This Service Agreement, (the “Agreement”), is entered Between Palpable Ads, Rajendri Nagar, Lane No #2, Sai Niwas, Aanad Park, Vadgaonsheri, Pune-411014, hereinafter referred to as the “Service Provider”, which expression shall unless it be repugnant to the context or meaning thereof, be deemed to include its successors and assigns And The Client, hereinafter referred to as the “Client”, which expression shall unless it be repugnant to the context or meaning thereof, be deemed to include its successors and assigns. The terms “You” and “Your” has been used to represent the Client, a user of our Platform who avails our Services.
Each of the Client and Service Provider shall hereinafter be referred to individually as a “Party” and collectively as the “Parties”.
WHEREAS the Client, as part of its business development and promotion, desires to appoint the Service Provider to avail its services of (Select Suitable options):
Search Engine Optimization;
Real time analytics;
Social Media Marketing;
hereinafter referred to as the “Service” or “Product” (the terms Service shall mean Product in the case of web designing, web development or application development services wherein the Service Provider is delivering a Product, for example a web design or a website to the Client. The remaining portions shall be interpreted accordingly.)
Explanation: This Agreement shall be applicable only on the services for which the Client has hired the Service Provider. Depending on his or her need, the Client can choose either one or more services at a time.
AND WHEREAS the Client has found that the Service Provider is equipped with the skills and has requisite expertise and experience for successful completion of the Service;
AND WHEREAS the Client has discussed the Service or Product outline and Specification with the Service Provider;
AND WHEREAS the Service Provider is willing to accept the appointment upon the terms and conditions set forth hereinafter.
NOW THIS AGREEMENT WITNESSES AS FOLLOWS:
TERMS AND CONDITIONS:
“Business Day” means a day, excluding Saturday, Sunday and public holidays, during which licensed commercial banks are open for business in India.
“Confidential Information” means any information or document in whatever form or format belonging to, in the possession of, under the control of, in the knowledge of, or howsoever related to the Client and/or the Service Provider which has been disclosed or made available, directly or indirectly, to the Service Provider and/or the Client in any manner, which is (i) confidential and proprietary in nature, or (ii) which has been designated as confidential by the Client and/or the Service Provider, or (iii) the unauthorized disclosure of which would, or would be likely to, prejudice the interests of the Client and/or the Service Provider, and this includes all trade secrets, know-how, all personal and sensitive data.
“Intellectual Property Rights” means any and all current and/or future intellectual property rights, including (i) all forms of copyright and authors rights (including any and all rights that may be considered financial rights), database rights and rights in patents, designs, inventions, utility models, trade names, trademarks, service marks, rights in trade dress or get-up, goodwill, domain names, website addresses (URL), know-how, trade secret, rights to sue for passing off, unfair competition rights, moral rights and Confidential Information (whether registered or unregistered); (ii) applications for registration, renewals or extensions, and the right to apply for registration, renewal or extensions, for any of these rights; and (iii) all other intellectual property rights and equivalent or similar forms of protection (whether registered or unregistered), existing anywhere in the world from time to time;
“Third Party Content” means images, texts, visuals, mockups, videos, audios, fonts, color schemes, layouts, borders, Server-side applications, clip art, back-end applications, Payment gateways, portals, boxes, music or any other copyrighted or un-copyrighted work which is owned by such other person or entity or the rights of which are held by the person or entities other than the parties to this Agreement.
“Milestone” means a phase, the time duration under which a deliverable is completed. The final Service is delivered to the Client upon completion of the final milestone.
“Milestone deliverable” means the portion or part of the Service which has been completed by the Service Provider under a milestone and is ready for testing and reviews by the Client
ENGAGEMENT AND ACCEPTANCE
The Client hereby engages the Service Provider to develop the Product or provide the Service, and the Service Provider hereby accepts the engagement. Any modifications to the Service Specifications shall be pursuant to a change order process set forth herein below.
For any modification in the Product or the Services, the Client must provide a change order request in writing on its letterhead or via e-mail, provided in the notice section of this Agreement to the Service Provider (a “Change Order”).
The Service Provider reserves the right to reject a Change Order in the event such change order a) impairs the Product or the Service b) makes the exercise of the Service Provider’s duty set forth in this Agreement impossible c) is against any law or e) is made to defeat the true intent of this Agreement.
Any Change Order that requires twenty five percent (25%) of the Service Provider’s time required to develop that milestone deliverable, is termed as a Substantial Change. A substantial change is determined by the Service Provider by sending an e-mail on the registered e-mail id provided by the Client at the time of registration. The Service Provider being the time investor, reserves the right to not to accept any clarification from the Client in this regard. The Service Provider’s decision with respect to substantiality of a change shall be binding on the Client. In the event the Client is unhappy with the milestone deliverable and requests the Service Provider to make a Substantial Change, such request shall require a fresh proposal and Agreement between the Parties. However, the Service Provider shall be entitled to the pay for the work which was already completed.
