Tracecost Terms of Service V.1.0

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1. Services

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1.1 Type and Scope – TRACECOST will provide the services specified in a SOW as being TRACECOST’s responsibilities (the “Services”). Such Services will be performed at the location(s) set out in the SOW. 

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• Where the SOW refers to Services to ‘perform’, this means that TRACECOST will provide you with these Services and will be responsible for the management and control of these Services and Deliverable Materials listed or referred to in the SOW.

• Where the SOW refers to Services to ‘assist’, this means that TRACECOST will assist you with your project, but that you will be responsible for the overall management and control of the Services.

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1.2 TRACECOST Personnel – Where individual TRACECOST employees are named in the SOW, TRACECOST will use commercially reasonable efforts to ensure that such named individuals are available to support TRACECOST’s work for you during the estimated period stated in the SOW. You agree that TRACECOST may call upon the assistance of other TRACECOST Affiliates (as that term is defined in Clause 8.2 below) in the performance of such Services.  If TRACECOST’s employees are required to work away from the location where they are permanently assigned, you agree to accept flexibility in the way such TRACECOST employees divide their time between such location and your sites, to the extent consistent with TRACECOST’s performance obligations under this Agreement.

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1.3 Timetable – TRACECOST will use commercially reasonable efforts to carry out its obligations in accordance with any dates or time periods referred to or specified in the SOW.  However, unless otherwise expressly stated in the SOW, the parties agree that any date or time period stated in the SOW is intended for planning and estimating purposes only, and is not contractually binding.

 

2. Deliverable Materials

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Deliverable Materials are literary works or other works of authorship (such as programs, program listings, programming tools, documentation, reports, drawings and similar works) that TRACECOST may deliver to you under the SOW.  TRACECOST will deliver to you the Deliverable Materials, if any, specified in the SOW as being TRACECOST’s responsibility.  Deliverable Materials do not include commercially available software or hardware; these are provided under separate agreements.

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2.1 Acceptance - Deliverable Materials will be accepted by you when the acceptance criteria or Deliverable Materials acceptance procedure, if any, specified in the SOW, have been met, or when you make productive use of the Deliverable Materials, whichever occurs first.  Where no such criteria or procedure are specified in the SOW, Deliverable Materials will be deemed accepted on delivery to you.

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2.2 Ownership of Deliverable Materials

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2.2.1 Client Materials – You will own the copyright in all those Deliverable Materials identified in the SOW as “Client Materials”, subject to the remainder of this Clause 2.2. You grant to TRACECOST a non-exclusive, royalty-free, world-wide, perpetual right to use, copy, adapt, modify, sub-license and market such Client Materials.

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2.2.2 Pre-Existing Works – The copyright and other intellectual property rights in any materials or software (whether written or machine-readable) created by or licensed to TRACECOST or one of its Affiliates prior to this Agreement or outside this engagement and any subsequent modifications to same (“Pre-Existing Works”) will remain vested in TRACECOST or one of its Affiliates or a third party.  To the extent that Pre-Existing Works are embedded in any Deliverable Materials, you will have a license to use them in accordance with Clause 2.2.3 below.

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2.2.3 Other Deliverable Materials – TRACECOST or third parties will own the copyright in all Deliverable Materials which are not identified in the SOW as Client Materials and in all other materials or software created under this Agreement whether by or on behalf of TRACECOST solely or both parties jointly (“Other Deliverable Materials”).  Subject to Clause 2.2.6 below, you will have a  perpetual non-exclusive, non-transferable license to use these Other Deliverable Materials (and any Pre-Existing Works to the extent that these are embedded in the Client Materials) for your own internal use and only for the purposes for which they were delivered, but you must not provide any Other Deliverable Materials (or any Pre-Existing Works, to the extent that these are embedded in the Client Materials), or copies of them, to any third party.   Any Deliverable Materials that are not expressly specified in the SOW as “Client Materials” or “Other Deliverable Materials” will be considered “Other Deliverable Materials”.

