Terms and Conditions – Dzone India IT Solutions

TERMS and AND CONDITIONS

Definitions

1.1 In these terms and conditions, except otherwise stated

“Assigned Work” are those elements of the Website such as the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works, and text comprised in the Website, as applicable) alongside the source-code, all mark-ups, and style sheets comprised in or generated by the Website (excluding any Third Party Materials and the Customer Materials) and the rights under which the Developer is to assign (rather than licence) to the Customer under Clause 6 of the Statement of Work, as provided in Section 3.

“Acceptance Period” is the time up to 30 days after the licenced work is delivered to the customer. The developer will make revisions and bug fixes during these 30 days in response to customer feedback. This is done to ensure that the website works in conformity with Section 2 of the Statement of Works, Quotation or proposal as agreed with the customer. (This excludes support hours.)

“Acceptance Period” refers to a maximum of 30 days after the assigned work is delivered to the customer. The developer will make revisions and bug fixes during these 30 days in response to customer reports. This is done to ensure that the assigned work is in conformance with the Statement of Works, Proposal or Quotation (as applicable) as agreed by the Customer.

“Charges” means:

(a) The amount that is specified in Section 7 of the Statement of Work and elsewhere in these terms and conditions

(b) Other amounts as agreed in writing from time to time by the parties; and

(c) The amounts that are calculated by multiplying the standard time-based charging rates of the Developer (as the developer notifies the customer before the date of the contract) by the time spent that the personnel of the Developer spends in performing the Services (rounded down by the Developer to the nearest quarter-hour).

“Contract” refers to a particular contract between the Developer and the Customer that is made under these terms and conditions

“Customer” is a person or entity as identified in Section 1 of the Statement of Work;

“Customer Materials” refers to all works and materials as supplied to the Developer by or on behalf of the customer for incorporation into or integration with the Website or for use in connection with the Services

“Developer” refers to DZONE INDIA IT SOLUTIONS, a company incorporated in Jaipur, Rajasthan, has its registered office at 1st. Floor, SP-1, 112, Near Bhairav Ji Circle, Kumbha Marg, Sector 11, Pratap Nagar, Jaipur, Rajasthan 302033 (Rajasthan)

“Developer Credit” refers to the textual credit for the developer who is incorporating a link to the developer’s website. This is in form agreed upon by the parties acting reasonably (The information is generally at the website footer);

“Developer Services” refers to the design and development of the website by the Developer;

“Documentation” refers to the documentation for the Website as produced by the Developer, if any, and delivered or made available by the Developer to the Customer;

“Effective Date” means the date when the execution of the Contract takes place;

“Force Majeure Event” refers to an event, or a series of related events outside the reasonable control of the affected party (this includes failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, viruses or other malicious software attacks or infections, power failures, industrial disputes that might affect any third party, changes to the law, disasters, diseases, pandemics, explosions, fires, floods, riots riots, terrorist attacks, and wars);

“Intellectual Property Rights” refers to all intellectual property rights anywhere in the world. They can either be registrable or unregistrable, registered or unregistered, this includes any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, trade secrets, know-how, trademarks, service marks, business names, trade names, confidential information, unfair competition rights, patents, petty patents, passing off rights, utility models, semiconductor topography rights and rights in designs);

“Licensed Works” refers to the Website excluding any Third-Party Materials and the Customer Materials;

“Services” refers to any services that the Developer delivers to the Customer, or has a contract or obligation to provide to the Customer, under these Terms and Conditions;

“Source Code” refers to software code in human-readable form, including human-readable code compiled to create software or decompiled from software, but excluding interpreted code;

“Statement of Work” refers to a written statement of work agreed by or on behalf of each of the parties;

“Term” refers to the term of the Contract, commencing by Clause 2.1 and ending in accordance with Clause 2.2;

“Terms and Conditions” are all the documentation that has the provisions of the Contract, namely the main body of these Terms and Conditions and the Statement of Work, including any amendments to that documentation made in it from time to time;

