Last Updated: September, 2021
This Datamatics Service Agreement, together with the terms of any Job Card or document (“Job Card”), exhibit, annexures, or supplemental terms if any (collectively referred to as “Agreement”) describe the basis on which Datamatics Entity listed in Job Card (“Datamatics”) provides services as set forth in the applicable Job Card (“Services”) to the legal entity listed in Job Card (“Client”) that purchases or accesses or uses the Services. This Agreement constitutes a binding contract between Datamatics and such purchasing entity i.e. Client.
The terms “Datamatics” and “Client” shall include their respective successors and permitted assigns. The terms and conditions of this Service Agreement apply to any Job Card, releases or other means of ordering between Datamatics and Client (individually “Party; collectively “Parties”) relating to services.
- Project Scope
Datamatics will provide to the Client the services listed in the Job Card (“Services”) for the execution of the project, the details of which are more specifically set out in the said Job Card (“Project”) and such further Projects as is agreed between the Parties in writing from time to time. The Client is responsible for ensuring that the scope of the Services, service levels, delivery timelines, procedures etc. as required by them, are detailed, unambiguous, reasonable, lawful and clearly specified.
- Service Terms and Conditions
- If the Project scope and assumptions are changed at any time by the Client, this shall impact the deliverables and commercials and hence the Parties agree for an equitable adjustment to the terms provided herein.
- In case change request is received to change (including to cease) any service or add new services to the existing Services for the commercials; or to amend or extend the Agreement, a request shall be made either through amendment agreement or in the form of email by the authorised representative of the respective Party suggesting such change (“Change Request”). Such change shall be effective from the date the Change Request is accepted by the other Party through its authorised representative. The Change Request shall not be denied or rejected unreasonably.
- It is agreed and acknowledged by the Client that the delivery of the agreed deliverables by Datamatics can depend on the availability of data/ information in the public domain as well as on the availability of the data subjects etc. Datamatics shall make all reasonable and prudent efforts to provide the output data / deliverables within the agreed time, for the Project.
- Wherever the deliverables pertain to data subjects, Datamatics does not certify that the data subjects in the delivered lists have “opted in” to receive any information or communication from Datamatics or the Client except the cases where Datamatics specifically states in writing that the data subjects have opted in.
- The Client agrees to accept “part delivery” as the “full and final” delivery for the Project, in case the required data/ information is not adequately available in the public domain.
- The deliverables are of B2B nature and is susceptible to changes due to efflux of time, taking place at the data subject locations e.g. transfers, promotions, attritions etc.
- Any Services or deliverables provided by Datamatics which do not meet the service standards as set out in Job Card for that deliverable/Services shall be notified in writing by the Client to Datamatics within seven (7) days of delivery of such deliverables/Services. If Client raises no query within these seven (7) days, the deliverables/Services shall be deemed to have been accepted by Client. However, if Client raises concern on the deliverables/Services then Datamatics shall thereafter carry out the required corrections and resubmit such deliverables/Services, wherever reasonably possible, within seven (7) days to the Client and if no further communication is received from the Client in this regard, the said resubmitted deliverables/Services shall be deemed as approved and accepted by the Client.
- Subject to receipt of payment in full, Datamatics will provide to the Client a limited, non-exclusive right on the usage of the database of the data, researched and delivered by Datamatics only for the purpose for which it has been delivered to the Client.
- Client acknowledges and agrees that Datamatics is relying on the accuracy, quality and legality of the documented information and instructions supplied by Client, and other documented requirements specified by Client via email and/or any other written communication mode mutually agreed between the Parties (cumulatively, the “Processing Norms”), to perform the Services mentioned in this Agreement. In the event the Processing Norms are not accurate or are found to be inadequate, Client shall promptly notify Datamatics of any such deficiency and Client will use its best efforts to remedy the situation in a timely manner. For the avoidance of doubt, the Processing Norms shall comply with data protection laws and regulations of all the applicable jurisdictions.
