SREST'S SOFTWARE SERVICES TERMS
Modification Date: August 1st, 2011
1.0 ACCEPTANCE OF AGREEMENT
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (the "Terms") is
between "Srest" and "Customer" requesting software services
from "Srest".
This Agreement constitutes agreement between Srest and you
and, as applicable any insertion orders or product agreement
or service agreements executed by you and Srest whether via
email or physical sign or via fax. Verbal or other medium is
not construed as any agreement. Please insist on email/paper
confirmation after any verbal/other medium agreement. The
terms of this Agreement shall apply to all services provided
by Srest unless a agreement excluding these terms are made.
The terms and conditions set forth in this Agreement shall
hold even if there are additional terms set forth in any other
purchase order submitted by Customer or acceptance form or
invoice issued by Srest and those terms don't exclude any
terms as documented here.. The terms and conditions of any
Order shall control over any conflicting terms and conditions
contained in this Agreement.
This Agreement may be amended at any time by us from time to
time without specific notice to you. The latest Agreement will
be posted on the Site, and you should review this Agreement
prior to ordering any services from Srest. Acceptance of
quotation related to sevices requested through any mean or
Full or part payment of the invoice is deemed acceptance of
these terms.
For complete list of definitions see "Definition"
2.0 PROGRAM LICENSE
LICENSE GRANT. Subject to the terms and conditions of
this Agreement, Srest grants Customer the worldwide,
nonexclusive, perpetual right for binary and source
specifically written for the Customer and Binary for common
components. Source code for any common component is not
provided, those needs to be bought separately. ;
RETENTION OF RIGHTS. Srest reserves all rights not
expressly granted to Customer in this Agreement. Without
limiting the generality of the foregoing, Customer
acknowledges and agrees that: (i) Anything marked as Srest
copyright or using package com.srest is owned by Srest (ii)
Srest wants to deliver quality solutions at a very competitive
price and one way we are able to achieve this is by reusing
software components. Price quoted is only for your using
it/customizing for the customer. There is no charge added for
Common Components unless specifically quoted. The charges are
only for using them and provide other support necessary for
its use. We retain all ownership and copyright for all common
components, marked by Srest Copyright message or have
com.srest as package name. For any other use please make a
agreement detailing those. Prices or time required will jump
from anything between 5-10 times, depending on your
requirement as Srest have virtually rewrite 90% code which is
common in most projects.
3.0 TERM AND TERMINATION
TERMINATION BY EITHER PARTY FOR MATERIAL BREACH. Either
party may terminate this Agreement written notice if the other
party materially breaches this Agreement and fails to cure
such breach within thirty (30) days following receipt of
notice specifying the breach in detail; provided, however, the
Customer may terminate Maintenance Services only if Srest
materially breaches the provisions of maintainence agreement
and fails to cure, or to begin in good faith to cure, the
breach within thirty (30) days following written notice from
Customer specifying the breach in detail. In the event of
termination of Maintenance Services, Customer shall be liable
only for payment for Maintenance Services through the
termination date and shall receive a pro-rata refund of any
unused prepaid fees.
EFFECT OF TERMINATION. Termination of this Agreement or
any Program License shall not limit either party from pursuing
other remedies available to it, including injunctive relief,
nor shall such termination relieve Customer of its obligation
to pay all fees that have accrued or are otherwise owed by
Customer under any Order Form. Also many points shall remain
in effect as detailed in "Survival" sections.
4.0 PAYMENT PROVISIONS
SERVICE FEES. In consideration of the services,
Customer agrees to make payments set forth in Order which
payments shall be nonrefundable and irrevocable.
MAINTENANCE SERVICE FEES. Fees for Maintenance Services
shall be payable as set forth in the Order.
OTHER FEES. All other applicable fees, if any, shall be
payable thirty (7) days from the receipt of Srest's invoice.
TAXES. The fees listed do not include taxes, duties or
fees; if Srest is required to pay (i) sales, use, property,
value-added, withholding or other taxes, (ii) any customs or
other duties or (iii) any import, warehouse or other fees,
associated with the importation or delivery based on the
Program Licenses granted or services provided in this
Agreement or on Customer's use of Programs or services, then
such taxes, duties or fees shall be billed to and paid by
Customer. If Customer is permitted to declare any such taxes,
Customer shall declare and pay such taxes and Srest shall not
be required to invoice Customer. This Section shall not apply
to taxes based on Srest's income or payroll taxes.
If any points in the requirement document associated with the
service request is not done for any reasons, Srest is only
liable to refund the amount paid for that point in case
payment is already made or not charge for that point. If
quotation for that point is not made separately, then Srest
assessment of the value of that point is final.
Payment shall be made in INR ( Indian Rupees) or U.S.
dollars by bank draft, check or cash. A late payment
charge of one and a half (1.5%) percent per month, or the
maximum percentage rate permitted by law, if lower, shall be
charged on all past due balances.
Services cost only includes price for items as documented in
requirement document. Clarification provided can results in
change of price if one has been provided earlier. Anything not
document in the requirement document or customization document
is not part of requirement.