“Third Party Materials” are the works and/or materials comprised in the Website excluding any Customer Materials, the Intellectual Property Rights in which are owned by a third party, and which are enumerated in Section 5 of the Statement of Work or which the parties agree in writing shall be incorporated into the Website;

“Website” refers to the website developed or to be developed by the Developer for the Customer under the Contract, as specified in the Statement of Work, including all the Source Code for that website that is created by the Developer in the course of providing the Services;

“Website Defect” refers to a material that has an adverse effect on the appearance, operation, functionality, security or performance of the Website, but excluding any defect, error or bug caused by or arising as a result of:

(a) Any act or omission of the Customer or any person authorised by the Customer to use the Website;

(b) Any use of the Website contrary to the intended use by the Customer or any person authorised by the Customer to use the Website;

(d) an incompatibility between the Website and any other system, browser types and versions, network, application, programme, hardware or software not specified as compatible in the Website Specification; and

“Website Specification” is the specification for the Website that is set out in Section 2 of the Statement of Work, or in the Quotation or Proposal (as the case may be), as it may be varied by the written agreement of the parties periodically or regularly.

2. Term

2.1 The Contract shall come into force upon the Effective Date.

2.2 The Contract shall continue in force starting from the effective date until the end of the Acceptance Period, upon which the Contract shall terminate automatically. The contract termination can also take place in accordance with Clause 12 or any other provision of these Terms and Conditions.

2.3 Each Statement of Work shall create a distinct contract under these Terms and Conditions unless the parties expressly agree otherwise in writing

3. Development Services

3.1 The Developer will provide the Development Services to the Customer.

3.2 The Developer is entitled to use reasonable endeavours to ensure that the Development Services are provided according to the timetable set out in Section 6 of the Statement of Work and that copies of the Website and any Documentation are delivered to the Customer by means of a secure online sharing hyperlink, according to that timetable.

3.3 The Customer shall acknowledge that a delay in the Customer performing its obligations under these Terms and Conditions may cause a delay in the performance of the Development Services; it is subject to Clause 11.1 the Developer is not liable to the Customer in respect of any failure to meet the Development Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations as per these Terms and Conditions.

3.4 The Developer shall keep the Customer reasonably informed of the progress of the Development Services and, in particular, shall inform the Customer of any substantial obstacles or likely delays in the performance of the Development Services.

3.5 The Developer shall supply to the Customer a current development version of the Website for the purposes of enabling the Customer to assess the progress of the Development Services and give feedback to the Developer in reference to the Website.

3.6 If the Contract terminates (for whatever reason) before the delivery of the completed Website to the Customer, the Developer must, within 30 days following such termination, deliver to the Customer all the work that is in progress towards the Website.

4. Customer obligations

4.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Developer, or procure for the Developer, such:

(a) Co-operation, support and advice;

(b) Information, content, images and documentation; and

As they are reasonably necessary to enable the Developer in efforts to perform its obligations under the Contract

4.2 The Customer must provide to the Developer, or procure for the Developer, such access to the Customer’s computer hardware, software, networks, and systems as may be reasonably required on the part of the Developer to enable the Developer to perform its obligations under the Contract.

3.6 If the Contract terminates (for whatever reason) before the delivery of the finished Website to the Customer, the Developer must, within 30 days following such termination, deliver to the Customer all the work that’s ongoing towards the website

Customer obligations

4.1Save to the extent that the parties have agreed otherwise in writing, the Client must provide or obtain for the Developer the following:

(a) co-operation, support, and advice;

(b) information, content, photos, and documentation; and

As they’re reasonably necessary to enable the Developer in efforts to perform its obligations under the Contract

5. Customer Materials

5.1 The Customer should supply to the Developer the Customer Materials as specified in Section 4 of the Statement of Work, according to any timetable specified in Section 6 of the Statement of Work.

5.2 The Customer hereby grants the Developer a non-exclusive licence to copy, recreate, store, distribute, publish, export, adapt, edit, and tweak the Customer Materials to the extent reasonably required for the Developer to perform his obligations in respect of his services and, as a by-product, to exercise the Developer’s rights as set forth in these Terms and Conditions.