- Datamatics shall be entitled to rely on and act in accordance with the Processing Norms and shall not incur any liability for claims, losses or damages that arise as a result of Datamatics’ compliance with the Processing Norms.
- In no event will Datamatics or its affiliates be liable for any damages and service levels/ service level credits if and to the extent caused by the failure of Client or its affiliates (as applicable) to perform its responsibilities under this Agreement.
- Datamatics may use Client’s name in their marketing communication to other prospects. However, details of the transactions shall be Confidential Information.
- Datamatics shall not be liable, and will have no obligation towards Client for the (i) sensitive data sent to Datamatics by Client; (ii) violation of any law by Datamatics when acting under Client’s or its affiliates direction; or (iii) the sending by Datamatics of the Client’s emails, including any claims against Datamatics due to Client’s sending or data collection practices or Client’s content.
- Datamatics shall not be responsible and liable in any manner whatsoever if Client ask Datamatics for the transfer of data/information from any mode other than SFTP. Client shall indemnify and hold Datamatics and its affiliates harmless from and against any and all losses, liabilities, damages, and claims (including reasonable attorney’s fees) arises or incurred in connection with transfer of such data/information other than SFTP mode including breach of data privacy laws.
- Client’s exclusive remedy for Datamatics’ failure to adequately perform any of the Services or obligations set forth herein will be to have Datamatics make a second attempt to perform the services.
- Payment Terms
- Datamatics shall invoice the Client and Client shall pay Datamatics the fees as specified in Job Card, for the Services Datamatics performs for the Client under the said Job Card.
- Any query on the invoices is to be communicated by Client to Datamatics in writing within Seven (7) working days from the date of receipt of the invoice. If Client raises no query within these Seven (7) working days, the invoice shall be deemed to have been accepted by Client and due for payment in full to Datamatics on due date. Client agrees to promptly pay any undisputed amounts under each invoice.
- The commercials/ consideration agreed herein are exclusive of applicable taxes. All sale of service tax such as VAT, GST etc., which if currently not chargeable on sale of services may become applicable on the future date, in which case it shall be paid by the Client. The Parties to this Agreement shall be liable for their individual taxes pertaining to their capital, capital stock, net worth, gross margin or gross profit.
- Unless otherwise agreed in the Job Card, the Client shall pay invoices within thirty (30) days’ from the date of its receipt. Parties will be responsible for their respective Bank Charges. Client will remit the amount electronically to Datamatics’ bank details as mentioned in the invoice or Job Card as the case may be.
- Any delay in payment over thirty (30) days or part thereof, will entail interest at 0.75% per month from the due date till date of payment.
- Any default or delay in payment of the invoice over one (1) month on the part of Client, shall constitute a material breach of terms of this Agreement and Datamatics, in that case, shall have the right to stop providing the Services to the Client forthwith and terminate this Agreement by intimating to Client for default. This right of Datamatics is in addition to and independent of the right of charging interest on delayed payment as specified in sub-clause (e) hereinabove.
- For the administrative purpose, Client may request Datamatics to issue invoice on Client’s affiliate therefore, invoice(s) may be issued on such Client’s affiliate’s only for the purpose of making payment. However, payment does not give any rights to such Client’s affiliates to bring any claim on Datamatics or its affiliates. Further, it is hereby agreed by the Client and its affiliates that the Client and its affiliates shall be jointly and severally responsible and liable for payment terms.
- Fees paid under this Agreement shall be non-refundable and non‑creditable against other fees payable in connection with the Project.
- Representations and Warranties
Each Party represents and warrants to each other that it has full power and authority to enter into this Agreement and the person signing this Agreement on behalf of each Party hereto, has been duly authorized and empowered to enter into and execute this Agreement;
Datamatics shall be the owner of all title, rights and interest, including all rights in intellectual property in and to the deliverables. The Client is granted by Datamatics a limited, perpetual, non-exclusive right to make use of all deliverables for its business purposes in the country in which the Client is located. All rights in the Intellectual Property in the deliverables under this Agreement shall continue to vest with Datamatics.
