TERMS & CONDITIONS FOR CUSTOMERS

1.1 In these Terms, the following expressions shall have the meanings prescribed: -

“Confidential Information” All information, technical data or know-how, (whether written, oral or by another means and whether directly or indirectly) relating to the disclosing party(“Disclosing Party”) whether created before or after the Date of these Terms including, but not limited to, research, products, services, customers markets, software, developments, inventions, processes, designs, drawings, engineering, marketing or finances, which is reasonably deemed to be confidential or proprietary. Confidential Information includes the information of a Third Party that is in the possession of one of the parties hereto and is disclosed to the other party hereto in confidence. Confidential Information does not include information, technical data or know -how which: (i) is in the possession of the receiving party at the time of disclosure, as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (ii) prior to or after the time the disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party, or (iii) is expressly approved in writing for release by the disclosing party or (iv) is independently developed by the receiving party without the use of any Confidential Information of the other party or (v) is required to be disclosed pursuant to an order of a court of competent jurisdiction or by law, regulation, requirement or proper request of a governmental, supervisory or regulatory authority having jurisdiction over the receiving party or (vi) was acquired by the receiving party from a third party having the right to convey the Confidential Information to the receiving party without the obligation of confidentiality not to disclose the same.

Positka may also collect personal data about you from third parties, such as data brokers or aggregators, in the course of its business activities including in connection with some client services. This includes demographic, professional and other information that is publicly available online, including information you choose to make public through social media platforms and other public online forums. We may combine this data with existing information we have about you or use it independently, for the purposes of our benchmarking and data analytics activities (e.g., analysis of recruiting practices across an industry). We will always seek to confirm that the third party has provided transparent information about its use of this data, including its disclosure to third parties like Positka, in compliance with applicable law.

“Consequential Loss” Without limitation, pure economic loss, loss of profit, loss of revenue, loss of data, loss of business, claims of third parties and/or depletion of goodwill or anticipated savings, legal costs and any other indirect, consequential, special, punitive loss or incidental loss.

“Consultancy Services” Specialist IT advisory and reporting work which PFSI may undertake for the Customer from time to time as set out in an Order.

“Customer” The person, company or other body purchasing the Hardware, Software and/or Services from PFSI pursuant to an Order.

“Customer Schedule” The document setting out the agreed charges and fees for Products and or Services and all other information relevant to the Order, which may take the form of Customer Schedule, Quotation, Order, or Services Proposal.

“Hardware” The IT and/or computer and communications hardware to be supplied to the Customer by PFSI, as set out in an Order.

“Intellectual Property Rights” Rights of any nature whatsoever, whether registered or unregistered including, without limitation, any patent, right in a design, copyright, trade mark, utility model, service mark, database right and other intellectual property right whether or not capable of registration as may exist anywhere in the world or in the future.

“Maintenance” The support and maintenance service(s) to be provided to the Customer by PFSI as set out in the Order.

“Order” A written or oral tender, offer, quotation, agreement, delivery relating to the supply of Products or the delivery of Services by or on behalf of PFSI.

“Products” Any Hardware or Software or other goods supplied by PFSI to the Customer as set out in the Order.

“Quotation” The written statement provided by PFSI to the Customer summarizing the specific details of the Products, Services and/or Software to be supplied together with their price(s).

“Services” The services to be supplied by PFSI to the Customer pursuant to an Order, which may include without limitation delivery, installation, implementation, Maintenance and Consultancy Services.

“Services Proposal” The written statement provided by PFSI to the Customer summarizing any specific terms of, or scope and price of Services to be provided.

“PFSI” PFSI Solutions Private Limited, 102, Eden Park, 20 Vittal Mallya Road, Bangalore, Karnataka, India 560001.

“Software” The pre-packaged software or electronic licence supplied to the Customer by PFSI pursuant to an Order.

“Third Party” Any person, company or other body not being PFSI or the Customer.

“Working Day” Monday to Friday excluding public holidays in India.

“Working Hours” The hours of 9.00 a.m. to 5.00 p.m. during a Working Day.

2.1 These Terms shall apply to but shall not become a binding contract until if and when the Order is accepted by PFSI.

2.2 Until an Order has been accepted by an authorized representative of PFSI, all prices are subject to change without prior notice.

