Master Services Agreement

Project Details, Terms, And Conditions Between <<CLIENT>> & <<COMPANY>>

<<DATE>>

This Master Services Agreement (Agreement) is entered into and made effective on <<DATE>> by and between

1. <<COMPANY>>, a company registered under the Companies Act, 2013, with its registered office at <<ADDRESSS>> (operating under the trade name <<COMPANY>>) which expression unless repugnant to its context shall mean and include its successors, assigns, affiliates and related entities, of the First Part;

and

2. <<CLIENT>>, a company registered under the Companies Act, 1956/2013, having its registered office at <<CLIENT ADDRESS>> (Client) which expression unless repugnant to its context shall mean and include its successors, assigns, affiliates and related entities, of the Second Part.

<<COMPANY>> and <<CLIENT>> shall be referred to individually as Party, and jointly as Parties, where the context so requires.

WHEREAS:

A. <<COMPANY>> is an IT design and development Company with knowledge in specific domains and is engaged inter alia in the business of providing services in relation to <<SERVICES>>

B. <<CLIENT>> desires that <<COMPANY>> provide certain Services to Client, on the terms and conditions set forth below and as defined in the respective Statement(s) of Work.

NOW, THEREFORE, in consideration of the foregoing recitals, of the mutual terms and conditions of this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the Parties agree as follows:

1 Definitions

When used in this Agreement or in each Statement of Work, the capitalized terms listed in this section shall have the meaning as provided below. Other capitalized terms used in this Agreement shall have the meaning respectively assigned to them elsewhere in this Agreement or in each Statement of Work.

1.1 “Agreement” means this Master Services Agreement, its schedules, exhibits, and each Statement of Work together with all amendments as approved In Writing by the Parties from time to time.

1.2 “Change Order” means documents evidencing an agreement of the Parties to a change of the Agreement, which is signed or otherwise agreed In Writing by both Parties.

1.3 “Commercially Reasonable Efforts” mean that the Party obliged to perform shall take all such steps and perform in such a manner as if it were acting in a determined, prudent and reasonable manner with due regard to any financial implications in order to achieve the desired result and perform the obligations set out in this Agreement and/or any Statement of Work.

1.4 “Deliverable” or “Deliverables” means all software, code, programs, documentation and other works of authorship that <<COMPANY>> creates, develops or modifies pursuant to Specifications under a Project or Statement of Work for the Client.

1.5 “Intellectual Property Rights” mean copyright rights, trademark rights, patent rights, trade secret rights, authors’ rights, as may exist at any time, and all renewals and extensions thereof, under the laws of any state, country or jurisdiction.

1.6 “Project” means the specific project to be performed by <<COMPANY>> for the Client under the relevant Statement of Work.

1.7 Services” is defined as any and all work to be performed by the <<COMPANY>> specified herein or in the SOW, including without limitation all professional, management, labor, and general services.

1.8 “Specifications” means the specifications of the Deliverables as to its intended functionality and features, with reference to Services, a description or type of Services and as agreed by the Parties in the relevant Statement of Work.

1.9 “Statement(s) of Work” or “SOW” means the exhibit attached hereto, specifying the Services and/or Deliverables in respect of any specific Project to be provided by <<COMPANY>> to the Client. Additionally, Statement of Work shall mean any proposal of the Client or <<COMPANY>> or any other written instrument or plan(s) or equivalent authorized communication by Writing from one Party to other Party that at a minimum (i) is signed on behalf of both Parties by their authorized representatives or agreed to between the Parties by their authorized representatives; and (ii) contains a description or type of Services or Specifications of the Deliverables to be delivered, the time schedule for delivery of the Deliverables or performance of the Services, and such other terms and conditions as may be mutually agreed upon by the Parties.

1.10 “Written” or “In Writing” means any communication in a written form, which shall include, without limitation, any communication by telex, facsimile and electronic e-mail transmission.

2 Services and Deliverables

2.1 Performance of Services/Deliverables. <<COMPANY>> shall perform any Services or take steps to deliver the pre-agreed Deliverables on signing of or agreeing Statement of Work or otherwise agreeing In Writing. In the event that the terms of a Statement of Work are contrary to the terms in this Agreement, the terms of this Agreement shall be binding and shall prevail over the terms contained in that Statement of Work unless and to the extent that the Statement of Work explicitly provides that it is to take precedence over this Agreement and cross references the affected provisions of this Agreement.

