Terms and Conditions

The Service Contract between Dharne & Company, Inc. hereafter referred to as Dharne & Company and the Customer hereafter referred to as client are subject to the following terms and conditions.

In an industry where change is the only constant, our core values are unchanging and provide a beacon as we grow in numbers and offer additional services.

Services

Dharne & Company will provide consulting, web site design, graphic design, and programming services to the Customer relating to the creation or modification or hosting of a Website and or a software program. The specific nature of the services to be provided by Dharne & Company will be as detailed in the "Scope Document" or as defined in "Project Scope" section of the proposal. This is subject to any lawful restraint imposed upon Dharne & Co. by any other party (such as an obligation as to confidence in previous or current engagements). Dharne & Company will make available to the Customer all knowledge, information and expertise in its possession in performing the Services. If the Customer wishes Dharne & Company to perform any services other than those specified in the Project Scope or Scope Document (including without limitation to provide any additional functionality) or to provide further Services or other Products, Images, and/or Software, then Dharne & Company shall be entitled to quote the Customer separately for the provision of those services or the provision of those products or software. If the Customer accepts that quotation then the provisions of this Agreement will apply to the provision of those additional services, products and/or software.
Unless otherwise agreed in writing by the parties, the term of this Agreement will commence on the date specified in the project acceptance document.
Unless specifically stated as a fixed price quote, any cost estimates that are or have been given by Dharne & Company are estimates only. Actual time spent and products supplied may be used as the basis for billing.

Communication, Reporting and Meetings

The Customer shall make its employee (specified in the Schedule or such other person as the Customer shall nominate in writing) (the Customer Contact) available to meet with Dharne & Company when reasonably required by Dharne & Company for the purposes of discussing the status of the Services. Dharne & Company will meet regularly with the Customer Contact (by remote communication facility if necessary) and report to the Customer on the status of the Services. Dharne & Co. uses a web based CRM board to communicate with the client and is the preferred method for day to day project related communications. After the acceptance of the project by both the parties, login information to the client section is emailed to all the contacts designated by the client. All documents, files,messages, instructions, edits etc. pertaining to the project have to be uploaded here.
In case of emergencies we are available on the telephone as well.

Fees, Rates, and Other Expenses

Dharne & Company will provide Services to the Customer and will be entitled to charge the Customer for such Services at the rates specified in the Proposal.
Dharne & Company shall be entitled to provide the Services remotely from its own premises and will not be required to be physically present at the Customer premises. If Dharne & Company is required to attend the Customer premises for any reason pursuant to this agreement, the Customer will reimburse Dharne & Company for reasonable transport and/or accommodation expenses incurred by Dharne & Company in doing so.
The Customer authorizes Dharne & Company to obtain access to the Customer computing facilities using the remote means of access and subject to any Restrictions on Access set out in the Schedule, for the purposes of providing the Customer with Services.
Dharne & Company will not use the Means of Access (or any other methods of remote access) to access the Facilities for any purpose other than to provide the Services. However, Dharne & Company shall be permitted to gain remote access to the Facilities for lawful purposes using any publicly available means (such as the World Wide Web), which do not require special authorization.
Dharne & Company will take the following steps to ensure the security of the Facilities (in so far as the use of Dharne & Company's systems and the means of access are concerned): (i) ensuring that no passwords are stored in easily recognizable form on Dharne & Company's own systems in circumstances where a breach of Dharne & Company's own internal security may reveal them. (ii) ensuring that only those employees and contractors of Dharne & Company who are required to access the Facilities using Dharne & Company's systems and the Means of Access are able to do so. (iii) ensuring that the Facilities are not capable of being accessed by a system or user, which transits Dharne & Company's own systems, except as permitted by this Agreement.
The Customer indemnifies Dharne & Company against any loss or damage arising directly or indirectly from any unauthorized use of the Facilities to which Dharne & Company has been granted remote access, provided that such unauthorized use has not arisen as the result of any material breach by Dharne & Company of its own obligations under Clause 5 of this Agreement.
The Customer will also reimburse Dharne & Company for all expenses incurred by Dharne & Company on the Customer behalf or in carrying out its obligations under this Agreement.
The Customer will pay Dharne & Company for the cost of any Products (including any licensing that Dharne & Company is required to pay to obtain a sub-license in favor of the Customer for any third party software) together with Dharne & Company's own charge that it levies for handling and/or obtaining any relevant sub-licenses.

