BLUELOGIS CONSULTING PRIVATE LIMITED
Level 5, Tamarai Tech Park, Guindy,
CHENNAI, INDIA
1. Party Definitions & Abbreviations
This Agreement has been entered effective between (herein referred to as “Customer” which expression shall include its successors, heirs and assigns)
AND
BLUELOGIS CONSULTING PVT LTD, an information technology (IT) company established under the laws of India, having its registered office at Level 5, Tamarai Tech Park, S.P.Plot, No. 16-19 & 20-A, Thiru Vi Ka Industrial Estate, Guindy, Chennai-600032, India. (herein referred to as “BlueLogis” which expression shall include its successors and assigns)
Customer and BlueLogis hereinafter individually referred as “the Party” and collectively as “the Parties”.
The expressions here below shall have the following meanings:
“Agreement” means this Software License and Implementation Services Agreement, Exhibits and any addenda signed by Customer and BlueLogis.
“Software” means the Application Software in executable format and in name of BlueLogis Shipping Solutions - NX, AX, FX, LX, TX, CX, CEX products and customised or enhanced above these products or any solution that is designed and delivered over “Third Party Software” products by BlueLogis.
“Source” means the version of software as it is originally written by any employee or associate of BlueLogis in any form of representation.
“Effective Date” means the date written in the Agreement above.
“Maintenance & Support” means the support services provided by BlueLogis, directly or indirectly, to Customer with respect to the Software.
“Third Party Software” means any other software not belonging to BlueLogis and shall be solely governed in accordance with the terms and conditions of such third parties.
“VAT, GST, IGST, CGST, SGST” means any value-added, sales, use, excise, income tax, goods & services, withholding taxes, duties or other applicable taxes, interest and penalties that are levied or assessed by any governmental or regulatory authority in relation to this Agreement.
“License” means authorization to use the “Software” by business users or any machine.
"Upgrade" means enhancement to the existing Software which will have an impact on the Performance, Functionality, Security and aimed to resolve defects or bugs in the Software.
“Implementation” means that the user concerned has full access to the software intended for such user and the software is fully functional with Test Data;
“Media” means downloadable file or downloadable link or installed location of the software
Reference:
- Reference of the software proposal and confirmation thereof between the mentioned parties.
2. Software License Model & Rights
BlueLogis hereby grants to Customer a perpetual, non-exclusive, limited license to use the Software as described in the above referred proposal by BlueLogis.
Customer shall not modify, copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey the Software or any right in the Software to anyone else without the prior written consent of BlueLogis, provided that Customer may make one copy of the Software for backup or archival purposes.
3. In Scope Summary
BlueLogis NX, AX, FX, LX, TX, CX, CEX – ERP Solution
As per software proposal submitted by BlueLogis.
4. Delivery Schedule Summary
As per software proposal submitted by BlueLogis.
5. Software Acceptance Criteria
The acceptance of the implemented Software shall be accomplished together by Customer and BlueLogis according to the following:
BlueLogis will setup, and implement the Software in Customer Premise or Cloud Platform by Customer or BlueLogis as per In Scope work in Exhibit I.
Customer will test and accept the implemented services/change request in the Software within 30 working days of the submission for test in accordance with In Scope of work agreed by the Parties failing which implementation services of the Software shall be considered as deemed accepted by the Customer after the expiry of 30 working days.
The approved personnel of the Customer is to be recognized and identified in writing to BlueLogis at the beginning /start of Services to avoid instructions/orders conflicts and BlueLogis will also nominate a Project Co-ordinator to Customer.
6. Commercial Summary
As per software proposal submitted by BlueLogis.
7. Payment Terms & Condition
Payment Terms, as agreed as between the parties, are described in attached [Exhibit III].
Notwithstanding anything contained in this Agreement, each party agrees and acknowledges that the orders placed towards Third Party Software and any payments paid related thereto are non-cancellable and non-refundable. The payment towards Third Party Software is due and payable to BlueLogis as per the terms of this Agreement.
Customer must pay all sums properly due and payable to the BlueLogis within 30 days from the date of invoice that has been issued in accordance with this Agreement. In the event of a dispute in relation to invoices, Customer shall be entitled to withhold the disputed payment only until such disputed amount in the invoices are resolved by the parties acting reasonably and under good faith. For the avoidance of doubt, any amount not disputed under any invoice(s) shall be released as per the terms of this Agreement failing which the BlueLogis shall have the right to suspend the Services until such undisputed amount will be paid to the BlueLogis.