2.2 Acceptance of Deliverables. All Deliverables shall be subject to review and acceptance or rejection by the Client. Upon completion of Client’s review of any Deliverables, the Client shall issue to <<COMPANY>> a Written notice of its acceptance or rejection of the Deliverables. Client will not unreasonably withhold acceptance. If the Client does not provide notice of its acceptance or rejection under this Agreement within 15 (fifteen) days following the delivery of the Deliverable, the Deliverable shall be deemed to have been accepted by the Client without any further contact or inquiry by <<COMPANY>>. Client’s productive or commercial use of the Deliverable or Client’s payment for the Deliverable shall also be deemed as acceptance by the Client. Client shall have the right to reject a Deliverable only upon the material non-conformity of a Deliverable with the Specifications agreed to in the Statement of Work. <<COMPANY>> shall not be liable for a deficiency or non-conformity of a Deliverable which results from the acts and/or omissions of Client or if Client has instructed <<COMPANY>> to prepare or perform the Deliverable in the particular manner which the Client later claims to be defective or materially non-conforming. All onward risks of the Deliverable once accepted shall solely lie with the Client.

2.3 Rejection of Deliverables and Exclusive Remedies. To be valid and effective, a notice of rejection must include Client’s reasons for rejection to <<COMPANY>> stated in Writing in reasonable detail. Within fifteen (15) business days of a notice of rejection, <<COMPANY>> shall either utilize Commercially Reasonable Efforts to correct the specified deficiencies or non-conformities, or provide Client with a remedial action plan, including a time frame for completion of the corrected Deliverables which shall not exceed thirty (30) business days from the time of <<COMPANY>>’s response to a notice of rejection. In the event that <<COMPANY>> fails to correct the rejected Deliverable within the time period specified in this paragraph, the Client may, at its option, terminate the relevant Statement of Work with no further cure period and <<COMPANY>> shall return such proportionate amounts to the Client that has been paid by the Client for the relevant rejected Deliverables. The remedies of this paragraph shall be Client’s sole and exclusive remedies for rejection of Deliverables and are contingent upon Client’s performance of all obligations required by this Agreement.

2.4 Change Order. The Parties anticipate the modification of Statements of Work during the course of each Project. Either Party may propose a Change Order. <<COMPANY>> shall inform the Client in Writing within seven (7) days of receipt of a proposed Change Order as to the additional fees and expenses to be charged to carry out the proposed Change Order, and the new time of performance for the same and other terms and conditions. The additional or changed work shall commence only upon the execution of the Change Order. Notwithstanding any changes as above, the Client shall be responsible for and liable to pay for all the Deliverables or Services prior to a Change Order and for all non-cancelable committed Deliverables or Services and pre-approved materials ordered or services for Client.

3 Reliance on Inputs

Client at its cost shall provide <<COMPANY>> with all information, documents, tools, designs, materials, non-standard hardware and software, directions, instructions, Specifications, functional requirements, specific software requirements and guidance access with appropriate rights (Inputs) that may be reasonably necessary for <<COMPANY>>’s performance of the Services or delivery of Deliverables. All Inputs required by <<COMPANY>> shall be given in a timely manner and when provided, will be complete, accurate and up to-date. <<COMPANY>> shall rely upon any Inputs relating to <<COMPANY>>’s performance of Services or delivery of Deliverables, provided to <<COMPANY>> by Client, Client’s Project Manager, or any person designated by Client or Client’s Project Manager. <<COMPANY>> shall in no event be liable to Client and/or any third party for any failure or defect caused due to <<COMPANY>>’s reliance upon any Inputs provided by the Client, or for any delay in performing the Services or delivering the Deliverables which arise from any delay caused by the dependency on Client, or by the Client in providing Inputs or assistance to <<COMPANY>> or on account of any occurrence, fact or circumstance resulting from <<COMPANY>>’s reasonable reliance upon such Inputs.

4 Payment Terms

4.1 Client warrants to pay <<COMPANY>> the amounts as per the terms, at the times and in the manner as set forth in this Agreement or Statements of Work. Unless otherwise specified in the Statement of Work, Deliverables and/or Services shall be provided to Client on a time and materials basis at <<COMPANY>>’s regular rates then in effect. Additionally, Client shall pay, unless otherwise specified in the Statements of Work, (i) <<COMPANY>>’s reasonable out-of-pocket expenses incurred as a result of <<COMPANY>>’s performance of Services or delivery of Deliverables; and (ii) all taxes, including without limitation, sales, service, use, excise, or value-added taxes, other than franchise or income tax, based upon or measured by the charges as set forth in this Agreement, or based upon any Deliverables or Services provided.

4.2 Time is of the essence with respect to payment of <<COMPANY>>’s invoices and it is an essential condition to this Agreement. Delay in payment would amount to a material breach, in which case <<COMPANY>> shall have the right to suspend the Services or not create and deliver the Deliverables, terminate this Agreement and/or any relevant Statement of Work, in addition to and without waiving any other rights and remedies available at law or equity.