The Client agrees to perform all tasks assigned to it as set forth in this Agreement, the Product or the Service Specifications, or a Change Order, and to provide all assistance and cooperation to the Service Provider in order to complete the development of the Product or provision of the Service in a timely manner.
The Service Provider shall not be deemed to be in breach of this Agreement, if Service Provider's failure to meet his\her responsibilities and time schedules is caused by Client's failure to meet (or delay in) his responsibilities and time schedules, a Change Order, or this Agreement. In the event of any such failure or delay by Client, (i) all of Service Provider's time frames, milestones, and/or deadlines shall be extended by the number of days of Client's failure multiplied by two (2); and (ii) Client shall continue to make timely payments to the Service Provider as set forth in this Agreement, the Product or the Service Specifications, and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by Service Provider. The Client shall be responsible for making, at his own expense, any changes or additions to the Client's current systems, product, and hardware that may be required to support operation of the Product or the Services.
FEES AND PAYMENT
For the Products the Client agrees to pay the Fee as quoted by the Service Provider for the Products opted by the Client as the total fees (“Fees”) for the Product. The Client must maintain a copy of communication received from the Service Provider declaring the Fee. For the services, the Client agrees to pay the services fees as shown on the Platform or as quoted by the Service Provider. Fee will be exclusive of any Third Party Content and/or license charges (which will be notified in writing by the Service Provider to the Client and the Client has provided its express consent and/or approval for). The Fee will be paid in the manner provided herein:
You can use your cards to make the payments. For continuing services, we shall charge the payment in advance. All the advance payments shall be charged to your card on the due date.
The Client agrees to pay all the duties and taxes that might be applicable to him. If not levied or short levied, the Client shall pay all such not levied or short levied amounts. If paying by NEFT/RTGS/WIRE Transfer, the payments have to be made in the following bank account.
Authorized Officer by Palpable Ads
Bank Name: ICICI Bank
Account Payee: Mr. Ranjeet Naiknavare.
Account Number: 098601514821
IFSC Code: ICIC0000986
In addition of the Fee mentioned under Section 5.a, the Client hereby agrees to pay INR. 1000 & USD 10 per hour for a Change Order requested and accepted in accordance with Section 3. All the work hours are determined by the Service Provider and are approved by the Client in writing on e-mail. For clarification, it is reiterated that the Service Provider, upon receipt of a Change Order from the Client, shall inform the Client about the approximate hours of work required to complete the Change Order and request the Client for approval of the Change Order in writing on e-mail. By approving the Change Order, the Client agrees that it is aware that a) the approximate work hours may vary + (-) 3 hours of work b) The additional fees to be paid to the Service Provider on such change order(s)
The Fee as under section 5.1. is exclusive of Third Party Content charges and/or license fee and therefore, the Client agrees to pay Third Party Content charges and or license fees to the Service Provider in the event such Third Party Contents are purchased by the Service Provider on behalf of the Client.
Form of Payment:
All payments made to the Service Provider under this Agreement shall be in INR or USD .
Payment of Invoices:
All invoices shall be paid by the Client within five (5) Business Days of their receipt. Payments not made within such time period shall be subject to late charges equal to the lesser of a) one and one-half percent (1.5%) per month of the overdue amount or b) the maximum amount permitted under applicable law. The Service Provider may suspend all services on fourteen (14) calendar days written notice until the amounts outstanding are paid in full.
INTELLECTUAL PROPERTY RIGHTS AND LICENSE:
In the Product:
In consideration of the Fees, all rights (existing and future), title and interest in and to the Intellectual Property Rights in the Product shall belong exclusively to the Client and shall vest in the Client absolutely, unconditionally, immediately and shall be free from all encumbrances and other rights of whatever nature exercisable by any third party together with the right to take action for any past, present and future damages and other remedies in respect of any infringement or alleged infringement of such Intellectual Property Rights.
In consideration of the Fees, the Service Provider hereby irrevocably assigns and transfers to the Client all right, title and interest in and to the Product, including, without limitation, all patent and copyright interests, and agrees to execute all documents reasonably requested by Client for the purpose of applying for and obtaining domestic and foreign patent and copyright registrations.
