Terms of Service

1. Services

ArcGate will provide Client with the services (the “Services”) described in the engagement letter, proposal and/or statement of work to which these terms are attached (collectively, with these terms, this “Agreement”). ArcGate’s services may include advice and recommenda¬tions, but all decisions in connection with the implementa¬tion of such advice and recommendations shall be the responsibility of, and made by, Client.

  • Relationship: Each party is an independent contractor, and neither party is, nor shall represent itself to be, an agent, partner, fiduciary, joint venturer, co-owner or representative of the other.

  • Cooperation & Authority: Client shall cooperate with ArcGate in the performance of the services hereunder, including, without limitation, providing ArcGate with reasonable facilities and timely access to data, information and personnel of Client. Client shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to ArcGate hereunder. Client acknowledges and agrees that ArcGate’s performance is dependent upon the timely and effective satisfaction of Client’s responsibilities hereunder and timely decisions and approvals of Client in connection with the services. ArcGate shall be entitled to rely on all decisions and approvals of Client.

2. Changes

ArcGate shall endeavor, in good faith, to accommodate such changes to the scope as are directed by the Client.

  • ArcGate is under no obligation to perform any additions or changes to the scope, or redesigns of performed scope items (collectively, “Changes”), and may at its sole discretion, perform such Changes only in exchange for additional fees, to be agreed upon between ArcGate and Client.

  • To the extent that, in ArcGate’s sole determination, a Change does not materially increase ArcGate’s cost of providing the services, ArcGate shall endeavor to perform the Change.

  • When a Change, or a collection of Changes will, in ArcGate’s sole judgement, materially increase ArcGate’s cost of providing the Services and/or the project schedule, ArcGate will notify the Client. The Client shall not be obliged to pay any additional costs unless mutually agreed between the parties.

  • If ArcGate and the Client are unable to agree on the additional cost and/or time required to perform a Change, or Changes, ArcGate shall be under no obligation to perform such Change or Changes.

3. Payment

  • ArcGate shall provide invoices when amounts are due hereunder. Payment is due within thirty (30) days of Client’s receipt of an invoice.

  • If Client has any issues or concerns related to an invoice, Client shall notify ArcGate of such issue within five (5) business days of receiving such invoice. An invoice shall be deemed to be undisputed, and Client shall be deemed to have waived any right to dispute such invoices or the charges therein, if Client does not provide written notice of a dispute, which notice shall contain sufficient detail to explain the nature of the dispute, within the aforementioned period.

  • In the event of any dispute concerning an invoice, Client shall pay all undisputed sums as provided in Section 3(a) hereof.

  • Without limiting its rights or remedies, ArcGate shall have the right to suspend or terminate entirely its services if payment is not received within thirty (30) days of the invoice date.

4. Term

Unless terminated sooner in accordance with its terms, this Agreement shall terminate on the completion of ArcGate’s services required hereunder, unless the parties agree in writing to extend the Agreement.

  • This Agreement may be terminated by either party for breach by giving written notice of termination for breach to the other party not less than seven (7) days before the effective date of termination, provided that in such event of a termination for cause, the breaching party shall have the right to cure the breach prior to the effective date of termination, in which case the termination shall be void.

  • In the event of nonpayment of an invoice, the thirty (30) day payment period provided for payment shall be deemed to be the notice period, and ArcGate may suspend its work and/or terminate the Agreement, if not paid within 30 days of submission of any invoice.

  • In the event of a termination of this agreement by either party, for any reason, ArcGate shall be entitled to be paid for work performed under this Agreement through the effective date of the termination.

5. Project Duration

If the Agreement provides a fixed time frame for ArcGate to complete the Services, ArcGate will endeavor to complete Services within such time frame, provided, however, that ArcGate will not be responsible for failure to complete the Services within any specified schedule, and such schedule shall be deemed modified, to the extent that delays are caused by (i) Changes, (ii) delays in receiving required information or decisions from the Client (iii) breach of any other Client obligations under this Agreement or (iv) any other circumstances beyond ArcGate’s reasonable control.

6. License and Ownership

  • Ownership of Deliverables: For purposes of this Agreement, “Deliverables” shall mean all work product first created by ArcGate for delivery to Client in connection with the Services provided hereunder. ArcGate shall retain ownership of the Deliverables until ArcGate has been paid in full under this Agreement, and any copies of the Deliverables in possession of the Client shall be for internal use and verification only, and the Client shall have no license to operate or use the Deliverables until final payment is made hereunder. Upon receipt of final payment, ArcGate shall provide all of the source code for the Deliverables, and all related documentation and tools necessary to operate the Deliverables, in machine-readable format and assign to Client ownership of the Deliverables.

  • Ownership of Client Property Client retains all right, title and interest in and to and any and all of its proprietary technology and products developed prior to and after the date of this Agreement, using solely Client’s resources, including, but not limited to, all specifications, customer data, sales data, and user data.

  • Continuing Process Improvement ArcGate’s ability to provide the Services to the Client is enhanced by ArcGate’s previous experience. Client understands that ArcGate may use adapt or modify some elements of ArcGate’s work in connection with providing the Services in ArcGate’s future work, and that such use shall not constitute a violation of this Agreement or any licenses created hereunder, provided that this provision shall not affect ArcGate’s confidentiality obligations under Section 7.

7. Confidentiality

  • To the extent that, in connection with this Agreement, each party comes into possession of any proprietary or confidential information of the other party (“Confidential Information”), each party agrees to use the Confidential Information of the other party solely for the purposes of this engagement, and will not disclose such Confidential Information of the other party without the other party’s written consent prior to the disclosure of such Confidential Information.

  • Confidential Information shall not include information which (i) shall have otherwise become publicly available, (ii) was disclosed to the receiving party from a source other than the disclosing party, (iii) is developed by the receiving party independently of, or was known by the receiving party prior to, any disclosure of such information made by the disclosing party or (iv) is disclosed with the written consent of the disclosing party.

  • A receiving party also may disclose Confidential Information to the extent required by an order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule or regulation, or by subpoena, summons or other administrative or legal process, or by applicable regulatory or professional standards, or in connection with any judicial or other proceeding involving ArcGate and Client relating to ArcGate’s Services for Client or this Agreement.

8. Non-Solicitation

During the term of this engagement and for a period of one (1) year thereafter, neither party shall directly or indirectly employ, solicit or retain the services of the personnel of the other party, who are involved in the receipt or provision of the Services, for its own benefit or the benefit of another; provided that this provision shall not exclude either party from hiring any individual who responds to a public advertisement advertising employment.

9. Limitation on Damages and Actions

  • Limitation on Warranties: This is a services engagement. ArcGate warrants that it will perform services hereunder in good faith and in a professional manner and that the Deliverables will materially conform to the specifications set forth in this Agreement. ArcGate disclaims all other warranties, either express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose.

  • Each party agrees that the other party, its affiliates, agents and subcontractors, and each of their partners, principals or other personnel shall not be liable for any actions, damages, claims, liabilities, costs, expenses, or losses in any way arising out of or relating to the services performed hereunder for an aggregate amount in excess of (i) in the case of ArcGate, the fees paid by Client to ArcGate under this Agreement, or (ii) in the case of Client, the fees paid and payable to ArcGate by Client under this Agreement. In no event shall either party, its affiliates, agents or subcontractors, or any of their partners, principals or other personnel be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs) nor shall they be liable for any claim or demand against the other party by any third party. The provisions of this Paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in contract, statute, tort (including, without limitation, negligence), or otherwise.

  • No action, claim or counterclaim, regardless of form, other than for non-payment of any invoice, arising under or relating to this Agreement, may be brought by either party more than one year after the cause of action has accrued. Provided that, notwithstanding anything to the contrary in this Section 9, nothing shall limit either party’s ability to bring any action for breach of Section 7.

10. Disputes

  • Negotiations: The parties agree that in the event of any dispute related to or arising from this Agreement or the performances of Services hereunder (“Disputes”), the parties shall attempt to resolve the same through negotiations.

  • Governing Law: This Agreement and all matters relating hereto (whether in contract, statute, tort (including, without limitation, negligence) or otherwise), shall be governed by, and construed in accordance with, the laws of India (without giving effect to the choice of law principles thereof).

  • Venue: Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of any court within India in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, agrees that process may be served upon them in any manner authorized by the laws of India for such persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and such process.

  • Waiver of Jury Trial: Each of the parties hereby irrevocably waives, to the fullest extent permitted by law, all right to trial by jury in any action, proceeding or counterclaim (whether in contract, statute, tort (including, without limitation, negligence) or otherwise) relating to this Agreement.

11. General Terms

  • Force Majeure: Neither party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate of the other party (including, without limitation, entities or individuals under its control, or their respective officers, directors, employees or other personnel and agents), acts or omissions or the failure to cooperate by any third party, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority. Nothing in this section 11(a) shall relieve any payment obligations under this Agreement.

  • Survival: The provisions of Sections 3,6,7,8,9,10 and 11 shall survive the termination of this Agreement according to their terms.

  • Notices: All notices hereunder shall be in writing and effective upon receipt. Notices may be delivered by email.

  • Assignment: Except as provided herein, neither party may assign, transfer or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement, without the consent of the other party, in connection with a merger, consolidation or reorganization or to an entity that has acquired all or substantially all of the assigning party’s assets as a successor to the business.

  • Waiver: The failure of either party to insist upon strict performance of any of the provisions contained in this Agreement shall not constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other party of any of the terms or conditions in this Agreement.

  • Entire Agreement: These terms, the engagement letter, proposal and/or statement of work to which these terms are attached, including any Exhibits, constitute the entire agreement between ArcGate and Client with respect to this engagement and supersede all other oral and written representations, understandings or agreements relating to this engagement, and may not be amended except by a written agreement signed by the parties.

  • Severability: If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth in this Agreement.

  • Counterparts: This Agreement may be executed in two (2) signed counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same instrument.

  • Construction: This document is considered mutually drafted and is not to be construed more harshly against either party.

  • Binding Effect: This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns and as applicable, the heirs and legal representatives of the parties hereto.