4.3 If Client disputes the invoice, Client shall notify <<COMPANY>> in writing and to submit appropriate documentation justifying such dispute to <<COMPANY>> as soon as it is aware of the dispute, but in no event later than thirty (30) days after the invoice is received, failing which such dispute is waived. Notwithstanding any such dispute, Client agrees to pay the full amount of any such invoice pending the resolution of such dispute. <<COMPANY>> will respond to Client’s written dispute within thirty (30) days of receipt of such dispute. <<COMPANY>> and Client agree to use reasonable efforts to resolve all disputes and <<COMPANY>> agrees to promptly refund any amounts due upon dispute resolution.

5 Term and Termination

5.1 This Agreement will commence on the Effective Date specified above and, shall remain in effect for a period of __ months. Either Party may terminate this Agreement or Statement of Work for convenience by providing a thirty (30) calendar days prior notice in Writing to the other. In case of a breach of a material obligation under this Agreement and failure to remedy the same within a period of thirty (30) calendar days, the non-defaulting party may terminate the Agreement by proving a written notice.

5.2 Upon any such termination, <<COMPANY>> shall deliver to Client all the Deliverables and/or Services under a Statement of Work regardless of whether such Deliverables and/or Services are completed and Client shall pay <<COMPANY>> for all such Deliverables and/or Services delivered or performed through the date of termination.

5.3 Upon termination by <<COMPANY>> for non-payment by Client or any other basis permitted by this Agreement, <<COMPANY>> shall be entitled to retain all Deliverables and work product and/or output of the Services, and all right, title and interest, including, without limitation, all Intellectual Property Rights, in such Deliverables and/or output of Services until such time that Client has paid <<COMPANY>> in full for all Deliverables developed and/or Services executed by <<COMPANY>> in accordance with this Agreement and/or Statement of Work. If payment is not received or the Client’s breach is not cured within sixty (60) calendar days after written notification of default, <<COMPANY>> shall have the option to dispose of the Deliverables and/or output of Services, and all right and title thereto, by auction, private sale or other reasonable disposition, and to apply any proceeds of such sale or disposition, to that outstanding sum owed by Client to <<COMPANY>>.

6 Intellectual Property

Client shall own the rights, title and interest in and to all Intellectual Property Rights for all Deliverables and/or output from Services only upon Client’s payment in full to <<COMPANY>> for all amounts due to <<COMPANY>> for such Deliverables and/or Services. Notwithstanding the preceding paragraph, Client acknowledges and agrees that the execution of the Services and/or delivery of Deliverables will involve the use by <<COMPANY>> of its methodologies, frameworks, solutions, software, tools, systems, processes, inventions, algorithms, procedures, techniques, experience, expertise, work approaches and like information and technology which are pre-existing at the date of this Agreement or which are subsequently brought into existence independently by <<COMPANY>> other than as a result of the performance under this Agreement (“<<COMPANY>> Background Technology”). All Intellectual Property Rights associated with <<COMPANY>> Background Technology shall remain the sole and exclusive property of <<COMPANY>> and Client shall acquire no rights to the same. <<COMPANY>> reserves the right to reuse, copy, and distribute, in its sole discretion, and without royalty or other obligation, standard development tools and standard modules and routines owned or used by <<COMPANY>> to develop or execute future deliverables and/or services for other clients. Client, to the extent required by law, hereby grants <<COMPANY>>, a non-exclusive, worldwide perpetual and irrevocable license to do the same.

7 Confidentiality Obligations

7.1 For the purpose of this Agreement, the Party disclosing Confidential Information shall be referred to as the “Disclosing Party” and the Party receiving Confidential Information shall be referred to as the “Receiving Party”. The term “Confidential Information” as used in this Agreement shall mean any and all information and material that may be disclosed by the Disclosing Party to the Receiving Party in the course of this Agreement in written or otherwise tangible form which is clearly marked “Confidential” or “Proprietary”, or is of such nature that the Parties in their reasonable judgment ought to consider it as confidential.

7.2 Confidential Information shall not be used by the Receiving Party other than for the purposes under this Agreement for which the Confidential Information was disclosed. The Receiving Party shall have the right to divulge the Confidential Information to its employees, Affiliates, consultants and agents on a need to know basis, who shall be bound by the confidentiality obligations specified in this Agreement to the same extent as that of the Receiving Party and Receiving Party is responsible for all acts or omissions of such employees, Affiliates, consultants and agents . The Receiving Party shall protect such Confidential Information from disclosure to third parties and shall hold it as confidential using the same degree of care as it uses to protect its own confidential or proprietary material of like importance. The confidentiality obligations specified in this Agreement shall continue for a period of five (5) years from the termination or expiration of this Agreement.

