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  • Incredible Softwares
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  • Incredible Softwares
  • Incredible Softwares
  • Incredible Softwares

terms & conditions


Terms and Conditions of Our Services with Our Clients:


1. Reliance

Client understands that Company shall rely upon Client’s Representative as having the authority specified in Section 2 of the Master Services Agreement and that all official communications from Company to Client shall be addressed to Client’s Representative.


2. Work Provisions



2.1. Independent Contractor

For all purposes hereof and in the performance of its obligations under this Agreement, Company is and shall remain an independent contractor and nothing in this Agreement or in a Statement of Work shall be deemed or construed to create an employer/employee, joint venture or partnership relationship between Company and Client. Nothing herein shall be deemed or construed to create an employment relationship between Client and any employee, agent or independent contractor of Company. Neither party shall have any authority to insure any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party.


2.2 Company’s Personnel

Unless otherwise stated in the applicable Statement of Work, the Company shall have sole discretion over the identity of its personnel used to provide the Services, provided that the Company shall ensure that the personnel are in all cases suitably qualified and experienced. Where specific personnel are specified in an applicable Statement of Work, Company shall use reasonable efforts to provide the Services through those personnel, provided that Company shall be entitled to replace such personnel with personnel of equivalent qualification and experience on no less than 5 business days notice to Client.


2.3 Non-Exclusivity

Without authorizing Company (or its personnel) to engage in any conduct or activities which would result in a breach or violation of any term of this Agreement, Client recognizes that Company’s personnel providing services to Client under this Agreement may perform similar services from time to time for other entities or individuals, and this Agreement shall not prevent Company from using such personnel for the performance of such similar services for such other entities or individuals. Company recognizes that Client may engage other marketing agencies to perform similar services from time to time, and this Agreement shall not prevent Client from using such marketing agencies.


2.4 Ownership

Until the Company receives full payment for the Services from the Client and except as otherwise set forth herein, the entire right, title and interest in/to the Deliverables, including, without limitation, all modifications to the foregoing, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all intellectual property rights such as copyrights, trademarks, patent and trade secret rights, are the exclusive property of the Company. Notwithstanding the foregoing or any other provision of this Agreement, the entire right, title and interest in and to all non-specific elements of any Deliverables created for the Client, including, without limitation, organizational elements of a design, and all modifications to the foregoing, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all copyrights, patent and trade secret rights (the “Retained Elements”), are owned exclusively by Company.


2.4.a Works-for-hire

The Deliverables shall be deemed works-for-hire and shall be the exclusive property of Client upon the Company’s receipt of full payment for the Services. Company expressly agrees to assign to Client the copyright in any Deliverables that do not meet the requirements of a work-for-hire under the India Copyright Act, as soon as such work is fixed in a tangible form or medium. Additionally, independent of the India Copyright Act, Company hereby assigns to client, to the fullest extent possible under the law, all of its right, title and interest, if any, in and to the Deliverables. Company further agrees to execute and deliver such instrument(s) and to take such action(s) as may be required and/or requested by Client to confirm and/or defend Client’s sole and exclusive ownership of the Deliverables (other than Retained Elements).


2.4.b License

Upon the Company’s receipt of full payment for the Services, the Company shall grant to Client a perpetual, irrevocable, royalty free, limited, non-exclusive, non-transferable, worldwide license, without the right to grant sub-licenses (except that Client may, upon receipt of written consent from Company, grant sub-licenses to its affiliates and/or subsidiaries), to use the Retained Elements as required to use the Deliverables in furtherance of Client’s Business.


3. Warranties



3.1 Warranty of Authority; No Conflict

Each party warrants that it is authorized to enter into this Agreement and to perform its obligations hereunder, and that its performance hereunder shall not conflict with, limit or be contrary to any other agreement.


3.2 Warranty of Services and Indemnification



3.2.1 Disclaimer

Company warrants that the Deliverables will be compatible with Internet Explorer version 8 or higher, but may not be compatible with other browsers and web technologies. Company also warrants that all Services will be performed in a professional manner using qualified professional personnel and the Deliverables will comply with the specifications set forth in the applicable Statement of Work. THE DELIVERABLES ARE PROVIDED “AS-IS” AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

THE PARTIES AGREE THAT NEITHER PARTY’S LIABILITY FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WILL EXCEED THE FEES PAID OR TO BE PAID BY CLIENT PURSUANT TO AN APPLICABLE STATEMENT OF WORK UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST DATA, LOST PROFITS OR REVENUE, OR FOR ANY CLAIM OR DEMAND BY ANY THIRD PERSON, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF ADVISED OF THIS POSSIBILITY. This limitation of liability represents an allocation of risks between Company and Client, which allocation is reflected in the price of the Services.


