Software Development and Consulting Services Agreement
1. Scope of Services
This Service Agreement (“Agreement”) shall apply to and govern any Statement of Work (“SOW”), project document, letter of intent, or other written document executed between Persistent Systems Limited or any of its affiliates (specifically identified in the applicable SOW) (“Consultant”) and the Customer.
The purpose of this Agreement is to define the terms under which the Consultant will provide professional services (“Services”) and/or deliverables (“Deliverables”) relating to software development and consulting.
2. Payments
Customer shall make payment within fifteen (15) days of receipt of a valid invoice.
In the event of a delay exceeding five (5) days from the due date, Customer shall be liable to pay interest at the rate of 1.5% per month or the maximum rate permitted under applicable law, whichever is lower, calculated from the original due date until payment is received.
Consultant shall be relieved of its obligations under this Agreement in the event of non-payment of fees or expenses due and shall retain all rights in the Services and Deliverables until full payment is received.
Consultant may provide hardware and software specified in Annexure – 01 as part of its standard package, if required, while providing offshore Services from its locations in India.
The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employer-employee relationship.
3. Approval Process
Customer shall have seven (7) days following receipt of the Services or Deliverables (“Acceptance Period”) to conduct acceptance testing in accordance with the acceptance criteria agreed in the applicable SOW (“Acceptance Criteria”).
If Customer does not provide written notice of any non-conformance with the Acceptance Criteria within the Acceptance Period, the Services or Deliverables shall be deemed accepted.
4. Confidentiality
“Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), in any form, including but not limited to documents, business plans, software, technical, financial, marketing, customer or business information, specifications, designs, data, computer programs, and information relating to personnel or affiliates.
Confidential Information does not include information that:
- Is or becomes publicly available without breach of this Agreement;
- Is received from a third party without breach of any confidentiality obligation;
- Was already in the lawful possession of the Receiving Party without restriction;
- Is independently developed without use of Confidential Information;
- Is approved for release in writing by the Disclosing Party;
- Is required to be disclosed by law, court order, or governmental authority (provided prior written notice is given, where legally permitted).
The Receiving Party agrees to use Confidential Information solely for the purpose of fulfilling obligations under this Agreement and not for any other purpose without prior written consent.
5. Intellectual Property Rights
Upon full payment of all applicable fees, Customer shall own all rights, title, and interest in and to the Deliverables.
To the extent that Deliverables incorporate Consultant’s pre-existing intellectual property (“Consultant Pre-Existing IP”), Consultant retains ownership of such Pre-Existing IP.
Consultant grants Customer a perpetual, non-exclusive, worldwide, transferable, royalty-free license to use such Consultant Pre-Existing IP solely as incorporated in and necessary for the use of the Deliverables.
6. Warranties
Except as expressly stated in this Agreement, both parties disclaim all other warranties, whether express, implied, statutory, or otherwise, including but not limited to implied warranties of merchantability, non-infringement, title, and fitness for a particular purpose.
7. Limitation of Liability
The total aggregate liability of either party under this Agreement, whether in contract, tort (including negligence), or otherwise, shall not exceed the total fees paid to Consultant under the applicable SOW.
Neither party shall be liable for any indirect, incidental, special, consequential, or punitive damages, including loss of profits or revenue, even if advised of the possibility of such damages.
These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.
8. Termination
Either party may terminate this Agreement by providing sixty (60) days’ written notice to the other party.
Either party may terminate this Agreement immediately if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice.
Upon termination, Customer shall pay Consultant for Services performed up to the effective date of termination on a pro-rata basis.
9. Non-Hire and Non-Solicitation
During the term of this Agreement and for one (1) year thereafter, neither party shall directly or indirectly solicit, recruit, or hire any employee, consultant, or advisor of the other party without prior written consent.