Terms And Conditions
DEFINITIONS AND INTERPRETATION
In these terms and conditions, the following definitions apply unless otherwise stated: ‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in India are open for business. 'Contract' means the contract between the Company and the Client for the supply of Services governed by these Terms and the Order. ‘Client’ means the individual or business entity who purchases Services from the Company and whose details are set out in the Order. 'Force Majeure Event' means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. ‘Company’ means DIGITAL ELF SMART SOLUTIONS PRIVATE LIMITED which is a registered company under Ministry of Corporate Affairs (MCA), Government of India, bearing CIN: U72900KA2019PTC130496 (Companies Act 2013) trading as Digital Elf SMART Solutions Pvt. Ltd. In the context of this Termns and Conditions, the Company is also ‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. ‘Order’ means the order placed by the Client through counter-signing the Company’s Quotation form or The Statement of Works(SOW) Document. ‘Order Form’ means a Quotation form counter-signed by the Client which together with these terms and conditions shall form a binding contract. ‘Quotation’ or ‘SOW’ means the written quotation or statement of sorks prepared by the Company which contains its proposals for providing Services to the Clients. ‘Services’ means the services the Company will provide to the Client as specified in the Order. ‘Specification’ means the description or specification of the Services in the Order. ‘Terms’ means these terms and conditions as updated from time to time by the Company. ‘White Label Work’ means Services provided by the Company to a Client who rebrands these services as their own for the benefit of their client.
Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words which denote a particular gender, they shall be also read to include all genders and vice versa.
The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
- TERMS AND CONDITIONS
These Terms shall apply to all agreements concluded between the Company and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
These Terms and the Order may only be varied by express written agreement between the Company and the Client.
- THE CONTRACT
The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, or when the Company has started to provide the Services having received the Order, whichever happens first, at which point the Contract shall come into existence.
The Contract constitutes the entire agreement between the Company to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms.
The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between the Company and the Client for the supply of Services.
A Quotation (Quote) for the supply of Services given by the Company shall not constitute an offer. A Quotation shall only be valid for a period of 14 Business Days from its date of issue.
For any White Label Work the Client understands and agrees that the Company have no contractual relationship and therefore no liability in respect of the ultimate client with whom the Client agrees to perform the White Label Work for.
- COMPANY OBLIGATIONS AND WARRANTIES
The Company warrants that it will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification.
The Company shall use all reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services.
The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
The Company shall be entitled to use a Group Company or other subcontractors for the provision of the Services provided always that the Company shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
- CLIENT’S OBLIGATIONS AND INDEMNITIES
The Client shall provide assistance and technical information to the Company, as reasonably required by the Company in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to the Company that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by the Company. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or where it may otherwise be required by the Company.
The Client shall be obliged to inform the Company immediately of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by the Company.
In the event that the Client fails to undertake those acts or provide those materials required under this clause 5 within any agreed deadline (and at least within 15 Business Days of the date requested by the Company) the Company shall be entitled to invoice for the Services that it has supplied and the remaining Services specified in the Order whether or not the Company has been able to deliver them.
The Client shall indemnify and keep the Company indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by the Company in respect of any third parties as a result of the provision of the Services in accordance with the Order, Specification, or the content of the Client’s advertising or web pages which result in claims or proceedings against the Company for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.
As standard across the Services and unless otherwise notified, the Client shall be exclusively responsible for implementing the optimisation changes recommended by the Company. As notified by the Company, in certain cases for amendments to existing optimisations, the Client shall allow the Company use of the site’s FTP, Server Control Panel, or content management system’s username and password in order to gain access to add in keywords.
The Company require that prior notice be given for any alterations relating to the Client’s website(s) that may affect the services supplied by the Company. If alterations are made by the Client or a third party to the Client’s site(s) search engine placements may be affected and the Company cannot be held responsible.
The Company advises that regular, fresh content added to the site will help to improve the stability of rankings within search engines and the Client understands that regular, unique content plays an important part in the success of a website and failure to add unique content will lessen the impact of SEO services.
The Client is supposed to ensure that the Company has included all requirements in the quotes/proposals/estimates and that the Company fully understands their requirements. Clients must provide the Company with clear guidelines along with the flow or specific details as required. When such details are not provided, the Company will proceed with our understanding of the requirements. At a later stage, if a discrepancy arises, it may lead to additional costs to accommodate the changes. Thus, it is essential that the Client clarifies every aspect of the website development or any Project as such and ensure that the Client has been quoted on the right requirements.
Any complexity related to specific tasks, must be advised in advance and included in the proposal for costing purposes. The Company operates in good faith and rely on the Clients to disclose the full picture at the time of quotation. Any discrepancy arising due to unclear requirements will not be borne by the Company.
There are limited man-hours allocated to each task including Project Management, Developers, and Digital Strategist/Business Analyst. Minor changes may be included within the allocated hours. This will be analyzed on a case-by-case basis.
In respect of all White Label Work, the Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the contract between the Client and their Client for the White Label Work.
- Digital Elf SMART Solutions Pvt Ltd will make every effort to complete the project/changes in the given timeframe. Reasonable delays are considered as accepted if functionalities are redefined or modified.
Any delays at Client’s end, may delay the project and proposed timeframes and may incur additional costs.
Any re-work on an already completed task will attract additional charges. Any changes in the design after the design approval will incur additional charges.
Any modifications requested during the development or after the Go-Live approval will incur additional charges. All additional work, over and above the estimates is charged separately. Under no circumstances will the Company be liable for any delays caused by change in the project brief.
