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EarthNexus.com - Terms and Conditions

THIS AGREEMENT between EarthNexus.com, (hereinafter referred to as the Company which expression shall unless repugnant to the context or meaning thereof be deemed to include its assignors and successors etc) of the First Part.
and
THE CLIENT: The Individual or Company Accepting these Terms and Conditions and Signing or Submitting this Orderform Online (hereinafter referred to as the Client which expression shall unless repugnant to the context or meaning thereof be deemed to include its assignors, successors etc in case of partnership firm partners) HEREINAFTER REFERRED TO AS THE CLIENT

1.1 In consideration of the payment of the Charges, the Company shall develop the Website and/or CD-Rom and/or provide the Services in accordance with the specifications and/or requirements and/or functionality set out in the Project Schedule subject to these conditions which shall govern the contract to the exclusion of any other terms and conditions. No variation of these conditions will be binding unless made in writing and signed by a director of the Company.

2.1 The Project Schedule shall constitute the Clients order for the Website and/or CD-Rom and/or the Services, which shall only be deemed to be accepted by the Company upon signature by the Company of the Project Schedule. All quotations are made without engagement and are subject to confirmation in writing by the Company.

3.1 The Client shall be responsible to the Company for ensuring the accuracy of the terms of the Project Schedule and providing the Company with all information and specifications it requires in order to perform its obligations in sufficient time. In particular the Client shall ensure that all the information necessary for the Company to perform the Services are provided to the Company in such format and in such medium as the Company shall reasonably require at the client expense.

3.2 The Client acknowledges that the provision of the Website and/or CD-Rom and/or the Services may in certain circumstances involve a period of development, where the Company will need to obtain the Client's instructions. The Client will ensure that during the course of the development that is made available to the Company representative(s) of the Client of sufficient seniority who is or are able to make decisions and give instructions on behalf of the Client to the Company. Any instructions given by such representative(s) may be relied upon fully by the Company.

3.3 In the event that the Client fails to supply such information or instructions and the Company is thereby unable to perform its obligations under the contract, the Company may give the Client notice of this fact. If the client does not supply any necessary information or instructions within 3 days of such notice, the Company shall be entitled forthwith to give the Client notice of termination of the Contract,
In which event the client shall be liable to pay for the work undertaken by the Company on behalf of the Client prior to such termination, at the Company's hourly rates as set out from time to time or mentioned in the Project Schedule, together with all costs and expense reasonably incurred by the Company as a result of such early termination.

3.4 Any variation of the Project Schedule made whether or not during or as a result of any development process shall only be made with the prior written consent of the Company and may result (at the Company's standard hourly rates from time to time) and (in addition to the contract price) to reflect the cost and expenses of additional work incurred by the Company.

3.5 Any order which has been accepted by the Company may not be cancelled by the Client except with the written consent of the Company and on terms that the Client shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.

3.6 If the Client requires the Company to provide graphic design service as part of the Website and/or CD-Rom development and provision of the Services, and such graphic design is left partly or wholly to the discretion of the Company, the Company cannot be liable to the Client if such graphic design or other aspect does not meet with the Client's approval. If the Client wishes to avoid disappointment, it should provide specific written instructions in respect of all elements of graphic design, and/or the Services.

3.7 The Company reserves the right without notice to the Client to make any changes in the specifications of the Website and/or CD-Rom, and/or Services which are required to conform with any applicable statutory or EC requirement or which do not materially affect their quality or performance.

4.1 The Client shall pay to the Company the Charges referred to in the Project Schedule together with extra charges incurred pursuant as mentioned hereinabove

4.2 The charges are calculated by the Company on an ex works basis, and where the Company agrees to deliver any items otherwise than at the Company's premises, they shall be transported at the Client's risk and the Client shall additionally be liable to pay the Company's charges for transport, packaging and insurance.

4.3 The Charges and any additional charges are exclusive of any applicable value added tax or any other tax for the time being in force, which the Client shall be additionally liable to pay to the Company.

4.4 The Company shall invoice the client at the times set out in the Project Schedule. All extra charges shall be invoiced at the Company's discretion prior to or after incurring such costs.