Anything not included in the requirement document is
considered change request or new requirement. We will quote
separately for those. You may be charged for providing such a
quotation for the time we spent to evaluate and make those
quotations at a rate of 10$/hr or 400Rs/hr or as negotiated
with Srest. Srest summary of time spent is final for less than
10 hours. For other cases Srest will take approval from client
before starting analizing the new requirements or change
request. Srest will charge you the requirement analysis time,
even if you don't accept our quotations for the change request
or new requirements.
5.0 COMPLEMENTARY SUPPORT AND MAINTENANCE
Srest provide complementary 5 year support from the
performance of any services by Srest pursuant to the
Agreement, including Maintenance Services, that such services
shall be performed in a manner consistent with generally
accepted industry standards. This is totally complementary and
our "NO GUARANTEE OR WARRANTY" terms holds in case of any
disputes. Srest may deny providing this support for any
reasons or ask client to purchase the support at the rate as
conveyed by Srest. Client may elect to purchase support and
maintenance for the Software after 5 year by paying srest the
applicable Maintenance Fees or buy extended support.
This software or any other component developed during the
service is provided "as is", without any guarantee made as to
its suitability or fitness for any particular use. It may
contain bugs, so use of this tool is at your own risk. We take
no responsibility for any damage that may unintentionally be
caused through its use.
If support request is made to Srest and it is determined that
the error lies within what Srest provided as services, then
Srest will rectify the errors in it for free. Srest will run
comprehensive tests, pinpoint the problem and provide Client
with a firm quote in case the problems is outside the scope.
Client agrees to pay diagnostic fee even if client don't agree
to go with Srest recommended approach. Srest will quote time
and materials, based upon our standard technician repair rate.
Software issues that Client will be charged for include, but
are not limited to: operating system errors, software
configuration problems, incorrect printer setup, improper
installation of previously installed software, virus
infections and media problems.
Srest shall be under no obligation to provide Support or
Maintenance should such services be required due to
(a) damage occurring in transit;
(b) improper installation or operation;
(c) misuse, abuse or negligent use, repair, alteration or
improper storage or any use which does not conform to the
specific or general instructions of Licensor or to the
provisions of the Documentation;
(d) any modification or attempted modification of the Software
by Licensee or any third party;
(e) causes external to the Software or if the Software has
been subjected to an extreme power surge or electromagnetic
field, whether or not through the fault of Licensee; or
(f) Licensee's failure or refusal to implement software
changes recommended by Licensor. Srest interpretation of what
can be supported and what cannot be supported is final. Any
disputes, Srest always has the final say.
(g) Software components not developed or owned by Srest.
Customer can optionally buy Priority/Premium support. Priority
support is usually 20% of cost. Premium support usually cost
40% of the cost. The cost is evaluated every year.
6.0 DATA RECOVERY AND BACKUP
Srest shall not be responsible for any programs or data stored
on your computer. Requests for recovery and restore functions
will be at srest’s standard labor rates. Client
recognizes that data recovery can be tedious, costly and in
some cases, unsuccessful.
7.0 NO GUARANTEE OR WARRANTY
THE SERVICES AND THE PROGRAMS ARE PROVIDED "AS IS" AND WITHOUT
WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS
FOR A PARTICULAR PURPOSE. THIS IS THE SOLE AND EXCLUSIVE
WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR
ADVICE GIVEN BY SREST, ITS AFFILIATES, DEALERS, DISTRIBUTORS,
AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY
INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. SREST DOES
NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES OR
SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
SREST does not warrant that any services will meet your
requirements or that the operation of any computer software
will be uninterrupted or error free. We assume no
responsibility for problems associated with incompatible
operating systems or equipment or for problems arising out of
the interaction of SREST software with software not furnished
by us.
You assume all risk as to the suitability, performance quality
and compatibility of the services provided, and in this
respect the services is being provided on an “AS
IS” basis. As detailed above, SREST does not make any
representations or warranties with respect to the accuracy or
completeness or completeness of any services. THE LIMITED
WARRANTY IS SPECIFICALLY IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND ALL OTHER WARRANTIES ARE EXCLUDED. SREST
NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY
OTHER OBLIGATION OR LIABILITY.
The exclusion also applies to any of srest’s Program
developers and suppliers.
