This Terms of Service ("AGREEMENT") is made as of the Effective Date specified on the signup form by and between Emerge IT Solutions. ("Emerge IT Solutions") an Indian company having a principal place of business at (RNO 14, Narayan Niwas, Waman Ngr, Dombivali, Thane, Maharashtra, 421201.), whose name and address will be specified on the signup form, Collectively Emerge IT Solutions and Client shall be known as the "PARTIES."
Emerge IT Solutions shall provide Client certain selected service options ("SERVICES") specified in the signup form. The services shall incorporate the terms and provisions of this Agreement. To the extent the services provide additional and/or conflicting terms to this Agreement, the terms of the services shall prevail. If any, all Emerge IT Solutions subcontractors shall be bound to perform all obligations under this Agreement as if they were being performed by Emerge IT Solutions.
Clients shall not contract for related services with any current or former Emerge IT Solutions employees or subcontractors for a period of twenty-four (24) months from the date agreement or employment relationship with Emerge IT Solutions terminated. Failure to comply with this provision may, at Emerge IT Solutions' sole discretion, result in (i) removal of all existing consultant resources from Client sites and/or (ii) the immediate termination of this Agreement and Emerge IT Solutions' obligation to provide any further Services.
Emerge IT Solutions shall maintain statutory minimum Worker's Compensation and Employer's Liability Insurance as required by the laws of any state or country in which Services are performed.
The term "CONFIDENTIAL INFORMATION" shall mean: (i) any and all Information which is disclosed by either party ("OWNER") to the other ("RECIPIENT") verbally, electronically, visually, or in a written or other tangible forms which are either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of this Agreement and any proposals or other documents that preceded this Agreement. Confidential Information may include, but not be limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, client lists, employee information, financial Information, confidential Information concerning the Owner's business or organization, as Owner has conducted it or as Owner may conduct it in the future. In addition, Confidential Information may include Information concerning any of Owner's past, current, or possible future products or methods, including Information about Owner's research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).
Owner's Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party except to those third parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business "need to know." The Client shall protect the deliverables resulting from Services with the same degree of care. This Agreement imposes no obligation upon the Parties with respect to Confidential Information, which either party can establish by legally sufficient evidence:
The Recipient shall not obtain, by virtue of this Agreement, any rights, title, or interest in any Confidential Information of the Owner. Within fifteen (15) days after termination of this Agreement, each party shall certify in writing to the other that all copies of Confidential Information in any form, including partial copies, have been destroyed, returned, or used solely as the Owner so directs.
If the Parties have executed a separate agreement that contains confidentiality terms prior to or contemporaneously with this Agreement, those separate confidentiality terms shall remain in full force to the extent they do not conflict.
emergeitsolution.com shall indemnify and defend Client against any claims that the Work Product (defined above) delivered to Client infringes any other state patent or copyright, provided that Emerge IT Solutions is given prompt notice of such claim and is given Information, reasonable assistance, and the sole authority to defend or settle said claim. In the defense or settlement of any claim, provided the associated software license agreement between the Parties has not been terminated, Emerge IT Solutions shall, in its reasonable judgment and at its option and expense:(i) obtain for Client the right to continue using the Work Product;(ii) replace or modify the Work Product so that it becomes non-infringing while giving an equivalent performance, or(iii) if Emerge IT Solutions cannot obtain the remedies in (i) or (ii), as its sole obligation, terminate the license for the infringing Work Product and return only the Services fees paid by Client for such Work Product. Emerge IT Solutions shall have no liability to indemnify and defend Client to the extent (i) the alleged infringement is based on infringing Information, data, software, applications, services, or programs created or furnished by or on behalf of Client (ii) the alleged infringement is the result of a modification made by anyone other than Emerge IT Solutions; or (iii) Client uses the Work Product other than in accordance with this Agreement, or the underlying software license to use such Work Product.
Each party ("INDEMNIFYING PARTY") shall indemnify and hold the other party ("INDEMNIFIED PARTY") harmless against any third party claim, including costs and reasonable attorney's fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or failure to act by the Indemnifying Party, its employees or agents while performing its obligations hereunder, which result in death, personal injury, or tangible property damage. This indemnification obligation is contingent upon the Indemnified Party providing the Indemnifying Party with prompt written notice of such claim, Information, all reasonable assistance in defense of such action, and sole authority to defend or settle such claim.