5.3 The Customer warrants to the Developer that the Customer Materials won’t infringe the intellectual property Rights or other legal rights of a person, will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law, and will be the property of the customer.

6. Intellectual Property Rights

6.1 The Developer hereby assigns to the Customer with full title guarantee all of the intellectual property Rights within the Website, whether those intellectual property Rights exist on the Effective Date or come into existence during the Term. This assignment is valid for the complete term of the assigned rights, which incorporates all extensions, renewals, reversions, and revivals. It also includes the right to bring proceedings for past infringements of the assigned rights. This assignment shall take effect in respect of a work upon the delivery of that job by us to the Customer.

6.2 Subject to any express written agreement between the parties, the Developer shall make sure that the third-party materials are:

(a) licensed to the Customer according to the relevant licensor’s standard licencing terms (which the Customer acknowledges may be open source or Creative Commons licencing terms);

(b) Licensed to the Customer as per reasonable terms as notified by the Developer to the Customer;

(c) Sub-licensed by the Developer to the Customer on reasonable terms as and when notified in writing by either the Developer to the Customer; or

6.3 To the utmost extent permitted by applicable law:

(a) The Developer completely and unconditionally renounces all moral rights (including paternity and integrity rights) in respect of any website to which Developer may be titled at any time;

(b) the Developer undertakes to make sure that all individuals involved within the preparation of the website will irrevocably and unconditionally waive all moral rights (including rights of paternity and rights of integrity) in respect of the website to which they’ll at any time be entitled.

6.4 The Developer must make reasonable efforts to:

(a) perform or procure the execution of all acts; and

(b) execute or procure the execution of all documents.

That the Customer may reasonably request from time to time to perfect or confirm the Customer’s ownership of the rights assigned as per these Terms and Conditions.

7. Developer Credit

7.1 The Developer may add the Developer Credit in the form of a link to the Developer’s website on each page of the Website footer.

7.2 The Customer must keep the Developer Credit on the Website and any adapted versions of the Website, may not tamper with the Developer Credit in any way that will have or could reasonably be expected to have a negative impact on the Developer Credit’s value, and may only remove the Developer Credit at the Developer’s request.

8. Charges

8.1 In accordance with these Terms and Conditions, the Customers have to pay the Charges to the Developer.

8.2 If the Charges are based in whole or part on the Developer’s time spent performing the Services, the Developer must obtain the Customer’s written consent before performing Services that result in the Developer exceeding any estimate of time-based Charges given to the Customer or any budget for time-based Charges agreed upon by the parties; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay the Developer any Charges in breach of clause 8.2

8.3 Unless the context requires otherwise, all payments specified in or in relation to these Terms and Conditions are exclusive of any applicable value-added taxes, which will be applied to those amounts and paid by the Customer to the Developer.

8.4 After discussing and agreeing with the Customer, the Developer may elect to alter any element of the Charges by delivering written notice of the variation to the Customer.

9. Payments

9.1 As agreed between the Developer and the Customer, the Developer shall submit invoices to the Customer for the Charges from time to time during the Term.

9.2 The Customer must pay the Developer the Charges within a reasonable period after receiving an invoice issued in line with this Clause 9.

9.3 The Customer must pay the Charges with a debit card, credit card, direct debit, bank transfer, or cheque using the payment details provided by the Developer from time to time.

9.4 If the Customer fails to pay the Developer any sum due under these Terms and Conditions, the Developer may:

(a) Charge the Customer interest on the overdue amount at the rate of 8% per year (interest accrues daily until the date of actual payment and is compounded at the end of each calendar month); or

(b) Pursue the Customer for interest and statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998.

10. Warranties

10.1 The Developer shall provide the Services with all the required and reasonable skills and care.

10.3 The Developer guarantees the Customer that:

(a) The Developer has legal authorization to enter into the Contract and perform its duties under these Terms and Conditions.

(b) the Developer will adhere to all applicable legal and regulatory requirements in exercising the rights and fulfilling their duties under these Terms and Conditions; and

(c) The Developer possesses or has access to all required skills, know-how, and experience to fulfil its duties under these Terms and Conditions.

