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Software Service Terms

SREST'S SOFTWARE SERVICES TERMS


Modification Date: August 1st, 2011


1.0 ACCEPTANCE OF AGREEMENT

THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (the "Terms") is between "Srest" and "Customer" requesting software services from "Srest".

This Agreement constitutes agreement between Srest and you and, as applicable any insertion orders or product agreement or service agreements executed by you and Srest whether via email or physical sign or via fax. Verbal or other medium is not construed as any agreement. Please insist on email/paper confirmation after any verbal/other medium agreement. The terms of this Agreement shall apply to all services provided by Srest unless a agreement excluding these terms are made. The terms and conditions set forth in this Agreement shall hold even if there are additional terms set forth in any other purchase order submitted by Customer or acceptance form or invoice issued by Srest and those terms don't exclude any terms as documented here.. The terms and conditions of any Order shall control over any conflicting terms and conditions contained in this Agreement.

This Agreement may be amended at any time by us from time to time without specific notice to you. The latest Agreement will be posted on the Site, and you should review this Agreement prior to ordering any services from Srest. Acceptance of quotation related to sevices requested through any mean or Full or part payment of the invoice is deemed acceptance of these terms.

For complete list of definitions see "Definition"

2.0 PROGRAM LICENSE

LICENSE GRANT. Subject to the terms and conditions of this Agreement, Srest grants Customer the worldwide, nonexclusive, perpetual right for binary and source specifically written for the Customer and Binary for common components. Source code for any common component is not provided, those needs to be bought separately. ;

RETENTION OF RIGHTS. Srest reserves all rights not expressly granted to Customer in this Agreement. Without limiting the generality of the foregoing, Customer acknowledges and agrees that: (i) Anything marked as Srest copyright or using package com.srest is owned by Srest (ii) Srest wants to deliver quality solutions at a very competitive price and one way we are able to achieve this is by reusing software components. Price quoted is only for your using it/customizing for the customer. There is no charge added for Common Components unless specifically quoted. The charges are only for using them and provide other support necessary for its use. We retain all ownership and copyright for all common components, marked by Srest Copyright message or have com.srest as package name. For any other use please make a agreement detailing those. Prices or time required will jump from anything between 5-10 times, depending on your requirement as Srest have virtually rewrite 90% code which is common in most projects.

3.0 TERM AND TERMINATION

TERMINATION BY EITHER PARTY FOR MATERIAL BREACH. Either party may terminate this Agreement written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of  notice specifying the breach in detail; provided, however, the Customer may terminate Maintenance Services only if Srest materially breaches the provisions of maintainence agreement and fails to cure, or to begin in good faith to cure, the breach within thirty (30) days following written notice from Customer specifying the breach in detail. In the event of termination of Maintenance Services, Customer shall be liable only for payment for Maintenance Services through the termination date and shall receive a pro-rata refund of any unused prepaid fees.

EFFECT OF TERMINATION. Termination of this Agreement or any Program License shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer under any Order Form. Also many points shall remain in effect as detailed in "Survival" sections.

4.0 PAYMENT PROVISIONS

SERVICE FEES. In consideration of the services, Customer agrees to make payments set forth in Order which payments shall be nonrefundable and irrevocable.

MAINTENANCE SERVICE FEES. Fees for Maintenance Services shall be payable as set forth in the Order.

OTHER FEES. All other applicable fees, if any, shall be payable thirty (7) days from the receipt of Srest's invoice.

TAXES. The fees listed do not include taxes, duties or fees; if Srest is required to pay (i) sales, use, property, value-added, withholding or other taxes, (ii) any customs or other duties or (iii) any import, warehouse or other fees, associated with the importation or delivery based on the Program Licenses granted or services provided in this Agreement or on Customer's use of Programs or services, then such taxes, duties or fees shall be billed to and paid by Customer. If Customer is permitted to declare any such taxes, Customer shall declare and pay such taxes and Srest shall not be required to invoice Customer. This Section shall not apply to taxes based on Srest's income or payroll taxes.

If any points in the requirement document associated with the service request is not done for any reasons, Srest is only liable to refund the amount paid for that point in case payment is already made or not charge for that point. If quotation for that point is not made separately, then Srest assessment of the value of that point is final.

