This Consulting Services Agreement (“Agreement”) is entered into by and between you/customer (“Customer” or “You") as described on the signature page with principal office at the address indicated on the signature page and AmberFlux EdgeAI Pvt Ltd (“AmberFlux”), a company duly incorporated under the laws of Republic of India with its principal office at 402, Block 1, Alpine Heights, Gulmohar Avenue, Rajbhavan Road, Hyderabad 500082 India.

 

AmberFlux agrees to provide professional services to You under the following terms and conditions. By agreeing to have AmberFlux perform professional services, You agree to be bound by this Agreement:

 

1. Professional Services

   1. AmberFlux will provide You with professional services (“Services”) for a period of approximately 4 weeks to learn about Your business and suggest example use cases for edge computing and artificial intelligence (“Use Cases”) for Your business. The Services will be provided by email and using teleconferencing facilities such as Google Meet, Zoom, Skype, Microsoft Teams etc. Deliverables for this Agreement shall be a document describing the Use Cases.

   2. AmberFlux will provide such resources and utilize such employees and/or consultants as it deems necessary to perform the Services. You agree to furnish AmberFlux with adequate technical assistance, access to material and environment suitable for AmberFlux to be able to perform the Services. You further agree to provide AmberFlux with such technology owned or controlled by You (“Licensed Technology”) as AmberFlux reasonably requires to perform the Services.

   3. You and AmberFlux agree to cooperate in good faith to achieve the completion of the Services in a timely and professional manner. AmberFlux shall bear no liability or otherwise be responsible for delays in the provision of Services or any portion thereof occasioned by Your failure timely to complete Your task or adhere to schedule.

   4. Under this Agreement, AmberFlux is not providing or licensing to You any existing or future AmberFlux software programs or products or patens or rights of any kind.

2. Term of Agreement

   1. This Agreement commences on the earlier of the date of the Purchase Order, or date that AmberFlux begins provided Services (“Effective Date”) and unless terminated earlier pursuant to the terms of the Agreement, shall continue in force until delivery of Use Cases by AmberFlux to You.

3. Right to Perform Consulting Services

   1. You agree that AmberFlux has expertise, experience and proprietary products and tools in the area of edge computing, use of artificial intelligence on edge devices etc., and that AmberFlux intends to utilize such expertise, experience, products and tools in providing consulting services and other services in such filed to other clients. Subject to AmberFlux’s compliance with the confidentiality provisions stated herein, nothing in this Agreement shall restrict or limit AmberFlux from performing such development, consulting, or other services to any other entity in any industry.

4. Services Fee, Expenses and Invoicing

   1. For the services provided by AmberFlux, You agree to pay AmberFlux the fee set forth in  quote issued by AmberFlux to You or as otherwise agreed to by AmberFlux and You (“Payment Schedule”) plus any applicable taxes, levies and duties applicable in India as well as  in Your country. You shall also reimburse AmberFlux for actual, reasonable travel and out of pocket expenses incurred in accordance with AmberFlux business expense policy.

   2. Unless otherwise set forth in a Statement of Work, AmberFlux will invoice You for all Services fees when due and reimbursable expenses that have occurred. Each invoice shall be due and payable within fifteen (15) days of date of a proper invoice, and shall be deemed overdue if they remain unpaid beyond that point. If past due amounts owning from You are not paid within fifteen (15) days, the unpaid amount shall accrue interest at the rate of 1% per month.

5. Intellectual Property Rights

   1. Except as described below, the  Use Cases which are produced or created by AmberFlux shall be the property of AmberFlux. Notwithstanding the foregoing, any developed technology, including patentable and unpatentable ideas, know-how, technical data, or techniques and all delivery of any services hereunder that derive from, improve, enhance or modify AmberFlux’s product(s) or pre-existing intellectual property, including but not limited to product enhancements embodied in any application program interfaces (APIs) will be the property of AmberFlux (collectively, “AmberFlux Developments”). You will have a non-exclusive, non-transferable license to use the Use Cases to the extent necessary to enable You to use any of the Use Cases. AmberFlux may in its sole discretion develop, use, market, license, or sell the AmberFlux Developments and any software, application, or product that is similar or related to that which was developed by AmberFlux for You. AmberFlux shall not be required to disclose information concerning any AmberFlux Developments which AmberFlux deems to be proprietary or confidential.

6. Limited Warranties and Exceptions

   1. AmberFlux warrants that Services rendered hereunder will be performed in a professional manner consistent with the quality of AmberFlux’s performance of services for similarly situated customers and in accordance with generally accepted industry standards. AmberFlux makes no guarantees or assurances that the Services will achieve Your specific goals or provide additional functionality to Your products or services or business.