Both Parties agree to comply with the provisions of their respective Data Protection Laws applicable to them as Data Processor (Datamatics) and Data Controller (Client). In relation to any Personal Data which is used by Datamatics as part of the Services, Datamatics will: (i) use such Personal Data only in accordance with reasonable instructions of the Client; and (ii) in compliance with legally required security obligations applicable to Datamatics.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE WARRANTIES IN THIS CLAUSE ARE DATAMATICS SOLE WARRANTIES TO CLIENT WITH RESPECT TO THE SERVICES, INCLUDING (WITHOUT LIMITATION) SERVICE QUALITY AND PERFORMANCE, AND ARE MADE EXPRESSLY IN LIEU OF AND EXCLUDE IMPLIED WARRANTIES OF ACCEPTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES AND CONSUMER GUARANTEES PROVIDED BY STATUTE, COMMON LAW OR OTHERWISE.
- Term and Termination of the Agreement
- The initial term of this Agreement shall be as set forth in the Job Card, unless terminated by either Party in the manner set out in this Agreement. For clarity, each Job Card, together with the current version of this Agreement, creates a separate contract between Client and Datamatics, and therefore Client may have multiple contracts in effect with Datamatics at any time. Each will be treated as an independent contract.
- Either Party can terminate this Agreement or any Project under this Agreement by serving prior thirty (30) days written notice of termination to the other Party.
- Either Party shall have the right to terminate this Agreement or any Project in case of breach of the Agreement or such Project by the other Party and the non-rectification of the breach within the thirty (30) days’ written notice period issued by the other Party.
- Either Party shall have the right to forthwith terminate the Agreement in case of insolvency, bankruptcy and/or liquidation of the other Party.
- Consequences of termination
- Upon the termination or expiration of the Agreement, for any reason set forth herein, Client shall be liable to pay for the Services rendered by Datamatics upto the date of termination/ expiration, as also the payment for all fixed and non-cancellable costs incurred by Datamatics.
- If Client fails to serve the notice period then Datamatics shall be entitled to charge the Client the average monthly billing of last six months as monthly service fees for the shortfall in notice period.
- The termination or expiration of this Agreement shall have no impact on the continuing validity and effect of any Project that may have been entered into between the Parties prior to such expiration or termination, unless and to the extent, such Projects are terminated as described in clause 5.
- Termination of this Agreement shall not prejudice or affect: (i) the rights and obligations of the parties under this Agreement wholly or partially outstanding at the date of such termination; or (ii) any right of action or remedy which shall have accrued or shall accrue subsequently under this Agreement to either party.
Each Party shall defend, indemnify and hold the other Party harmless from any and all claims, losses, expenses, cost, liabilities, damages or judgement (including reasonable attorney’s fees) that such Party may suffered or incurred in connection with any third party claim for any fraud or bad faith of the indemnifying Party in performance of its obligations under this Agreement.
The indemnified party shall give prompt written notice to the indemnifying party of a claim for which the indemnifying party is required to indemnify the indemnified party under this clause and the indemnified party has the right (but no obligation) to participate in the defense of such claim at its expense. In no event will either party settle any claim for which it has an obligation to indemnify the other without the other’s prior written consent, not to be unreasonably delayed, unless such settlement involves only the payment of money damages and no admission of wrongdoing or other relief and includes a complete release of the indemnified party.
- Limitation Of Liability
Datamatics’ aggregate liability under or in connection to this entire Agreement (including without limitation breach of warranty, negligence, strict liability and tort) with respect to each Project/Job Card under which the claim arose shall not exceed 25% of the charges paid by Client to Datamatics under this Agreement for such Project/Job Card. Notice of any such claim with respect to each of such Project/Job Card must be delivered in writing to Datamatics within Fifteen (15) days after the date of the delivery of such Project/Job Card which gave rise to the claim. The parties agree that the foregoing limitation of liability is not intended to limit the amounts due and owing by the Client to Datamatics for the performance of the Services under the Agreement.