10.3 The Customer is guaranteed by the Developer that:

(a) The Website will conform in all material respects with the Website Specification, as provided.+

(b) The Website will be provided without any defects.

10.4 The Developer warrants to the Customer that, when used in accordance with these Terms and Conditions, the Website will not violate any Indian laws, statutes, or regulations; however, the Developer shall have no liability under this Clause 10.4 for any such breach caused by the Customer Materials or any Third Party Materials.

10.5 The Developer warrants to the Customer that when the Website is used in accordance with these Terms and Conditions, it will not infringe on the Intellectual Property Rights of any person in any jurisdiction and under any applicable legislation; provided, however, that the Developer shall have no liability under this Clause 10.5 in respect of any such infringement caused by the Material provided by the customer or the Third Party Materials.

10.6 If the Developer reasonably determines, or any third party alleges, that the use of the Website by the Customer according to these Terms and Conditions infringes any person’s Intellectual Property Rights, the Developer may act reasonably to:

(a) Modify the Website so that it no longer infringes on the relevant Intellectual Property Rights, provided that any such modification does not introduce any Website Defects and does not cause the Website to fail to conform to the Website’s Specification; or

(b) Secure the right to use the Website for the Customer in accordance with these Terms and Conditions.

10.7 If the situation as specified in clause 10.6 above is a result of the Customer Materials, the Customer agrees to pay the Developer any relevant charges that are applicable.

10.8 The Customer warrants to the Developer that it has the legal right and authority to enter into the Contract as well as to perform its obligations under these Terms and Conditions.

10.9 These Terms and Conditions fully state all of the parties’ warranties and representations with respect to the Contract’s subject matter. No further warranties or representations concerning the subject matter of the Contract or any connected contract shall be implied into the Contract or any related contract, to the degree permissible by relevant law.

11. Limitations and exclusions of liability

11.1 Nothing stated in these Terms and Conditions will:

(a) Limit or exclude any liability for negligence-related personal injury or death.

(b) Any liability for fraud or false misrepresentation is limited or excluded.

(d) Exclude any obligations that are not permitted to be excluded by applicable law.

11.2 The limitations as well as exclusions of liability as specified in this Clause 11 and elsewhere in these Terms and Conditions:

(a) Are subject to Clause 11.1; and

(b) Except to the extent expressly specified otherwise in these Terms and Conditions, govern all obligations arising under or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, tort (including negligence), and for breach of statutory duty.

11.3 The Developer shall not be liable to the Customer in case of any losses arising out of a Force Majeure Event.

11.4 The Developer shall not be, in any way, liable to the Customer in the incident of any loss of profits or anticipated savings.

11.5 The Developer shall not be liable to the Customer in case of any loss of revenue or income.

11.6 The Developer shall not be liable to the Customer in case of any loss of use or production.

11.7 The Developer shall not be liable to the Customer in the incidence of any loss of business, contracts or opportunities.

11.8 The Developer shall not be liable to the Customer in case of any loss or corruption of any data or database.

11.9 The Developer shall not be liable to the Customer in case of any special, indirect or consequential loss or damage.

11.10 The liability of the Developer to the Customer as per the Contract concerning any event or series of related events shall not exceed the greater of the total amount paid and payable by the Customer to the Developer as per the Contract in the 12-month duration preceding the commencement of the event or events.

11.11 The aggregate liability of the Developer to the Customer as per the Contract shall not exceed the greater of the total amount paid and payable by the Customer to the Developer under the Contract.