8.0 LIMITATION OF LIABILITY
IN NO EVENT SHALL SREST BE LIABLE FOR ANY LOSS OF OR DAMAGE TO
REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL,
INDIRECT AND CONSEQUENTIAL DAMAGES OF ANY KIND,
RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT
TO THE TERMS OF THIS AGREEMENT OR ANY OF THE ATTACHMENTS
HERETO, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE
OR LOSS OF ANY SOFTWARE OR SERVICE OR OTHER MATERIALS
DELIVERED TO CONSULTANT HEREUNDER, INCLUDING WITHOUT
LIMITATION ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING
FROM BREACH OF CONTRACT OR BREACH OF WARRANTY OR OTHERWISE,
EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
Notwithstanding anything herein to the contrary, the maximum
aggregate amount of money damages for which Srest may be
liable to Client under this Agreement, resulting from any
cause whatsoever, shall be limited to the amounts actually
paid by Client to Srest for the services in that year
9.0 NON DISCLOSURE.
Each party may have access to information that is confidential
to the other party ("Confidential Information"). Srest's
Confidential Information shall include, but not be limited to,
the Programs, Documentation, formulas, methods, know how,
processes, designs, new products, developmental work,
marketing requirements, marketing plans, customer names,
prospective customer names, the terms and pricing under this
Agreement, and all information clearly identified in writing
at the time of disclosure as confidential. Customer's
Confidential Information shall include but not be limited to,
its software programs, formulas, methods, know-how, processes,
designs, new products, developmental work, marketing
requirements, marketing plans, customer names, prospective
customer names, and all information clearly identified in
writing at the time of disclosure as confidential.
Confidential Information includes all information received
from third parties that either party is obligated to treat as
confidential and oral information that is identified by either
party as confidential.
A party's Confidential Information shall not include
information that
(i) is or becomes a part of the public domain through no act
or omission of the other party;
(ii) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party;
(iii) is lawfully disclosed to the other party by a third
party without restriction on disclosure;
(iv) is independently developed by the other party without use
of or reference to the other party's Confidential Information,
(v) is required to be disclosed by law or valid order of a
court or other governmental authority.
The parties agree, unless required by law, not to make each
other's Confidential Information available in any form to any
third party (except third parties who are Users as defined
hereunder) or to use each other's Confidential Information for
any purpose other than in the performance of this Agreement.
Customer shall not disclose the results of any performance
tests of the Programs to any third party without Srest's prior
written approval. Each party agrees to take all reasonable
steps to ensure that Confidential Information is not disclosed
or distributed by its employees or agents in breach of this
Agreement. The parties agree to hold each other's Confidential
Information in confidence during the term of this Agreement or
even under termination of this agreement.
10.0 GOVERNING LAW
This Agreement and all matters arising out of or relating to
this Agreement, shall be governed by the laws of the India,
excluding its conflict of law provisions. The parties agree
that the Sale of Goods is specifically excluded from
application to this Agreement.
All of our rights, duties, and obligations are subject to the
courts of Mumbai, Maharashtra, India.
11.0 WAIVER
The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or
subsequent default or breach. Except for actions for
nonpayment or breach of Srest's proprietary rights in the
Programs or Documentation, no action, regardless of form,
arising out of this Agreement may be brought by either party
more than one year after the cause of action has accrued.
12.0 EXPORT CONTROLS
Customer agrees to comply fully with all relevant export laws
and regulations of the India, Without limiting the generality
of the foregoing, Customer expressly agrees that it shall not,
and shall cause its representatives to agree not to, export,
directly or indirectly, re-export, divert, or transfer the
Programs, Documentation or any direct product thereof to any
destination, company or person restricted or prohibited by
India.
13.0 RELATIONSHIP BETWEEN THE PARTIES
(a) Srest is an independent contractor, nothing in this Agreement
shall be construed to create a partnership, joint venture or
agency relationship between the parties.
(b) Each party solely retains all responsibilities and rights of an employer
towards and in relation to its own employees. Neither party seconds its employee or any of them to the other,
nor is it the intention of either party to have or create an employee/employer relationship with the other.
Each party will indemnify the other against any claims brought by or in relation to its own employees,
whether such claims relate to employment, tax, social service/national insurance, or otherwise
(c) Neither party will employ, engage, or otherwise solicit any person who during the previous
12 months was an employee or sub-contractor of the other and with whom such party had material contact
in connection with any services performed.
14.0 SEVERABILITY
If any provision of this Agreement is deemed illegal, invalid,
void or otherwise unenforceable in whole or in part, that
provision shall be severed or shall be enforced only to the
extent legally permitted, and the remainder of the provision
and the Agreement shall remain in full force and effect. If
any provision of this Agreement is deemed to be invalid, void
or unenforceable only with respect to a particular
application, such term or provision shall remain in full force
and effect with respect to all other applications.
15.0 SURVIVAL
All provisions in this agreement which by their nature extend
beyond the termination of any sale or license of Products or
Support or Services for examples terms relating to your
warranties, intellectual property rights, limitation and
exclusion of liability, your indemnification obligations and
payment obligations shall survive the termination or
expiration of this Agreement.
16.0 INDEMNIFICATION
You agree to indemnify, defend and hold us and our partners,
agents, officers, directors, employees, subcontractors,
successors, assigns, third party suppliers of information and
documents, advertisers, product and service providers, and
affiliates (collectively,” Affiliated Parties”) harmless from
any liability, loss, claim and expenses related to your
violation of the Agreement
17.0 SERVICES MARKS
"SRest","Srest.biz", "SecuredTimesheet", "Genuinepics",
"SecuredGreeting", "SecureDir", "Ticket2Jobs", "Secured Web"
and others are our service marks or registered service marks
or trademarks. Other product and company names mentioned on
the Site may be trademarks of their respective owners.