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2.2.4 Notwithstanding any other provisions of these Terms of Business, the use of any Deliverable Materials consisting of computer software which is not identified as Client Materials will be subject to the terms of the license agreement provided with the software or (if no such license is provided) the license terms referred to in the SOW. Where no such license terms are referenced, you may use the software in accordance with the license granted by Clause 2.2.3 above.

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2.2.5 Each of us grants the other only the licenses, subscriptions and rights specified. No other licenses, subscriptions or rights (including licenses or rights under patents) are granted.

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2.2.6 The rights provided to you by TRACECOST in the Deliverable Materials (including your ownership of copyright in Client Materials) as specified above, and the rights granted to you under Clause 2.2.3 above, are subject to payment by you of amounts due under this Agreement. 

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2.2.7 Notwithstanding any other provision of this Agreement, TRACECOST and its Affiliates will not be prevented or restricted by this Agreement from using any technique, idea, concepts or know-how relating to TRACECOST’s or its Affiliates’ business activities.

 

3. Your Responsibilities

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TRACECOST’s performance is dependent on you cooperating with TRACECOST and carrying out your responsibilities as set out in this Agreement.

 

4. Fees and Payment

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4.1 Taxes – Charges and expenses will be stated exclusive of any taxes. If any authority imposes a duty, tax, levy, or fee, excluding those based on TRACECOST’s net income, upon any transaction under this Agreement, then you agree to pay that amount as specified in an invoice or supply exemption documentation.

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4.2 Payment of Invoices – TRACECOST will invoice in accordance with the terms of the SOW.  Unless the SOW states otherwise, all amounts: (i) will be specified in the country currency; (ii) will be due upon receipt of the invoice by you; and (iii) will be payable as TRACECOST specifies in the invoice.  You agree to pay accordingly, including any late payment charges.   In the event of late payment, TRACECOST reserves the right to suspend the provision of Services and to charge interest on amounts overdue.

 

5. Term and Termination

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5.1 Duration of Agreement – This Agreement will apply from the subscription commencement date stated in the SOW, if any, or where no Commencement Date is specified, from the date of signature of the SOW by both parties.  This Agreement will continue until the Services have been provided as stated in the SOW, or the Agreement is terminated earlier in accordance with the terms set out below.

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5.2 Termination on Notice – Unless the SOW states otherwise, this Agreement may be terminated by either party at any time by giving the other party not less than 30 days’ written notice.

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5.3 Termination for Breach – This Agreement may be terminated by either party on written notice with immediate effect if the other commits a material breach of any term of this Agreement which is not remedied within 30 days of a written request to remedy the same (or if it is not practical to remedy the breach within such period, if reasonable steps have not been taken within the 30 days towards remedying the breach).

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5.4 Effect of Termination – On the termination of this Agreement, you will pay TRACECOST for all Services provided up to the date of termination, and where you terminate on notice or TRACECOST terminates for breach for additional costs TRACECOST reasonably incurs as a result of the early termination of the Services, such as costs relating to sub-contracts or relocation costs.  TRACECOST will take reasonable steps to mitigate any such additional costs.  Unless specified otherwise in the SOW, where the Services have been provided on a fixed price fees basis, you will pay TRACECOST all sums due at the date of termination in accordance with the payment plan set out in the SOW, plus any related payments withheld, together with fees on a time and materials basis for Services provided after the date of the last applicable payment under the payment plan.

 

6. Confidentiality

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6.1 TRACECOST agrees that information labelled as confidential by you and all financial, statistical, customer, marketing and personnel data relating to your business, in each case as disclosed to TRACECOST in connection with this Agreement, are your confidential information ("Client Confidential Information").  Client Confidential Information and TRACECOST Confidential Information are collectively referred to as "Confidential Information”.   Neither party will, without the prior written consent of the other, disclose to any third party any Confidential Information which is received from the other party for the purposes of providing or receiving Services.   Confidential Information disclosed under this Agreement will be subject to this Clause 6 for 2 years following the initial date of disclosure.

