IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY PROVIDING THE PRODUCTS AND/OR SERVICES THAT ARE DESCRIBED ON THE FRONT OF THIS ORDER, YOU (AS THE VENDOR) ARE BECOMING A PARTY TO THIS AGREEMENT AND HEREBY CONSENT, TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF PURCHASE AS SET FORTH BELOW:
Order: The present terms and conditions, including the information contained on the reverse side hereof, together with any subsequent changes/amendments to this terms and conditions schedule attached hereto (“Order”) is the agreement between Service Provider and Opus Solutions Private Limited/Opus Software Solutions Private Limited (collectively “OSPL/OSSPL”) to sell and purchase or, lease or license (collectively, as the case may be, to “Purchase”), Service Provider’s products, software or services (collectively, “Products”), subject to any additional terms and conditions set forth in any agreement executed by OSPL/OSSPL and Service Provider with respect to the Products (“Reference Agreement”), if applicable. In the event of a conflict between the terms and conditions of the Order and a Reference Agreement, the terms of the Reference Agreement shall prevail.
Acceptance to the Amendment of the Order: The Service Provider will be deemed to have been made aware of, will be subject to, and will be deemed to have accepted the changes in this Order by the Service Provider’s continued provision of its services to OSPL/OSSPL after the date such revised Order is posted
Term and Termination: This Order shall be valid until terminated by either party as described below (“Term”)
Termination without cause: OSPL/OSSPL may terminate this Order, at no cost to OSPL/OSSPL for its convenience at any time and for any reason whatsoever by delivery of fifteen (15) days prior written notice of such termination.
Termination for cause:OSPL/OSSPL can terminate this Order immediately, without notice, for Cause, defined as
A material breach of this Order by the Service Provider that remains uncured within ten (10) days of the OSPL/OSSPL notice to the Service Provider (“Breach Notice”); or
Service Provider’s commission of any act of dishonesty, act of gross negligence, breach of trust, wilful misconduct, or violation of law in connection with the performance of the services.
In the event of bankruptcy or insolvency of the Service Provider.
Sections 5 (Confidentiality), 6 (Intellectual Property Rights) 7 (indemnity) 8 (Limitation of liability), 14 (Force Majeure), 17 (Governing Law and Jurisdiction), 18 (Arbitration), 19 (Non-Solicitation), 21 (Publicity), 23 (Notice) shall survive the termination or expiry of this Order.
Termination of this Order will not terminate any outstanding Statements of Work.
Actions upon Termination: Upon the termination of this Order for any reason:
Service provider agrees to cooperate to assure the smooth transition of pending matters and any OSPL /OSSPL data to OSPL /OSSPL or an alternate service provider in the format indicated by OSPL /OSSPL.
Service provider shall transfer any completed or partially completed Work Product/services to OSPL /OSSPL.
Surrender or destroy any confidential information in each other’s possession.
OSPL /OSSPL shall pay the Service provider all fees due up to the date of such termination.
OSPL /OSSPL’s obligations and Service provider’s rights to fees end upon the date of the termination of this Order.
Service Provider shall terminate this order by issuing a 15 days prior written notice to OSPL/OSSPL, in the event of the following:
Any payment from OSPL/OSSPL is due to the Service Provider beyond thirty (30) days from the credit period.
In consideration of the Product provided by the Service Provider subject to the terms and conditions of as agreed, OSPL/OSSPL shall pay fees and expenses if any, as agreed (“Fees”). Unless otherwise mentioned payment shall be made by OSPL/OSSPL within 45 days from the date of acceptance of invoices, subject to OSPL/OSSPL’S payment cycle which is twice in every month.
Taxes shall be extra and shall be borne by OSPL/OSSPL except those taxes which need to be borne by the Service Provider as a supplier of the Product under the applicable law. OSPL/OSSPL shall clear the invoices after deducting the withholding taxes from invoice value as applicable.
