Advaiya Solutions terms and conditions

Updated August 1, 2022

Thank you for selecting Advaiya. These Terms and Conditions (“Terms”) apply to work performed by Advaiya Solutions Inc. and Advaiya Solutions Private Limited. These Terms are entered into between Advaiya and Client (each “Party” and together “Parties”). Capitalized terms not defined in these Terms have the same meaning as in the SOW.

A. Services, SOW, and Change Requests.

1. Services. Advaiya will perform for Client all the services listed in the SOW, including but not limited to technology consulting, solution implementation, software development, technical or marketing content development, web or digital design, digital marketing, research and analysis, and business process outsourcing (“Services”).

2. SOW. The specific details of the Services to be performed by Advaiya are described in the SOW. If Advaiya is required to perform any part of the Services at Client’s premises, then Client will provide facilities as may be reasonably required for Advaiya to perform its obligations. Client will provide necessary resources or staff as may be required by Advaiya at Client’s offices in accordance with the SOW. If Client requires Advaiya’s staff to work at any other location, Advaiya must agree in advance to the transfer. Client will reimburse expenses incurred by Advaiya as a result of Client’s requested relocation, with advance written authorization.

3. Change Requests. Any revisions to the Services or deliverables agreed under an SOW will be set forth in a Change Request, and such Change Request upon execution by both the Parties will be binding. If the revisions proposed by Client increase the scope of the Services or the effort required to deliver deliverables under the SOW, then Advaiya will include in the Change Request Advaiya’s reasonable determination of the revised Services, deliverables, delivery schedule, and payment schedule that will apply to the implementation of the revisions. Advaiya will forward the revised Change Request to Client for its acceptance. If Client does not execute the revised Change Request within 10 business days after its receipt by Client, the then-existing SOW will remain in full force and effect, and Advaiya will have no obligation for the applicable Change Request. A mutually executed Change Request will supplement and, as expressly specified in the Change Request, supersede a specific provision of the applicable SOW or these Terms.

B. Performance of Services

1. Project Management. For each project, each Party will designate a single point of contact within its organization to manage the project described in the SOW (“Project Leader”). The Project Leaders will meet in-person, by telephone call, or by video conferencing as necessary to manage the Services. If the Project Leaders are unable to resolve a problem, disputes will be escalated to more senior executives. Advaiya’s Project Leader will provide Client’s Project Leader with regular reports on the status of the Services.

2. Performance Standard. Advaiya will perform the Services in accordance with the SOW, including any specifications in the SOW. Advaiya will use reasonable efforts to complete the Services, including the delivery of any deliverables, in accordance with the schedule of times and milestones specified in the SOW.

3. Subcontractors. Advaiya may utilize independent contractors to perform all or part of the Services. Advaiya will remain solely responsible for the performance of all the Services that are subcontracted.

C. Compensation.

1. Fees. Advaiya will charge the fee for the Services (“Service Fees”) as specified in the SOW. Unless otherwise specified in an SOW, Client will pay Advaiya for Services on a time and materials basis.

2. Payment. Advaiya will issue invoices for the Service Fees for Services that have been performed, and Advaiya will pay all amounts set forth in an invoice no later than 30 days after delivery of Advaiya’s invoice. If Client disputes any amount in the invoice, it will communicate that to Advaiya in writing, and the Parties will use reasonable commercial efforts to mutually resolve the dispute. If the Parties agree the disputed amount is incorrect, the invoice will be adjusted appropriately and resubmitted to Client. Client is not responsible for paying disputed amounts prior to the resolution of said amounts. Any amount not paid when due will be subject to finance charges equal (interest) to 1% per month or the highest rate permitted by applicable law, whichever is lower. Advaiya may also suspend Services if an invoice is past due.

3. Taxes. Client is responsible for any direct or indirect taxes, duties, and other governmental charges, other than net income tax imposed on Advaiya (collectively, “Taxes”), levied or imposed on either Party in relation to the Services.

D. Term and Termination.

1. Term. The Agreement will commence on the Effective Date and will be in effect for one year (“Term”) or until each Party’s obligations under the SOW have been fulfilled or otherwise terminated. Either Party may terminate the Agreement on 30 days’ written notice to the other Party of a material breach if the breach is capable of being cured and remains uncured at the end of 30 days or immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

2. Effect of Termination. If the Agreement is terminated for reason other than completion of the SOW, the following will apply:

1. the Parties will cooperate to effect an orderly, efficient, effective, and expeditious termination of the Parties’ respective activities under the terminated SOW and this Agreement;
2. Advaiya will have no obligation to perform any Services after the effective date of the termination;
3. Client will pay to Advaiya any Service Fees and other amounts payable for the Services already performed through the effective date of termination and other expenses incurred by Advaiya in relation to the Services, unless the SOW indicated a fixed price for a deliverable that was not delivered and Client terminated for material breach; and
4. Any and all liabilities accrued prior to the effective date of the termination will survive.