Website/software application content and all related materials need to be provided to the Company within the first two weeks of starting the project. Any delays thereafter may delay the project and may incur additional charges if it goes beyond reasonable timeframe.
Unless otherwise expressly stated, all prices shall be in INR (Indian Rupees) and shall be exclusive of GST and other duties. In the event that duties are introduced additionally or changed after the conclusion of an Order, the Company shall be entitled to adjust or enhance the agreed prices accordingly.
The Client acknowledges that certain Services may involve the licensing of third-party Intellectual Property Rights and that the Client may be required to enter into a license directly with such third party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including if relevant (but without limitation) pictures and licenses from third party owners and licensors.
The price stated in the Order shall be an estimate based on a qualified estimate of the number of hours required to provide the Services. This is an estimate only and Services shall be invoiced in accordance with the actual number of hours spent in accordance with the price set out in the Order or Quotation and in the event that the price is not so stipulated, the Client shall be charged at the hourly rate specified in the Company’s then current price list. the Company shall be obliged to update the estimate and budgets on an ongoing basis following, among other things, changes made to an Order.
Whilst every effort is made to ensure that costing estimates are accurate, the Company reserves the right to amend any estimate, should an error or omission have been made.
The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
Late payment shall be considered as constituting a material breach of the Contract entitling the Company (at its discretion) to cancel the Contract or to affirm the Contract and assert the usual remedies for breach.
In the event that the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the execution of the Order, the Company shall be entitled to charge to the Client an estimated amount, corresponding to the amount that would have been due had the Services been rendered in accordance with the Order. The Company shall be entitled to payment on the basis of the Company’s price list applicable from time to time for any additional work required because of the Client’s failure to assist or delay in assisting.
If the Client subsequently requires the Company to complete the work within a shorter time frame than specified in the Order the Company reserves the right to charge additional monies to prioritize such projects ahead of pre-planned work.
- DELAYS AND COMPLAINTS
Complaints concerning delays or breach of Contract shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of the Company within 48 hours the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of Contract.
The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third Party Services will be governed by that Third parties’ terms and conditions and that the Company cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
The Company’s only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.
The Client’s exclusive remedies for late delivery or Services not conforming with the Contract are as specified in this clause 8 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to cancellation of the Contract and the Company’s sole liability is to refund any payments for Services not conforming with the Contract, subject to the limitations set out in clause 9 below.
The Company takes no responsibility of any open source products such as WordPress, Open Source carts, Joomla etc. It is client’s responsibility to update all components and third party softwares. It is suggested that the Client takes regular back-ups of the files and Data to avoid any disruptions to the services.
The company may offer packages in co-ordination with third party providers as required by the Client. Changes to the third-party provider’s rules and policies may ultimately effect the services the Company provides or the terms and conditions herein.
- INTELLECTUAL PROPERTY RIGHTS
It is the responsibility of the Client to ensure that they provide the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to the Company for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable license to the Company to use such Materials for the purposes of providing the Services for the duration of the Contract.
The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. the Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall be entitled to cancel the Order.
The Client shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
Unless expressly stated otherwise in these Terms or in an Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in the Company.
The Intellectual Property Rights as mentioned in Clause 9.5 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.
If the Company makes software, scripts, Web services etc., available to the Client as part of the execution of an Order, the Client shall only acquire a non-exclusive personal non transferable license to use such material until the Services under this agreement cease.
The Client hereby irrevocably licenses the Company to use and display the Client’s name, figure, logo etc. as a reference on the Company’s website, other marketing materials or types of media whilst they are a Client of the Company and for 18 months after the Contract terminates. The Client agrees to send the Company it’s most recent logo or figure as and when it is amended from time to time.
- TERM, TERMINATION AND ASSIGNMENT
The Contract shall renew automatically unless and until either party notifies the other of its wish to terminate the Contract by giving the other party at least 30 days’ written notice.
Without limiting each other’s rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party: a. commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or b. becomes or is insolvent or is unable to pay its debts (within the meaning of the The Insolvency and Bankruptcy Code (Amendment) Act, 2020) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
The Company shall, in addition to all other rights and remedies under these Terms be entitled to terminate the Contract without notice at will or in the event that any of its charges for the Services are not paid in accordance with these Terms.
Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Contract without undue delay. If relevant, the Client shall be obliged to remove codes, etc., from websites without undue delay. If the Client fails to do so, the Company shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without such invoicing amounting to a waiver of the Company’s right to terminate the Contract.
The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Contract and these Terms without the prior written consent of the Company.
The Company shall be entitled to assign or subcontract any of its rights or obligations under the Contract and these Terms and the Client acknowledges that certain elements of the Services will be provided by third parties.
- FORCE MAJEURE
- Neither party shall be held liable for a Force Majeure Event.
If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.
The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and the Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services, save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorized personnel.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
- ENTIRE AGREEMENT
The parties acknowledge and agree that the Contract supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing and constitute the entire agreement between the Company and the Client relating to the Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
- LAW AND JURISDICTION
The Company and the Client shall be obliged to attempt to settle any disputes arising between them including disputes relating to the existence or validity of the Contract through negotiation provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
The Contract shall be governed by and construed in accordance with Indian law and the agreement between the parties constituted by any order or proposal will be construed according to and is governed by the laws of Bengaluru, Karnataka, India. The Client and the Company submit to the non-exclusive jurisdiction of the courts in and of Karnataka, India in relation to any dispute arising under the terms and conditions or in relation to any services the Company performs for its clients.