2.3 No Order which has been accepted by PFSI may be cancelled by the Customer unless written agreement is obtained from an authorized representative of PFSI, however the Customer shall remain liable for and shall indemnify PFSI in full for any costs, damages, losses, charges and expenses incurred by PFSI as a result of any cancellation of an Order.

2.4 PFSI may make any changes to the specifications of Products to conform with any applicable health and safety or legal requirement as per the applicable laws, or which do not materially affect their quality or performance.

2.5 PFSI’s policy is to supply Products and Services only to business customers (i.e., those who are not private consumers). In accepting these Terms, the Customer warrants that it is not purchasing the Products or Services as a private consumer.

2.6 All descriptions, specifications, photographs, weights, dimensions, capacities, prices, performance ratings and other information quoted (whether online or in hard copy format) in PFSI portfolio or included in any sales literature, quotation, price list, acknowledgement of order, invoice or other document are to be deemed approximate only (except for when stated in writing to be exact) and shall not form part of the contract or Order or Services Proposal other than as approximations.

2.7 Any typographical, clerical or other error or omission in any sales literature, portfolio, quotation, price list, acknowledgement of order, invoice or other document (whether hard or electronic copy) or information issued by PFSI shall be subject to correction by PFSI without liability.

3.1 PFSI shall use its reasonable endeavors to deliver the Products to the premises stated in the Order and to supply the Services by any delivery date estimated by PFSI and for the avoidance of doubt, the Customer acknowledges that such delivery date is not guaranteed or of the essence of the Contract and PFSI shall in no circumstances be liable to the Customer for any losses, damages or charges (including but not limited to Consequential Losses) incurred by the Customer due to the late delivery of the Products or Services.

3.2 The Customer agrees that it will inspect the Products immediately upon the earlier of delivery or collection and in all cases shall inform PFSI in writing within 24 hours of delivery of any damage, shortages, defects or non-delivery of the Products and any failure to do so shall be deemed to constitute acceptance by the Customer of the Products.

3.3 If the Customer fails to take delivery of the Products or fails to give PFSI adequate delivery instructions at the time stated for delivery (save for circumstances beyond the Customer’s reasonable control or by reason of PFSI’s fault) then without prejudice to any other rights or remedies available to it PFSI may at its sole discretion:

4.1 Risk of damage to, or loss of Products shall pass to the Customer at the earlier of:

4.2 Notwithstanding delivery of the Products, title in the Products shall not pass to the Customer until PFSI has received cleared and full payment for the price of the Products and all other Products and Services (if applicable) supplied to the Customer for which payment is then due.

4.3 Until such time as title in the Products pass to the Customer, the Customer shall keep the Products separate from the Customer’s other goods and those of any other third parties and properly stored, protected and insured and identified as the Company’s property.

4.4 Until such time as title in the Products passes to the Customer, PFSI shall be entitled at any time to require the Customer to deliver up the Products to PFSI and if the Customer fails to do so immediately the Customer shall allow (or procure permission for) PFSI or its agents or representatives to enter upon the Customer’s premises or any premises of any Third Party where the Products are stored and repossess the goods.

5.1 PFSI warrants and undertakes to the Customer that:

5.2 Should the Customer become dissatisfied with the performance of any personnel assigned by PFSI to perform the Services, the Customer shall notify PFSI in writing with details of the unsatisfactory performance and provided that PFSI is satisfied that the Customer’s dissatisfaction is reasonable, PFSI shall re-assign personnel as soon as reasonably practicable.

5.3 Where PFSI agrees to provide Services, any estimate or indication by PFSI as to the number of man days or man hours required by PFSI to undertake a specific task shall be construed as being an estimate only.

5.4 PFSI shall in no circumstances be liable for a delay or for any other loss, damage or other cost of whatsoever nature (including without limitation Consequential Loss) suffered or incurred by the Customer where such estimate or indication is incorrect.

5.5 The charges agreed for the Services do not include travel, accommodation and subsistence expenses, nor the cost of time spent travelling incurred in the provision of the Services for which PFSI shall charge its then current rates.

5.6 PFSI will normally carry out the Services during Working Hours but may, on reasonable notice, require the Customer to provide access to the Customer’s premises at other times.