4.5 All invoices are payable immediately on issue and the Company shall be entitled to issue invoices notwithstanding that delivery may not have taken place. The Company shall be entitled to charge interest to the Client on all overdue invoices at the rate of 21 percent per annum rate together with all costs and expenses incurred by the Company in the collection of overdue monies.

4.6 The time for payment of all sums due to the Company shall be of the essence of the contact.

4.7 Any follow up services in respect of the Website and/or CD-Rom agreed to be provided by the Company shall be made at prices to be agreed by the Company and the Client and/or in the absence of agreement at the Company's prevailing hourly rate.

4.8 The charges do not include any fees for marketing. Above charges do not include any fees for photography of clients products and/or content development.

4.9 Client will have to procure all necessary software and Server/Hosting rights required for the development of the Project and will have to provide the same to the Company to carry out the development.

4.10 If software development/test data run/installation/implementation/ training is undertaken in a site outside Mumbai, India, the client will have to bear the traveling, boarding and lodging charges as per The Company's TA/DA policy.

5.1 The dates referred to in the Timetable or Project Schedule are approximate only. Time for delivery or performance shall not be the essence. In Dedicated Staff contracts, the contracts will be fixed for the specific period as discussed and decided between the company and the client.

5.2 Upon completion of the Services, and the Website and/or CD-Rom (as the case may be), the Company shall test the Website and/or CD-Rom to ensure it complies with the Project Schedule and any other test specifications agreed in writing between the Company and the Client.

5.3 The Website and /or CD-Rom will be deemed to be delivered when in the reasonable opinion of the Company the tests referred to in clause 5.2 have been successfully completed. In Dedicated Staff contracts, the Company is not responsible for delayed Deliveries as the work is done on a daily basis as per the instructions of the client directly to the assigned Programmer/Designer.

5.4 It is estimated that the acceptance testing would take 15 days from the date of delivery as notified by the Company in writing, but if it exceeds more than that due to delay from the clients side then the same shall be charged @ 25 US Dollars per day for extra days.

6.1 Subject to the Client paying the Charges to the Company, and if shown on the project Schedule, the Company shall arrange for the installation of the Website on a Server and make the Website available to the public via a connection to the Internet.

6.2 The Company gives no warranty that access to the server and the Website shall be uninterrupted or error-free.

6.3 In the event that the website is hosted on a server belonging to the Company and if access to the Website exceeds the permitted bandwidth and/or the storage allocation (as set out in the Project Schedule) the Company shall be entitled, in its absolute discretion, to suspend access to the Website, move the Website to a different server and/or increase the Charges.

6.4 Notwithstanding any other provision of the contract the Company shall be entitled without prior notice and at any time to charge the bandwidth or storage allocation, or make any other change to the website and/or the Services required to comply with any safety, security or other applicable legal requirements, or which do not materially affect the quality or nature of the Website and/or the Services.

6.5 In the event of breach of the terms of this contract by the Client, or if the Website is found to be in breach of any of the terms and conditions applicable to it, the Company reserves the right to cancel, suspend or restrict access to it via the Server.

7.1 The Company cannot Guarantee that the domain name applied for will be registered or is capable of being registered by the Client. Accordingly, the Client is advised to take no action and incur no costs until the Client is notified that the requested domain name has been registered. The Company accepts no responsibility in respect of the domain name required and/or used by the Client and any dispute with a third party in respect of such domain name. Nor shall the company take part in any such dispute. The Company reserves the right without giving any reason (or any liability whatsoever vis-à-vis the Client) to either suspend or cancel the domain name and/or make appropriate representations to the relevant naming authority on the happening of the following:
7.1.1 Upon becoming aware of the dispute in respect of the domain names; and/or

7.1.2 Termination of the services of the Server by the server provider.

7.2 The registration of the domain name and its ongoing uses is subject to the relevant naming authority's terms and conditions of use, which the Client should obtain and consider (a copy is available on request to the Company). The Client is responsible for ensuring that it makes itself aware of these terms so that it can comply with them. The Company cannot be responsible for a refusal by a naming authority to register a domain name and the Client will not be entitled to a refund of any administrative charge paid to the Company in respect of this.

8.1 This Contract shall commence on the date of signing and/or Online submission and shall as mentioned hereinabove subject to early termination under clauses 8.2,8.3 or 8.4 continue for an initial period of 12 months and thereafter until terminated by either party on giving not less than 1 months notice in writing to the other.