Customer shall pay to BlueLogis, as set forth in Exhibit III; which excludes any Statutory levies like VAT, GST, IGST, CGST, SGST and any other similar statutory taxes. If applicable laws require the withholding of taxes under this Agreement, Customer shall make suitable arrangements for applicable withholdings and remit the required tax to the proper governmental authority regularly and within time. All taxes/charges/duty including any types of taxes etc. levied by government from time to time shall be borne by the Customer. BlueLogis shall not bear any cost of VAT, GST, IGST, CGST, SGST in relation to this Agreement.
Except for income tax, if any, levied upon BlueLogis, Customer shall be liable to meet any goods and services tax, consumption tax or value added tax, custom/excise duties or any other taxes, duties, fees and charges (collectively, “Taxes”) imposed in relation to this Agreement or arising out of the performance of this Agreement by either party, whether currently in force or introduced or increased after the Effective Date and shall pay such Taxes immediately as and when they fall due for payment. Customer shall not be entitled to deduct the amount of any such Taxes from payments due to BlueLogis under this Agreement. If BlueLogis pays such Taxes, BlueLogis shall be entitled to reimbursement from Customer. The Customer will deliver to BlueLogis, upon BlueLogis’s request, originals or copies of official receipts or other documentation evidencing payment of such amounts.
8. Out Scope and Change Management
- AI-based WhatsApp or Google Chatbot
- BlueLogis CEX+ Customer Experience Platform
- Any features which is not covered In Scope (Exhibit I)
During the implementation either party may request in writing additions, deletions, or modifications to the services described in the scope. BlueLogis shall have no obligation to commence work in connection with any change until the requirement document, estimated fee and schedule impact of the change is agreed upon in a written change request form signed by the designated Implementation Managers from both parties.
Upon a request for a change, the party requesting the change shall submit the change on the standard Change Request Form describing the change, including the estimated impact of the change on the project schedule, fees, and expenses. The Change Management Process that will be employed is defined below.
Both parties agree to follow this process and to use the Change Request Form.
- Identify and document
- Assess impact and prioritize
- Estimate required effort
- Approve / disapprove
- Assign responsibility
- Monitor and report progress
- Communicate change resolution.
Within 5 consecutive business days of receipt of the proposed Change Request Form, the party receiving the request shall either indicate acceptance of the proposed change by signing the Change Request Form or advise the party requesting the change not to perform the change. If the change is not agreed, then the parties shall proceed only with the original services. In the absence of acceptance or rejection, the proposed change shall not occur.
9. Warranty
BlueLogis warrants the Media for which the Software is delivered by BlueLogis, to be free from defects in materials and workmanship under normal use for a period 60 days from the date of installation of the Software [Warranty Period]. Customer’s exclusive remedy under this Section shall be for BlueLogis to provide a replacement copy of the Software. Except as otherwise expressly stated herein, BlueLogis disclaims all representations and warranties with respect to the Software.
NO OTHER WARRANTIES: THIS LICENSE AS PROVIDED UNDER THIS AGREEMENT WILL BE VOID IF ANY FAILURE OF THE SOFTWARE HAS RESULTED FROM ACCIDENT, ABUSE, OR MISAPPLICATION, CAUSED BY THE CUSTOMER OR ANY OF THE CUSTOMER’S REPRESENTATIVES.
BlueLogis does not warrant any Third Party Software provided by Customer or used in anyway in conjunction with the Software. BlueLogis will use Third Party Software, if duly approved by Customer. BlueLogis shall not be liable for any loss, damage or expense directly or indirectly attributable to any defect due to Third Party Software. However BlueLogis may help the Customer to provide some workaround or suggest the alternative solution at the request of Customer on such terms as mutually agreed between the Parties.
The warranty shall not cover any defect in the Software resulting directly or indirectly from errors attributable to any act, omission or input error by Customer, its employees and agents or Customer’s hardware or Third Party Software.
POST WARRANTY MAINTENANCE: The Price for Support and Maintenance fee would be applicable; as set forth in [Exhibit IV] and Customer shall be entitled to receive the Support and maintenance services under Annual Maintenance agreement.