3.2.2 No Infringement

The parties represent and warrant each other that their respective disclosure and delivery of any information, documents, software and other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, without limitation, any copyright, trademark, known patent or trade secret right.


3.3 Noninterference with Business

During the term of this Agreement and for a period of one year thereafter, the Client and Company (each, a “Party”) agree not to directly compete or interfere with the business of the other Party, as currently conducted, in any manner. Additionally, and without limiting the foregoing, during the term of this Agreement and for a period of one year thereafter, each Party agrees not to, directly or indirectly solicit or induce or attempt to persuade any employee, independent contractor, vendor, supplier, outsourced third party, director or other participant of the other Party to terminate an employment, contractual or other relationship with the other Party, or to enter into a relationship with such Party or into any business organization in which such Party may be directly or indirectly involved. The term “enter into a relationship” shall include, but not be limited to, acting as a paid or unpaid director, officer, agent, employee of, or consultant to, or acting or participating as owner, partner, manager, member, or shareholder. During and for a period of one year immediately following termination of this Agreement and subject to Section 2.3, each Party further agrees not to (a) directly or indirectly contact any person or entity disclosed by the other Party for the purpose of taking advantage of a business opportunity, (b) otherwise circumvent a relationship with the other Party, or establish a relationship with a party with whom the other Party already has a relationship or foreseeable relationship with whom such Party has never had a relationship, or (c) seek to establish any rights, including but not limited to intellectual property rights, anywhere in the world in conflict with the other Party’s pre-existing, herein established, or hereafter established intellectual or other property or proprietary rights.


3.4 Infringement

In the event that the Client is informed by a third party that the Deliverables provided by the Company (except to the extent the Deliverables are comprised of intellectual property owned or licensed by Client or other elements specifically requested by the Client (collectively, “Client Content”)) infringe upon that third party’s intellectual property rights, including copyright, and trademark rights, the Client will immediately notify the Company. The Company may, in Company’s sole discretion, then prohibit the Client from using the Deliverables on a go-forward basis by providing written notification thereof, provided that Company shall provide additional Services and new Deliverables of the same or equivalent functionality, as described on an updated Statement of Work, at no additional cost to the Client. Alternatively, the Company may, in its sole discretion, procure for Client the right to continue using the Deliverables. If the Client continues to use the Deliverables provided by the Company despite the Company’s notification, the Client shall be responsible for any damages (including reasonable attorney’s fees) related to the use of the Deliverables beyond the notification date.

Company shall have no obligations, responsibilities, or liabilities hereunder if:

(i) the infringement is caused by combining the Deliverables with any other product, service, content or other subject matter that is not part of the Deliverables in the form provided by Company to Client,

(ii) the infringement results from any use of the Deliverables by Client in a manner not anticipated under this Agreement,

(iii) the infringement results from any unauthorized alteration of the Deliverables by Client or its subcontractors or agents, or

(iv) the infringement results from use of other than the delivered version of the Deliverables provided by Company to Client (each, a “Client Infringement”).
This Section 3.4, together with any indemnification obligations contained in Section 3.5, states Company’s entire obligation to Client and Client’s sole remedy with respect to any claim of infringement.


3.5 Indemnification by Company

Company shall indemnify and hold harmless Client, Client’s parent company, subsidiaries, affiliates, directors, owners, shareholders, members, officers, employees, consultants and agents (individually and collectively referred to herein as a “Client Indemnified Party”), from and against any and all claims, actions, proceedings, losses, profits, liabilities, judgments, penalties, fines, damages, costs and expenses, joint or several, including but not limited to reasonable counsel fees, disbursements, court costs and costs of settlement (individually and collectively referred to herein as “Claims”), to the extent the Claims arise out of or result from any of the following: (i) the gross negligent acts, acts of omission, or intentional acts of Company or its employees, subcontractors or agents, (ii) any breach of the provisions of the Agreement by Company, (iii) any violation of federal, state or local law or regulation applicable to Company or (iv) any allegation that the intellectual property (except for Client content or to the extent such infringement is caused by Client Infringement) used in the Deliverables infringes any other patent, trademark or copyright in the United States. Client will notify Company of any claim, action, or demand for which indemnity is required in the reasonable opinion of Client and will cooperate reasonably with Company at Company’s expense. The law firm that the Company chooses to defend Client must be experienced in defending similar claims and will be subject to Client’s approval, which will not be unreasonably withheld. Company may not settle any lawsuit or matter relating to the culpability or liability of Client without the prior written consent of Client. Client will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense.