It is further understood and acknowledged between the Parties that neither Party shall be responsible and liable to the other Party or any third party for any indirect, punitive, consequential or exemplary costs, damages, actions, claims, losses including the claims for actual or alleged loss of revenue, loss of profits, loss of goodwill or reputation, loss of data or loss of opportunities arising from any claim or action hereunder, whether based on contract, tort or other legal theory.
- Confidentiality and Compliance
Both Parties shall maintain the confidentiality regarding the information, records, material and data except IP data in any form other than in oral, of the other party, which has been provided or disclosed to them as confidential information which is specifically marked as ‘Confidential’ except as reasonably required to be disclosed to its employees working on the Project. However, confidential information shall not include (a) any information that is disclosed to a statutory/ regulatory or judicial authority under due process of law (b) any information that is available to the public (c) to the receiving party hereunder from sources other than the disclosing party (provided that such source is not subject to obligations of confidentiality with regard to such information), (d) any information that is independently developed by either Party without use of or reference to information from disclosing Party. The Parties hereto further agree that the confidentiality clause as referred hereinabove, shall govern the parties until such information ceases to be confidential or up to 1 (one) year after expiry or termination of this Agreement, whichever is earlier.
- Data Privacy
For the purposes of this Agreement, the terms “personal data”, “processing” and “data subject” have the same meaning as those given to them in EU General Data Protection Regulation 2016/679 (“GDPR“). In the event the Clinet’s usage of the Services requires Datamatics to process personal data falling within the scope of GDPR, Client will be bound by the terms and conditions of Datamatics GDPR Data Processing Agreement (“GDPR Agreement”) available on the link: https://www.datamaticsbpm.com/general-data-protection-agreement/. Such GDPR Agreement shall hereby be incorporated into this Agreement by reference and the execution of this Agreement shall be deemed to be an acceptance of the terms and conditions of the GDPR Agreement by Client.
Parties agree that during the term of this Agreement and for a period of one (1) year thereafter, neither Party may induce or solicit for employment or retention as an independent contractor any employee or former employee of the other who was involved in the Services undertaken pursuant to this Agreement, provided that this clause shall not restrict the right of the either Party from hiring any employee of such other Party who answers any advertisement in newspapers or trade publications available to the public without having been initially personally solicited or recruited by such Party. In the event of breach of this clause, the party in breach shall pay the other party an amount equivalent six (6) months net salary (salary of the employee in the hiring party) of the employee that has been hired in violation of this clause. The said amount shall be paid within fifteen (15) days from the date of receipt of claim in writing from the affected party.
- Anti-Bribery Laws
At all times during while performing under this Agreement, each Party represents and warrants that it understands and shall comply with the requirements of the U.S. Foreign Corrupt Practices Act, 1977, the UK Bribery Act, 2010 and any applicable anti-bribery and anti-corruption laws of jurisdictions where performing.
- Performance by Affiliat
The Parties hereby agree that the obligations to be performed under this Agreement may be performed by any affiliate of Datamatics or its subcontractors subject to intimation given by Datamatics to the Client to that effect and provided always that any such affiliate and subcontractor has the legal and corporate capacity to grant or transfer the relevant assets or to perform the relevant obligations (as the case may be) and that it is authorized to do the same by its own articles of association, by-laws, or other relevant internal regulations. Notwithstanding the foregoing, Datamatics shall remain sole liable for the obligations to be performed by any of its affiliates or its subcontractor. To the fullest extent possible under applicable law, no such Datamatics’ affiliates or subcontractor will have any liability to the Client and the Client will not bring any claim in any way in respect of or in connection with this Agreement against any such affiliates or subcontractor except Datamatics.