 

7. Liability      

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7.1 Limitation - Circumstances may arise where, because of a default on TRACECOST’s part or other liability, you are entitled to recover damages from TRACECOST.  Regardless of the basis on which you are entitled to claim damages from TRACECOST (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), TRACECOST is liable for no more than:

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1. payments referred to in the Patents and Copyrights clause below;

2. damages for bodily injury (including death), and damage to real property and tangible personal property for which TRACECOST is legally liable; and

3. the amount of any other actual direct damages up to the charges or the amounts paid or due and payable to TRACECOST (if recurring, 12 months’ charges apply) under the applicable Statement of Work that is the subject of the claim.

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This limit also applies to any of TRACECOST’s subcontractors and Affiliates.  It is the maximum for which TRACECOST, its Affiliates, and its subcontractors are collectively responsible.

 

7.2 Items for Which TRACECOST is Not Liable - Under no circumstances is TRACECOST, its Affiliates, or its subcontractors liable for any of the following, even if informed of their possibility:

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1. loss of, or damage to, data;

2. special, incidental, or indirect damages or for any economic consequential damages; or

3. lost profits, business, revenue, goodwill, or anticipated savings.

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8. General

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8.1 Subcontracting – TRACECOST may subcontract any part of the Services to one or more subcontractors selected by TRACECOST. However, this will not affect TRACECOST’s obligations to you for Services provided under this Agreement, subject to the other provisions of this Agreement. Any reference to TRACECOST’s personnel in this Agreement includes TRACECOST’s agents and subcontractor staff.

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8.2 Affiliates – In this Agreement, “Affiliate” means any entity which from time to time Controls, is Controlled by or is under common Control with the relevant party or entity, where “Control” means having the ability (including, without limitation, by means of a majority of voting rights or the right to appoint or remove a majority of the board of directors) to control the management and policies of an entity.

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8.3 Force Majeure – Neither party will be liable to the other for any failure to fulfil obligations caused by circumstances outside its reasonable control.  This clause does not apply to any of your obligations to pay charges for Services provided.

 

8.4 Assignment – Neither party may assign, transfer, charge or otherwise seek to deal in any of its respective rights or obligations under this Agreement without the prior written consent of the other party, except that TRACECOST may, without consent, assign or transfer its rights and obligations to a person or persons whose identity TRACECOST may provide to you in writing, to whom all or part of its business is transferred.  TRACECOST is also permitted to assign its rights to receive payments under this Agreement without obtaining your consent. References in this Agreement (including without limitation in Clause 7) to a “party” or the “parties” will include their respective assignees and transferees under this Clause 8.4, unless the context reasonably requires otherwise.

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8.5 Waiver- Subject to Clause 8.9, no delay by either party in enforcing any of the terms or conditions of this Agreement will affect or restrict such party’s rights and powers arising under this Agreement.   No waiver of any term or condition of this Agreement will be effective unless made in writing and mutually agreed.

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8.6 Notices – Notices must be in writing and served either personally, sent by prepaid registered post or faxed to the address of the other party given in this Agreement or to any other address as the relevant party may have notified to the other during the period of this Agreement.   Any notice sent by post will be deemed to have been delivered 48 hours after sending.  Any notice sent by fax or served personally will be deemed to have been delivered on the first working day following its delivery. 

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8.7 Electronic Communications – To the extent permitted under applicable law, each of us may communicate with the other by electronic means and such communication is acceptable as a signed writing.  An identification code (called a “user ID”) contained in an electronic document is sufficient to verity the sender’s identity and the document’s authenticity. 

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8.8 Amendment – In order to maintain flexibility in our business relationship, TRACECOST may change the terms of this Agreement by giving you three months’ written notice.  However, these changes are not retroactive.  They apply, as of the effective date TRACECOST specifies in the notice, only to new orders, renewals, and on-going transactions that do not expire.  Otherwise, any amendment to this Agreement will not be effective unless agreed in writing and signed by both parties.   Additional or different terms in any written communication from you (such as an order) are void.