   2. To the fullest extent permitted by law, AmberFlux expressly disclaims all other warranties express or implied including any warranties of merchantability, fitness for a particular purpose or non-infringement. Some jurisdictions do not allow the disclaimer of certain warranties. In those jurisdictions, such inapplicability will not affect the remainder of the provisions in this Agreement.

   3. In order to receive, warranty remedies, deficiencies, in the Services must be reported to AmberFlux in writing within seven (7) days of completion of Services. After such time, any corrective Services requested by You shall be billed to You at AmberFlux’s standard consulting rates then in effect and subject to scheduling availability of AmberFlux personnel. Your sole remedy for a breach of the warranty described in Section 6.a shall be re-performance of the non-confirming Services or to receive a refund of the pro rata amount of the fees applicable to such non-confirming Services, at AmberFlux’s option.

   4. AmberFlux’s maximum liability for any breach of warranty hereunder shall be a refund of the applicable Services fee paid under this Agreement. You shall, under no circumstances except as maybe specifically set forth in a separate agreement, be entitled to a refund of any fees paid with respect to any AmberFlux’s products.

7. Termination

   1. This Agreement maybe terminated by either party upon fifteen (15) days’ prior written notice if the other party materially breaches or fails to perform any material term hereof and the breaching party fails to cure such breach within fifteen (15) day period; provided, that a non-breaching party may immediately terminate this Agreement, upon written notice for a breach of the provisions set in Section 10 (Confidentiality and Non-Use) or misappropriation by the other party of the non-breaching party’s intellectual property rights.

   2. Each party’s obligations under Sections 3 to 13 of this Agreement shall survive termination or expiration of the Agreement. If AmberFlux terminates the Agreement for failure of You to pay any amounts owing hereunder, Your rights to use the Deliverables including any express or implied licenses which may have been granted herein shall immediately terminate.

8. Indemnification

   1. AmberFlux and You each agree to indemnify, defend and hold the other, its affiliates and their respective officers, directors, employees, and agents (“indemnitees”) harmless from and against any and all third party liabilities, losses, damages, costs, and expenses (“Losses”), and any reasonable attorney’s fee and expenses relating to its defense, resulting from any third party suit or action brought against the indemnitees due to third party claims for death, bodily injury or the damage to or loss of any real or tangible personal property to the extent arising out of the indemnitor’s negligence or willful misconduct in the performance of this Agreement.

   2. AmberFlux agrees to indemnify, defend and hold harmless Your indemnitees from and against any Losses, and any reasonable attorney’s fees and costs relating to its defense, which You may incur for third party claims arising out of any suit brought against You based upon a claim that a Service or Deliverable includes any trade secret copyright or patent that AmberFlux has unlawfully misappropriated or infringes. AmberFlux will have the right, at its option and expense: to (i) obtain for You rights to use the Service or Deliverable, (ii) to accept return of the Deliverables for a refund not to exceed the purchase price paid by You for such Deliverables based on three year straight line depreciation. The foregoing, subject to the following restrictions, states the exclusive liability of AmberFlux to You concerning infringement. AmberFlux will have no liability for any claim of infringement based on : (i) use of a Service or Deliverable in combination with equipment or software not supplied by AmberFlux where the Service or Deliverable would not itself be infringing, (ii) software or technology not developed by AmberFlux or (iii) Services or Deliverables that have been altered or modified in any way by anyone other than AmberFlux or according to AmberFlux’s instructions.

   3. If any claim or action is commenced against a party entitled to indemnification under this Section 8 for Losses resulting from such claim or action (a “Claim”), such party shall give written notice to the other party within seven (7) days of notice of such Claim. If such party receiving notice is obligated under this Section 8 to defend the party against such Claim, then the indemnifying party shall take control of the defense and investigation of the Claim, using such attorneys and other assistance as it selects in its discretion. The indemnified party shall cooperate in all reasonable respects in such investigation and defense, including trial and any appeals, provided that such party may also participate, at its own expenses, in such defense. No settlement of a Claim that involves a remedy other than payment of money by indemnifying party shall be agreed to and entered without the consent of the indemnified party, which consent shall not be unreasonably withheld.

