SERVICE AGREEMENT

     

    This SERVICE AGREEMENT effective 17/1/2018 (hereinafter ‘AGREEMENT’) is entered into on

    PARTIES:

  1. ) BLINK ADVISORY SERVICES PRIVATE LIMITED. having its corporate offices at Noida, India (hereinafter referred to as “SERVICEPROVIDER” which expression shall unless repugnant to the context mean and include its successors & permitted assigns) and;
  2. ) You the user (hereinafter referred to as “You” which expression shall unless repugnant to the context mean and include its successors & assigns)
  3. ) WHEREAS the SERVICE PROVIDER has agreed to provide its Service (SaaS) to Youin consideration of the mutual premises, covenants and agreements herein contained.
  4. ) IT IS HEREBY AGREED as follows:
  5. ) DEFINITIONS
  6. ) In this Agreement, unless the context otherwise requires, the following words and expressions shall bear the meanings ascribed to them below:
  1. “Affiliate” shall mean an entity that owns or controls, is owned or controlled by or is or under common control or ownership with a Party, where 'control' is defined as the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
  2. "Agreement" shall mean this Services Agreement, together with the annexes, schedules and exhibits attached hereto and any amendments thereto;
  3. “Confidential Information” shall mean with respect to Your information, any trade secrets or other proprietary, confidential or non-public information of You or Your clients or third parties to whom You owe a duty of confidentiality and any other information which the Service Provider knows or reasonably ought to know to be proprietary or confidential;
  4. “Damages” shall mean
    1. ) any and all monetary (or where the context so requires, monetary equivalent of) damages, fines, fees, penalties as applicable under Indian law, losses, and out-of-pocket expenses (including without limitation any liability imposed under any award, writ, order, judgment, decree or direction passed or made by any court, tribunal or similar Person),
    2. ) subject to applicable laws, any punitive, or other exemplary or extra contractual damages payable or paid in respect of any contract, and
    3. ) amounts paid in settlement, interest, court costs, costs of investigation, reasonable fees and expenses of attorneys, accountants, actuaries, and other experts, and other expenses of litigation or of any claim, default, or assessment;
  5. “Effective Date” shall mean the date the agreement is entered into between the parties mentioned herein above.
  6. "Party" shall bear a reference to either You or the Service Provider as the context may suggest. "Parties" shall be construed as a collective reference to You and the Service Provider;
  7. “Person” shall mean any natural person, limited or unlimited liability corporation, general partnership, limited partnership, proprietorship, trust, union, association, court, tribunal, agency, government, ministry, department, commission, self-regulatory organization, arbitrator, board, or other entity, enterprise, authority, or business organization;
  8. “Product” shall mean the product detailed in Schedule I;
  9. “Services” shall mean the services detailed in Schedule I;
  10. “Materials” shall mean any documents, manuals, reports, research and related documentation developed for providing the Services detailed in Schedule I
  1. INTERPRETATION

    Unless the context otherwise requires in this Agreement: 

  1. words importing persons or parties shall include firms and corporations and any organizations having legal capacity;
  2. words importing the singular include the plural and vice versa where the context so requires;
  3. reference to any law shall include such law as from time to time enacted amended, supplemented or re-enacted;
  4. reference to any gender includes a reference to all other genders;
  5. reference to the words "include" or "including" shall be construed without limitation;
  6. reference to this Agreement or any other agreement, deed or other instrument or document shall be construed as a reference to this Agreement, such agreement, deed or other instrument or document as the same may from time to time be amended, varied supplemented or novated;
  7. the headings and titles in this Agreement are indicative and shall not be deemed part thereof or be taken into consideration in the interpretation or construction hereof.
  1. SERVICES

    You hereby engage the Service Provider and the Service Provider undertakes to render the Services in accordance with the terms of this Agreement for a term of 1 year from the Effective Date hereof (the "Term").  Subject to the provisions of this Agreement and unless terminated sooner or extended by both Parties, this Agreement shall be auto renewed for successive periods of 1 year each on mutually agreed terms.

  1. OBLIGATIONS OF THE SERVICE PROVIDER

    The Service Provider for due performance of its obligations under this Agreement be required to:

  1. Performance of service:

    Service Provider will perform the Services and provide the Deliverables in accordance with the descriptions, specifications detailed in the Schedule 1 annexed hereto this Agreement.