12. Termination

12.1 Unless otherwise agreed by both parties, the Contract will get automatically terminated at the end of the Acceptance Period according to Clause 2.2

12.2 The Customer may terminate the Contract by providing to the Developer written notice of termination.

12.3 Either party is entitled to terminate the Contract immediately by giving written notice of termination to the other party if:

(a) The other party breaches the Contract in such way that cannot be remedied;

(b) the other party breaches the Contract, and the violation is remediable, but the other party fails to rectify the breach within 30 days of receiving written notice that the breach must be fixed; or

12.4 Subject to applicable law, either of the party may terminate the Contract immediately by providing written notice of termination to the other party if:

(a) The other party:

(i) Is dissolved;

(ii) suspends all operations;

(iii) Is or becomes unable to pay its debts when they are due;

(iv) Becomes or is declared insolvent; or

(v) calls a conference of creditors or makes or intends to make any arrangement or composition with them;

(b) Any of the other party’s assets are entrusted to an administrator, administrative receiver, liquidator, receiver, trustee, manager, or equivalent;

(c) The other party is ordered to be wound up, or the other party passes a resolution to be wound up (other than for the purpose of a solvent company reorganisation in which the resulting entity assumes all of the other party’s obligations under the Contract); or

(d) If the opposite party is a single person:

(i) That other party dies;

(ii) That other party becomes incapable of managing his or her own affairs due to illness or infirmity; or

(iii) A bankruptcy petition or order has been filed against that other party.

12.5 The Developer is entitled to terminate the Contract immediately by giving written notice to the Customer if:

(a) Any payment owed to the Developer by the Customer under the Contract is not paid by the due date and remains unpaid when the written notice of termination is issued; and

(b) The Developer has given to the Customer at least 30 days of written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 12.5.

13. Effects of termination

13.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have an effect, save that the following provisions of these Terms and Conditions shall survive and continue to have an effect (in accordance with their express terms or otherwise indefinitely: Clauses 1, 3.7, 6.1, 6.4, 7, 9.2, 9.4, 11, 13, 15 and 16.

13.2 Except to the extent as it is expressly provided otherwise in these Terms and Conditions, the termination of the Contract shall not affect the accrued rights of either party.

13.3 Within 30 days following the termination of the contract due to any reason:

(a) The Customer is liable to pay to the Developer any Charges of Services provided to the Customer before the Contract is terminated; and

(b) The Developer is liable to refund to the Customer any Charges as paid by the Customer to the Developer for the Services that were to be provided to the Customer after the termination of the Contract,

14. Subcontracting

14.1 Subject to any express restrictions as specified elsewhere in these Terms and Conditions, the Developer may subcontract any of its obligations that come under the Contract.

14.2 The Developer shall remain responsible for the performance of any subcontractor obligations to the Customer.

15. General

15.1 No breach of any provision of the Contract shall be waived except with the express written consent of the party that is not in breach.

15.2 If any part of the Contract is found to be invalid and/or unenforceable by a court or other competent authority, the other provisions of the Contract will remain in effect. If a portion of an unlawful and/or unenforceable provision would be lawful or enforceable if that portion were removed, the remainder of the provision will remain in effect (unless that may contradict the clear intention of the parties, in which case the entirety of the relevant provision will be assumed to be deleted).

15.3 The Contract may only be modified in writing, signed by or on behalf of each party.

15.4 Without the prior written approval of the other party assigned under these Terms and Conditions, neither party may transfer, charge, licence, or otherwise deal in or dispose of any contractual rights or obligations.

15.5 The Contract is made for the advantage of the parties and is not intended to benefit or be enforced by anyone else. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation or settlement under or relating to the Contract is not subject to the consent of any third party.

15.6 Subject to Clause 11.1, these Terms and Conditions comprise the complete agreement between the parties in relation to the subject matter of these Terms and Conditions, and supersede all pre-existing agreements, arrangements, and understandings between the parties.

15.7 The Contract shall be governed by and construed in accordance with Indian law.

15.8 The courts of India shall have exclusive jurisdiction to adjudicate any dispute that arises under or in connection with the Contract.

16. Interpretation

16.1 According to these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision, as amended, consolidated, and/or re-enacted over time; and

(b) Any subordinate legislation that is made under that statute or statutory provision.

16.2 The Clause headings do not, in any way, affect the interpretation of these Terms and Conditions.

16.3 In these Terms and Conditions, “calendar months” refers to the 12 named months (January, February, and so on) that make up a year.

16.4 General words in these Terms and Conditions are not given a narrow interpretation simply because they are preceded or followed by words denoting a specific class of acts, situations, or things.