3. Return of Materials. On the termination of the Agreement or Client’s earlier request, Advaiya will deliver to Client all Client Materials (defined below) that are in Advaiya’s possession or control. Similarly, upon the termination of the Agreement or upon Advaiya earlier request, Client will deliver to Advaiya all Advaiya Materials (defined below) that are in Client’s possession or control.

E. Proprietary Rights.

1. Client Materials. Any materials provided by Client to Advaiya (“Client Materials”) will be used and disclosed solely as required to perform the Services. Client will own Client Materials, as well as any derivatives or improvements of Client Materials developed or derived by Advaiya. Advaiya will take necessary and reasonable steps to maintain the confidentiality of all Client Materials.

2. Advaiya Materials. Any materials provided by Advaiya to Client for the Services (“Advaiya Materials”) will be used and disclosed solely as required for the Agreement. Advaiya will own the Advaiya Materials, as well as any derivatives or improvements of the Advaiya Materials developed or derived by Client, except to the extent that such derivatives or improvements are deliverables provided to Client. Such deliverables will be the sole and exclusive property of Client. Client will take reasonable steps to maintain the confidentiality of any non-public Advaiya Materials that are marked as “Confidential.”

3. Pre-Existing Works. If, in the course of performing the Services, Advaiya incorporates into a Deliverable any other work of authorship, invention, discovery, improvement, method, process, formula, design, technique, or information that is owned or controlled by Advaiya (a “Pre-Existing Work”), Client will have a nonexclusive license to the Pre-Existing Work.

4. Deliverables. Except as expressly set forth to the contrary in an SOW, all works of authorship that form all or part of a Deliverable, but excluding any Pre-Existing Work or third-party product, will be the sole property of Client. Any Deliverable that constitutes copyrightable subject matter will be considered a “work made for hire” to the extent permitted under the Copyright Act of 1976. Upon and subject to final payment by Client of all amounts owing to Advaiya under the applicable SOW, to the extent that ownership of a Deliverable does not by operation of law vest in Client, Advaiya will assign (or cause to be assigned) and does assign fully and irrevocably to Client all right, title, and interest in and to such Deliverable, including all related intellectual property rights, except for Pre-Existing Work or third-party product. Advaiya will execute additional documents as may reasonably be necessary to perfect its assignment of a Deliverable to Client. Client will promptly reimburse Advaiya its reasonable expenses related to executing the additional documentation.

5. Third-Party Products. Advaiya may use third-party products specified in the SOW to provide the Services. Any third-party products that are provided by Advaiya in connection with the Services are provided pursuant to the terms of the applicable third-party agreement, and Advaiya assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third-party products. Client will indemnify, defend, and hold Advaiya harmless from any claim arising from Client’s breach of any third-party agreement and from all costs that may be incurred by Advaiya on client’s behalf, including but not limited to breach of client’s account.

6. ASPL Marketing. Client grants to Advaiya the right to use Client’s name and logo in Advaiya marketing materials (including, without limitation, on Advaiya’s website) to identify Client as a Client of Advaiya for marketing and PR purposes.

F. Warranties and Disclaimer.

1. Mutual Warranties. Each Party represents and warrants to the other Party that

1. The Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms;
2. each Party will comply with the law in performing the Agreement;
3. no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of the Agreement;
4. the execution, delivery, and performance of the Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; and
5. each Party is validly constituted under laws of its respective jurisdiction and has all legal power and authority to execute the Agreement and to carry out its terms, conditions, and provisions.

2. Limited Performance Warranty. Advaiya warrants to Client that each Deliverable will perform substantially in accordance with the specifications detailed in the SOW for a period of 30 days from the date of initial delivery of the Deliverable by Advaiya to Client (the “Warranty Period”). Advaiya will at its discretion, as Client’s sole remedy and Advaiya’s entire liability, repair or replace the defective Deliverable if a Deliverable fails to conform to the warranty during the Warranty Period.

3. Disclaimer of warranties. Please note that using cloud services carries inherent risks, such as cyber attacks. Advaiya cannot guarantee the safety of your information when using a third-party cloud service, such as Azure or Amazon Web Services. Advaiya advises Client to use commercially reasonable best practices to protect access to its online accounts and data, such as multi-factor authentication. Except for the express representations and warranties stated in this Section, Advaiya makes no additional representation or warranty of any kind, whether express, implied (either in fact or by operation of law), or statutory, as to any matter. Advaiya expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, and title. Advaiya does not warrant against interference with the enjoyment of any deliverable. Advaiya does not warrant that any deliverable is error-free or that operation of any deliverable will be secure or uninterrupted. Advaiya exercises no control over and expressly disclaims any liability from Client’s use of any deliverable.