Payment shall be made in INR ( Indian Rupees)  or U.S. dollars by bank draft, check or cash. A late payment charge of one and a half (1.5%) percent per month, or the maximum percentage rate permitted by law, if lower, shall be charged on all past due balances.

Services cost only includes price for items as documented in requirement document. Clarification provided can results in change of price if one has been provided earlier. Anything not document in the requirement document or customization document is not part of requirement.

Anything not included in the requirement document is considered change request or new requirement. We will quote separately for those. You may be charged for providing such a quotation for the time we spent to evaluate and make those quotations at a rate of 10$/hr or 400Rs/hr or as negotiated with Srest. Srest summary of time spent is final for less than 10 hours. For other cases Srest will take approval from client before starting analizing the new requirements or change request. Srest will charge you the requirement analysis time, even if you don't accept our quotations for the change request or new requirements.

5.0 COMPLEMENTARY SUPPORT AND MAINTENANCE

Srest provide complementary 5 year support from the performance of any services by Srest pursuant to the Agreement, including Maintenance Services, that such services shall be performed in a manner consistent with generally accepted industry standards. This is totally complementary and our "NO GUARANTEE OR WARRANTY" terms holds in case of any disputes. Srest may deny providing this support for any reasons or ask client to purchase the support at the rate as conveyed by Srest. Client may elect to purchase support and maintenance for the Software after 5 year by paying srest the applicable Maintenance Fees or buy extended support.

This software or any other component developed during the service is provided "as is", without any guarantee made as to its suitability or fitness for any particular use. It may contain bugs, so use of this tool is at your own risk. We take no responsibility for any damage that may unintentionally be caused through its use.

If support request is made to Srest and it is determined that the error lies within what Srest provided as services, then Srest will rectify the errors in it for free. Srest will run comprehensive tests, pinpoint the problem and provide Client with a firm quote in case the problems is outside the scope. Client agrees to pay diagnostic fee even if client don't agree to go with Srest recommended approach. Srest will quote time and materials, based upon our standard technician repair rate. Software issues that Client will be charged for include, but are not limited to: operating system errors, software configuration problems, incorrect printer setup, improper installation of previously installed software, virus infections and media problems.

Srest shall be under no obligation to provide Support or Maintenance should such services be required due to
(a) damage occurring in transit;
(b) improper installation or operation;
(c) misuse, abuse or negligent use, repair, alteration or improper storage or any use which does not conform to the specific or general instructions of Licensor or to the provisions of the Documentation;
(d) any modification or attempted modification of the Software by Licensee or any third party;
(e) causes external to the Software or if the Software has been subjected to an extreme power surge or electromagnetic field, whether or not through the fault of Licensee; or
(f) Licensee's failure or refusal to implement software changes recommended by Licensor. Srest interpretation of what can be supported and what cannot be supported is final. Any disputes, Srest always has the final say.
(g) Software components not developed or owned by Srest.


Customer can optionally buy Priority/Premium support. Priority support is usually 20% of cost. Premium support usually cost 40% of the cost. The cost is evaluated every year.

6.0 DATA RECOVERY AND BACKUP

Srest shall not be responsible for any programs or data stored on your computer. Requests for recovery and restore functions will be at srest’s standard labor rates. Client recognizes that data recovery can be tedious, costly and in some cases, unsuccessful.

7.0 NO GUARANTEE OR WARRANTY

THE SERVICES AND THE PROGRAMS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THIS IS THE SOLE AND EXCLUSIVE WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SREST, ITS AFFILIATES, DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. SREST DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

SREST does not warrant that any services will meet your requirements or that the operation of any computer software will be uninterrupted or error free. We assume no responsibility for problems associated with incompatible operating systems or equipment or for problems arising out of the interaction of SREST software with software not furnished by us.

You assume all risk as to the suitability, performance quality and compatibility of the services provided, and in this respect the services is being provided on an “AS IS” basis. As detailed above, SREST does not make any representations or warranties with respect to the accuracy or completeness or completeness of any services. THE LIMITED WARRANTY  IS SPECIFICALLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARE EXCLUDED.  SREST NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER OBLIGATION OR LIABILITY.