7.3 The confidentiality obligations specified in this Agreement shall not apply to any Confidential Information which:

  1. is generally available to the public;

  2. is in the Receiving Party's possession prior to receiving it;

  3. is lawfully disclosed to the Receiving Party by a third party who to the best of Receiving Party’s knowledge does not bear a confidentiality obligation to the other party;

  4. was independently developed by the Receiving Party without use of the Confidential Information;

  5. is disclosed by the Receiving Party with the Disclosing Party’s prior approval in Writing.

  6. is required to be disclosed by law, court order, governmental authority, regulation of any recognized stock exchange or any other competent authority;

7.4 The Receiving Party shall (i) promptly notify the Disclosing Party to the extent lawful and practical to enable the Disclosing Party to protect its Confidential Information, (ii) at the request and sole expense of the Disclosing Party, cooperate reasonably with the Disclosing Party’s efforts to contest or limit the scope of the order or directive and (iii) limit any disclosure to the minimum that is necessary to comply with the regulation, order or directive.

8 Independent Parties

This Agreement is neither intended to nor will it be construed as creating a joint venture, partnership or other form of business association between the parties, nor an obligation to buy or sell products using or incorporating the Confidential Information.

9 Disclaimer

Except as expressly set forth herein, both Parties hereby disclaim all warranties to each other and all third-parties, with respect to express, implied, statutory warranties including, without limitation, with respect to the services or deliverables (and all portion or components thereof), implied warranties of merchantability, quality, non-infringement, and fitness for a particular purpose.

10 No Waiver

The failure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party will not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right hereunder.

11 Governing Law

This Agreement will be governed by the laws of India without reference to conflict of law principles, if any. Any disputes arising from this Agreement shall be subject to the jurisdiction of the courts in Bangalore, Karnataka.

12 Entire Agreement

This Agreement constitutes the sole and entire agreement between the parties with respect to the Confidential Information and all restrictions thereon; it supersedes any and all prior or contemporaneous oral or written agreements, negotiations, communications, understandings and terms, whether express or implied regarding the Confidential Information, and may not be amended except in a writing signed by a duly authorized representative of the respective parties. Any other agreements between the parties, including non-disclosure agreements, will not be affected by this Agreement.

13 Liability

The Parties mutually agree to waive, to the fullest extent permitted by law, any claim, liability, prayer or recovery of any indirect, incidental, consequential, special, exemplary, punitive, restitutionary or disgorgement damages, reliance damages, speculative, damages, losses, damages, costs or expenses or any lost profits or lost contracts, lost goodwill, lost business, lost general overhead, loss of reputation, loss of market share, loss of data, loss of anticipated savings, business interruptions, loss of the use of money, interest payments incurred to third parties, and such like claims of damages losses, damages, costs or expenses from the other party and any third party in connection with or arising out of this agreement (even if such Party has been advised of the possibility of such damages, losses, costs or expenses whether based on an action or claim in contract, equity, negligence, tort or any other theory of law). In consideration for the fees as set forth in this agreement, the Parties mutually agree that either Party’s total liability under this Agreement and any relevant statement of work shall be limited to the total fees paid by the client to <<COMPANY>> in the preceding six (6) months under the said statement of work, under which the liability or claim for damages arose.

14 Force Majeure

A Party shall not be liable for any event that is beyond the control of that Party or which could not have been reasonably foreseen, including without limitation, acts of god, man or state, civil unrest, terrorism, explosions, floods, hurricanes, earthquakes, mechanical breakdowns, strikes, labor unrest, breakdown in essential utilities, medical or other emergencies (Force Majeure).

15 Publicity

<<COMPANY>> shall be entitled to advertise and represent that the Client is a customer of <<COMPANY>> and the broad nature of work performed by <<COMPANY>> for the Client. <<COMPANY>>’s publicity shall not disclose any Confidential Information.

16 Counterparts

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. An electronic copy of an executed signature page delivered by facsimile transmission or e-mail shall be binding to the same extent as an original copy of an executed signature page delivered otherwise. A Party that delivers an electronic copy of an executed signature page agrees to later deliver an original counterpart to the other Party, if requested.

17 Headings

The headings used in this Agreement are for convenience and identification only, and shall not be deemed to limit, amplify or define the contents of the respective sections or paragraphs to which they pertain.

18 Severability

If any provision or part of this Agreement shall be determined to be illegal, invalid or unenforceable, that part shall be severed from this Agreement and the remaining parts shall be valid and enforceable.

For <<FIRST PARTY>>

FOR <<SECOND PARTY>>

Name

Name

Designation

Designation

Date

Date

Place

Place