If OSPL/OSSPL disputes all or any portions of the Fees, OSPL/OSSPL will notify the Service Provider of the specific amount disputed and shall provide reasonable detail as to the basis for the dispute. The Parties shall then attempt to resolve the disputed portion of such Fees as soon as possible in accordance with the dispute resolution procedures as set out in Section 18 (Arbitration) of this Order.
Warranty: Service Provider warrants that (i) it has good and marketable title to the Products and shall transfer good title to OSPL/OSSPL upon delivery (unless this Order is for a lease or license which has been properly scheduled); (ii) services provided by Service Provider shall be completed by qualified Service Provider’s Personnel (as defined below) in a professional and workmanlike manner and in accordance with OSPL/OSSPL’S requirements, current industry standards and reasonable care (iii) Service Provider, including any of its principals, owners, directors, officers, employees, consultants, affiliates, agents, and subcontractors: (a) will comply with all laws applicable to the parties under the Order relating to bribery and/or corruption (“Anti-Corruption Laws”); (b) has not and will not, in connection with this Order or in connection with any other business transactions involving OSPL/OSSPL directly or indirectly make, promise to make, offer, give, authorize, solicit, or accept the giving of money any gift or other advantage, payment, or transfer anything else of value to or from any person, to any (i) governmental official or employee (including employees of government-owned and government-controlled corporations and public international organizations); (ii) political party, official of a political party, or candidate; (iii) intermediary for payment to any of the foregoing; or (c) any other person or entity, to obtain an improper advantage for OSPL/OSSPL, Service Provider, or any third party, or secure the improper performance of that person’s function or misuse of that person’s position; to facilitate or expedite government action or approvals; (d) will not do, or omit to do, any act that will cause OSPL/OSSPL to be in breach of the Anti-Corruption Laws; (e) will not directly or indirectly offer, give or authorize to any OSPL/OSSPL employee or contractor, customers any gift, gratuity, service, favour, or anything else of value to influence or reward that employee or contractor or customer in connection with the Order; (f) will not accept, and promptly report to OSPL/OSSPL, any request or demand for any undue financial or other advantage of any kind received by Service Provider in connection with the performance of the Order; and (g) represents and warrants that it has, with regard to any past action or omission related to the Order, acted consistently with each requirement set forth above. Service Provider further represents and warrants that neither Service Provider nor any of its principals, owners, directors, or officers: (a) has been convicted of any offense involving bribery, corruption, fraud, or dishonesty; (b) has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative, or regulatory body regarding any offense or alleged offense under the Anti-Corruption Laws; or (c) has been, or is listed by any government agency as being, debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programs or government contracts. Service Provider agrees to repair or replace at the sole discretion of OSPL/OSSPL the defective parts for the period of 60 days (or such greater period as applicable) from the date of its acceptance, at no additional cost to OSPL/OSSPL. Service Provider further agrees to provide the warranty given by third parties for their respective products on “As is” basis.
Confidentiality: Service Provider shall keep in confidence and shall not disclose or make available to any third party any information relating to products, services, operations, processes, plans or intentions, product information, financial information, employees, know-how, design rights, trade secrets, market opportunities and business affairs (“Confidential Information”) disclose by OSPL/OSSPL, without prior written approval from OSPL/OSSPL. Further, if the Service Provider upon the approval of the OSPL/OSSPL, shares the Confidential Information with its employees, the Service Provider shall enter into non-disclosure restrictions at least as protective to those in this Order. Service Providers’ obligation to protect Confidential Information shall survive expiration or termination of this Order and shall expire three (3) years after the termination or expiry of this Order. However, the Service Provider shall be under no obligations of non-disclosure if:
The said information is available to the public without any breach of this Order.