     

  1. CONSIDERATION

    In consideration of the Services to be provided by the Service Provider, Youagreeto pay the Service Provider the fee in the manner provided by this Schedule II. The Fees shall be inclusive of all taxes except Service Tax. Invoicing shall be done in the manner provided in Schedule III.

  1. REPRESENTATIONS AND WARRANTIES OF SERVICE PROVIDER

    The Service Provider represents and warrants as under:

  1. it has the right to enter into this Agreement and perform its obligations under this Agreement without violating the terms or provisions of any other agreement or contract to which it is a party;
  2. it has all necessary rights, authorizations and licenses to provide the Services and all related materials as required under this Agreement:
  3. it will perform the Services in an efficient and expeditious manner in conformance with the highest standards of quality and professionalism;
  4. it will ensure that all persons performing any Services are properly trained, qualified and experienced to perform the same;
  5. in performing the Services, Service Provider and all persons performing the Services on its behalf of will comply with (a) all applicable laws, ordinances, rules, regulations, orders, licenses, permits and other governmental requirements (including, but not limited to, any such requirements imposed upon You with respect to the Services) and (b) all policies, procedures and work rules in effect at Your (or its Affiliates') facilities that are communicated to You or Your representatives.
  6. The Product and all its derivative Products are solely owned by the Service Provider, and all the intellectual property rights associated with the Product will continue to vest solely with the Service Provider.
  7. that upon the termination of this Agreement, the any report, documentation, email correspondence and other such material generated on youruser account (“MATERIALS”) other than the PRODUCT or its derivatives shall be handed over to You, or delivered to such person as You may nominate in writing for such purpose, or if so directed by You in writing, destroyed and the Service Provider shall render a certificate confirming that all the Materials have either been handed over or destroyed; If no such request is communicated by You within 7 working days of the termination of this Agreement, the Materials shall be destroyed.
  8. that it shall not, and shall ensure that its employees, agents and representatives who have access to the Materials shall not make any copies thereof, except as may be strictly necessary for the performance of the Services.
  1. OBLIGATIONS FORYOU
  1. You acknowledge that the terms of this Services Agreement, Terms of Use, Privacy Policy and any other agreement arising out of the use of the Services and Products provided by the Service Provider shall be applicable on You and that You consent to the terms and conditions imposed therein. The said Privacy Policy and its Terms and Conditions are annexed along with this Agreement as Annexure A and by consenting to this Agreement, You hereby acknowledge that you have read and understood the contents of Annexure A.
  2. You acknowledge and grant a non-exclusive right allowing the Service provider to useYour name and Logo on its website and represent You as a customer of the Service Provider.
  1. CONFIDENTIALITY
  1. The Service Provider acknowledges that it shall, in the course of performing its responsibilities under this Agreement, be exposed to or acquire Confidential Information of You or your Affiliates (collectively the “Disclosers”) or their clients or to third parties to whom the Disclosers owe a duty of confidentiality. The Service Provider agrees to make best efforts to hold the Confidential Information in strict confidence and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose such information to third parties or to use such information for any purposes whatsoever other than the performance of this Agreement.  The Service Provider shall advise each of its employees, representatives, subcontractors and agents who may be exposed to the Confidential Information, including Service Provider’s employees, subcontractors, agents and representatives of their obligations to keep such information confidential.  Each of Service Provider's employees, subcontractors, agents and representatives so exposed and each of the Service Provider personnel who are assigned to perform Services under this Agreement shall sign a confidentiality agreement in the form and substance satisfactory to You. Service Provider shall not publicise, disclose or allow disclosure of any information about the Disclosers, their present or former directors, officers, employees, agents or clients, their or their business and financial affairs, personnel matters, operating procedures, organisation responsibilities, marketing matters and policies or procedures, with any third party, or take any other action seeking to publicise or disclose any such information in any way likely to result in such information being made available to the general public in any form, including books, articles or writings of any other kind, as well as film, videotape, audiotape or any other medium. 
  2. If the Service Provider, Service Provider’s employees, subcontractors, agents representatives or any other person under the control of the Service Provider (the "Recipient") is exposed to Confidential Information in accordance with the terms of this Agreement, the Recipient is/are requested to disclose all or any part of any Confidential Information under a summons or inquiry issued by a court of competent jurisdiction or by a judicial or administrative agency or similar Person or which is otherwise required to be disclosed by law, statute or regulation, the Recipient shall (i) On a best efforts basis, immediately notify You of the existence, terms and circumstances surrounding such request; (ii) if disclosure of the Confidential Information is required or deemed advisable, exercise its best efforts to obtain an order, stipulation or other reliable assurance acceptable to You that confidential treatment shall be accorded to such portion of the Confidential Information to be disclosed.
  3. Upon the termination of the Agreement, Service Provider shall, at no additional cost to You, return to You all copies of documents, papers or other material which may contain or be derived from the Confidential Information, which are in the Service Provider's possession or control, together, if requested by You, with a certificate signed by the Service Provider in form and substance satisfactory to You, stating that all the Confidential Information has been returned. However, prior to any handover, it will be necessary for You to settle all dues payable to the Service Provider as per the terms of this Agreement.
  4. Notwithstanding the foregoing, the term "Confidential Information" shall not include information or materials that: (i) become generally available to the public other than as a result of disclosure by either Recipient or its representatives; (ii) were available to Contractor on a non-confidential basis prior to disclosure to it by Client; (iii) become available to Contractor on a non-confidential basis from a source other than Client, provided that such source is not bound by an obligation of confidentiality to Client; or (iv) were independently developed by the Contractor without the use of Client's Confidential Information.
  5. The exceptions described in Clause8 d above shall not apply to any information that would otherwise be considered Confidential Information and that is or relates to identifiable personal or financial information provided by individual employees, consumers or customers to You and its Affiliates and any list, description or other grouping of employees, consumers or customers that is derived using any such information any such information shall remain confidential in all circumstances.
  6. It is understood and agreed that in the event of a breach of the obligations of confidentiality by the Recipient, damages may not be an adequate remedy and the Disclosers shall be entitled to apply for appropriate injunctive relief to restrain any such breach, threatened or actual.
  1. PRIVACY OF PERSONAL DATA:

