General Terms and Conditions
1. Services Agreement
1.1. During the term of Agreement, Cimmons agrees to perform the services described in any applicable written Statement of Work (SOW), signed by the Parties (the “Services) for the Client in accordance with the general terms and conditions and the SOW. No SOW shall become effective until it has been executed and signed by an authorized representative of each Party.
1.2. Services indicated in the SOW may be amended and supplemented from time to time pursuant to Project Change Request Procedures. No change or modification to the SOW shall become effective without the written approval of each Party’s authorized representative. Upon approval, the Parties shall attach a signed addendum to update the SOW of the agreed change(s).
1.3. When applicable, Client and Cimmons shall mutually discuss and agree to the terms and conditions of such additional service(s) and corresponding fees and expenses therein and shall document and execute additional SOWs to govern the provision of such additional services. Cimmons shall not begin performing any additional service(s) until a SOW has been duly executed and signed by the Parties.
1.4. In performing its obligations under this Agreement, Cimmons shall be entitled to rely upon any routine instructions, authorizations, approvals or other information provided to Cimmons by Client, which may be provided by email. In the event that there is error, incorrectness or inaccuracy in such instructions, authorizations, approvals or other information, Cimmons shall incur no liability or responsibility of any kind in relying or complying with any instructions, authorizations, approvals or other information.
1.5. Client shall cooperate in good faith with Cimmons so that Cimmons may effectively provide the Services
a) Client shall cooperate with Cimmons in connection with Cimmons’s assumption and delivery of Services, by making available timely management decisions, information, approvals and acceptances, as Cimmons reasonably requests so that Cimmons may accomplish its obligations and responsibilities under the Agreement.
b) Client shall provide Cimmons with access to Client software or other Client materials and data as Cimmons may reasonably request in connection with the performance of the Services under this Agreement.
c) Client acknowledges that Cimmons’s timely delivery of the Services indicated in any applicable SOW are contingent on Client’s promptly providing (i) necessary assistance and cooperation of Client’s officers, agents, and employees, (ii) job description and schedule, and (iii) complete and accurate information, materials and data.
d) All materials, software and data provided by Client in connection with Cimmons’s performance of the Service shall remain the sole and exclusive property of Client
2.1. Agreements shall commence on the Effective Date and shall continue for a period of one (24 to 36) months from the Service Start Date (the “Initial Term”) as identified in the attached SOW unless otherwise extended or terminated earlier in accordance with the provisions of this Agreement.
2.2. At the end of the Initial Term, Agreements shall renew for as per mutual discussion, unless the Agreement is terminated.
3. Client and Cimmons Relationship
3.1. There shall be no employer-employee relationship between the Client and Cimmons associate. Except as indicated in the Agreement, Cimmons shall retain the sole and exclusive control over its employees and independent contractors for the purposes of performing the Services throughout the indicated Term. Actions affecting the employees may include but shall not be limited to the following: a) recruitment, b) hiring, c) transferring, d) performance management or e) termination of employee or any other employee related action.
3.2. Cimmons shall have the discretion in the selection, engagement and discharge of its agent(s) assigned to perform the Services as indicated in the applicable SOW. The determination of the salaries or compensation of the agent(s), and the manner, frequency and place of their payment, shall be within the exclusive control of Cimmons. However, Cimmons shall promptly act on Client’s complaints regarding Cimmons agent(s) assigned to perform the Services and only upon finding reasonable ground (not meeting required service level agreement, habitual absenteeism and gross negligence) shall assign another agent to perform the Services to replace the agent subject of Client’s complaints.
4. Compliance With Privacy Laws
Whenever applicable, in performing its obligations under this Agreement or in any SOW, the Parties shall, at all times, comply with applicable data privacy laws and all other laws and government issuances which are now or shall be promulgated relating to data privacy and the protection of personal information. If any data processed under the Agreement constitutes personal data, Client undertakes to ensure, in its capacity as the data controller, that the data subjects are informed about the processing of such personal data by Cimmons, and to the extent needed, obtain their consent thereto.