The said information is in the possession of the Service Provider without restriction and prior to any disclosure hereunder; or
The said information is or has been lawfully disclosed to the Service Provider by third party, who is lawfully entitled to disclose the same, except that the Service Provider shall disclose only such information as is legally required and will use reasonable efforts to safeguard the Confidential Information that is so disclosed; or
The said information is or has been independently developed by the Service Provider without using the Confidential Information disclosed hereunder; or
OSPL/OSSPL consents to such distribution or disclosure;
Intellectual Property Rights: Unless agreed otherwise agreed elsewhere, intellectual property rights in Product shall remain with OSPL/OSSPL. Each party shall retain the exclusive ownership of their own pre-existing materials. Service Provider shall provide the license to OSPL/OSSPL for any third-party material used.
Indemnity: Service Provider shall defend, indemnify and keep OSPL/OSSPL indemnified against any and all claims, demands, causes of action, damages, costs and/or expenses (including, without limitation, reasonable attorneys’ fees) arising out of or related to acts or omissions of Service Provider or Service Provider’s Personnel, any failure by Service Provider to perform its obligations hereunder, death or personal injury, damage to the property, misconduct, negligence, breach in confidentiality obligations, infringement of intellectual property rights. OSPL/OSSPL shall promptly inform the Service Provider on receipt of such claims.
Limitation of Liability: OSPL/OSSPL’S cumulative liability to the Service Provider for any loss or damage, for any cause whatsoever (including, but not limited to, those arising out of or related to this Order) and regardless of the form of action, shall be limited to 10 percent of the total amount paid by OSPL/OSSPL under this Order regardless of anything stated in this Order. OSPL/OSSPL shall not be liable to the Service Provider for any indirect, incidental, punitive, special or consequential damages, including without limitation any damages for lost profits incurred by either Party or any third party, whether in an action in contract or tort, even if the Service Provider has been advised of the possibility of such damages and notwithstanding the failure of any remedy to achieve its essential purpose.
Audit: OSPL/OSSPL shall have the right during regular business hours to inspect, copy, review and audit the Service Provider’s books and records (or portions thereof) in connection with the prices, discounts, credits and other performance obligations due hereunder. If the Service Provider engages a subcontractor or third-party supplier, then the auditing would also include the subcontractor or third-party supplier.
Independent Contractor: OSPL/OSSPL may require the Service Provider to provide skilled Service Provider’s Personnel (as defined below) to perform certain services. If such Service Provider’s Personnel provided by the Service Provider are not upto the satisfaction of OSPL/OSSPL, OSPL/OSSPL shall reserve the right to ask for a replacement and the Service Provider shall immediately but in any case, not more than 2 working days shall provide such replacement. The parties are acting hereunder as independent contractors. Service Provider acknowledges that Service Provider and Service Provider’s Personnel are solely responsible for withholding and paying income taxes related to the performance of services under this Order. Service Provider and Service Provider’s Personnel are not entitled to receive any benefits that OSPL/OSSPL offers to its employees. Service Provider acknowledges that none of its Service Provider’s Personnel who is performing the services shall become an employee of OSPL/OSSPL and OSPL/OSSPL shall have no obligations to pay any such Service Provider’s Personnel’s salary, national insurance, social security, or any other amount required by law or by contract to be paid to or in respect of any such Service Provider’s Personnel by his or her employer.
Insurance: During the term of this Order, the Service Provider shall, at its own cost and expense, obtain and maintain in full force and effect, and subject to the applicable laws the appropriate insurance coverage.
Ownership: All materials and copies of materials OSPL/OSSPL data, layouts, designs, drawings, patterns, models, compositions, architectures, protocols, formulae, algorithms, processes, programs, methods, technology, devices, works of authorship, data, databases and data collections, audio media, visual media, and other content or information, and any modifications, enhancements, or derivative works, developed, generated or produced in connection with the Service Provider’s services to OSPL/OSSPL under this Order (collectively, “Work Product”) shall be OSPL/OSSPL’S sole and exclusive property. Service Provider hereby grants, assigns and conveys to OSPL/OSSPL all rights, titles, and interests in and to all Work Product. Service Provider shall have no proprietary interest in the Work Product, and will not seek, and will require its employees, agents or subcontractors (“Service Provider’s Personnel”) not to seek patent, copyright, trademark, registered design, or other protection for any rights in any Work Product.