3.6 Indemnification by Client

Client shall indemnify, defend, and hold harmless Company and Company’s parent company, subsidiaries, affiliates, directors, owners, shareholders, members, officers, employees, consultants and agents (“Company Indemnified Party”) from and against all Claims that may at any time be incurred by Company Indemnified Party, including without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with Client’s conduct, acts or omissions, or any alleged or proven breach by Client of any term, condition, agreement, representation, or warranty herein, any allegation that the Client Content infringes any other patent, trademark or copyright in the United States, and any Client Infringement, in each case excluding any Claim that arises solely from the acts or omissions of Company Indemnified Party. Company will notify Client of any claim, action, or demand for which indemnity is required in the reasonable opinion of Company and will cooperate reasonably with Client at Client’s expense. The law firm Client chooses to defend Company must be experienced in defending similar claims and will be subject to Company’s approval, which will not be unreasonably withheld. Client may not settle any lawsuit or matter relating to the culpability or liability of Company without the prior written consent of Company. Company will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense. Without limiting any rights and remedies hereunder or under applicable law, Company shall have the right to set off any liability of Client to Company with respect to a Claim against any amounts held on deposit with Company by Client.


4. Fees, Invoices, Payment



4.1 Invoices/Payment

Company shall invoice Client monthly for fees and Expenses. Any such invoice shall be payable by check or wire transfer or ACH net twenty-one (21) days from the receipt thereof. Payments made within the first 10 days after the receipt is issued will be discounted at a rate of 2%. Late payments shall accrue interest at the greater of one and one-half percent (1.5%) per month or the highest rate allowed by law. Cash or check are preferred methods of payment. A 3-5% fee may apply for splitting invoices.


4.2 Payment Schedules

For projects under $10,000, Company shall invoice Client 50% at net 10 days upon commencement of the project for fees and Expenses and 50% due net 21 days upon completion of the project. For projects over $10,000, regular payments of no less than $3,000 will be required at agreed upon milestones of the project.


4.3 Invoice Dispute

The Client may dispute charges in an invoice by providing the Company with a written statement describing the dispute within thirty (30) days of receipt of the disputed invoice. In the event of any dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided herein. Any charge or expense not disputed within such thirty (30) day period shall be deemed accepted by Client.


4.4 Expenses

Client shall reimburse Company for all materials and reasonable out-of-pocket fees and Expenses incurred in connection with the performance of its obligations under this Agreement (“Expenses”). Company shall obtain Client’s prior written approval for any single out-of-pocket Expense which is anticipated to exceed $1,000, or any aggregated out-of-pocket Expenses which are anticipated to exceed $5,000.


5. Term and Termination



5.1 Notice

Either party may terminate this Agreement or any Statement of Work upon thirty (30) days written notice to the other party.


5.2 Monetary Breach


If a party fails to make a monetary payment as specified in this Agreement, the non-breaching party shall notify the other party of such failure and if the breaching party fails to cure such breach within three (3) business days, the non-breaching party may immediately terminate this Agreement or any Statement of Work. Notwithstanding the foregoing, the Company shall not be obligated to provide Client with notice and an opportunity to cure a payment default more than once in any twelve (12) month period, and in the event of multiple payment defaults in any twelve (12) month period, may immediately terminate this Agreement or any Statement of Work.


5.3 Continuation

This Agreement shall remain in full force and effect and govern Services provided to Client by Company for a term set forth in the Statement of Work or until this Agreement is terminated, or the parties mutually agree otherwise.


5.4 Termination

Upon termination of this Agreement for any reason: (a) Client shall immediately pay to Company all amounts owed to Company pursuant to Section 4 hereof for Services performed and Expenses incurred prior to the date of termination; (b) each party shall immediately cease all use of and shall return to the other party within five (5) business days all Confidential Information, as defined in Section 6 herein, and materials of such other party and all copies, portions and abstracts thereof, that are in its possession or under its control, other than any materials for which Client has paid or agrees to pay. Company shall deliver to Client only such portion of the Deliverables that are complete.


6. Confidentiality



6.1 Confidential Information

In connection with this Agreement, Client may disclose, or Company may learn of or have access to, certain confidential proprietary information owned by Client or its affiliates, business partners or clients (“Confidential Information”). Confidential Information includes, but is not limited to, any data or information, oral or written, that relates to Client or any of Client’s existing or contemplated business activities, technology, developments, software, methods, trade secrets, and clients. Confidential Information also includes the terms of this Agreement and the Services.