Pre-Existing Intellectual Property:
Notwithstanding any provision of this Agreement to the contrary, any routines, methodologies, processes, libraries, images, texts, fonts, illustrations, psd. files, layouts, tools or technologies created, adapted or used by the Service Provider in her business generally, including all associated Intellectual Property Rights, hereinafter referred as the “Development Tools”, shall be and remain the sole property of the Service Provider, and the Client shall have no interest in or claim to the Development Tools.
Third Party Licenses:
In addition to any other fees set forth in this Agreement, the Client shall be required to purchase any applicable third party content, except, the third party content which has specifically been, pursuant to this Agreement, agreed to be provided by the Service Provider, for any third party products that are necessary for the Service Provider to develop the Products or the provision of the Service. Such third party products may include, but are not limited to images, texts, visuals, mockups, videos, audios, fonts, color schemes, layouts, borders, Server-side applications, clip art, back-end applications, Payment gateways, portals, boxes, music, or any other copyrighted work (“Content”) which the Service Provider deems necessary to develop the Product or deliver the Services. Client agrees to purchase the foregoing third party products on his own or pay to the Service Provider, in the event, the Service Provider purchases the third party products on behalf of the Client.
The Service Provider represents, warrants and undertakes that the Product will be original works of authorship and their use or possession by the Client, or the Service Provider will not subject the Client, or the Service Provider to any claim for infringement of any Intellectual Property Rights of any third party (other than to the extent that the infringement is caused by materials originating from the Client and such Content of which the Client is expected to obtain the rights).
For the avoidance of doubt, the Client shall be entitled to fully and without restriction use, adapt, copy, distribute, assign and transfer the Product or Content as permitted under this Agreement. The Service Provider irrevocably permits the Client to rely on the work product in the deliverables provided hereunder and generally in respect of the services and the Service being provided hereunder in accordance with the terms and conditions set forth herein.
TERM AND TERMINATION:
Effective Date for the purpose of this Agreement shall be the date on which the Client hires the Service Provider.
This Agreement shall commence on the Effective Date and shall continue in effect until completion of the development of the Product or the Service and payment of the final installment of the Fees by the Client, unless both Parties mutually agree to terminate the Agreement in accordance with the terms provided herein.
Termination for Cause:
A Party shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by written notice to the other Party if that other Party is in material breach of any of its obligations under this Agreement and either that breach is incapable of remedy or the other Party shall have failed to remedy that breach within seven (7) calendar days of receiving written notice requiring it to remedy that breach.
Effect of Termination:
Where the Service Provider has terminated the Agreement in accordance with Section 13.c., the Client shall pay the Service Provider the portion of the fees for the Product and the Services properly and satisfactorily rendered and work in respect of the Service performed up to the Effective Date of termination on a pro rata basis.
Where the Client has terminated the Agreement in accordance with Section 13.c. for material breach of the Service Provider (which includes, for the avoidance of doubt and without limitation, failure to provide the services and undertake the work set out herein, failure to provide the Service and/or any breach of its obligations herein), without prejudice to any other rights of the Client, the Service Provider shall stop continuing working on the Product or the Services. If so requested by the Client, the Service Provider shall, in consideration of the Fees received by it, deliver the Product or the Services as completed as on the Effective Date of the Termination.
Under no circumstances shall any Party be liable to the other Party for any indirect or consequential loss (including loss of goodwill, loss of profit, loss of any contract, loss of opportunity, loss of anticipated profits, revenue or costs of capital) as a result of termination of this Agreement or for any other reason.
Any expiry or termination of this Agreement shall not affect any accrued rights or liabilities of either Party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after expiry or termination of this Agreement.
Return of Proprietary or Confidential Information:
Within ten (10) calendar days after the termination or expiration of this Agreement, each Party shall return to the other all Confidential Information of the other Party (and any copies thereof) in the party's possession or, with the approval of the Party, destroy all such Confidential Information.
TESTING AND REVIEWS AND DELIVERY:
The Service Provider shall test the milestone deliverable and correct and/or rectify the errors (if any). Within seven (7) Business days of receipt of the information of completion of the milestone, the Client shall test the milestone deliverable and provide its comments/reviews. The Service Provider will share the deliverables via the project management tool such as team viewer for testing the milestone deliverable (however at all times ensuring the security and confidentiality of the deliverables and/or the Products or the Services). The Client shall notify the Service Provider, in writing or through e-mail, of any objections, errors, mistakes, corrections, changes or amendments required in the milestone.
The milestone shall stand approved by the Client in the event, the Service Provider doesn’t receive any response within five (5) calendar days, counted from the day on which the Service Provider had sent the Milestone Deliverable for the testing/review or invited the Client for testing/review of the Milestone Deliverable, from the Client. Upon non-receipt of any response from the Client, the Service Provider may send a reminder mail to the Client on the e-mail id provided in the notice section of this Agreement by the client regarding the approval.