    You may from time to time provide Service Provider with information or access to information concerning individuals (consumers/employees) “Personal Data”. Service Provider acknowledges that its right to use and re-disclose Personal Data is limited to the conditions set out herein below. To protect the privacy of information concerning consumers/employees, Service Provider agrees that it shall undertake best efforts to:

  1. Undertake not to use directly or indirectly any such Personal Data either for itself or for any third party;
  2. Limit access to Personal Data to Service Provider’s employees who have a need to know, but only to the extent that such disclosure is reasonably necessary for the performance of Service Providers’ duties and obligations under this Agreement. Service Provider shall ensure that all persons referred above are made aware, prior to disclosure of the Confidential Information, of the confidential nature thereof and that they owe a duty of confidence to the Disclosing Party and to ensure that all such persons and bodies agree in writing to hold the Confidential Information in confidence in accordance with the terms of this Agreement;
  3. Use Personal Data solely to carry out the purposes under this Agreement for which the information was disclosed and for no other purpose;
  4. Maintain the confidentiality of the Personal Data and not directly or indirectly disclose the same to any person or entity except as expressly directed by You;
  5. Prevent any unauthorized use of the Personal Data. In case the Service Provider discovers any such unauthorized use it shall immediately notify You or any of its authorized representatives;
  6. In the event the Service Provider is required to disclose any such information under Law, it shall do so only upon serving a prior written notice requiring such disclosure;
  7. In the event of any conflict or ambiguity between this section and any other section in this Agreement, this section shall govern
  1. STATUTORY BENEFITS TO SERVICE PROVIDER’S EMPLOYEES

    The Service Provider agrees to provide its employees, engaged for performance of services under this Agreement, all statutory benefits as mandated or prescribed by applicable laws. You reserves the right to audit the Service Provider’s payroll or to call for relevant records, any time during the tenure of this Agreement to verify the Service Provider’s compliance status. Service Provider acknowledges that the service fees agreed to hereunder shall be an all-inclusive payment from You, which includes amounts towards statutory benefits also.