The exclusion also applies to any of srest’s Program developers and suppliers.

8.0 LIMITATION OF LIABILITY

IN NO EVENT SHALL SREST BE LIABLE FOR ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT AND  CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT OR ANY OF THE ATTACHMENTS HERETO, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OR LOSS OF ANY SOFTWARE OR SERVICE OR OTHER MATERIALS DELIVERED TO CONSULTANT HEREUNDER, INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF WARRANTY OR OTHERWISE, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Notwithstanding anything herein to the contrary, the maximum aggregate amount of money damages for which Srest may be liable to Client under this Agreement, resulting from any cause whatsoever, shall be limited to the amounts actually paid by Client to Srest for the services in that year

9.0 NON DISCLOSURE.

Each party may have access to information that is confidential to the other party ("Confidential Information"). Srest's Confidential Information shall include, but not be limited to, the Programs, Documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, the terms and pricing under this Agreement, and all information clearly identified in writing at the time of disclosure as confidential. Customer's Confidential Information shall include but not be limited to, its software programs, formulas, methods, know-how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, and all information clearly identified in writing at the time of disclosure as confidential. Confidential Information includes all information received from third parties that either party is obligated to treat as confidential and oral information that is identified by either party as confidential. 

A party's Confidential Information shall not include information that 
(i) is or becomes a part of the public domain through no act or omission of the other party;
(ii) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
(iii) is lawfully disclosed to the other party by a third party without restriction on disclosure;
(iv) is independently developed by the other party without use of or reference to the other party's Confidential Information,
(v) is required to be disclosed by law or valid order of a court or other governmental authority.

The parties agree, unless required by law, not to make each other's Confidential Information available in any form to any third party (except third parties who are Users as defined hereunder) or to use each other's Confidential Information for any purpose other than in the performance of this Agreement. Customer shall not disclose the results of any performance tests of the Programs to any third party without Srest's prior written approval. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement. The parties agree to hold each other's Confidential Information in confidence during the term of this Agreement or even under termination of this agreement.

10.0 GOVERNING LAW

This Agreement and all matters arising out of or relating to this Agreement, shall be governed by the laws of the India, excluding its conflict of law provisions. The parties agree that the Sale of Goods is specifically excluded from application to this Agreement.

All of our rights, duties, and obligations are subject to the courts of Mumbai, Maharashtra, India.

11.0 WAIVER

The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Srest's proprietary rights in the Programs or Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued.

12.0 EXPORT CONTROLS

Customer agrees to comply fully with all relevant export laws and regulations of the India, Without limiting the generality of the foregoing, Customer expressly agrees that it shall not, and shall cause its representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Programs, Documentation or any direct product thereof to any destination, company or person restricted or prohibited by India.

13.0 RELATIONSHIP BETWEEN THE PARTIES

(a) Srest is an independent contractor, nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.

(b) Each party solely retains all responsibilities and rights of an employer towards and in relation to its own employees. Neither party seconds its employee or any of them to the other, nor is it the intention of either party to have or create an employee/employer relationship with the other. Each party will indemnify the other against any claims brought by or in relation to its own employees, whether such claims relate to employment, tax, social service/national insurance, or otherwise

(c) Neither party will employ, engage, or otherwise solicit any person who during the previous 12 months was an employee or sub-contractor of the other and with whom such party had material contact in connection with any services performed.

14.0 SEVERABILITY

If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

15.0 SURVIVAL

All provisions in this agreement which by their nature extend beyond the termination of any sale or license of Products or Support or Services for examples terms relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.

16.0 INDEMNIFICATION

You agree to indemnify, defend and hold us and our partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers of information and documents, advertisers, product and service providers, and affiliates (collectively,” Affiliated Parties”) harmless from any liability, loss, claim and expenses related to your violation of the Agreement

17.0 SERVICES MARKS

"SRest","Srest.biz", "SecuredTimesheet", "Genuinepics", "SecuredGreeting", "SecureDir", "Ticket2Jobs", "Secured Web" and others are our service marks or registered service marks or trademarks. Other product and company names mentioned on the Site may be trademarks of their respective owners.