8.2 If the Client shall make default in or commit any breach of its obligations or if the Client shall commit any act of bankruptcy or shall have any execution or distress levied upon any of its goods or property or, being a Limited Company, if any resolution or petition to wind up its business shall be passed or presented or if a receiver of the whole or any part of its undertaking, property or assets or any part thereof shall be appointed, the Company shall have the right forthwith to terminate any contract then subsisting without prejudice to any claim or right the Company might otherwise make or exercise.

8.3 If the Client defaults in payment of any sum due hereunder or is overdue with any payment, the Company shall have the right forthwith to terminate any contract then subsisting or suspend provision of Services or access to the Website without prejudice to any claim or right the Company might otherwise exercise.

8.4 The Contract may only be terminated by the Client prior to the expiry of the initial period set out in clause 8.1 with the prior written agreement of the Company and on terms that the Client shall indemnify the Company in full against all loss (including loss of profits) costs (including the costs of any labor and/or materials used) damages, charges and expenses incurred by the Company as a result of the termination.

8.5 All obligations contained in this Contract, which are expressed or may be implied to continue beyond the expiry of this Contract shall continue to bind the parties notwithstanding the termination of this Contract.

8.6 Orders once placed cannot be cancelled.

8.7 That the delivered software is warranted for a period of 365 days from the date of acceptance unless specified otherwise. During the warranty period, only bug fixes will be executed. Bugs will be solved at the Company's site and a solution will be sent to the client. Software/Websites designed or developed under Dedicated Staff contracts do not carry any warranty or Guarantees.

9.1 The Company warrants that:

9.1.1 The Website and/or CD-Rom will comply with the specifications set out in the Project Schedule; and

9.1.2 The Services will be provided with reasonable skill and care in accordance with usual industry practice and in a timely, workmanlike and effective manner.

9.2 The Company's sole obligation in respect of a claim by the Client of a breach of the warranty set out in clause 9.1 shall be to investigate and if appropriate remedy the defect or refund an appropriate part of the Charge. This condition on the Client having paid the Charges and notifying the Company in writing of any alleged defect within 7 days of the date when the Client discovers or ought to have discovered it.

9.4 The Company shall not be liable to the Client by reason of any representations (but excluding fraudulent representations), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensations whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) which arise (directly or indirectly) out of or in connection with the supply of the Services, and/or the Website and/or CD-Rom or their use by the Client.

9.5 The Company shall not be liable to the Client or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations in relation to the Services, and/or the Website and/or CD-Rom, if the delay or failure was due to any cause beyond the Company's reasonable control and/or due to any act or default of the Client (including without limitation, failure by the Client to provide the Company on the time with information or instruction) and/or due to any act by the server provider of the Server including without limitation downtime of the Server or disconnection of the Server.

9.6 The Company shall not be liable for any defects in the website and/or CD-Rom or any component parts which arise as a result of:

9.6.1 Use of the Website and/or CD-Rom in conjunction with the software or systems not expressly specified in the Project Schedule;

9.6.2 Defect, fault or individual workings of the Client's systems, in conjunction with which the Website and/or CD-Rom is used;

9.6.3 Misuse, alteration maintenance or interference by the Client or any third party of the Website and/or CD-Rom;

9.6.4 Environmental conditions;

9.6.5 Power failure, power fault or electrical interference

9.7 The Company shall undertake standard virus checks of the Website and/or CD-Rom but the Client recognizes that even with such checks the Company cannot guarantee that viruses will not occur. Accordingly, the Company shall not be liable for any costs, claims, damages, expenses, or liability (including without limitation consequential loss or damage) arising whether direct or indirect as a result of any viruses occurring for reasons other than the Company's negligence.

9.8 If the Client uses the Website and/or CD-Rom on its equipment it does so at its own risk. The Company accepts no liability for any loss or damage of any kind whatsoever direct, indirect and/or consequential caused by the use of the Website and/or CD-Rom on the Client's equipment.