The Client agrees that it shall defend, indemnify, save and hold harmless the Service Provider from any and all demands, liabilities, losses, costs and claims, including reasonable solicitor, advocate and/or attorneys' fees, hereinafter collectively referred to as “Liabilities”, asserted against Service Provider, that may arise or result from any, including without limitation, the service provided or performed or agreed to the performance of any Service to the Client, any breach of this Agreement, IPR claims against the Third Party Content Provided by it. The Client agrees to defend, indemnify and hold harmless the Service Provider against Liabilities arising out of any material supplied by the Client infringing on the proprietary rights of a third party.
Service Provider Indemnity:
The Service Provider shall defend, indemnify and hold harmless the Client from and against any and all claims, damages, liabilities, costs losses (including any loss of, damage to, any property), and expenses of any kind whatsoever including, but not limited to, costs in connection with defined against any of the foregoing or in enforcing this indemnity, and all related costs and expenses incurred by the Client arising from or in connection with any breach of this Agreement, IPR claims against the Third Party Content Provided by it :
This Section 16 shall remain in full force and effect notwithstanding any termination or expiry of this Agreement.
WARRANTIES AND REPRESENTATION AND UNDERTAKINGS:
The Client represents, warrants and covenants to the Service Provider:
That the signatory has due authority to enter into this Agreement and is not barred from entering into this Agreement in any manner whatsoever;
It is a legal entity within the meaning of the applicable rules, regulations, laws, statutes, enactments, recognitions within the territorial limits of the government, jurisdiction of the regulators or courts or such other competent bodies having exercise of such rules, regulations, laws, statutes, enactment and recognitions over the its address or at the place of its establishment;
That it is capable of entering and/or authorized to enter into this Agreement and has no, as such, any legal or otherwise binding, which restricts the Client from entering into this Agreement;
That it has no legal suit pending in any court or any other forum, decision of which may render i) this Agreement void; ii) the Client ineligible for entering into this Agreement; and/or iii) performing its duties and administering the liabilities provided herein;
That it owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client content provided and does not infringe right of any third party in connection with the content provided;
It is duly organized, legally existing in good standing under the laws of the place of its establishment (at the address provided above) and has all requisite corporate power and authority to own its assets and carry on its business in the manner in which it is now conducted. It has all governmental licenses, permits and approvals necessary to conduct its business as currently operated, and these permits, licenses and approvals are and will be kept in full force and effect;
it is duly authorized by its Article of organization and operating Agreement and/or such other Agreements which give rise to its existence in the jurisdiction it exists (“constituting documents”), to hire the Service Provider, to get developed the Service, to use the Product and do other incidental and ancillary activities;
The copies of the documents, including the authorization letter/board resolution/id card, entrusting the signatory with the power to execute this Agreement, which have been certified and initialed by an officer on behalf of the Client, are correct and complete and reflect all amendments made thereto prior to the execution of this Agreement and there is no, as such, any material information being concealed by the Client in its knowledge with regard to all the provisions of this Agreement which may have adverse impact on the Service Provider’s performance of the duties;
None of the following have occurred and is subsisting and no notice in connection therewith has been served in relation to the Client:
An application to a court for an order, or the making of any order, that it be wound up, that a liquidator, receiver or custodian be appointed of the Subscriber or any of its assets or that it be placed in bankruptcy;
A resolution for winding up/desolation/insolvency;
Has been adjudged insolvent; and
The convening of a meeting or passing of a resolution to appoint a liquidator;
The taking of any action to seize, attach, take possession of or appoint a custodian, receiver, liquidator or manager in respect of the Subscriber or any of its shares or property.
They are not engaged in or threatened by any litigation whose outcome might materially and adversely affect their performance of their duties or administration of liabilities including the payment of Fees to the Service Provider;
Any other event or condition, which could have a material adverse impact on the Client or its ability to fulfill its obligations in terms of this Agreement;
The Client is not a party to or otherwise bound by any Agreement which would in any way affect the performance of its obligations under this Agreement and there are no existing or threatened actions or proceedings against it which, if decided against it, would have a material adverse effect on it or its business, properties and assets or on its ability to perform its obligations under this Agreement; and
The Client has obtained all necessary consents and approvals both statutory and otherwise as may be necessary for executing this Agreement or fulfilling the obligations setout hereto.
