This services agreement (the "Agreement) is BETWEEN JobsXS ("Provider") a proprietary firm organized and existing under the laws of India, with its head office located at 1101, Clover Heights, Opposite Salunke Vihar, Wanowarie, Pune – 411040 (MH), India AND the business entity (the "Client") listed and represented by the individual executing this Agreement during the enrollment process. By clicking to accept, agreeing during the enrollment process, or otherwise using any portions of the services, data, or otherwise exercising any other rights under this Agreement, the Client agrees to become a party to, and bound by, the terms of this Agreement.
This Agreement consists of all the sections and clauses below and the sections and clauses mentioned in these pages: Terms of Service, Payment Terms and Result Guarantees and Exclusivity
The Client must read all sections and clauses carefully.
TERM AND TERMINATION
a) The term of this agreement ("Term") shall be for a period of twelve (12) months from the date of acceptance of this Agreement. This Agreement shall automatically renew for additional twelve (12) month periods, unless terminated earlier in accordance with the provisions hereof.
b) This Agreement may be terminated by the Client without notice upon the occurrence of an event of default. Each of the following constitutes an event of default for the purposes of this Agreement:
i) if Provider commits any material dishonest or fraudulent act in the performance of any of its obligations hereunder or any material misrepresentation hereunder;
ii) if Provider persistently fails to perform the Services as required hereunder; or
iii) if Provider fails otherwise to perform or comply with any material term, condition or covenant of the Agreement;
c) This Agreement may be terminated for any reason at any time by either the Client or Provider giving the other party 30 days’ written notice of termination.
d) Provider shall forthwith upon termination return to the Client all confidential data embodied or recorded in tangible form, which is in its possession.
e) Upon the termination of this Agreement, payments or penalties due to the Client or Provider will be recognized and paid in accordance with Section 8 and its Paragraphs.
a) It is understood and agreed that this is an agreement for the performance of services and that the relationship of the parties to each other is that of independent contractors. No agency or partnership is created by this Agreement. Provider shall not hold itself out or represent itself to be an agent of the Client. Provider shall not be entitled to any remuneration, rights or benefits other than as set forth in this Agreement and in Section 8 herewith, unless otherwise agreed in writing by both parties.
b) Provider shall comply with all statutes, laws, ordinances and regulations governing the performance of the Services.
a) Each party shall take all reasonable action and shall take at least the same precautions as it takes to prevent the disclosure of its own confidential information, to prevent the disclosure to third parties of the Confidential Information. The parties shall not publish, disseminate, distribute, disclose, sell, assign or otherwise make use of any Confidential Information of the other party. Each party shall only have the right to disclose the Confidential Information to its employees, agents and consultants within their organization for the purposes authorized herein. Each party shall, prior to disclosing the Confidential Information or
b) portion thereof to any such person, issue appropriate instructions to them to ensure that such persons are aware of their obligation to comply with the confidentiality and use obligations and restrictions contained in the Agreement. If each party has taken all such reasonable steps it shall not be held responsible if Confidential Information or any part thereof should be divulged to any third party by reason of honest mistake or dishonest appropriation by any of each party’s agents or employees.
For the purposes of this Section 11, “Confidential Information” means all confidential business data and information provided by a Party hereunder provided, however, that all Confidential Information that is delivered to either Party in writing shall bear an appropriate legend such as “Confidential” and all Confidential Information that is orally shared shall be identified to the other party in a written summary within 5 days following its oral disclosure. Failure to mark documents with an appropriate legend or the failure to identify orally disclosed information as “Confidential” within 5 days following its oral disclosure shall be conclusive that the Disclosing Party has waived any restrictions with respect thereto. Confidential Information shall not include any data or information which:
i) is or becomes publicly available through no fault of the disclosing party;
ii) is already in the rightful possession of the disclosing party prior to the disclosure to that party;
iii) is independently developed by the disclosing party;
iv) is rightfully obtained by the disclosing party from a third party;
v) is disclosed with written consent of the other party; or
vi) is disclosed pursuant to court order or other legal compulsion.
c) The Client hereby covenants and agrees with Provider that it shall not either by itself or in partnership, contract or association with any other person, as principal, agent, shareholder or any other capacity whatsoever, directly or indirectly offer to publish, disseminate, distribute, disclose, sell, assign or otherwise make use of any Service Levels set out in Section 6 that includes the method behind their design, recording and calculation, to provide or receive services to or from any person, organization or company other than Provider.
i) the confidentiality and exclusivity covenants set forth in this Section 11 are reasonable in the circumstances and are necessary to protect the interests of the Client and Provider;
ii) and in addition to the right of the Client or Provider to claim damages, the breach by Provider and the Client of any of the confidentiality and exclusivity covenants set forth in this Section 11,
iii) as the case may be, may cause serious and irreparable harm to the Client or Provider, as the case may be, and in the event of a breach by either party (a “Party in Breach”) of any of these provisions,
iv) notwithstanding any other provision of this Agreement, the other party (the “Aggrieved Party”) shall be entitled, as a matter of right, to seek an injunction against the Party in Breach.