10. Limitation of Liability
IN NO EVENT, BLUELOGIS’S AGGREGATE LIABILITY, FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, SHALL EXCEED 10% OF THE FEES RECEIVED IN LAST 12 MONTHS JUST PRECEDING THE DATE OF CAUSE OF ACTION.
To the maximum extent permitted by applicable law, neither Party nor any of its affiliates or suppliers will be liable for any indirect damages (including, without limitation, consequential, special or incidental damages, damages for loss of profits or revenues, business interruption, or loss of business information) arising in connection with any agreement, product, fix or service, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable. This exclusion of liability does not apply to either Party’s liability to the other for violation of its confidentiality obligation or of the other Party’s Intellectual Property Rights
11. Indemnity
The Customer agrees to release, indemnify, defend and hold harmless BlueLogis, and any of their contractors, agents, employees, officers, directors, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, of third party claims and/or any governmental, regulatory, administrative or such other claims relating to or arising out of this Agreement or the breach of Customer’s warranties, representations and obligations under this Agreement. The terms of this Section will survive any termination or cancellation of this Agreement.
12. Termination
12.1 A party may terminate this Agreement immediately by notice in writing if:
- the other party commits a material breach of this Agreement and such breach is not remedied (in the case of a breach capable of remedy) or adequately compensated (in the case of a breach not capable of remedy) within thirty (30) business days of written notice by the party not in default;
- a party becomes, or threatens or resolves to become, subject to any form of insolvency administration;
- Customer, being a natural person, dies.
12.2 A failure of Customer to pay BlueLogis in accordance with Section 7 is deemed to be a material breach of this Agreement for the purpose of Section 12.1(a).
- Both the parties reserve the right to terminate this agreement by providing written notice of 60 days to other party for any other business reasons.
12.4 Termination of this Agreement shall not relieve Customer of its obligation to pay BlueLogis all Fees and expenses that have accrued up to the date of termination. In the event of termination of this Agreement in any means, payment of such fees and charges shall immediately be due and payable, including expenses incurred by BlueLogis in end-to-end project execution efforts that covers implementation, customisation, trainings, travel or any consulting, and all expenses in connection with discontinuance of the work in an agreed, orderly fashion.
13. Dispute Resolution
In the event that any dispute or difference arises, in connection with the interpretation or implementation or validity or otherwise arising out of or relating to this Agreement, the Parties shall attempt in good faith to resolve such dispute through friendly consultations.
The Parties shall be entitled (but not obliged) to enter judgment thereon in any one or more of the highest adjudicated courts having exclusive jurisdiction.
Nothing in this Section prevents either Party at any time seeking injunctive or other equitable relief provided by law.
14. Law & Jurisdiction
If the dispute is not resolved through friendly consultations within thirty (30) days from the date of commencement of discussions or such longer period as the Parties agree in writing, then either Party may refer the dispute to arbitration as per the laws of India. Such arbitration shall be conducted by a panel of three arbitrators, one arbitrator to be appointed by each Party, and a third arbitrator to be appointed by such arbitrators and shall be held in CHENNAI, INDIA and be conducted in the English Language. The award of the arbitrator shall be final and conclusive and binding upon the Parties. Each Party shall bear its costs and expenses.
15. Non-Disclosure
Each Party receiving confidential information (“Recipient”) shall retain in confidence and require its employees, agents and contractors to retain in confidence all confidential information of the other Party (“Discloser”). “Confidential Information” means all information, in written or other tangible form, which is of confidential or proprietary nature exchanged by the Parties under this Agreement, which has been marked by the Discloser as “Confidential” or “Proprietary” or if not so marked, was indicated at the time of disclosure to be confidential and is later summarized and confirmed as confidential in writing transmitted to Recipient within ten (10) days after disclosure, or which by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential. The Recipient must only use the Confidential Information to perform its obligations under this Agreement and must protect Discloser’s confidential information in the same manner as the Recipient protects its own confidential information of similar nature or importance, but in no event less than reasonable care. Confidential Information shall remain the sole property of the Discloser and shall not be disclosed to any third party without Discloser’s prior express written consent (except, solely to employees, agents, advisors, attorneys, consultants, and subsidiaries, who need to know and are bound by a written agreement with the Recipient to maintain the confidentiality of such Confidential information in a manner consistent with this Agreement). Confidential Information shall not include any information that
(i) is or becomes publicly available without the Recipient’s breach of any obligations owed to the Discloser;
(ii) is known to the Recipient prior to the Discloser’s disclosure of such information to the Recipient;
(iii) becomes known to the Recipient from a source other than the Discloser without a breach of an obligation of confidentiality owed to the Discloser; or
(iv) is independently developed by the Recipient. Notwithstanding the foregoing, either Party may disclose information in compliance with applicable law or a court order, provided the Discloser is given reasonably prompt notice thereof and an opportunity to attempt to preclude or limit such production. The Parties acknowledge that in providing the Services under this Agreement, BlueLogis may utilize pre-existing proprietary methodologies, tools, software and know-how developed by or owned by BlueLogis (“BlueLogis Materials”). During the course of the Agreement, BlueLogis may modify or improve the BlueLogis Materials, all of which modifications or improvements will be owned by BlueLogis.