5. Intellectual Property
5.1. Intellectual Property (IP) shall mean all work of authorship, inventions, designs, drawings, business methods, performances, computer programs, confidential information, business names, goodwill and the style and presentation of services and applications for protection of any of the above works anywhere in the world.
5.2. Background IP shall mean any intellectual property owned or controlled by each Parties at the date of this Agreement or created outside of this Agreement. Each Party is and shall remain the sole and exclusive owner of all right, title and interest in and to its Background IP. No Party shall acquire any rights to the other party’s Background IP. Any modifications to, developments, improvements, enhancements, inventions, or the like, to each Party’s Background IP shall vest solely in the Party owning such Background IP.
5.3. Cimmons shall retain all rights, title and interest in its materials, data, ideas, concepts, know-how, techniques, processes, strategy, technology and other intellectual property (“Cimmons Property”), including any Cimmons Property utilized, created, developed independently or conceived by Cimmons in connection with the performance of the Services that are not specific to Client and that are of general use, even if incorporated into the Client deliverables. Subject to full payment of Client’s obligation, Cimmons shall grant unto the Client a limited, royalty-free, non-sublicensable and non-exclusive license to use any Cimmons materials as part of the deliverables in connection with such Client deliverable(s). In the same vein, Client shall retain all rights, title and interest in its materials, data, information, software, technology, and other intellectual property (“Client Property). Subject to performance of Services under this Agreement and any SOW and/or PCR, Client shall grant unto Cimmons a limited, royalty-free, non-sublicensable and non-exclusive license to use Client materials, software and applications.
6.1. Each Party shall indemnify, defend and hold harmless the other Party, from and against all third party liabilities, losses, damages, claims, and expenses including reasonable attorney’s fees and expenses, arising from: a) death of or injury to any agent, employee, personnel or other person to the extent caused by the gross negligence or willful acts or omissions of the indemnitor, or its respective agent, personnel, employee or contractor; b) any employment related claim by an agent, personnel, employee or contractor of Cimmons against Client arising from or based on their employer-employee relationship, including but not limited to claims for benefits, unpaid wages, worker’s compensation, or wrongful termination; c) the gross negligence or willful misconduct of the Indemnifying Party; or d) any claims, damages, or expenses resulting from the Indemnifying Party’s disregard of or failure to abide by the applicable laws or regulations controlling or specific to the operation of its business excluding those incurred by Client as a result of compliance by Cimmons with Client’s explicit and express instructions as indicated in Section 1.4 (Reliance on Instructions) of this Agreement.
6.2. If any deliverables provided by Cimmons to Client becomes the subject of a claim under this Section, or in Cimmons’s opinion is likely to become the subject of such a claim of any third party’s intellectual property rights, then Cimmons may, at its sole discretion, either a) modify the deliverable to make it non-infringing or cure any claimed misuse of another’s trade secret while continuing to provide equivalent utility to Client, or b) procure for the Client the right to continue using the Client deliverable or c) replace the Client deliverable with substantially equivalent deliverable that is non-infringing or d) give Client a refund of the fees paid by Client for the deliverable. Cimmons shall not incur any liability with respect to any infringement claim if the use of the deliverable is based on Client’s explicit instructions or specifications in its performance of Services in addition to the provisions indicated in Section 8.3. The Parties acknowledge and agree that the entire liabilities and remedies indicated in this Section shall be the sole and exclusive remedy for infringement of claims and actions.
6.3. Cimmons shall not incur any liability with respect to any Infringement Claim above: a) to the extent that any claim of infringement is based upon the use of the deliverable not in accordance with the Agreement or for purposes not intended by Cimmons; b) use of the deliverable in connection or in combination with equipment, devices or Software not supplied by that Cimmons; c) for maintenance, modifications, updates, enhancements and improvements to the deliverable made by any Party other than Cimmons; or d) use of the deliverable is based on Client’s explicit instructions or specifications in its performance of Services.
7. Force Majeure
7.1. Except with respect to payment obligations under this Agreement, no Party shall be liable for, nor shall such party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications, power or other utility, labor problem, unavailability of supplies, or any other cause, whether similar or dissimilar to any of the foregoing (each, a “Force Majeure Event”).
