In these Terms (as defined below) the following terms shall have the following meanings:-
“Acceptance” Acceptance by the Client of the Deliverables
“Acceptance Criteria” Any criteria for acceptance of the Deliverables referred to in the Functional Specification and where no such criteria are referred to, reasonable criteria agreed by Debashu Service Pvt Ltd for determining whether the Deliverables comply with the Functional Specification;
“Acceptance Tests” Any tests for the acceptance of the Deliverables referred to in the Functional Specification and where no such Criteria are referred to, reasonable criteria agreed by Debashu Service Pvt Ltd for determining whether the Deliverables comply with the Functional Specification;
“Background Intellectual Property” elements of the Deliverables incorporating or created using generic objects, classes and other code existing prior to the date of the Contract;
“Client Materials” the materials and information supplied to Debashu Service Pvt Ltd
“Client” the person specified in a Proposal or whose order (or similar document) for the supply of services is expressly accepted by Debashu Service Pvt Ltd in writing;
“Contract” together the Proposal and the Terms;
“Deliverables” deliverables specified in the Proposal or otherwise agreed in writing to be provided by Debashu Service Pvt Ltd in connection with the Services including (without limitation) any computer programs;
“Functional Specification” any specification produced by Debashu Service Pvt Ltd relating to the required or anticipated functionality of the Deliverables;
“Intellectual Property” patents, trade marks, trade secrets, copyright, database rights, designs, inventions, know how and any other industrial or intellectual property rights of any nature whatsoever, whether registered or capable of registration or not, in any part of the world and including all applications and the right to apply for any of the foregoing rights;
“Methodology” the experience, expertise, processes, procedures and methodology relating to the Services and/or Deliverables developed by Debashu Service Pvt Ltd during the course of providing the Services;
“Proposal” a proposal (or similar document) of Debashu Service Pvt Ltd for the supply of services and/or deliverables which is accepted by the Client or an order (or similar document) for the supply of services and/or deliverables which is expressly accepted by Debashu Service Pvt Ltd in writing;
“Services” the services specified in the Proposal;
“Terms” the standard terms for the supply of services set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing by Debashu Service Pvt Ltd and the Client.
Any reference in these Terms to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
The headings in these Terms are for convenience only and shall not affect their interpretation.
In these Terms any reference to a person shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having a separate legal personality) or one or more of the foregoing and references to the singular shall include the plural and vice versa.
1.2 Basis of the Contract
1.2.1 Debashu Service Pvt Ltd shall supply and the Client shall pay for the Services/product and/or the Deliverables in accordance with the Proposal and subject to these Terms, which shall govern the Contract to the exclusion of any other terms and conditions. In the event of inconsistency between these Terms and any special conditions contained in the Proposal, those special conditions shall prevail.
1.2.2 No order submitted by the Client shall be deemed to be accepted by Debashu Service Pvt Ltd unless and until confirmed in writing. In the case of any Proposal submitted by Debashu Service Pvt Ltd, authorization to proceed with the supply of the Services/product and/or Deliverables, whether verbal or in writing, shall constitute the Client’s acceptance of the Contract. No conduct by Debashu Service Pvt Ltd shall be deemed to constitute acceptance of any terms put forward by the Client. Save where expressly accepted by Debashu Service Pvt Ltd in the event of any inconsistency between the Proposal and Terms on the one hand and the Client’s order on the other then the Proposal and Terms shall prevail.
1.2.3 No variation to these Terms shall be binding unless agreed in writing.
1.2.4 Debashu Service Pvt Ltd’s employees or agents are not authorised to make any representations concerning the Services/product or Deliverables unless confirmed by Debashu Service Pvt Ltd in writing. In entering into the Contract the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed provided that nothing in these Terms shall operate to limit or exclude any liability for frauds.
1.2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by Debashu Service Pvt Ltd shall be subject to correction without any liability on the part of Debashu Service Pvt Ltd.
1.3 Fees and Payment Terms
1.3.1 The Client shall pay to Debashu Service Pvt Ltd fees in respect of the supply of the Services/product and any Deliverables at the rates specified in the Proposal or at such other rates as may be agreed in writing from time to time by Debashu Service Pvt Ltd and the Client.
1.3.2 Were the Client requests Debashu Service Pvt Ltd to provide any services/product or deliverables in addition to those specified in the Proposal and Debashu Service Pvt Ltd has agreed to do so then in the absence of any specific agreement on fees these will be provided at Debashu Service Pvt Ltd’s then standard prices.
1.3.3 Debashu Service Pvt Ltd reserves the right, by giving notice to the Client at any time before completion of the supply of the Services/product to increase the fees payable in respect of the remainder of the Services/product to be provided to reflect any increase in the cost to Debashu Service Pvt Ltd which is due to:-
1.3.4 Any factor beyond the reasonable control of Debashu Service Pvt Ltd (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, or increase in the costs of labour or materials); and/or
1.3.5 Any delay caused by any instructions of the Client or failure of the Client to give Debashu Service Pvt Ltd adequate information or instructions.
1.3.6 Unless otherwise agreed in writing between the Client and Debashu Service Pvt Ltd all fees and any other amounts payable by the Client are expressed exclusive of any value added tax or other applicable sales tax.
1.3.7 If there is any delay from the client side due to which there will be a time delay in completion of project and for which a 1.5 % per month of work order will be charged extra towards idling charges of technical person.