Payment

Payments terms are listed in the Payments Terms section of the proposal. Dharne & Company will be entitled to invoice the Customer on an interim basis at least monthly for progress payments for any Services performed or Products supplied during the previous month (or during any earlier period which has not previously been invoiced) together with such expenses as the Customer is required to reimburse Dharne & Company. Such invoices shall contain such information and detail as the Customer may reasonably require to permit the Customer to account for the Services and Products (for instance, by attaching copies of any time sheets) reasonably prescribed by the Customer.
All invoices rendered by Dharne & Company are payable within fourteen (14) days from the date of invoice. The Customer agrees to pay Dharne & Company in full within this time period.
If the Customer fails to pay any invoice by the due date for payment, then without prejudice to Dharne & Company's rights under this Agreement, the Customer shall also pay Dharne & Company interest on the outstanding amount at the rate of 2.5% per month.

Confidentiality

Dharne & Company will not disclose to any third party or use other than for the purposes of this Agreement any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of this Agreement which is of a secret or confidential nature relating to the business, equipment, processes relating to the equipment, the products, services, process or business strategies offered or employed by the Customer. This obligation of confidence will cease to apply in relation to information that Dharne & Company is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Dharne & Company of its obligations of confidence under this Agreement.

Intellectual Property

Unless otherwise agreed in writing by Dharne & Company, the copyright and all other rights relating to any software provided to the Customer by or on behalf of Dharne & Company pursuant to this Agreement (the "Intellectual Property") will remain the property of Dharne & Company or where applicable its licensors.
Upon payment in full for the Services provided by or on behalf of Dharne & Company pursuant to this Agreement, Dharne & Company grants the Customer a non-exclusive and non-transferable perpetual license to use the Intellectual Property for the Customer own business purposes, and in the case of the third party software, will obtain a sub-license in favor of the Customer in similar terms.
Dharne & Company warrants to the Customer that to the best of its knowledge, it has the right to grant the licenses referred to in this Agreement, and the use by the Customer of any software provided by Dharne & Company will not infringe the rights of any third party.
Dharne & Company also grants the Customer the right to copy the Intellectual Property for the purposes of staff and subcontractor education and system backups. However, the Customer must not copy any of the Intellectual Property for any other purposes.
The Customer must not de-compile, disassemble, decrypt, extract, or otherwise reverse engineer any part of any software that is provided to the Customer by Dharne & Company without Dharne & Company's prior written consent.
The Customer must hold any software (in source and/or in object code) and other materials provided to the Customer by Dharne & Company confidential. The Customer must not disclose any of those materials to any third party without Dharne & Company's prior written consent. The Customer must also take all reasonable steps within its power to protect the Intellectual Property of Dharne & Company.

Critical Applications

None of the software or the Products provided pursuant to this Agreement is designed or intended to be fault-tolerant or designed or intended for use as or for use where their failure or malfunction could lead to death, personal injury, or economic, physical or environmental damage (Critical Activities). The term Critical Activities includes but is not limited to on-line control equipment in hazardous environments requiring fail-safe performance (such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, weapons systems, banking or financial control or reporting systems, or security systems). The Customer warrants that it will not use distribute or resell any of the Products or the software for any such Critical Activities and that it will ensure that permitted end-users of such Products or software are provided with a notice in the form set out in this Clause. The Customer will indemnify Dharne & Company for any loss, cost, damage or third party claim arising from the Customer use of any of the Products in Critical Activities or from any breach by the Customer of this clause.

