Terms of Service
CONFIDENTIAL INFORMATION AND MATERIALS
“Confidential Information” shall mean any non-public information that the client specifically marks and designates, either orally or in writing, as confidential or which, under the circumstances surrounding the disclosure, ought to be treated as confidential or which the Brainium Information Technologies Pvt. Ltd. creates or produces in the course of performing services for the client.
“Confidential Information” includes, but is not limited to, product schematics or drawings, descriptive material, specifications, software (source code or object code), sales and customer information, the Client’s business policies or practices, information received from others that the Client is obligated to treat as confidential and other materials and information of a confidential nature.
“Confidential Information” shall not include any materials or information which the Brainium Information Technologies Pvt. Ltd. shows at the time of disclosure generally known by or available to the public or became so known or available thereafter through no fault of the Brainium Information Technologies Pvt. Ltd.
“Confidential Materials” shall mean all tangible materials containing confidential information, including without limitation drawings, schematics, written or printed documents, computer disks, tapes, and compact disks (CD), whether machine or user readable.
Brainium Information Technologies Pvt. Ltd. shall not disclose any Confidential Information to third parties without the prior written authorization of the Client. Notwithstanding the foregoing, Brainium Information Technologies Pvt. Ltd. shall not at any time disclose to any third party any Confidential Information comprising a trade secret of the Client or any Confidential Information of any other party to whom the Client owes an obligation. However, Brainium Information Technologies Pvt. Ltd. may disclose Confidential Information in accordance with judicial or other governmental orders, provided Brainium Information Technologies Pvt. Ltd. shall give the Client reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.
Brainium Information Technologies Pvt. Ltd. shall not use any Confidential Information or Confidential Materials of the Client for any purposes except those expressly contemplated hereby or as authorized by the Client.
Brainium Information Technologies Pvt. Ltd. shall take reasonable security precautions, which shall, in any event, be as great as the precautions it takes to protect its own confidential information, to keep confidential Confidential Information. Brainium Information Technologies Pvt. Ltd. may disclose Confidential Information or Confidential Materials only to Brainium Information Technologies Pvt. Ltd.’s employees or consultants on a need-to-know basis. Brainium Information Technologies Pvt. Ltd. shall instruct all employees given access to the information to maintain confidentiality and to refrain from making unauthorized copies. Brainium Information Technologies Pvt. Ltd. shall maintain appropriate written agreements with its employees, consultants, parent, subsidiaries, affiliates, or related parties, who receive, or have access to, Confidential Information sufficient to enable it to comply with the terms of this Agreement.
Confidential Information and Confidential Materials may be disclosed, reproduced, summarized, or distributed only in pursuance of Brainium Information Technologies Pvt. Ltd.’s business relationship with the Client, and only as otherwise provided hereunder. Brainium Information Technologies Pvt. Ltd. agrees to segregate all such Confidential Materials from the confidential materials of others to prevent commingling.
RIGHTS AND REMEDIES
Brainium Information Technologies Pvt. Ltd. shall notify the Client immediately upon discovery of any unauthorized use or disclosure of Confidential Information or Confidential Materials, or any other breach of this Agreement by Brainium Information Technologies Pvt. Ltd., and will cooperate with the Client in every reasonable way to help the Client regain possession of the Confidential Information and/or Confidential Materials and prevent further unauthorized use or disclosure.
Brainium Information Technologies Pvt. Ltd. shall return all originals, copies, reproductions, and summaries of Confidential Information and/or Confidential Materials then in Brainium Information Technologies Pvt. Ltd.’s possession or control at the Client’s request or, at the Client’s option, certify destruction of the same.
Brainium Information Technologies Pvt. Ltd. acknowledges that monetary damages may not be a sufficient remedy for damages resulting from the unauthorized disclosure of Confidential Information and that the Client shall be entitled, without waiving any other rights or remedies, to seek such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
The Client may visit Brainium Information Technologies Pvt. Ltd. premises, with reasonable prior notice and during normal business hours, to review Brainium Information Technologies Pvt. Ltd.’s compliance with the terms of this Agreement.
