Terms & Conditions

DBSL Terms & Conditions

This Datamatics Service Terms and Conditions (“T&C”), together with the terms of any Job Card, Change Requests, and any related documents, releases, exhibits, annexures, or supplemental terms, (collectively referred to as “Job Card” / “JC”) describes the basis on which Datamatics entity (“Datamatics”) provides services (“Services”) for the execution of projects (“Projects”) to its client listed in the applicable JC (“Client”). This T&C along with the JC constitutes a binding contract between Datamatics and the Client.

Datamatics and Client shall individually be referred to as “Party” and collectively as “Parties” and includes their respective successors and permitted assigns.

Project Scope

Datamatics will provide Services to the Client for the execution of Projects as listed in the JC. The Client shall be responsible for ensuring that the scope of the Services, Service levels, delivery timelines, procedures etc. are detailed, unambiguous, reasonable, lawful and clearly specified.

Service Terms and Conditions

Any changes to the Services or Project scope will impact the deliverables (“Deliverables”) and commercials; hence the Parties agree for an equitable adjustment.
Any request to change any Service/ Project or add new services, shall be made via an email from the POC or any other person holding equivalent Job Title as mentioned in the JC (“Change Request”). The Change Request shall not be denied or rejected unreasonably and shall be deemed to be effective from the date of its acceptance.
It is agreed and acknowledged by the Client that the delivery of the agreed Deliverables by Datamatics depends on the availability of data/ data subjects / information, etc. in the public domain. Datamatics shall make all reasonable and prudent efforts to provide the Deliverables within the agreed time.
Where 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 data / information is not adequately available in the public domain, in which case the billing shall be done on pro rata basis.
The Client understands and acknowledges that the Deliverables are of B2B nature and are susceptible to changes due to efflux of time e.g. transfers, promotions, attritions etc.
Any Services or Deliverables provided by Datamatics which do not meet the service levels as set out in JC, shall be notified in writing by the Client to Datamatics within seven (7) days of delivery of such discrepant Deliverables/Services. If Client raises no query within these seven (7) days, the Deliverables/Services shall be deemed to have been accepted by Client.
Subject to receipt of payment in full, Datamatics will provide to the Client a limited, non-exclusive right for the usage of the Deliverables only for the purpose for which it has been delivered to the Client.
The Client acknowledges and agrees that Datamatics is relying on the accuracy, quality and legality of the documented information and instructions supplied by Client (the “Processing Norms”), to perform the Services mentioned in the JC. 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 Client shall ensure that the Processing Norms comply with data protection laws and regulations of all the applicable jurisdictions.
The Client acknowledges and agrees that Datamatics is relying on and acting in accordance with the Processing Norms, to perform the Services. The Client shall, at all times, be responsible for any liability for claims, losses or damages that arise as a result of Datamatics’ compliance with the Processing Norms.
In no event Datamatics or its affiliates, will be liable for any damages and service levels/ service level credits if and to the extent caused by Client’s or its affiliates’ failure (as applicable) to perform its responsibilities under the JC.
Datamatics may use Client’s and/or the end clients’ name, logo and other informational documents including but not limited to white papers etc. in its marketing and other advertising materials including website during and after the engagement, as this promotes and provides insights about their products and services to the targeted audience. In case Client wishes Datamatics not to do so, it may send an email to that effect to marketing@datamaticsbpm.com.
Datamatics shall not be liable, and will have no obligation towards the Client for (i) sensitive data sent to Datamatics by Client; (ii) violation of any law by Datamatics when acting under Client’s or its affiliate’s direction; or (iii) Client’s emails sent by Datamatics, including any claims against Datamatics due to Client’s emailing or data collection practices or Client’s content.
Datamatics shall not be responsible or liable in any manner whatsoever if the Client asks Datamatics for the transfer of data/information from any mode other than Secure File Transfer Protocol (“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) arising from or incurred in connection with transfer of such data/information in a mode other than SFTP mode including breach of any data privacy laws.
Client’s exclusive remedy for Datamatics’ failure to adequately perform any of the disputed Services will be reperformance of the said Services.