1.4 Co-operation and Information
The Client shall:-
1.4.1 Provide Debashu Service Pvt Ltd, its employees and sub-contractors with all such assistance as is reasonably necessary to enable Debashu Service Pvt Ltd to perform its obligations under the Contract, including but not limited to, computer and technical facilities and office and secretarial services/product which will be provided free of charge;
1.4.2 Make full disclosure to Debashu Service Pvt Ltd of all information and material, including where necessary software and content, relevant to the provision of the Services/product;
1.4.3 Ensure that all Client Materials are true, accurate and complete in all respects;
1.4.4 Procure that its employees and independent contractors co-operate reasonably with Debashu Service Pvt Ltd and its employees in providing the Services/product in accordance with the contract;
1.4.5 Comply with Debashu Service Pvt Ltd’s recommendations as to its hardware, network and computer operating systems;
1.4.6 Obtain and comply with all necessary permits and licences in respect of the Client Materials;
1.4.7 Each party shall keep confidential the terms of this Agreement and any and all confidential information that it may acquire in relation to the business or affairs of the other party. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under this Agreement. Each party shall ensure that its officers and employees comply with the provisions.
1.4.8 YT Solutions can use logo and name of client on Debashu Service Pvt Ltd’s official website and other promotional activities.
1.5.1 When the Deliverables have been completed Debashu Service Pvt Ltd Ltd shall deliver them to the Client.
1.5.2 The Client shall carry out the Acceptance Tests using the Acceptance Criteria within 30 days of delivery of the Deliverables by Debashu Service Pvt Ltd and shall provide Debashu Service Pvt Ltd with a report accepting or rejecting the Deliverables within the 30 day period. The Deliverables will be accepted when they have passed the Acceptance Tests.
1.5.3 If the Client rejects the Deliverables in accordance with the procedure in this clause Debashu Service Pvt Ltd shall remedy the defect in the Deliverables so that it complies with the Functional Specification in material respects as soon as reasonably practicable except where the failure of Acceptance was attributable to a breach by the Client of its obligations under the Contract and this shall be the Client’s sole and exclusive remedy for a failure of Acceptance.
1.6.1 In the event that any representative(s) of Debashu Service Pvt Ltd attends at any premises of the Client in connection with the provision of the Services/product the Client shall take all reasonable steps to ensure the health and safety of such representative(s);
1.7 Intellectual Property
1.7.1 Except where expressly agreed in the Proposal, all Intellectual Property rights in all the Deliverables shall be owned exclusively by Debashu Service Pvt Ltd and may be used by the Client as follows:
1.7.2 Debashu Service Pvt Ltd grants the Client a perpetual (subject to the rights of termination referred to elsewhere in these Terms), non-exclusive, non-transferrable, royalty-free (subject to any royalty provisions referred to in the Proposal) licensed to use the Deliverables for its own internal business purposes without any right to sub-licence with effect from the date of receipt by Debashu Service Pvt Ltd of the fees due under the Proposal attributable to that Deliverable; and where any of the Deliverables include software the Client shall also comply with Debashu Service Pvt Ltd’s software license in the form provided by Debashu Service Pvt Ltd.
1.7.3 Debashu Service Pvt Ltd warrants that, so far as it is aware, the Deliverables including, but not limited to, any software do not infringe the copyright of any third party.
1.7.4 If Debashu Service Pvt Ltd creates any inventions, designs or processes in the performance of the Services/product, the Client acknowledges that all rights (including, without limitation, Intellectual Property) in these items shall be the property of Debashu Service Pvt Ltd unless agreed otherwise in writing.
1.7.5 Source code is intellectual property of Debashu Service and will not be shared with the client. The above cost includes only deliverable and not the source code. Debashu Service Pvt Ltd. got rights to reuse the code.
1.7.6 Debashu Service Pvt Ltd can use the customer name for any promotional activity that the company deems fit.
1.7.7 The Application is being sold on a license to use basis only for the site mentioned in the document any use of the application any where else will be the violation of licensing policy.
1.7.8 The customer will not make any modifications either themselves or by third party without permission from Debashu Service Pvt Ltd
1.7.9 The customer will not distributes, transfer copy, sale the application or any document that is provided to any one else without written permission from Debashu Service Pvt Ltd
1.8 Warranties and Liability
1.8.1 Debashu Service Pvt Ltd warrants and undertakes to the Client that if the Deliverables are demonstrated to Debashu Service Pvt Ltd’s reasonable satisfaction, within 30 days from the date of Acceptance, to materially fail to comply with the Functional Specification, Debashu Service Pvt Ltd will correct such defect or (at its sole option) replace the Deliverables free of charge provided that:-
1.8.2 The Deliverables have been properly installed;
1.8.3 The Deliverables have been used at all times properly and in accordance with instructions for use;
1.8.4 No alteration, modification or addition has been made to the Deliverables without Debashu Service Pvt Ltd’s prior written consent.
1.8.5 Debashu Service Pvt Ltd does not warrant that the Deliverables will be error-free.
1.8.6 Where the Proposal specifies any date for the completion of the Services/product (or parts thereof) or the delivery of any Deliverables, time for such completion and delivery shall not be of the essence and Debashu Service Pvt Ltd shall have no liability to the Client arising out of or in connection with any failure to provide the Services/product or Deliverables by such dates.
1.8.7 The entire liability of Debashu Service Pvt Ltd under or in connection with the Contract shall not exceed the fees payable under the Contract, except as expressly provided in these Terms.