Last Updated: September, 2021
This Datamatics Service Agreement, together with the terms of any Job Card or document (“Job Card”), exhibit, annexures, or supplemental terms if any (collectively referred to as “Agreement”) describe the basis on which Datamatics Entity listed in Job Card (“Datamatics”) provides services as set forth in the applicable Job Card (“Services”) to the legal entity listed in Job Card (“Client”) that purchases or accesses or uses the Services. This Agreement constitutes a binding contract between Datamatics and such purchasing entity i.e. Client.
The terms “Datamatics” and “Client” shall include their respective successors and permitted assigns. The terms and conditions of this Service Agreement apply to any Job Card, releases or other means of ordering between Datamatics and Client (individually “Party; collectively “Parties”) relating to services.
Datamatics will provide to the Client the services listed in the Job Card (“Services”) for the execution of the project, the details of which are more specifically set out in the said Job Card (“Project”) and such further Projects as is agreed between the Parties in writing from time to time. The Client is responsible for ensuring that the scope of the Services, service levels, delivery timelines, procedures etc. as required by them, are detailed, unambiguous, reasonable, lawful and clearly specified.
Each Party shall defend, indemnify and hold the other Party harmless from any and all claims, losses, expenses, cost, liabilities, damages or judgement (including reasonable attorney’s fees) that such Party may suffered or incurred in connection with any third party claim for any fraud or bad faith of the indemnifying Party in performance of its obligations under this Agreement.
The indemnified party shall give prompt written notice to the indemnifying party of a claim for which the indemnifying party is required to indemnify the indemnified party under this clause and the indemnified party has the right (but no obligation) to participate in the defense of such claim at its expense. In no event will either party settle any claim for which it has an obligation to indemnify the other without the other’s prior written consent, not to be unreasonably delayed, unless such settlement involves only the payment of money damages and no admission of wrongdoing or other relief and includes a complete release of the indemnified party.
Datamatics’ aggregate liability under or in connection to this entire Agreement (including without limitation breach of warranty, negligence, strict liability and tort) with respect to each Project/Job Card under which the claim arose shall not exceed 25% of the charges paid by Client to Datamatics under this Agreement for such Project/Job Card. Notice of any such claim with respect to each of such Project/Job Card must be delivered in writing to Datamatics within Fifteen (15) days after the date of the delivery of such Project/Job Card which gave rise to the claim. The parties agree that the foregoing limitation of liability is not intended to limit the amounts due and owing by the Client to Datamatics for the performance of the Services under the Agreement.
It is further understood and acknowledged between the Parties that neither Party shall be responsible and liable to the other Party or any third party for any indirect, punitive, consequential or exemplary costs, damages, actions, claims, losses including the claims for actual or alleged loss of revenue, loss of profits, loss of goodwill or reputation, loss of data or loss of opportunities arising from any claim or action hereunder, whether based on contract, tort or other legal theory.
Both Parties shall maintain the confidentiality regarding the information, records, material and data except IP data in any form other than in oral, of the other party, which has been provided or disclosed to them as confidential information which is specifically marked as ‘Confidential’ except as reasonably required to be disclosed to its employees working on the Project. However, confidential information shall not include (a) any information that is disclosed to a statutory/ regulatory or judicial authority under due process of law (b) any information that is available to the public (c) to the receiving party hereunder from sources other than the disclosing party (provided that such source is not subject to obligations of confidentiality with regard to such information), (d) any information that is independently developed by either Party without use of or reference to information from disclosing Party. The Parties hereto further agree that the confidentiality clause as referred hereinabove, shall govern the parties until such information ceases to be confidential or up to 1 (one) year after expiry or termination of this Agreement, whichever is earlier.
For the purposes of this Agreement, the terms “personal data”, “processing” and “data subject” have the same meaning as those given to them in EU General Data Protection Regulation 2016/679 (“GDPR“). In the event the Clinet’s usage of the Services requires Datamatics to process personal data falling within the scope of GDPR, Client will be bound by the terms and conditions of Datamatics GDPR Data Processing Agreement (“GDPR Agreement”) available on the link: https://datamaticscpa.com/general-data-protection-agreement/. Such GDPR Agreement shall hereby be incorporated into this Agreement by reference and the execution of this Agreement shall be deemed to be an acceptance of the terms and conditions of the GDPR Agreement by Client.
