Work Product or uses the Work
Product other than in the manner provided permitted by Tarika; (ii) otherwise materially
breaches any provision of this Agreement and fails to cure any the same within thirty
(30) days of its receipt of written notice thereof from Tarika; or (iii) ceases
doing business as a going concern, or files or has filed against it any petition
under any bankruptcy law, has a receiver appointed for it or its property, or commits
an act of bankruptcy, becomes insolvent, makes an assignment for the benefit of
creditors or offers a composition or extension of any of its indebtedness, then
upon the occurrence of any such event, Tarika may at its sole discretion and without
waiver of any other right or remedy it may have at law or equity, but in addition
thereto, declare this Agreement to be in default and this Agreement be immediately
terminated.
9.3 Upon termination of this agreement under Sections 9.1 or 9.2 above, all fees
and expenses contracted to be paid by Customer to Tarika under this Agreement shall
become due and payable immediately. In the event of Customer’s termination
without cause, Tarika may perform the Services until the effective date of termination
or, in the alternative, invoice Customer, and Customer agrees to pay, for such Services.
Termination of one Statement of Work shall not terminate any other statement of
work, and the other statements of work shall continue in accordance with its terms.
10.0 NON-SOLICITATION
It is fully understood and agreed to that Customer or any of its subsidiaries, affiliates
or entities shall not retain or hire any Tarika personnel for a period of two (2)
years from the expiration date of this Agreement. In the event of a violation of
this Section, Customer shall pay Tarika liquidated damages in an amount equal to
twenty percent (30%) of the hired employee’s first year annual compensation
including any bonuses.
11.0 NOTICES
All notices to each party shall be in writing and emailed to the address on the
signature block of this Agreement.
12.0 ENTIRE AGREEMENT
This Agreement shall be the complete statement of the Agreement between Tarika and
Customer, which supersedes all prior Information Technology agreements, oral or
written and all other communications relating to the subject of this Agreement.
Any amendments or modifications to this Agreement must be in writing and signed
by both parties hereto to become legally binding.
13.0 MISCELLANEOUS
13.1 Assignment or Transfer. Customer may not assign, transfer, or sublicense its
rights or delegate its duties under this Agreement without the prior written consent
of Tarika to any entity other than a legally related entity with the financial wherewithal
to maintain the financial obligations under this Agreement. Any attempted assignment
or delegation will be null, void and of no effect.
13.2 Independent Contractors. For all purposes of this Agreement, each party will
be and act as an independent contractor and not as partner, joint venturer, or agent
of the other and will have no authority to bind nor will it attempt to bind the
other to any contract or commitment of any type.
13.3 Promotion. Both parties agree to allow each other to mention the other party
in connection with speaking engagements, websites, client proposals and other communications
sent by the party to existing and potential customers and others indicating the
relationship of the two parties. The consent will not be unreasonably withheld or
delayed.
13.4 Force Majeure. Each party will be excused from delay or failure in performance,
other than payment of any amounts due pursuant to this Agreement, caused by anything
beyond such party’s reasonable control, including, without limitation, acts
of God, government action, compliance with laws, regulations, network failures,
or inability to obtain telecommunication services.
13.5 No Third Party Beneficiaries. The parties acknowledge that the covenants set
forth in this Agreement are intended solely for the benefit of the parties, their
successors and permitted assigns. Nothing in this Agreement, whether express or
implied, will confer upon any person or entity, other than the parties, their successors
and permitted assigns, any legal or equitable right whatsoever to enforce any provision
of this Agreement.
13.6 Severability. If any provision of this Agreement is invalid or unenforceable
for any reason in any jurisdiction, such provision will be construed to have been
adjusted to the minimum extent necessary to cure such invalidity or unenforceability.
The invalidity or unenforceability of one or more of the provisions contained in
this Agreement will not have the effect of rendering any such provision invalid
or unenforceable in any other case, circumstance or jurisdiction, or of rendering
any other provisions of this Agreement invalid or unenforceable whatsoever.
13.7 Arbitration: Any dispute, controversy or claim arising out of or related to
this Agreement or any breach of this Agreement shall be submitted to and decided
by binding arbitration. Arbitration shall be administered exclusively by an arbitrator
approved mutually by both parties and shall be conducted consistent with the rules,
regulations and requirements of the Arbitration and Conciliation Act, 1956. The
place of Arbitration shall be at Faridabad. Any arbitral award determination shall
be final and binding upon the Parties.
13.8 Governing Law. This Agreement will be governed by and interpreted in accordance
with the laws of the State of Haryana, without regard to conflicts of law principles
and the courts at Faridabad shall have sole jurisdiction to this agreement.
13.9 Headings. Headings in this Agreement are for convenience of reference only
and will in no way affect interpretation of the Agreement.
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper authority,
have caused this Agreement to be executed on the date as identified in the signed
agreement.
Tarika Technologies Pvt. LTD.
4&5, IInd Floor, Ashoka Enclave Main
Sector 35
Faridabad, Haryana 121003
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