A notice served under this Agreement shall be in writing in the English language and shall be delivered personally, sent by fax, or sent by commercial courier or by email. The addresses for service of notice to Client and Datamatics shall be at the address set forth in the Job Card or such other address as either party may be notified of by the other party. Any such notice shall be considered to have been given at the time of actual delivery or upon being marked rejected or undeliverable if properly addressed. Any notices, which Client has to serve on Datamatics via email, shall also address to email@example.com & firstname.lastname@example.org
- Force Majeure
Neither Party shall be liable to each other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including, without limitation, any of the Acts of God i.e. natural calamities, governmental act, war, fire, flood, explosion, civil commotions or insurrections or terrorist activities etc., and the Client agrees to extend the time for deliverables in such circumstances.
- No Third Party Beneficiaries
Datamatics and Client intend that, save for an affiliate specified in this Agreement no provisions of this Agreement shall in any way bind or benefit any third party or the public at large and that no third party shall have any rights or cause of action under this Agreement.
- Independent Contractors
Parties hereto are independent parties, not agents, employees or employers of the other or joint ventures, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.
All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the Law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the Law, and the remaining provisions will remain in full force.
- Dispute Resolution, Arbitration, Governing Law And Jurisdiction
- In case of a signing entity of Job Card is Datamatics Business Solutions Limited
In the event that any dispute arises between the Parties in connection with this Agreement, the construction of any provision of this Agreement or the rights, duties or liabilities of the Parties hereto under this Agreement, the Parties shall conduct negotiations in good faith to solve such dispute. If mutual resolution cannot be reached within thirty (30) days after the commencement of such negotiations, either of the parties shall be free to refer such dispute to the arbitration by a single arbitrator to be jointly appointed by the parties. The arbitration shall be conducted in accordance with the Arbitration & Conciliation Act, 1996 for the time being in force or any statutory modification or re-enactment thereof. The venue of arbitration shall be Mumbai and any award made in such arbitration will be final and binding on the Parties. The language of the Arbitration shall be English. This Agreement shall be governed by and construed in accordance with the Laws of India and the courts in Mumbai shall have the exclusive jurisdiction to try and determine the disputes arising under this Agreement.
- In case of a signing entity of Job Card is Datamatics Business Solutions Inc.
The governing law to this Agreement shall be the U.S. New York and courts of New York shall have the jurisdiction to determine the disputes arising under this Agreement.
- In case of a signing entity is Datamatics Business Solutions UK Limited
This Agreement shall be governed by and construed in accordance with English laws and the courts in London shall have the exclusive jurisdiction to try and determine the disputes arising under this Agreement.
Any outstanding payment obligations under this Agreement and obligations set out in clause 3, 4, 5, 6, 7, 8, 10, 11 to 13, 16, 17, 20, 22 and 25 shall survive the expiration and/or termination of this Agreement along with any provisions of this Agreement which are intended by their nature to survive performance of the Services, will survive the termination or expiration of this Agreement.
Subject to the provisions of clause 13, the rights and obligations of either Party under this Agreement may not be assigned or subcontracted to others without the prior written consent of the other Party which such consent shall not be unreasonably withheld.
- Entire Agreement
Parties acknowledge that this Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and shall supersede all prior and contemporaneous agreements and understandings, oral or written. Any amendment or change of this Agreement shall be in writing by way of an addendum through the authorised signatories of this Agreement. For the administrative purpose, Client may issue Purchase Order for the Project or under this Agreement, however, in no event shall any pre-printed terms or conditions found in the said Purchase Order shall be binding on Datamatics. For the avoidance of doubt, any such Purchase Order terms and conditions of Client are expressly excluded. Datamatics’ failure to object to conflicting or additional terms (except scope of work and fees) will not change or add to the terms of this Agreement.
- Further Assurance
Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to this agreement and the transactions contemplated by it.
- Order of Precedence
In the event of any conflict between (i) the terms of this Service Agreement and (ii) any Job Card, schedule, exhibit, attachment, appendix, amendment, or other underlying document hereto, this Service Agreement shall control, except to the extent that any Job Card, schedule, exhibit, attachment, appendix, amendment, or other underlying document expressly identifies terms of this Service Agreement intended to be overridden and provides that it controls in the event of any such conflict.