Liability

Except for express undertakings to indemnify and any warranties set out in this Agreement:

To the extent permitted by the law, Dharne & Company expressly excludes all conditions and warranties whether express or implied.
Notwithstanding any other provision in this Agreement, in no event will Dharne & Company and or itsofficers be liable to any party including the Customer for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including for loss of profits, use, data, or other economic advantage), however it arises, whether for breach of this Agreement or in tort, and even if Dharne & Company has been previously advised of the possibility of such damage. Further, liability for such damages shall be excluded, even if inclusive remedies provided hereunder fail their essential purpose. The Customer will indemnify Dharne & Company and keep it indemnified from and against any claims by any third party for or in respect of such damages. In case of malicious attacks of any kind on Client website(s) by hackers, Dharne & Company will not be responsible for the cost restoring the site(s) to its original state. This will be considered as billable work and estimate will be provided before commencing the work. Dharne & Company will not be responsible for any lost or stolen information including but not limited to credit card numbers, personal information etc. stored on the website.

The Customer is solely responsible for the proper backup and protection of all of its software and data, as well as the implementation and maintenance of firewalls and security measures (including proper virus control) in relation to the Facilities.

Assistance and Facilities

The Customer will provide Dharne & Company with all reasonable assistance and facilities free of charge (including without limitation of the Means of Access and the other Items referred to in the Schedule, office facilities, and liaison with the necessary officers and employees of the Customer) in order to permit Dharne & Company to efficiently provide the Services.

No Poaching

The Customer undertakes to Dharne & Company that it will not for a period of two years from the termination of this Agreement entice away or endeavor to entice away any employee from Dharne & Company and its offshore development centers. The Customer acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of Dharne & Co. Inc.

Agreement Non-exclusive

The Customer acknowledges that Dharne & Company is providing Services to the Customer on a non-exclusive basis and that Dharne & Company may provide services of the same or a similar nature as the Services to any other party.

Termination

This Agreement may be terminated in the following circumstances:

By either party by giving the other party thirty (30) days notice in writing to that effect;
Immediately by Dharne & Company by notice in writing if the Customer fails to remedy a breach of this Agreement (including any provision as to payment) within fourteen (14) days of receipt of a notice from Dharne & Company of such breach requiring it to do so.
By either party immediately by notice in writing if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, Liquidator, provisional Liquidator, trustee or similar office of it or of any or all of its revenues and assets (Insolvency Event), and such Insolvency Event remains in existence in respect of such party as the time of service of the Notice.

On termination of this Agreement however occurring, all moneys unpaid by the Customer pursuant to this Agreement will immediately become due and payable. If such moneys remain unpaid for a period of thirty days then (without prejudice to any other rights that Dharne & Company may have for breach of this Agreement or otherwise) Dharne & Company will be entitled to retake possession of the Products and to disable any software provided pursuant to this Agreement (including by remote means).

The Customer obligations (including any obligations to indemnify) under clauses Intellectual Property, High Risk Activities,Liability, and Dharne & Company's obligations under clause of Confidentiality shall survive the termination of this Agreement for whatever reason.

General

Any notice required or contemplated by this Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid addressed or by fax or electronic mail to the Customer or Dharne & Company at the address set out in the Schedule or this Agreement or such other address nominated by a party in writing.
The Customer may not assign any of its obligations under this Agreement without the prior written consent of Dharne & Company. However Dharne & Company may arrange for subcontractors to perform any of Dharne & Company's obligations under this Agreement.
Dharne & Company will not be liable to the Customer or to any third party for any non-performance or delay in the performance of its obligations under this Agreement, if events or conditions beyond its reasonable control cause the non-performance or delay and Dharne & Company gives the Customer prompt notice thereof. In no event will this provision affect Customer obligation to make payments to Dharne & Company under this Agreement except in respect of Services that are unable to be performed by (Dharne & Co.), until they can be performed.
A failure, delay, relaxation or indulgence by either Party in exercising any right, power or privilege conferred on the Party by this Agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.
If any part of this Agreement is held by a court of competent jurisdiction to be invalid, then; Where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and In any case the offending provision must be severed from this Agreement the remainder of this Agreement shall continue in full force and effect unless such reading down or severance affects the basic nature of this Agreement. This Agreement shall be governed by and must be construed in accordance with the laws of State of California, USA and the Customer irrevocably submits to the non-exclusive jurisdiction of the courts of that State.

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