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8.9 Survival and Validity of Agreement Provisions – The provisions of this Agreement which expressly or by implication are intended to survive its termination or expiration will survive and continue to bind both parties.  If any provision of this Agreement is held to be invalid, in whole or in part, such provision (or relevant part, as the case may be) shall be deemed not to form part of this Agreement.    In any event, the enforceability of the remainder of this Agreement will not be affected.  Neither party will bring a legal action arising out of or related to this Agreement more than two years after the cause of action arose.

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8.10 Working for other clients – TRACECOST will not be prevented or restricted by anything in this Agreement from providing services for other clients.

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8.11 Relationship of Parties - TRACECOST is an independent contractor, and is responsible for the payment of all employer contributions and taxes measured by the remuneration paid to TRACECOST employees as required by all applicable federal, state and local laws. TRACECOST is not a fiduciary of Client, and does not undertake to perform any regulatory obligation of Client or to assume any responsibility for Client's business or operations.  You are responsible for the results obtained from the use of the Services.

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8.12  Patents and Copyrights 

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8.12.1 If a third-party claims that Deliverable Materials TRACECOST provides to you infringe that third party’s patent or copyright, TRACECOST will defend you against that claim at its expense and pay all costs, damages, and attorney’s fees that a court finally awards or that are included in a settlement approved by TRACECOST, provided that you:

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1. promptly notify TRACECOST in writing of the claim; and

2. allow TRACECOST to control, and cooperate with TRACECOST in, the defence and any related settlement negotiations.

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8.12.2 Remedies - If such a claim is made or appears likely to be made, you agree to permit TRACECOST to enable you to continue to use the Deliverable Materials, or to modify them, or replace them with Deliverable Materials that are at least functionally equivalent.  If TRACECOST determines that none of these alternatives is reasonably available, you agree to return the Deliverable Materials to TRACECOST on its written request.  TRACECOST will then give you a credit equal to the amount you paid TRACECOST for the creation of the Deliverable Materials. 

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This is TRACECOST’s entire obligation to you regarding any claim of infringement.

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8.12.3 Claims for Which TRACECOST is Not Responsible -

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TRACECOST has no obligation regarding any claim based on any of the following:

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1. anything you provide which is incorporated into the Deliverable Materials or TRACECOST’s compliance with any designs, specifications, or instructions provided by you or by a third party on your behalf;

2. your modification of Deliverable Materials; or

3. the combination, operation, or use of the Deliverable Materials with any product, data, apparatus, or business method that TRACECOST did not provide, or the distribution, operation or use of the Deliverable Materials for the benefit of a third party (excluding your Affiliates).

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8.13 Third party claims – You agree that this Agreement will not create any right or cause of action for any third party, nor will TRACECOST be responsible for any third party claims against you except as described in the Patents and Copyrights clause above or as permitted by the Liability clause above for bodily injury (including death) or damage to real or tangible personal property for which TRACECOST is legally liable.

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8.14 Business Contact Information – You agree to allow Tracecost Private Limited to store and use your business contact information, including names, business phone numbers, and business e-mail addresses, anywhere they do business.  Such information will be processed and used in connection with our business relationship, and may be provided to contractors acting on TRACECOST’s behalf, TRACECOST business partners who promote, market, and support certain TRACECOST products and services

 

9. Warranties

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TRACECOST warrants that it performs each of the Services using reasonable care and skill and according to its current description (including completion criteria) contained in the SOW.   

 

10. Geographic Scope, Governing Law and Dispute Resolution

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10.1 Geographic Scope – The rights, duties, and obligations of each of us are valid only in  India, except that all licenses are valid as specifically granted.

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10.2 Applicable Law -- Both you and TRACECOST consent to the application of the laws of  the country where the project is being delivered, to govern, interpret, and enforce all of your and TRACECOST’s rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles.   You and TRACECOST further agree to waive any rights each may have to a trial by jury.

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10.3  Resolving Disputes – Should any dispute arise between you and TRACECOST, the parties will attempt to resolve the dispute in good faith by negotiations in accordance with the Escalation Procedure, if any, described in the SOW. 

All proceedings shall be conducted, including all documents presented in such proceedings, in the English language.  The English language version of this Agreement prevails over any other language version.

 

Tracecost Private Limited-Jan 2023-V1.0