All Confidential Information and Confidential Materials are and shall remain the sole and exclusive property of the Client. By disclosing information to Brainium Information Technologies Pvt. Ltd., the Client does not grant any express or implied right to Brainium Information Technologies Pvt. Ltd. to or under the Client’s patents, copyrights, trademarks, or trade secret information.
All Confidential Information and Materials are provided “AS IS” and the Client makes no warranty regarding the accuracy or reliability of such information or materials. The Client does not warrant that it will release any product concerning which information has been disclosed as a part of the Confidential Information or Confidential Materials. The Client will not be liable for any expenses or losses incurred or any action undertaken by Brainium Information Technologies Pvt. Ltd. as a result of the receipt of Confidential Information or Confidential Materials. The entire risk arising out of the use of the Confidential Information and Confidential Materials remains with Brainium Information Technologies Pvt. Ltd.
This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed by both parties.
None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of the Client, its agents, or employees but only by an instrument in writing signed by an authorized officer of the Client. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either party to enforce any provision of this Agreement shall not constitute waiver of such provision or any other provisions of this Agreement.
If any action at law or in equity is necessary to enforce or interpret the rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which it may be entitled.
This Agreement shall be construed and governed by the laws of India, and both parties further consent to jurisdiction by the courts sitting in the State of West Bengal.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. Should any of the obligations of this Agreement be found illegal or unenforceable as being too broad with respect to the duration, scope, or subject matter thereof, such obligations shall be deemed and construed to be reduced to the maximum duration, scope, or subject matter allowable by law.
All obligations created by this Agreement shall survive change or termination of the parties’ business relationship.
The client shall retain ownership of all data, software applications, tools, and other Intellectual Property, etc. supplied for development. The client warrants that it either owns or has a valid license to use or has used its materials provided to Brainium Information Technologies Pvt. Ltd. for use in performing services for the client and grants a license to use such materials. Brainium Information Technologies Pvt. Ltd. agrees to restrict the use of materials to employees and contractors performing services for the client and to return all materials upon request or completion of the assignment.
Brainium Information Technologies Pvt. Ltd. agrees that its employees and contractors working on the client’s assignments shall have no claim of ownership of such Work Product developed for the client.
Brainium Information Technologies Pvt. Ltd. will provide warranty support for a period of 6 months from the date of acceptance for the application.
Warranty is limited to fixing defects found during this period. The scope of the warranty will not cover any enhancements, requests for modifications, etc.
Brainium Information Technologies Pvt. Ltd. warranty service obligations provided herein shall not apply to any claimed nonconformity caused by (a) the malfunction or improper use of any hardware or software not provided by Brainium Information Technologies Pvt. Ltd., (b) Customer’s negligence, fault or improper use of a Deliverable, or (c) modifications to or changes in a Deliverable not made by Brainium Information Technologies Pvt. Ltd.
LIMITATION ON LIABILITY
Each party’s liability, whether in contract, tort, or otherwise, arising out of or in connection with this Agreement shall not exceed the lesser of a) actual damages or loss assessed by the arbitrator or any other dispute resolution mechanism adopted by the parties under this Agreement or b) the total amount paid to Brainium Information Technologies Pvt. Ltd. by Customer for Services during the preceding twelve (12) months.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES BY ANYONE, NOR SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, TORT, OR OTHER DAMAGES, HOWEVER, CAUSED, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR OF ANY OTHER OBLIGATIONS RELATING TO THIS AGREEMENT, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Either party has the right to terminate this Agreement if the other breaches or is in default of any obligation hereunder which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) calendar days after receipt of notice of such default (or such additional cure period as the non-defaulting party may authorize).
Except as otherwise expressly agreed to by Brainium Information Technologies Pvt. Ltd. in writing, the Customer agrees not to directly or indirectly or through third parties solicit or hire for employment any of Brainium Information Technologies Pvt. Ltd.’ employees during the term of this Agreement and for a period of two (2) years following its termination
This contract and any dispute arising hereunder shall be governed by the laws of India without regard to principles on conflicts of laws.
Neither party undertakes any responsibility if it is prevented from performing its obligation due to sickness, accident, death of its employees or Consultants, or any other cause beyond the control of the parties.
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