7.2. Within 72 hours of the occurrence of a Force Majeure Event, the affected Party shall notify the other Party of the occurrence by sending an e-mail message to the other Party. Cimmons shall take reasonable steps to minimize service interruptions and mitigate their effects but shall have no liability with respect thereto.
7.3. In the event that such Force Majeure exceeds six (6) months and Cimmons is not able to provide Services to the Client, either Party shall have the option to terminate the Agreement and all applicable SOWs upon providing at least thirty (30) calendar days written notice.
8. Confidential Information
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
Proprietary Information of Cimmons includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Cimmons to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person.
Client shall own all right, title and interest in and to the data provided by Client, as well as any data that is based on or derived from the Client Data and provided to Client as part of the Services.
Cimmons shall own and retain all right, title and interest in and to the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) all intellectual property rights related to any of the foregoing or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
9. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, Cimmons AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO Cimmons FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT Cimmons HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Warranties and Disclaimers
10.1. Each Party represents and warrants that it is authorized to enter into this Agreement and any applicable SOW through its duly authorized representatives without violating the conditions of any other agreement..
10.2. Cimmons shall promptly provide Client notice in writing by email, as soon as it becomes aware of any unscheduled emergencies, sick days or other unforeseen events (as provided in Section 9 Force Majeure) that are beyond Cimmons’s reasonable control. Cimmons does not make any warranty that the Services in those instances shall be available or uninterrupted or error-free. Client acknowledges and agrees that in those instances, any previously agreed service level arrangement shall not apply.
10.3. Except as expressly set forth in this Section 12.3, the Services and Set Up Services are provided “AS IS” and Cimmons disclaims all warranties, express or implied, including but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
11. Miscellaneous Provisions
11.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.2. This Agreement and all rights and obligations hereunder may not be assigned without the written consent of the other Party. Such written consent shall not be unreasonable withheld or denied. In accordance with this Section 14.2, Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
11.3. Nothing in this Agreement shall be construed as creating an agency, partnership, joint venture or any other form of association between the Parties and the Parties shall at all times be and remain independent contractors. Neither Party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other Party or to bind the other Party in any respect whatsoever. Neither Party shall have any obligation or duty to the other Party except as expressly and specifically set forth in this Agreement, and no such obligation or duty shall be implied by or inferred from this Agreement or the conduct of the Parties hereunder.
11.4. Client acknowledges and agrees that Cimmons incurs a substantial expense, in time, effort and money, in hiring, training and developing its resources it uses to provide Services under this Agreement. Therefore, Client agrees that it shall not recruit, solicit, employ or hire or attempt to recruit, solicit, employ of hire, directly or indirectly employees, agents, contractors of Cimmons within the Term of the Agreement and within twelve (12) months from separation from Cimmons without the express approval of Cimmons. If Client is interested in hiring one or more employees of Cimmons, such interest will be discussed first with Cimmons prior to discussing such an offer with an employee. In the event of breach of this Section, (e.g., assigned personnel is employed by the Client as part of its workforce without prior discussion and express approval of Cimmons), in addition to other remedies Cimmons may have at law or in equity, Cimmons shall be entitled to a payment from Client of an amount equal to disclosed amount at that point in time and that may go upto a maximum penalty depeding on the criticality.
11.5. No extension of time for performance of any obligations or acts shall be deemed an extension of the time for performance of any other obligations or acts, except as otherwise expressly provided for in this Agreement.
11.6. All notices under an Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
11.7. The Parties acknowledge and agree that each has participated jointly in the negotiation of an Agreement, had the opportunity to seek the advice of legal counsel to review, comment upon and draft the Agreement. As a result, the Parties agree that the presumption of any laws or rules relating to the interpretation of contracts against the drafter thereof should not apply, and hereby waive any such presumption.
11.8. All the Agreements shall be governed by the laws of government of india without regard to its conflict of law provisions.
11.9. The headings used in the Agreements are inserted for convenience only, and do not constitute a part of the Agreement and shall not control or affect in any way the meaning or interpretation of the Agreement. All the Agreements may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
11.10. In the event of conflict between GTC and SOW, provisions indicated in SOW shall prevail.