v) the provisions of this paragraph shall not be construed so as to be in derogation or limitation of any other remedy, which the Aggrieved Party may have in the event of such a breach.
e) The provisions of (a), (b) and (c) of this section above shall survive the termination of this Agreement.
f) The existence of any claim or cause of action of either party against the other, whether pursuant to this Agreement or otherwise, shall not constitute a defense to the enforcement of the provisions of this Agreement by either party against the other.
a) The Client acknowledges that the Provider has custom designed the Services and is owned by the Provider (the “Services Framework”). The Client agrees that all parts that make up the Service Platform, including, formulae, metrics, service levels and other material prepared by the Provider (whether or not copyrighted or patentable), which form a part of the Service Platform, shall be the property of the Provider. The Client agrees that all copyright, rights to patents, trade secrets or other intellectual property in all such work and in the Services Platform are property of the Provider.
b) Paragraph (a) of this section excludes the data or information contained and managed within the Service Platform. The Provider understands that all such data or information are the property of the Client and will be governed as per Section 11 of this Agreement.
If the performance of this Agreement or any of the obligations hereunder is interfered with in whole or in part by reason of circumstances beyond the reasonable control of the party affected, including but not limited to fire, explosion, power failure, acts of God, revolution, civil commotion or acts of public enemies, any Indian Law, order, regulation, ordinance or requirement of any government or legal body or labour unrest, including without limitation, strikes, slowdowns, picketing or boycotts, then the party affected shall be excused from such performance on a day to day basis to extent of such interference.
a) Provider hereby covenants and agrees to indemnify and save harmless the Client, its directors, officers, employees, agents and representatives (the “Client Indemnified Parties”) from and against any claims, demands, actions, causes of action, damages, losses, costs, liabilities, expenses, penalties or fines (including reasonable legal fees) which any of the Client Indemnified Parties may sustain, incur or suffer and/or which any person including, without limitation, a Subscriber may make or bring against a Client Indemnified Party arising directly or indirectly in any way by reason of, out of, in respect of or in connection with:
i) any non-fulfillment of any covenant or agreement on the part of Provider under this Agreement;
ii) any incorrectness in or breach of any representation of Provider contained in this Agreement;
iii) any act or omission, including, without limitation, any negligence or other tortuous act, committed by Provider and its directors, officers, employees, agents and representatives in the performance of its obligations under this Agreement;
iv) any untruth, inaccuracy or incorrectness of any of the marketing materials prepared and distributed by Provider pertaining to the Services;
v) the Services including, without limitation, the operation, administration or provision thereof.
b) The Client hereby covenants and agrees to indemnify and save harmless Provider, its directors, officers, employees, agents and representatives (the “Provider Indemnified Parties”) from and against any claims, demands, actions, causes of action, damages, losses, costs, liabilities, expenses, penalties or fines (including reasonable legal fees) which any of the Provider Indemnified Parties may sustain, incur or suffer and/or which any person may make or bring against a Provider Indemnified Party arising directly or indirectly in any way by reason of, out of, in respect of or in connection with any covenant or agreement on the part of the Client under this Agreement or any incorrectness in or breach of any representation of the Client contained herein.
c) The Client shall not be liable or responsible for bodily or personal injury or property damage of any nature whatsoever that may be suffered of sustained by Provider in the performance of this Agreement.
d) The indemnifications set forth in this Section 14 shall survive the termination of this Agreement and for a period of 1 year thereafter.
a) This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written of the parties and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein.
b) No supplement, modification or waiver or termination of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
c) Neither this Agreement nor any rights or obligations hereunder shall be assignable by any party without prior written consent of the other party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators, successors and permitted assigns.
d) Each party represents and warrants in favour of the other that it has all necessary capacity and authority to enter into this Agreement and to carry out its respective obligations hereunder and that neither party is a party to, bound or affected by or subject to any indenture, mortgage, lease, agreement, instrument, charter or by-law provision, statute, judgment, decree or Indian Law which would be violated, contravened, breached by or under which default would occur as a result of the execution and delivery of this Agreement and the performance of its respective obligations hereunder.
e) Time shall be of the essence of this Agreement.
f) Each party hereby agrees that upon the written request of the other party, it will do all such acts and execute all such further documents, conveyances, deeds, assignments, transfers and the like, and will cause the doing of all such acts and will cause the execution of all such further documents as are within its power to cause the doing or execution of, as the other party may from time to time reasonably request be done and/or executed as may be required to effect to the purposes of this Agreement and to carry out provisions hereof.
g) Any legal notice required or permitted to be given hereunder shall be in writing and shall be sufficiently given if delivered in person during normal business hours of the recipient on a business day or sent by couriered mail as follows:
i) in case of a notice to Provider: JobsXS, 1101, Clover Heights, Opposite Salunke Vihar, Wanowarie, Pune – 411040, Maharashtra, India.
ii) in case of a notice to the Client: postal address that the Client has on file with Provider
h) This Agreement shall be governed by and construed in accordance with the Indian Law applicable therein and shall be treated, in all respects, as a contract. Each party thereto irrevocably attorns to and submits to the non-conclusive jurisdiction of the courts of Pune, Maharashtra with respect to any matter arising hereunder or related hereto.