Parties agree that during the term of this Agreement and for a period of one (1) year thereafter, neither Party may induce or solicit for employment or retention as an independent contractor any employee or former employee of the other who was involved in the Services undertaken pursuant to this Agreement, provided that this clause shall not restrict the right of the either Party from hiring any employee of such other Party who answers any advertisement in newspapers or trade publications available to the public without having been initially personally solicited or recruited by such Party. In the event of breach of this clause, the party in breach shall pay the other party an amount equivalent six (6) months net salary (salary of the employee in the hiring party) of the employee that has been hired in violation of this clause. The said amount shall be paid within fifteen (15) days from the date of receipt of claim in writing from the affected party.
At all times during while performing under this Agreement, each Party represents and warrants that it understands and shall comply with the requirements of the U.S. Foreign Corrupt Practices Act, 1977, the UK Bribery Act, 2010 and any applicable anti-bribery and anti-corruption laws of jurisdictions where performing.
The Parties hereby agree that the obligations to be performed under this Agreement may be performed by any affiliate of Datamatics or its subcontractors subject to intimation given by Datamatics to the Client to that effect and provided always that any such affiliate and subcontractor has the legal and corporate capacity to grant or transfer the relevant assets or to perform the relevant obligations (as the case may be) and that it is authorized to do the same by its own articles of association, by-laws, or other relevant internal regulations. Notwithstanding the foregoing, Datamatics shall remain sole liable for the obligations to be performed by any of its affiliates or its subcontractor. To the fullest extent possible under applicable law, no such Datamatics’ affiliates or subcontractor will have any liability to the Client and the Client will not bring any claim in any way in respect of or in connection with this Agreement against any such affiliates or subcontractor except Datamatics.
A notice served under this Agreement shall be in writing in the English language and shall be delivered personally, sent by fax, or sent by commercial courier or by email. The addresses for service of notice to Client and Datamatics shall be at the address set forth in the Job Card or such other address as either party may be notified of by the other party. Any such notice shall be considered to have been given at the time of actual delivery or upon being marked rejected or undeliverable if properly addressed. Any notices, which Client has to serve on Datamatics via email, shall also address to firstname.lastname@example.org & email@example.com
By accessing and using this Website, the visitors to the Website (“Users”) accept the following terms and conditions, without limitation or qualification.
Neither Party shall be liable to each other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including, without limitation, any of the Acts of God i.e. natural calamities, governmental act, war, fire, flood, explosion, civil commotions or insurrections or terrorist activities etc., and the Client agrees to extend the time for deliverables in such circumstances.
Datamatics and Client intend that, save for an affiliate specified in this Agreement no provisions of this Agreement shall in any way bind or benefit any third party or the public at large and that no third party shall have any rights or cause of action under this Agreement.
Parties hereto are independent parties, not agents, employees or employers of the other or joint ventures, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.
All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the Law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the Law, and the remaining provisions will remain in full force.
Any outstanding payment obligations under this Agreement and obligations set out in clause 3, 4, 5, 6, 7, 8, 10, 11 to 13, 16, 17, 20, 22 and 25 shall survive the expiration and/or termination of this Agreement along with any provisions of this Agreement which are intended by their nature to survive performance of the Services, will survive the termination or expiration of this Agreement.
Subject to the provisions of clause 13, the rights and obligations of either Party under this Agreement may not be assigned or subcontracted to others without the prior written consent of the other Party which such consent shall not be unreasonably withheld.
Parties acknowledge that this Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and shall supersede all prior and contemporaneous agreements and understandings, oral or written. Any amendment or change of this Agreement shall be in writing by way of an addendum through the authorised signatories of this Agreement. For the administrative purpose, Client may issue Purchase Order for the Project or under this Agreement, however, in no event shall any pre-printed terms or conditions found in the said Purchase Order shall be binding on Datamatics. For the avoidance of doubt, any such Purchase Order terms and conditions of Client are expressly excluded. Datamatics’ failure to object to conflicting or additional terms (except scope of work and fees) will not change or add to the terms of this Agreement.
Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to this agreement and the transactions contemplated by it.
In the event of any conflict between (i) the terms of this Service Agreement and (ii) any Job Card, schedule, exhibit, attachment, appendix, amendment, or other underlying document hereto, this Service Agreement shall control, except to the extent that any Job Card, schedule, exhibit, attachment, appendix, amendment, or other underlying document expressly identifies terms of this Service Agreement intended to be overridden and provides that it controls in the event of any such conflict.