  1. COMPLIANCE WITH LAWS

    The Service Provider shall perform the services in compliance with all applicable laws and regulations and provide proof/certifications thereof.  This shall in particular include The Child Labour Prohibition and Regulation) Act 1986, The Contract Labour (Prohibition and Regulation) Act 1970, Workmen’s Compensation Act 1923, Employees’ State Insurance Act, 1948, Payment of Gratuity Act, 1972, The Payment of Wages Act, 1936, The Minimum Wages Act, 1948 , Employees Provident Fund Act, 1952, The relevant Shops and Establishments Act and all applicable rules, regulations, schemes and orders thereunder. The Service Provider warrants that it is authorized to perform the contracted services and further warrants that it has in all required registrations and licenses in place. Further due to any amendment of law or regulation or procedure, if the performance requires a new permit or authorization or license, the Service Provider shall make best efforts to obtain the required licenses, authorization or permit within 30 days from the date of such requirement being notified and will furnish to You with a copy of the same

  1. INDEMNITY
  1. In the event of any breach by Service Provider of any representation, warranty, obligations, or agreement made or given by it in this Agreement (including the confidentiality obligations under Clause 7), the Service Provider undertakes to indemnify and hold harmless You, its Affiliates, directors, officers, employees, agents and representatives to the extent of (a) any and all Damages suffered or incurred by the them in relation to such breach of representation or warranty, covenant or obligation; and/or (b) any tax, penalty or interest that may be levied or assessed as a result of the delay or failure of Service Provider or any its subcontractors or suppliers to pay service tax or any other tax on the Services rendered pursuant to this Agreement or to file any return or information required under any applicable law.
  2. Without limiting the generality of the foregoing, Service Provider undertakes to indemnify and hold harmless You, its Affiliates, directors, officers, employees, agents and representatives to the extent of all Damages claimed by or found owing to any third parties or customers in connection with any act or omission of Service Provider, arising from the performance, non-performance or breach of Service Provider’s obligations, undertakings or warranties under this Agreement or on account of failure by Service Provider, its officers, employees, agents, representatives or sub-contractors to comply with any applicable law;
  1. LIMITATION OF LIABILITY

    Notwithstanding anything contained in this Agreement, You shall not be liable to the Service Provider or any other person or entity for any indirect, special, incidental, consequential, punitive or exemplary damages arising out of or in connection with this Agreement.  In no event shall Yourtotal liability under this Agreement exceed an amount equivalent to the service fees paid to the Service Provider by You for the month immediately preceding the incident giving rise to the claim. a

  1. TERM & TERMINATION:
  1. Termination without Cause:

    2. Notwithstanding anything to the contrary contained in this Agreement, You may terminate this Agreement at any time on giving the Service Provider thirty (30) days' written notice.

  2. Termination for cause:

    3. Without prejudice to any other rights or remedies which it may have, either Party shall be entitled to terminate this Agreement forthwith by notice if:

    1. the other Party shall have committed a breach of this Agreement and either such breach is incapable of remedy or shall continue unremedied for ten (10) days after a notice specifying the breach and requiring the same to be remedied has been given to the defaulting Party; or
    2. if (save in relation to a re-organisation, re-construction or amalgamation not affecting the credit-worthiness of the other party):
      1. an order is made or resolution is passed for the winding-up of the other Party or if a provisional liquidator is appointed in respect of the other Party;
      2. a receiver (which expression shall include administrative receiver) is appointed in respect of the other Party or all or any of its assets;
  3. Effect of Termination:

    4. Upon termination of this Agreement: (i) You shall not have any further obligations under this Agreement, except for the obligation to settle payment for any unpaid Services rendered and any approved and unpaid expenses incurred prior to the termination, (ii) Service Provider shall return all Your equipment, Materials/Deliverables etc and Confidential Information in accordance with clause 6 (g)of the Agreement.  Obligations of the Service Provider under Clause 6-16 & 17b) of the Agreement shall survive the termination of this Agreement.

    You shall delete all copies Product or any derivative or any part thereof upon termination of the agreement. You undertake to ensure that the Product or any derivative or any part thereof is not used or replicated by You or any of Your current or ex -employees.