Acceptance: OSPL/OSSPL may refuse to accept or may return, at Service Provider’s expense, any Products/services that fail to conform to this Order and may also cancel this Order with respect thereto, in which event OSPL/OSSPL shall be entitled to a refund of any amounts previously paid to Service Provider for such nonconforming Products/services. If OSPL/OSSPL chooses not to return a nonconforming Product, Service Provider shall, at Service Provider’s sole cost and expense, and not later than 10 days from receipt of communication of such non-conformance correct, repair or replace (or, in the case of services, re-perform), any such nonconforming Products in a manner reasonably acceptable to OSPL/OSSPL.
Force Majeure: Neither Party shall be liable for any delay or failure to perform its obligations, if delay or failure has resulted from circumstances beyond its reasonable control, including but not limited to acts of God or governmental act, political instability, epidemic, pandemic, flood, fire, explosion, accident, civil commotion, war, computer viruses, industrial dispute, labour unrest and any other occurrence of the kind listed above, which is not reasonably within the control of the affected party. Each party shall give written notice to other party as soon as possible of becoming aware of such Force Majeure event. Anything to the contrary notwithstanding, if the Force Majeure events continue for ten (10) or more days, Service Provider acknowledges that OSPL/OSSPL may terminate this Order without penalty or financial obligation of any type or kind.
Liquidated Damages (LD): Time is the essence of the Order. In case of any delay in providing the Product/services, the Service Provider shall be liable to pay 0.5% per week subject to a maximum of 10% of the total Order value. If the Product/services is not up to the satisfaction of OSPL/OSSPL, the Service Provider shall be liable to pay 5% of the total Order value. Such amounts shall either be levied independent of the Order or deducted from future payments at the sole discretion of OSPL/OSSPL. Such LD shall be charged / deducted without prejudice to the rights and remedies available to OSPL/OSSPL under the law.
Permits and compliance with laws: The Service Provider represents and warrants that it has all the necessary permits and approvals as required by Law to provide the services.
Governing law and jurisdiction: This Order shall be governed by the laws of India and shall be subject to the exclusive jurisdiction of the courts in Pune.
Arbitration: If Parties fail to resolve the dispute within 7 days from the date of its occurrence Parties shall refer such dispute to the panel of three arbitrators, each party shall appoint one arbitrator and such two arbitrators will mutually appoint third Arbitrator. Arbitration proceedings shall be conducted in Pune (Maharashtra, India) in accordance with the Arbitration and Conciliation Act, 1996 (and amendments thereto) and the rules thereof.
Non-Solicitation: Service Provider agrees that they will not directly or indirectly hire or solicit any employee of OSPL/OSSPL or its subsidiary or affiliate company for the period of the Term and 1 year thereafter.
Assignment of Rights:
The Service Provider shall not assign or novate its rights (either whole or in part) under this Order to any other party without the prior written consent of OSPL/OSSPL.
OSPL/OSSPL shall have the right to, in its sole discretion, to assign this Order to any other person/company including its affiliates and group companies after giving notice of such assignment to the Service Provider.
Relationship: This Order has been executed by the parties on a principal-to-principal basis and nothing in this Order creates a relationship of employer and employee, principal and agent, between the Parties.
All the payments made by you to the Government towards GST in respect of goods supplied or services rendered to us should reflect our GST no. correctly. Also mention our GST no. on all your invoices. Please ensure the correct HSN/SAC as the case may be is mentioned on your invoice and the payment of GST is under the same code. For the purpose of this agreement:
OSPL GST no. is 27AACCO5370L1Z4
OSSPL GST no. is 27AAACO2203N1ZK
Notices: Any Notices under this Order will be in writing and will be delivered either in person, or through postal mail, facsimile or postal email on the address mentioned above. The language use for such notice is English.
OSPL – Opus Solutions Pvt Ltd.
OSSPL – Opus Software Solutions Pvt Ltd.
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