9. Limitation of Liability

   1. Except for damages or losses arising from infringement or misappropriation of a Party’s Intellectual Property, in no event shall either party be liable to the other for special, consequential, incidental, indirect, punitive or exemplary damages, whether arising in contract (including warranty), tort (including active, passive or imputed negligence, strict liability or product liability) or otherwise, including, but not limited to, loss of use, loss of data, business interruption, loss of revenue, loss of profits, loss of business or other financial loss arising out of or in connection with this Agreement, even if such Party is advised of the possibility of such damages. AmberFlux’s total aggregate liability to You under this Agreement shall not exceed the total amount actually paid by You for the services in the twelve (12) months preceding the event giving rise to liability. The foregoing limitations do not apply to any liability for death or personal injury or any liability which may not be lawfully excluded by the governing law of this Agreement as set out in Section 12.

10. Confidentiality and Non-Use

    1. By virtue of this Agreement, each party hereto may disclose to the other party information that is confidential and otherwise proprietary. Unless governed by the terms of an existing or contemporaneously executed non-disclosure agreement (“NDA”), the following Sections 10.b and 10.c apply.

    2. Subject to the exceptions listed below, a party’s “Confidential Information” shall be defined as information disclosed by the party to the other party under this Agreement and clearly market or otherwise clearly designated as “confidential” or information disclosed by one party that is reasonably understood by the other party to be confidential. The Licensed Technology, AmberFlux’s proprietary software applications and the terms and pricing of this Agreement shall automatically be considered Confidential Information under this Agreement. However, a party’s Confidential Information shall not include any information that: (i) is or becomes a part of the public domain through no act omission of the other party; or (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party by employees or agents without access to the party’s Confidential Information.

    3. Each party agrees, for the term of this Agreement and five (5) years after its expiration or termination, to hold the other party’s Confidential Information in strict confidence, not disclose such Confidential Information to third parties not authorised by the disclosing party to receive such Confidential Information, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. Each party agrees to take reasonable steps to protect the other party’s Confidential Information and to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this Agreement. The foregoing prohibition on disclosure of Confidential Information shall not apply to the extent certain Confidential Information is required to be disclosed by the receiving party as a matter of law or by order of a court, provided that the receiving party uses reasonable efforts to provide the disclosing party with prior notice of such obligation to disclose and reasonably assists in obtaining a protective order therefore.

11. Independent Contractors

    1. AmberFlux shall perform Services as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent or employment relationship between the parties. Neither party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other party and shall have no power or authority to bind the other party to assume or create any obligation or responsibility express or implied on the other party’s behalf or in its name, nor shall such party represent to any one that it has such power or authority.

12. Governing Law

    1. This agreement will be governed and construed in accordance with laws of Republic of India and both parties agree to submit to limit the jurisdiction to courts in city of Hyderabad, India. The parties agree that the United Nations Convention on Contracts for the international Sale of Goods (1980) and the Uniform Computer Information Transaction Act (UCITA) in any form that it maybe adopted are specifically excluded from and will not apply to this Agreement.

13. Miscellaneous

    1. Any notices required under this Agreement must be in writing in English and delivered by a certified or registered mail, return receipt requested, postage prepaid and addressed to the principal office of the parties.

    2. If any terms or provision of this Agreement is determined to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the intent of the parties to the extent possible. In any event, all other terms and provisions shall be deemed valid and enforceable to the maximum extent possible.

    3. Neither party shall be liable for any loss, damage, or penalty arising from delay due to causes beyond its reasonable control.

    4. Neither party shall assign, delegate or subcontract any portion of its rights, duties or obligations under this Agreement without prior written consent of the other party, which consent will not be unreasonably withheld or delayed, provided, however, consent shall not be required in the case of an assignment by either party to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets. Notwithstanding the foregoing, AmberFlux may subcontract any portion of its obligations under this Agreement to a third party so long as AmberFlux remains responsible for the performance of such obligations.

    5. You agree to comply fully with all relevant export laws and regulations of United States of America, India and other countries (“Export Laws”) to ensure that any Deliverable is not exported directly or indirectly or used or intended to be used in violation of Export Laws.

    6. This Agreement and the documents referenced herein are the complete and exclusive statement of the agreement between You and AmberFlux regarding the subject matter thereof, which supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter.

    7. Each party agrees that any terms and conditions of this Agreement can be modified only by a written instrument duly executed by an authorised representative of AmberFlux and You.

    8. The failure of a party to enforce any provisions of this Agreement shall not constitute a waiver of such provision or the right of such party to enforce such provision or any other provision.

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Read, Understood and Agreed to 

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For ___________________________________ (Company Name)

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Signature:

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Name:

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Date:

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Principal Office Address: 

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Contact email, telephone numbers: