GENERAL TERMS AND CONDITIONS FOR SERVICES

Konsultoo Software Consulting Pvt.LTD - Version 1 

Effective Date 01/10/2024  

Konsultoo Software Consulting Pvt.LTD (« Konsultoo ») provides consulting services, software integration, training, and custom software development for professionals in the field of management software and corporate information systems. The purpose of these General Conditions is to define the terms and conditions for the provision and delivery of services, licensing of software, add-on modules, and the Software Solution made available to the Client.

Applicability

The order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, the Terms shall govern, unless the Order Confirmation expressly states that the Order Confirmation controls, with reference to section of the Terms that it modifies. The parties are not relying on anything other than as stated in this Agreement.

These Terms prevail over any of Customer’s general terms and conditions, regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

Services

Konsultoo shall provide the services to Customer as described in the Order Confirmation (the “Services”) in accordance with these Terms.

Performance dates

Konsultoo shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.

The time indicated in the Order Confirmation is an estimate, and adjustments may be necessary. Konsultoo will consult the Customer should any such adjustments be required. In any case, and particularly if delays result from the client’s failure to meet its obligations, Konsultoo shall not be held liable for any resulting delays.

Customer’s obligations

Customer shall:

1. Cooperate with Service Provider in all matters relating to the Services and provide such access to Customer’s premises, and such accommodation and other facili-ties as may reasonably be requested by Service Provider, for the purposes of per-forming the Services;
2. Respond promptly to any Service Provider request to provide direction, informa-tion, approvals, authorizations or decisions that are reasonably necessary for Ser-vice Provider to perform Services in accordance with the requirements of this Agreement;
3. Provide such customer materials or information as Service Provider may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects;
4. Obtain and maintain all necessary licences and consents and comply with all ap-plicable laws in relation to the Services before the date on which the Services are to start.

In the event that the software licenses are procured by Konsultoo on be-half of the Client, Konsultoo will invoice the Client for the cost of these licenses, which may be subject to price adjustments determined by the Publisher. The Cli-ent is informed that these potential price increases will be reflected in the invoice.

Customer’s acts or omissions

If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

Financial terms

In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation.

• For Customers who choose the standard « time credit » option, the Customer shall make full payment at the start of the service.
• For Customers who choose the « pay as you go » option, the Customer will pay for the hours worked on a monthly basis and shall provide a security deposit.

Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services upon presentation of supporting documentation.

Customer shall pay all invoiced amounts due to Service Provider on receipt of Service Provider’s invoice. All payments shall be made in Indian Rupees by any method accepted by both the Service Provider and the Customer.

In the event payments are not received by Service Provider within 10 days after becoming due, Service Provider may:

1. Apply a charge interest on any such unpaid amounts at a mounthly rate of 1.5%, which equals 18% on an annual basis
2. Suspend performance for all Services until payment has been made in full.

Security deposit clause for monthly invoiced services on a deferred payment basis

Security deposit for monthly invoiced services

For monthly invoiced services, a security deposit will be required from the client.

The security deposit must be equivalent to at least 100% of the estimated total amount for the month.

The payment of the security deposit will be executed through any means of payment accepted by the company.

Adjustment of the security deposit

If the invoiced amount during the month exceeds the initial security deposit, the security deposit will be revised.

This revision aims to ensure that the security deposit will be equal to at least 100% of the total monthly invoice amount.

Billing of the security deposit and regular monthly billing

At the beginning of the service period, the security deposit will be invoiced to the client.

Subsequently, the monthly billing system will come into effect.

At the end of the contract

Upon termination of the contract, the refund of the security deposit will be made by allocating service hours equivalent to the initial amount of the guarantee.

The request for the refund of the deposited guarantee must be initiated within 12 months following the termination to be considered valid. Beyond this period, the request will be deemed void and cannot be accepted.

Billing for Maintenance Service

After the delivery of the services, if corrections are deemed necessary, Konsultoo will issue an invoice for the additional time required. The Client will be informed in advance of the necessary extra hours.

Flat Rate Warranty

Konsultoo offers a flat rate warranty option covering post-delivery corrections. To benefit from this service, the Client may subscribe to it for an additional 25% of the initial service amount. This warranty option must be expressly subscribed to by the Client and is not included by default. In the absence of subscription to this option, any post-delivery correction will be billed based on the time spent.

Taxes

The Customer shall be responsible for all taxes, including the Goods and Services Tax (GST), duties, and other similar charges imposed by any central, state, or local government authority on amounts payable under this Agreement.

Intellectual property

All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, as well as trade dress, trade names, logos, corporate names, and domain names, together with all goodwill associated therewith, derivative works, and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, and other materials delivered to the Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the "Deliverables"), shall remain the exclusive property of the Service Provider, unless otherwise agreed in writing by the parties and subject to any conditions established by the Service Provider.

Confidential information

All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the Service Provider. Confidential Information does not include information that is:

• In the public domain;
• Known to Customer at the time of disclosure;
• Or rightfully obtained by Customer on a non-confidential basis from a third party. Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.

Service Provider shall be entitled to injunctive relief and damages for any violation of this Section, as permitted under applicable Indian law.

Representation and warranty

Service Provider represents and warrants to Customer, to the best of its knowledge, that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. It should be noted that the Service Provider is only bound by an obligation of means.

The Service Provider shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the defective Services, reasonably described, to Service Provider within 7 days of the time when Customer discovers or ought to have discovered that the Services were defective. Subject to Section 11(b), Service Provider shall, in its sole discretion, either:

• Repair or re-perform such Services (or the defective part);
• Or credit or refund the price of such services at the pro rata contract rate. The remedies set forth in section 11(c) shall be the customer’s sole and exclusive remedy and service provider’s entire liability for any breach of the limited warranty set forth in section 11(a).

Disclaimer of warranty

Service provider makes no warranty whatsoever with respect to the services, given that the services were provided strictly in accordance with the specifications and specific requests made by the Customer at the beginning of the engagement, including any (a) warranty of merchantability; or (b) warranty of fitness for a particular purpose; or (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise.

This disclaimer shall be subject to applicable consumer protection laws in India, which may limit certain disclaimers.

Limitation of liability

In no event shall Service Provider be liable to Customer or to any Third Party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not Service Provider has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

In no event shall Service Provider’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of Contract, tort (including negligence) or otherwise, exceed two times the aggregate amounts paid or payable to

Service Provider pursuant to this agreement in the three-month period preceding the event giving rise to the claim.

The limitation of liability shall not apply to:

• Liability resulting from Service Provider’s gross negligence or willful misconduct
• Death or bodily injury resulting from Service Provider’s negligent acts or omissions.

Termination

In addition to any remedies available to the Service Provider, it may terminate this Agreement with immediate effect by providing written notice to the Customer, if Customer:

• Fails to pay any amount when due under this Agreement, after 10 days from the payment due date and fails to remedy the situation within 15 days following the notice of non-payment.
• Has not otherwise performed or complied with any ot the terms of this Agreement in whole or in part and fails to remedy such non-compliance within 15 days following written notice from the Service Provider specifying the nature of the non-compliance.
• Becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In such cases, the Service Provider may terminate this Agreement immediately without prior notice. If applicable, the Customer shall be required to immediately pay for all hours worked by the Service Provider under a "pay as you go" arrangement.

In the event of termination due to the client's default, all outstanding amounts become immediately due and payable, and the Client commits to settling them within a maximum period of 30 days of the termination.

Insurance

During the term of this Agreement and for a period of one year thereafter, both the Customer and the Service Provider shall, at their own expense, maintain and carry insurance in full force and effect, including but not limited to commercial general liability (including product liability) with financially sound and reputable insurers registered and regulated in India. Upon request by one party, the other party shall provide a certificate of insurance evidencing the coverage specified in these Terms. Each party shall provide the other with 30 days’ advance written notice in the event of cancellation or material change in the insurance policy. Except where prohibited by law, each party shall require its insurer to waive all rights of subrogation against the insurers and the other party.

Waiver

No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Force majeure

The Service Provider shall not be liable to the Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Service Provider, including but not limited to, acts of God, floods, fires, earthquakes, explosions, governmental actions, wars, invasions or hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest, national emergency, revolutions, insurrections, epidemics, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, or inability or delay in obtaining adequate or suitable materials, or telecommunication breakdown or power outages.

Assignment

Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of service provider’s assets without customer’s consent.

Relationship of the parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

No third-party beneficiaries

This Agreement is for the sole benefit of the parties here to and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

Governing law

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of India, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of India.

Submission to jurisdiction

Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted only in the competent courts located in Vadodara, Gujarat, India, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

Notices

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

Severability

Each provision of this Agreement is intended to be severable. If any court of competent jurisdiction determines that one or more of the provisions of this Agreement, or any part or portion thereof, is or are invalid, illegal or unenforceable, only that provision, term or clause shall be affected, and such invalidity, illegality or unenforceability shall not affect or impair any other provision of this Agreement, and this Agreement shall be given full force and effect while being construed as if such invalid, illegal or unenforceable provision had not been contained within it. If possible, any unenforceable or invalid clause in this agreement shall be modified to show the original intent of the parties.

Survival

Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions : compliance with laws, confidentiality, governing law, insurance, submission to jurisdiction, survival, limitation of liability, waiver, relationship of the parties, No third-party beneficiaries, and notices.

Amendment and modification

This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

Litigation fees and costs

In the event of a dispute arising from, under, or related to this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its litigation fees. The costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable. The litigation fees also include, not exhaustively, attorney fees, collection fees, notarial fees, court fees, etc. The prevailing party will turn against the defending party and recover the totality of the amount of the litigation fees.

Non-solicitation of company’s employees / contractors

The Client recognizes that the Service Provider operates in the highly competitive sector of Enterprise Resource Planning (ERP) solutions, including those provided through Odoo and Acumatica, both in India and internationally.

Consequently, during the term of the Agreement and for a period of twelve (12) months following its termination, the Client agrees not to, directly or indirectly, and in any capacity whatsoever, in conjunction with any other person, corporation, or entity, hire, poach, recruit, attempt to recruit, induce, solicit, or influence any employee or contractor of the Service Provider to terminate their employment or contractual relationship with the Service Provider.

The Client recognizes that any breach of this clause would cause immediate and irreparable harm to the Service Provider, which could not be adequately compensated by monetary damages. Therefore, in the event of a breach of this provision, it shall be presumed that the Service Provider will suffer irreparable harm and will not have an adequate remedy at law.

Accordingly, the Client agrees that the Service Provider may seek appropriate injunctive relief, including but not limited to temporary, preliminary, and permanent injunctions, restraining orders, and/or protective orders, without the necessity of posting bond or security, to enforce this clause and the Agreement in the event of a breach or threatened breach by the Client.

The Client recognizes that this restriction is justified to protect the legitimate business interests of the Service Provider and that the limitations imposed are reasonable and proportionate. This restriction is independent of any other existing obligations between the Service Provider and the Client.

Notwithstanding the foregoing, in the event of a breach of this clause, the Service Provider shall have the right to claim liquidated damages, the amount of which shall be set at one year’s salary for each employee of the Service Provider solicited by the Client. These liquidated damages are not intended as a penalty but are aimed at:

• Reflecting the difficulty and impracticality of assessing actual damages
• Allocating risk between the parties
• Enabling the Service Provider to continue its business operations.