9.9 The Company does not have control of the Server and accordingly shall not be liable for any costs, expenses or damages (including consequential loss or damages) or other liability incurred as a result (directly or indirectly) of:

9.9.1 Server downtime

9.9.2 Inability to access the Website

9.9.3 Loss of or damage to any files, data or the Website

9.9.4 any non-receipt, misrouting or failure of e-mail or other message transfers.
9.10 Due to the public nature of the Internet, the Company cannot be liable for the protection of privacy of electronic mail or other information transferred through the Internet or any other network provider and no guarantee or representation is given that it will be free from hackers or unauthorized users. The Client is responsible for the content of its e-mail and for ensuring that it complies with any relevant legislation (including but not limited to Data Protection Legislation).

9.11 Due to the public nature of the Internet, all materials submitted for publication will be considered publicly accessible. The use or publication of materials submitted by the Client does not create any express or implied approval by the Company.

9.12 In any event and without prejudice to the above, the entire liability of the Company to the Client shall be limited to the value of the charges or the proceeds of any insurance policy received by the Company in respect of such liability (which ever is the greater).

9.13 Nothing herein shall limit the Company's liability for death or personal injury caused by the Company's negligence
10.1 The Client agrees to fully indemnify and keep indemnified the Company from and against any and all claims, costs, damages or expenses or liability (whatsoever and whether arising in contract or tort or otherwise):

10.2 in respect of infringement of third party intellectual property rights affecting the Website and/or CD-Rom and/or the Design and Materials based upon the Client's contribution to the specification; and/or

10.3 arising as a result of breach by the Client of its obligations under the terms of this contract; and/or

10.4 in respect of use by the Client of the Server

10.5 Client agrees to provide all content (Including but not limited to images and text) and specifications. The Company is not liable or responsible for any content, site activities or Businesses conducted on the Client website or CD-Rom and the Client agrees to bear full responsibility for the same in the event of any action from a third party and indemnify The Company on the same.

11.1 The Client acknowledges that any and all Intellectual Property Rights in respect of the Website and/or CD-Rom and the Design & Materials are and shall remain the sole property of the Company.

11.2 The Client undertakes that it shall not during or at any time after the completion, expiry or termination of this contract in any way question or dispute the ownership by the Company of the Intellectual Property Rights in the Website and/or CD-Rom and/or the Design & Materials.

11.3 Upon delivery of the Website and/or CD-Rom the Company grants to the Client a non-exclusive, non-transferable, non-assignable license to use the Website and/or CD-Rom and/or the Designs & Materials for business purpose only.

11.4 The client may not grant a sub-license of the Website and/or CD-Rom and/or the Design & Materials, without the prior written consent of the Company.

11.5 The Client undertakes represents and warrants to the Company that in the event that any third party Intellectual Property Rights or licenses or consents are required to be used in connection with the Website and/or CD-Rom that it has obtained for itself and for the Company all necessary consents, approvals and licenses for use of the same;

11.6 In the event that the Website and/or CD-Rom and/or the Design & Materials, breaches or are alleged to breach the Intellectual Property Rights of a third party, the Client may instruct the Company at the Client's expense to:-

11.6.1 procure for the Client the right to continue using the Website and/or CD-Rom or infringing part of it; or

11.6.2 modify or amend the Website and/or CD-Rom or infringing part of it so that the same becomes non-infringing: or

11.6.3 replace the Website and/or CD-Rom or infringing part of it by another Website and/or CD-Rom of similar capability

11.7 Risk of loss or damage to the Design & Materials shall pass to the Client upon delivery of them to the Client. Notwithstanding the passing of risk, title to the Design & Materials shall remain in the Company and shall be used only for the purpose of the use by the Client of the Website and/or CD-Rom in accordance with these conditions. If the Client breaches any of the terms of the contract, the Design & Materials shall be returned to the Company upon request and if the Client fails to deliver them up, the Client grants to the Company an irrevocable license to enter on to the Client's premises to repossess them.

Each party shall treat as confidential all information obtained from the other pursuant to this Contract and shall not divulge such information to any person (except to such party's own employees and then only to those employees who need to know the same) without the other party's prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to this Contract, Which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this clause.

13. ACCESS/SAFETY

13.1 The Client shall provide the Company its employees, agents and servants access to its premises any of its equipment and such of its staff as are necessary for the Company to fulfill its obligations in accordance with the Timetable.