The Service Provider represents, warrants and covenants to the Client that:
it has been duly incorporated or established and is validly existing under the laws of the jurisdiction of its incorporation or establishment and has the relevant constitutional approvals to perform the services and provide the Service in accordance with the terms of this Agreement;
it will develop the Product or render the Services in a professional and work like manner;
except the third party products and Client’s content, the final Product shall be the original work of the Service Provider;
it is capable of entering into this Agreement and has no, as such, any legal or otherwise binding, which restricts the Service Provider from entering into this Agreement;
it has the power to enter into this Agreement which has been duly authorized and upon its execution, will constitute a valid and legally binding Agreement of the Service Provider enforceable against it in accordance with its terms;
it is not aware of any insolvency or winding-up orders made against it, nor of any threatened or pending insolvency or winding-up proceedings instituted against it and there is no action, suit or proceeding or official investigation before or by any relevant authorities, arbitral tribunal or other body pending or, threatened against or affecting it or any of its properties, rights or assets, which could reasonably be expected to result in a material adverse effect on its ability to perform its obligations under this Agreement or on the validity or enforceability of this Agreement;
it is not bound by any Agreement with any third party which is inconsistent with, or may adversely affect, its ability to carry out its obligations under this Agreement;
it has the necessary qualifications, experience, skills and expertise which would reasonably be expected of and to be observed by a skilled and experienced person engaged in carrying out activities the same as or similar to the Services; and
it has the right to grant the Client all applicable rights and/or licenses in relation to the Service as required under this Agreement.
The Parties agree to hold each other's Confidential Information in strict confidence. The Parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than as specified in this Agreement. Each Party's Confidential Information shall remain the sole and exclusive property of that Party. The Parties agree that in the event of use or disclosure by the other Party other than as specifically provided for in this Agreement, the non-disclosing Party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, the Parties acknowledge and agree that their obligations of confidentiality with respect to Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
The Parties hereby accepts, admits and acknowledges that in certain circumstance where information as detailed in Section 18.a. is required by law enforcement agencies, police, court and or investigation agencies within India, it can be disclosed by a Party on the request of such law enforcement agencies, police, and court and or investigation agencies.
The Client hereby grants the Service Provider the right to use the name and service marks of Client in its marketing materials and portfolios or other oral, electronic, or written promotions, which shall include naming Client as a Client of the Service Provider and a brief scope of services provided. The Client shall keep the Service Provider indemnified from any IPR or right claims against the Service Provider raised and likely to be raised as a result of such use.
INDEPENDENT CONTRACTOR STATUS:
The relationship of the Service Provider to Client will be that of an independent contractor, and neither the Service Provider nor any employee of the Service Provider will be deemed to be an agent or employee of the Client. It is expressly understood that this undertaking is not a joint venture or partnership.
Either Party shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature.
The obligations and rights of the Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations hereunder shall resume.
In the event the interruption of the excused Party’s obligations continues for a period in excess of forty five (45) calendar days, either Party shall have the right to terminate this Agreement upon fifteen (15) calendar days’ prior written notice to the other Party.
Any written notice or demand required by this Agreement shall be sent by registered or certified e-mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice shall be effective (a) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, and (b) as of five (5) calendar days after the date of posting if the notice is transmitted by registered or certified e-mail.
The total liability for all damages, losses, and causes of action (whether in contract, tort (including negligence), or otherwise) to the other shall not exceed the Product development or Services Fees. This limitation of liability shall apply even if the express warranties set forth (if any) fail in their essential purpose.
THIRD PARTY DISCLAIMER:
The Service Provider makes no warranty of any kind, whether express or implied, with regard to any third party products, third party content or any Service, equipment, or hardware obtained from third parties.
The Service provided by the Service Provider under this Agreement is not exclusive to the Client and the Service Provider shall have the right to enter into similar arrangements with any third party without the knowledge or consent of the Client. Nothing in this Agreement shall prevent the Service Provider from being engaged, concerned or having any other interest in any capacity in any other business or entity during the term of this Agreement.
This Agreement constitutes the entire Agreement of the Parties on the subject hereof and supersedes all prior understandings and instruments on such subject. Notwithstanding anything contained in this Agreement, the parties agree that any terms of this Agreement may be varied by way of supplementary deed/Agreement. Such supplementary Agreement/deed shall be effective only if it is in writing and signed by duly authorized representatives of both the Parties.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision(s) of this Agreement.
Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties and enforced as modified. All other terms and conditions of this Agreement shall remain in full force and effect and shall be construed in accordance with the modified provision.
CHOICE OF LAW AND JURISDICTION:
The Client and the Service Provider agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within thirty (30) calendar days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, The parties hereby irrevocably and unconditionally agree to the non-exclusive jurisdiction of the courts of Pune, MH and all courts competent to hear appeals there from.
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have set their respective hands to the Agreement of the day, month and the year mentioned herein above.