Each party warrants that it has the right and power to enter into this Agreement, and an authorized representative has executed this Agreement. Emerge IT Solutions warrants that the Services will be performed in a professional and skillful manner in accordance with recognized industry standards. To the extent Services provided by Emerge IT Solutions are advisory, no specific result is assured or guaranteed.
Emerge IT Solutions EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER Emerge IT Solutions EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE EXTENT PERMITTED BY LAW.
Emerge IT Solutions'S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT OR CONTRACT, SHALL BE LIMITED TO THE AMOUNT OF SERVICES FEES PAID BY CLIENT FOR THE SERVICES FROM THE LAST BILLED CYCLED AMOUNT. PARTIES HEREIN ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL Emerge IT Solutions BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA OR LOST PROFITS, HOWEVER ARISING, OR EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN. FURTHER, IT IS UNDERSTOOD AND AGREED THAT REFUNDS ARE NEITHER EXPRESSED NOR IMPLIED, AND EXECUTION SEALS THIS FINAL TO THE END OF TIME OR BY WRITTEN PERMISSION BY ALL PARTIES HEREIN.
Emerge IT Solutions' Services, not including third-party products and services, or the work, findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, and other technical Information (collectively "WORK PRODUCT") created by Emerge IT Solutions in the course of performing the Services hereunder are the property of Client upon complete project payment.
Emerge IT Solutions performs this Agreement as an independent contractor, not as an employee of Client. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture, or agency relationship between Client and Emerge IT Solutions.
All notices or other communications referenced under this Agreement shall be made in writing and sent to the address designated above or designated from time to time in writing by the Parties. All notices shall be deemed given to the other party if the delivered receipt is confirmed using one of the following methods: registered or certified first-class mail, postage prepaid, recognized courier delivery, or electronic mail.
Either party may terminate this Agreement at any time by giving the other party written notice of termination. If the Client terminates this Agreement, the Client shall pay Emerge IT Solutions for all work performed and all expenses incurred prior to the effective date of termination. Clients shall also pay a termination fee equal to 25% of the total amount contracted for the professional service under the applicable service agreement.
No modification to this Agreement nor any failure or delay in enforcing any term, exercising any option, or requiring performance shall be binding or construed as a waiver unless agreed to in writing by both parties.
Except for Client's obligation to pay Emerge IT Solutions, neither party shall be liable for any failure to perform its obligations under this Agreement, if prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, and restraints of government.
All Services provided herein are acquired separately from any software licenses agreed to between the Parties. Specifically, clients may acquire software licenses without acquiring consulting services. The Client understands and agrees that this Agreement and any Service Agreement is a separate and independent contractual obligation from any schedule relating to software licenses. Client shall not withhold payments that are due and payable under this Agreement because of the status of any software licenses or schedules, nor shall Client withhold payments that are due and payable relating to software licenses or schedules because of the status of work performed hereunder. In addition, the ability to provide such services are not exclusive or specific to Emerge IT Solutions and are commercially available from a variety of third-party service providers.
Any disputes or claims under this Agreement or its breach shall be submitted to and resolved exclusively by arbitration conducted in accordance with Indian Law. One arbitrator appointed under such rules shall conduct arbitration. Arbitration shall be in India, and the laws of India shall be applied. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, Emerge IT Solutions may sue in any court for infringement of its proprietary or intellectual property rights.
This Agreement shall be governed by the laws of the State of India, excluding choice of law principles. Except as otherwise specifically stated herein, remedies shall be cumulative, and there shall be no obligation to exercise a particular remedy. If any provision of this Agreement is held to be unenforceable, the other provisions shall nevertheless remain in full force and effect. This Agreement constitutes the entire understanding between the Parties with respect to the subject matter herein. It may only be amended or modified by writing signed by a duly authorized representative of each party. This Agreement may be executed by facsimile. This Agreement replaces any prior verbal or written understandings, communications, and representations between the Parties regarding the subject matter contained herein. No purchase order or other ordering document that purports to modify or supplement the printed text of this Agreement or any Exhibit shall add to or vary the terms of this Agreement or Exhibit. All such proposed variations, edits, or additions (whether submitted by Emerge IT Solutions or Client) to this Agreement, are objected to and deemed material unless otherwise mutually agreed to in writing.