  1. DISPUTE RESOLUTION

    All disputes, differences of opinion and controversies arising between the Parties out of this Agreement shall be resolved amicably, failing which they shall be finally settled by a sole arbitrator mutually appointed by the Parties herein. The Arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 or any amendment thereof for the time being in force. The award of the arbitrator shall be a reasoned award and shall be final and binding on the Parties. The arbitration proceedings shall be conducted at a mutually decided venue at New Delhi and the award shall be rendered in English Language. During the pendency of any arbitration proceedings, the Parties shall continue to perform their respective obligation under this Agreement. Attorneys’ fees will be borne by the respective parties thereto.  The costs of arbitration will be borne equally by the parties.  Notwithstanding the forgoing, the parties will be free to pursue injunctive relief and restraining orders relating to the parties’ proprietary rights and confidentiality obligations as stated above in the competent Courts. Judgment on any arbitration award may be entered in any court having proper jurisdiction. Each party will promptly pay its share of all arbitration fees and costs (provided that such fees and costs shall be recoverable by the prevailing party as determined by the arbitrator).   If a party fails to pay such share promptly upon demand, the arbitrator shall, upon written request by the other party, enter a final and binding decision against the nonpaying party for the full amount of such share, together with an award of attorney's fees and costs incurred by the other party in obtaining such decision, which decision may be entered in any court of competent jurisdiction

  1. NOTICES

    Any notice and other communications provided for in this Agreement shall be in writing and shall be first transmitted by facsimile/electronic transmission, and then confirmed by postage, prepaid registered airmail or by internationally recognised courier service, in the manner as elected by the Party giving such notice to the following addresses:

  1. In case of Notices to You, the same shall be sent on the email address registered with us.
  2. In case of Notices to the Service Provider:

    Blink Advisory Services Pvt. Ltd.

    920, 9th Floor, Wave Silver Tower, Sector-18, Noida, Uttar Pradesh 201301, India

     

    All notices shall be deemed to have been validly given on (i) the business date immediately after the date of transmission with confirmed answer back, if transmitted by facsimile/electronic transmission, or (ii) the business date of receipt, if transmitted by courier or registered airmail. Parties undertake to update the other party of any changes to the address.

  1. MISCELLENEOUS
  1. Reservation of rights:

    2. No forbearance, indulgence or relaxation or inaction by a Party at any time to require performance of any of the provisions of this Agreement shall in any way affect, diminish or prejudice the right of such Party to require performance of that provision.  Any waiver or acquiescence by a Party of any breach of any of the provisions of this Agreement shall not be construed as a waiver or acquiescence of any right under or arising out of this Agreement or of the subsequent breach, or acquiescence to or recognition of rights other than as expressly stipulated in this Agreement.

  2. Partial invalidity

    3. If any provision of this Agreement is held to be invalid or unenforceable to any extent, the remainder of this Agreement shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.  Any invalid or unenforceable provision of this Agreement shall be replaced with a provision that is valid and enforceable and most nearly reflects the original intent of the unenforceable provision. 

  3. Entirety

    4. This Agreement constitutes the entire Agreement between the Parties with respect to the subject matter hereof to the exclusion of all other understandings and assurances, either written or oral.

  4. Amendment

    5. No modification or amendment to this Agreement and no waiver of any of the terms or conditions hereto shall be valid or binding unless made in writing and duly executed by both Parties.

  5. Assignment

    6. The Service Provider shall not assign or sub-contract its rights and liabilities under this Agreement without the prior written consent of You.

  6. Binding nature

    7. This Agreement shall bind upon, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns. 

  7. Relationship

    8. Nothing contained in this agreement shall be construed a joint venture, partnership or agency between the Parties. The relationship between the Parties shall be principal to principal, it being clearly understood that this is a “contract for services” and not a “contract of services”.  The Service Provider shall not be entitled to, by act, word, deed or otherwise, make any statement on behalf of You or in any manner bind You or hold out or represent that the Service Provider is representing You or acting as Your agent.  The Service Provider is and shall always be and remain an independent contractor. 

  8. Non-exclusivity

    Nothing in this Agreement shall be construed as creating any obligations of exclusivity on You. You shall, at all times, be entitled to retain other third party vendors for the purpose of procuring services similar or identical to the Services.

    IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

    SCHEDULE I

    User will have single sign in access to the

    SHEDULE II

    The pricing is quoted in the below table

    Plan Name

    Details

    Specification

    License Amount (INR)

    Free Trail

    14 Day Free Trial Period

    Complete dashboard access for 14 days

    0

    Standard

    Single User Access to platform

    Complete platform access for month

    25,000

    Enterprise

    Single/Multiuser

    Complete Customized Dashboards

    As per agreement

 

 

 

 

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