16. Non Solicitation
The Parties herein further agree that during the term of this Agreement and for a period of One (1) year thereafter neither Party shall without the express written consent of the other Party, directly or indirectly:
- Recruit, hire, appoint or engage or attempt to recruit, hire, appoint or engage or discuss employment with or otherwise utilize the services of any person who has been an employee or associate or engaged in any capacity, by the other Party (including any of its Affiliates sub-contractors, vendors, etc.) in rendering Services under the Agreement; or
- Induce any person who shall have been an associate of the other Party (including any of its Affiliates sub-contractors, vendors, etc.) at any time to terminate his/ her relationship with such Party.
17. Force Majeure
Parties to this agreement shall not be responsible for delay or failure of any or all of its obligations under this Agreement if such delays or failures resulted from events of force majeure, namely circumstances beyond their control which shall be included (but shall not be limited to) acts of God, perils of the Sea, Air, Fire, Flood, Drought, Explosion, Sabotage, Accidents, Embargo, Riot, War, Civil Commotion including acts of Government and Authority of whatever nature from whatever cause arising.
18. Intellectual Property
Except as otherwise set forth herein, all right, title and interest in and to all
(i) registered and unregistered trademarks, service marks and logos;
(ii) patents, patent applications, and patentable ideas, inventions, and/or improvements;
(iii) trade secrets, proprietary information, and know-how;
(iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired;
(v) registered and unregistered copyrights including, without limitation, any forms, images, audio-visual displays, text, software and
(vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of BlueLogis’s services identified herein ("BlueLogis’s Intellectual Property Rights") are owned by BlueLogis or its licensors, and the Customer hereby agrees to make no claim of interest in or ownership of any such BlueLogis’s Intellectual Property Rights. The Customer acknowledges that no title to BlueLogis’s Intellectual Property Rights is transferred to it and that it does not obtain any rights, express or implied, in the BlueLogis’s or its service, other than the rights expressly granted in this Agreement. To the extent that the Customer creates any Derivative Work (any work that is based upon one or more pre-existing versions of a work provided to the Customer, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such pre-existing works may be recast, transformed or adapted) such Derivative Work shall be owned by BlueLogis and all right, title and interest in and to each such Derivative Work shall automatically vest in BlueLogis. BlueLogis shall have no obligation to grant to the Customer any right in any such Derivative Work. The Software Deliverables are provided to BlueLogis for further distribution by BlueLogis’s alliances and subcontractors. This section will survive and continue after any termination or expiration of rights under this Agreement.
19. Copyrights
Customer shall have no right to copy the “Software” (including updates to the “Software”) or documents, in whole or in part except as specifically authorized by BlueLogis in writing. Customer may not use the Software in any illegal manner or for any unlawful purpose, including without limitation for the violation of the rights of others. Customer hereby agrees to indemnify BlueLogis for any and all claims arising from any violation by Customer or its agents of the terms of this Agreement. Customer further agrees that its obligations pursuant to this section shall survive and continue after any termination or expiration of rights under this Agreement. Customer may not use the Software in any illegal manner or for any unlawful purpose, including without limitation for the violation of the rights of others. Customer hereby agrees to indemnify BlueLogis for any and all claims arising from any violation by Customer or its agents of the terms of this Agreement. Customer further agrees that its obligations pursuant to this section shall survive and continue after any termination or expiration of rights under this Agreement.
Both parties have read the above points and confirmed their agreement to its contents.
Exhibit I - In Scope
As per software proposal submitted by BlueLogis.
Exhibit II - Delivery Schedule
Exhibit III - Commercials
As per software proposal submitted by BlueLogis.
Exhibit IV - Support & Maintenance