Payment Terms

1. Datamatics shall invoice the Client and Client shall pay Datamatics the fees for the Services as specified in the JC.
2. Any query on the invoices should be communicated by the Client to Datamatics in writing within seven (7) days from the date of the invoice, in the absence of which the invoice shall be deemed to have been accepted by Client and due for payment in full to Datamatics on or before the Due Date. Client agrees to promptly pay the undisputed amounts under each invoice.
3. The commercials/ consideration agreed in the JC are exclusive of applicable taxes. All sales or service tax such as VAT, GST etc., which if currently not chargeable on the Services may become applicable on a future date, in which case it shall be borne and paid by the Client. The Parties shall be liable for their individual taxes pertaining to their capital, capital stock, net worth, gross margin or gross profit.
4. Unless otherwise agreed in the JC, the Client shall pay invoices within thirty (30) days from the date of invoice (“Due Date”) and shall remit the amount electronically to Datamatics’ bank details as mentioned in the JC.
5. Any delay in payment or part thereof beyond the Due Date, will be subject to interest at 0.75% per month from the Due Date till the date of payment.
6. Any default or delay in payment of the invoice beyond the Due Date on the part of Client, shall constitute a material breach of this T&C and Datamatics shall have the right to stop providing the Services to the Client forthwith and terminate the JC by intimating the Client about such 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.
7. For administrative purposes, 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, the Client acknowledges and agrees that such 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.
8. Fees paid under the JC shall be non-refundable and non creditable against other fees payable in connection with the Services/Project.

Representations and Warranties

Each Party represents and warrants to the other that:

1. It has full power and authority to enter into the JC and the person signing the JC on behalf of each Party hereto, has been duly authorized and empowered to enter into and execute such JC and any Change Request thereof;
2. 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 the JC shall continue to vest with Datamatics.
3. Both Parties shall 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.
4. 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

1. The term of the JC shall be as per the Start and End date mentioned therein, unless terminated by either Party in the manner set out herein. For clarity, each JC, together with this T&C, creates a separate contract between Client and Datamatics, and therefore Client may have multiple contracts in effect with Datamatics at any time. Each JC will be treated as an independent contract. This T&C shall be coterminous with the JC.
2. Either Party may terminate any JC for convenience by serving thirty (30) days prior written notice of termination to the other Party.
3. Either Party shall have the right to terminate any JC immediately in case of material breach of the T&C by the other Party and the non-rectification of such breach within the fifteen (15) days’ written notice period issued by the other Party.
4. Either Party shall have the right to forthwith terminate the JC in case of insolvency, bankruptcy and/or liquidation of the other Party.

Consequences of termination

Upon the termination or expiration of any JC, for any reason, the 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 the Client fails to serve the notice period, then Datamatics shall be entitled to charge the Client monthly Service fees for the shortfall in lieu of notice period which shall be calculated by taking the average monthly billing of last six (6) months.
The termination or expiration of any specific JC shall have no impact on the continuing validity and effect of any other JCs.
Termination of a JC shall not prejudice or affect: (i) the rights and obligations of the Parties under such terminated JC, 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 such terminated JC to either Party.

Indemnity

Each Party shall defend, indemnify and hold the other Party harmless from any and all claims, losses, expenses, cost, liabilities, damages or judgment (including reasonable attorney’s fees) that such Party may have 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 a JC.

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 settles 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 with any JC or Project (including without limitation breach of warranty, negligence, strict liability and tort) shall not exceed 50% of the charges paid by the Client to Datamatics with respect to such Project in the preceding twelve (12) months period from the date of cause of action. Notice of any such claim with respect to each of such JC or Project must be delivered in writing to Datamatics within fifteen (15) days after the date of the delivery of such JC or Project 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 such JC or Project.

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 details of Internet Protocol (IP) address, in any form other than in oral, of the other Party, which has been provided or disclosed and specifically marked as ‘Confidential’ except as reasonably required to be disclosed to its employees strictly on a need-to-know basis. However, confidential information shall not include any information that is (a) disclosed to a statutory/ regulatory or judicial authority under due process of law (b) available to the public (c) known 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) independently developed by either Party without use of or reference to information from disclosing Party, (e) disclosed with the prior written consent of the disclosing Party. The Parties hereto further agree that this confidentiality clause, shall govern the Parties until such information ceases to be confidential or up to one (1) year after expiry or termination of a JC/Project, 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 Client’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/legal/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.

To the extent that the CCPA is applicable to either Party: (i) such Party agrees to comply with all of its obligations under the CCPA; and (ii) in relation to any communication of “personal information” (as defined by the CCPA) from one Party to the other Party pursuant to this Agreement, the Parties agree that no monetary or other valuable consideration is being provided for such personal information and therefore neither Party is “selling” (as defined by the CCPA) personal information to the other Party.