13.2 The Client shall be responsible for the safety of all of the Company's employees, agents or servants whilst on such premises for the purpose of performing the Services.

13.3 Work by the Hour/Day Contracts or Dedicated Staff or Hire Staff Contract – The Company will assign Designers/Developers for tasks from the client for the contract period. The assigned personnel will do all tasks as physically possible during the working hours in the monthly contract period. The assigned Personnel will work dedicatedly and diligently under the Company's supervision. The works delivered do not carry any warranty or guarantee and will be done to the Company's best efforts. If the client requests for working files/source files, then all completed works including source files will be handed over to the client on completion of the contract period and on receipt of full payment as per invoices raised. The Company's responsibility on the deliverables will be till the end of the contract period only and no tasks will be taken up on expiration of the contract period. Once the contract expires, the Company's will handover all work files to the client if requested and then on the Company will not be responsible for the performance, integrity, quality or security of the codes delivered.

The Client undertakes that it shall not during the continuance of this contract and for a period of one year following the expiry of termination of the contract (howsoever arising) employ or contract the service of any person who is or was employed or engaged by the Company on the performance of this contract.

15.1 The Company may sub contract any or all of its obligations under the contract.

15.2 No waiver by the Company of any breach of the contract by the Client shall be considered as a waiver unless in writing and signed by a director of the Company and shall not be considered a waiver of any subsequent breach of the same or any other provision.

15.3 The Client will have no rights of set-off statutory or otherwise.

15.4 The Client shall not assign, transfer or in any other manner make over to any third party the benefit and/or burden of the contract or any part thereof without the Company's prior written consent.

15.5 Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and may be delivered personality or by facsimile transmission of first class pre-paid post. A notice shall be deemed to have been served (if personally delivered) at the time of delivery or (if sent by post/email) forty-eight hours after posting or (if sent by facsimile transmission) at the time of transmission. Proof that an envelope containing the notice was properly addressed prepaid, posted and not returned to sender, shall be sufficient evidence of posting.

15.6 Failure or delay by any party in exercising any right or remedy of that party under these terms and conditions shall not in any circumstances operate as a waiver of it, nor shall any single or partial exercise of any right or remedy in any circumstances preclude any other or further exercise of any right or remedy in any circumstances preclude any other or further exercise of it as the exercise of any other right or remedy.

15.7. If any disputes arises between the parties hereto during the subsistence of this agreement or thereafter in connection with the validity, interpretation, implementation or breach of any provisions of this agreement the dispute shall be referred to a sole arbitrator jointly appointed. The Place of arbitration shall be Mumbai, India. The Indian Arbitration and Conciliation Act, 1996 shall govern the Arbitration Proceedings The Arbitration proceedings shall be in English.

15.8 Party of the first part shall not be liable for any breach of its obligations resulting from causes beyond its reasonable control.

"Project Schedule" means the Project Schedule as committed to the client over emails/documents.

"Charges" means the Charges payable by the Client as set out on the Project Schedule or in the agreement concluded by email exchanges or through Instant Messenger Chat Logs.

"Deliverables" means the Final Codes/Designs/HTMLS/Applications deliverable on a computer compact disk (if any) or via electronic means to be developed by the Company if shown on the Project Schedule, containing text, graphics, data, files, information, audio-visual effects and software, including the Design and Materials.

"Design & Materials" means all manuals, designs, discoveries, inventions, products, computer programs and software, procedures, improvements, developments, drawings, notes, documents, information and material made, conceived developed or resulting from Rights in the Design and Materials will at all times belong to the Company

"Intellectual Property Rights" means patents, copyrights, registered and unregistered design rights, know how, industrial designs and all intellectual property rights whatsoever in the world.

"Server" means the computer specified in the Project Schedule (or such replacement as the Company may in its absolute discretion designate from time to time) upon which the Website will reside and operate.

"Service" means the service to be provided by the Company to the Client as set out in the project Schedule.

"Timetable" means the approximate timetable for the production of the Website and/or CD-Rom, and/or performance of the Services as set in the Project Schedule.

"Website" means the computer site at which text, graphics, data, files, information, audio-visual effects and software are stored electronically and made available to third parties via the Internet, including, the Design and Materials, to be developed by the Company.

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