6.2 Public Domain


Notwithstanding the foregoing, Confidential Information is deemed not to include information that:

(i) is publicly available or in the public domain at the time disclosed,

(ii) is or becomes publicly available or enters the public domain through no fault of Company,

(iii) is rightfully communicated to Company by persons not bound by confidentiality obligations with respect thereto,

(iv) is already in Company’s possession free of any confidentiality obligations with respect thereto,

(v) is independently developed by Company without use of any Confidential Information or

(vi) is approved for release or disclosure by Client in writing without restriction.


6.3 Limitation of Disclosures

During the term of its engagement and for all periods thereafter, Company shall maintain the Confidential Information in strict confidence and shall not disclose, publish or copy any part of the Confidential Information. Company shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement. Company shall not use the Confidential Information, or any portion thereof, for its own benefit or for the benefit of any third-party. Company shall take reasonable precautions in handling the Confidential Information and will limit disclosures on a strict need-to-know basis. However, Company may disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that Company gives reasonable prior notice to Client to contest such order or requirement, unless prior notice by Company is prohibited by law. Upon the termination or expiration of this Agreement, Company shall return to Client or certify the destruction of all Confidential Information. Notwithstanding the foregoing, the Company may retain an archival copy of the Confidential Information as required by law or its record retention policy.


6.4 Publicity

Notwithstanding anything to the contrary in the Agreement or applicable Statements of Work, the Company shall be permitted to disclose in summary form the nature of the work performed for Client under the applicable Statement of Work; however, the Company shall not disclose the proprietary business processes of Client or otherwise result in any breach of any other term of this Agreement. Publicity represents value for Company, which value is reflected in the price of the Services.


6.5 Reference

Notwithstanding anything to the contrary in the Agreement or applicable Statements of Work, each party is entitled to reference the other party and describe work completed under this Agreement and any related Statements of Work in summary and general form, without revealing any of the other party’s confidential information.


7. General Provisions



7.1 [[CONTENT PRODUCED BY COMPANY BUT IN CLIENT’S CONTROL – DISCUSS]]



7.2 Notices


All notices required shall be in writing and shall be effective on the date of mailing to the parties at the addresses previously indicated, to the attention of the signers of this Agreement, or to such other address as designated by the parties in writing, and sent via registered U.S. mail, or by a mutually recognized overnight delivery service.


7.3 Assignment

Client may not assign its rights and/or obligations under this Agreement without the prior written consent of Company. This Agreement is a legally binding contract on the part of Client and Company and their respective heirs, representatives, successors and assigns.


7.4 Severability

Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provisions(s) held to be invalid or unenforceable.


7.5 Waiver

The waiver of a breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.


7.6 Force Majeure

Neither party shall be responsible for any failure to perform, or delay in performing any of its obligations under this Agreement, where and to the extent that such a failure or delay results from causes outside the control of such party. Such causes shall include, without limitation, delays caused by the other party, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like.


7.7 Headings

Section headings are for the convenience of the parties and should not be construed as part of this Agreement.


7.8 Governing Law

This Agreement shall in all events and for all purposes be governed by, and construed in accordance with, the laws of the State of Rhode Island without regard to any choice of law principle that would dictate the application of the laws of another jurisdiction. Any action, suit or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a state court of or a federal court located in the State of Rhode Island, and I hereby consent to the jurisdiction of such a court. Each of the parties hereto hereby voluntarily and irrevocably waives trial by jury in any action or other proceeding brought in connection with this Agreement, any related agreements or documents, or any of the transactions contemplated hereby or thereby.


7.9 Survival

The provisions of Sections 2, 3, and 6 shall survive the expiration or termination of this Agreement. All other provisions of this Agreement, including any Exhibits and Statements of Work hereto which by their terms or import are intended to survive such expiration or termination, shall survive.


7.10 Entire Agreement

This Agreement supersedes all prior oral or written representations, communications, or agreements between the parties, and, together with any appendices, constitutes the final and entire understanding of the parties regarding the subject matter of this Agreement. Neither party has relied on any such prior oral or written representations, communications, or agreements.


7.11 Disputes

Any controversy or claim between the parties shall be settled first by negotiation between the Client’s Representative and the Company’s project manager. In the event the parties are unable to resolve the dispute in a reasonable period of time, the parties agree to elevate the dispute to their respective Presidents, Managers, or equivalent officers. If, after a reasonable period of time, the parties are still unable to resolve the dispute, the parties agree to settle the dispute in state or federal courts located in Providence County, Providence, Rhode Island.


7.12 Execution

This Agreement may be executed (including by facsimile or Internet-based service) by one or more of the parties on any number of separate counterparts. All of such counterparts taken together shall be deemed to constitute one and the same instrument, and (if by facsimile) each such facsimile shall have the same force and effect as if an original.

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