Non-Solicitation

Parties agree that during the term of the JC and for a period of one (1) year thereafter, neither Party may, directly or indirectly, 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 such JC, 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 to six (6) months gross salary (salary paid to the employee by such hiring Party) of the employee that has been hired in violation of this clause. The Parties agree and acknowledge that the six (6) months gross salary is the fair and pre-estimated value of the estimated loss suffered by the affected Party. 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 the performance of Services under any JC, 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 other applicable anti-bribery and anti-corruption laws.

Performance by Affiliate

The Parties hereby agree that the obligations to be performed under a JC may be performed by any affiliate of Datamatics or its subcontractors. Notwithstanding the foregoing, Datamatics shall remain solely liable for the obligations to be performed by any of its affiliates or its subcontractor. 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 such JC against any such affiliates or subcontractor except Datamatics.

Notice

A notice served under any JC shall be in writing in the English language and may be delivered personally or sent by commercial courier or by email. Any notice to Client and / or Datamatics shall be sent at the address set forth in the JC or such other address as may be notified by the POC of either Party mentioned in the JC. 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 be addressed to corporate@datamaticsbpm.com & legal@datamaticsbpm.com.

Force Majeure

Neither Party shall be liable to the other for any delay or non-performance of its obligations under a JC arising from any cause or causes beyond its reasonable control including, without limitation, any Acts of God i.e., natural calamities, war, fire, pandemic, flood, explosion or civil commotions or insurrections or terrorist activities or governmental act etc., and the Client agrees to extend the time for Services or Deliverables in such circumstances.

No Third Party Beneficiaries

Datamatics and Client intend that, save for affiliate as referred to in this T&C no provisions of this T&C or any JC 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 such JC.

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.

Waiver

All waivers must be in writing. Any waiver or failure to enforce any provision of a JC or this T&C on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Severability

If any provision set out in this T&C or JC 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

1. In case the signing entity of JC is Datamatics Business Solutions Ltd.
  In the event that any dispute arises in connection with this T&C, the construction of any provision of this T&C or the rights, duties or liabilities of the Parties hereto under this T&C, 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 Party may refer such dispute to arbitration by a sole arbitrator to be jointly appointed by both the Parties. The arbitration shall be conducted in accordance with the Arbitration & Conciliation Act, 1996. 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 T&C shall be governed by and construed in accordance with the Laws of India and the courts in Mumbai shall have the exclusive jurisdiction to settle the disputes arising hereunder.
2. In case the signing entity of JC is Datamatics Business Solutions Inc.
  This T&C shall be governed by and construed in accordance with the laws of the State of New York and courts of State of New York shall have exclusive jurisdiction to settle the disputes arising hereunder.
3. In case the signing entity of JC is Datamatics Business Solutions UK Ltd.
  This T&C shall be governed by and construed in accordance with the laws of England and Wales and the courts in London shall have the exclusive jurisdiction to settle the disputes arising hereunder.

Survival

Any outstanding payment obligations under any JC and obligations set out in clause 2(l), 3, 4, 5, 6, 7, 8, 10, 11, 13, 14, 16, 17, 20, 22 and 25 of this T&C shall survive the expiration and/or termination of any JC along with any provisions of this T&C which are intended by their nature to survive performance of the Services.

Assignment

Subject to the provisions of clause 13, the rights and obligations of either Party under this T&C or any JC may not be assigned to others without the prior written consent of the other Party in which case such consent shall not be unreasonably withheld.

Entire Agreement

Parties acknowledge that this T&C and any JC 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. For administrative purposes, Client may issue purchase order for any JC/Project, 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 will not change or add to the terms of any JC or this T&C.

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 T&C and any JC.

Order of Precedence

This T&C amends and supplements all agreements including purchase order, work order, insertion order, amendment and other documents whether entered into prior to, on, or after the JC and any terms that are associated with or relate to the referenced Services referred to in the JC. In the event of any conflict between (i) this T&C and (ii) any JC, schedule, purchase order, work order, insertion order, exhibit, attachment, appendix, amendment, or other underlying document hereto, this T&C shall prevail, except to the extent that any JC stipulates any Special T&Cs mutually agreed between the Parties.

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