G. Indemnification.

1. Mutual Indemnification. Each Party agrees to indemnify, defend, and hold harmless the other Party from and against all claims, damages, or amounts payable advanced or sought by a third party arising out of, resulting from, related to, or in connection with the Agreement or the performance or non-performance of the Services, including any alleged breach of contract, act, or omission by the indemnifying Party, including without limitations any claims, damages, or amounts payable arising out of or in connection with, or as an incident to, any negligence, wilful misconduct, fraud, misrepresentation, criminal acts, criminal fines, or criminal penalties (collectively the “Indemnity Events”) of the indemnifying Party, its employees, subcontractors, agents, and other representatives. The indemnifying Party will pay the reasonable attorney’s fees of the indemnified Party for the defense of the Indemnity Events. Each Party will have the right to choose its own counsel if being indemnified. The indemnity provided by the indemnifying Party will be limited to the indemnifying Party’s proportional responsibility for any breach, act, or omission giving rise to the claim for which indemnity is sought.

2. Exclusions. Advaiya will not have any indemnity obligation based on (i) compliance by Advaiya with instructions from Client or (ii) the combination of the Deliverables furnished by Advaiya with other items not furnished by Advaiya.

H. Limitation of Liability. Except for E.5., neither Party’s total liability from the Agreement (including, without limitation, warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will exceed the total amount paid by the Client to Advaiya under the SOW (determined as of the date of any final judgment in an action). Notwithstanding any other provision of the Agreement, neither Party will be liable to the other for any indirect or consequential loss, damage, cost, or expense of any kind, whether arising from tort (including negligence), breach of contract or any other, including without limitation loss of profits or of contracts, loss of operation time, and loss of goodwill or anticipated savings.

I. Dispute Resolution. The Parties will attempt to resolve any and all disputes or claims arising out of the Agreement through mutually cooperative negotiation in good faith. If negotiation is unsuccessful, either Party may submit the dispute to mediation within 30 days. If mediation does not resolve the dispute within 90 days of filing for mediation, any remaining controversy or claim arising out of or relating to this contract or its breach will be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules before a single arbitrator, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The attorneys’ fees and costs of dispute resolution will be borne by the losing Party unless the Parties stipulate otherwise or in such proportions as the arbitrator will decide.

J. Miscellaneous.

1. Independent Contractor. It is the express intention of the parties that Advaiya perform the Services as an independent contractor. Without limiting the generality of the foregoing, Parties are not authorized to bind each other to any liability or obligation or to represent that it has any authority.

2. Independent Activities. The Client acknowledges that Advaiya is in the business of assisting a wide variety of companies with the adoption of new and emerging technologies and standards. Nothing in this Agreement restricts Advaiya from providing services to any other party, whether or not similar to the Services or the Deliverables, including, without limitation, using general skills and knowledge developed during the course of Advaiya’s performance under the Agreement.

3. Non-solicitation. During this Agreement and for one year afterward, Client agrees not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual, or other relationship with Advaiya. Non-targeted general advertising is not a violation of this Section.

4. Governing Law and Venue. These Terms and any claims that arise out of them will be governed exclusively by the laws of the State of Washington, without regard to its conflicts of laws provisions. The Parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods.

5. Notices. Notice to a Party will be validly given if in writing and transmitted by a method that produces a record of delivery, to the address (including email address) most recently provided by the Party. The Parties agree to do business electronically.

6. Waiver. No waiver of any provision of the Agreement will be effective unless explicitly in writing and signed by the waiving Party.

7. Assignment. A Party may only assign the Agreement or a right under the Agreement with the prior written consent of the other Party, except that either Party may assign its rights and obligations under the Agreement during a sale of all or substantially all of its business. Except as noted above, any assignment without consent is void.

8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed void, and the remaining provisions of this Agreement will remain in effect.

9. No Third-party Rights or Beneficiaries. No third-party beneficiaries exist under these Terms.

10. Survival. Any indemnity or obligation of confidence under the Agreement is independent and survives termination of the Agreement. Any other term by its nature intended to survive termination of the Agreement survives termination of the Agreement.

11. Precedence. If any conflict exists between these Terms and the SOW, the SOW will control.

12. Force Majeure. Neither Party will be liable for its failure to fulfill its obligations by reason of any supervening event beyond its control. Such causes include but are not limited to acts of God, war (declared or undeclared), insurrections, hostilities, riots, fire, national strikes, and interference or hindrance by governmental authority, or any other matter or cause beyond the control of the Party. The Party claiming application of this Section will immediately give written notice to the other Party as soon as commercially practicable and will act in good faith to resume full performance as soon as possible under the circumstances.