5.7 At the Customer’s request PFSI may agree to work outside Working Hours however this shall be subject to any reasonable additional charge that may be made by PFSI for complying with such request. Such charges shall be agreed in writing prior to commencement of any out of hours work.

5.8 All personnel required for the Services will be provided by PFSI and will be facilitated wherever possible by use of the Customer’s own staff, however PFSI reserves the right to sub-contract the whole or any part of the Order to any person or company.

5.9 Where feasible, PFSI will choose to provide the services through remote access to Customer’s systems. Customer agrees to facilitate this arrangement, as may be reasonably appropriate based on the policies of the Customer.

6.1 Where PFSI agrees to provide support and/or maintenance services in respect of Products supplied to the Customer, this will generally comprise reasonable assistance in the resolution of queries via a telephone call originated by the Customer during Working Hours for the agreed period (limited to first line support only). Except as provided under clause 8.3, if the query is unable to be resolved during a telephone call the Customer may be required to contact the distributor or manufacturer of the Software or Hardware directly.

6.2 Where PFSI agrees to provide Maintenance in respect of the Software this shall be provided in accordance with PFSI’s applicable Customer Schedule as provided to the Customer by PFSI.

6.3 Any additional Maintenance which PFSI agrees to supply to the Customer in relation to the Software or Hardware shall be provided on a time and materials basis at PFSI’s then current rates for the same unless otherwise agreed.

6.4 Where feasible, PFSI will choose to provide the services through remote access to Customer’s systems. Customer agrees to facilitate this arrangement, as may be reasonably appropriate based on the policies of the Customer.

7.1 Where PFSI agrees to assist a Customer with the delivery and/or installation of Hardware and/or Software, the Customer shall at its own expense and prior to the delivery and/or installation of the Hardware or Software (as applicable), comply with PFSI’s reasonable requests in order to allow PFSI to provide the installation and/or delivery Products and/or Services.

7.2 Personnel provided by PFSI will remain under the management and conditions of employment of PFSI or its nominated sub-contractor.

7.3 The Customer must provide reasonable access and assistance to PFSI’s staff for the purpose of enabling PFSI’s staff or officers or agents or subcontractors to fulfil their duties.

7.4 Where feasible, PFSI will choose to provide the services through remote access to Customer’s systems. Customer agrees to facilitate this arrangement, as may be reasonably appropriate based on the policies of the Customer.

8.1 The terms of reference for the Consultancy Services to be performed by PFSI shall be as specified in the Services Proposal. The Customer may from time to time wish to vary the terms of reference. Under these circumstances, PFSI will use all reasonable endeavours to accommodate that variation. Any changes in the charges and/or timescales as a result of that variation shall be negotiated between the Customer and PFSI.

8.2 Where progress reports are to be provided in accordance with the Services Proposal, PFSI shall render such reports at the time and in the manner specified or as otherwise agreed between PFSI and the Customer.

8.3 Where feasible, PFSI will choose to provide the services through remote access to Customer’s systems. Customer agrees to facilitate this arrangement, as may be reasonably appropriate based on the policies of the Customer.

9.1 The price payable by the Customer for the supply of Product(s) or Services shall be that which is set out and agreed between the Customer and PFSI each time PFSI accepts an Order placed by the Customer and as specified in the Customer Schedule, Quotation or Services Proposal (unless varied by the Order and PFSI’s acceptance).

9.2 Unless otherwise agreed between the parties, invoices will be raised and dated by PFSI on the date of delivery of the Products or on commencement of the Services. Where both Products and Services are supplied against the same Order, a separate invoice will be raised for each of those two elements.

9.3 PFSI may raise the invoice to the Customer 45 (forty-five) days in advance. The Customer shall pay each invoice in full (subject to a bona fide dispute), together with any GST at the appropriate rate and other expenses, to PFSI within 7 (seven) days of the date of a valid invoice (“due date”). The time of payment shall be of essence.

9.4 If the Customer fails to pay any sums due by the due date or does not comply with an obligation imposed upon the Customer then, without prejudice to any other right or remedy available to PFSI, PFSI shall be entitled to withhold the supply of any Products or Services to be provided to the Customer by or on behalf of PFSI until such payment is made.

9.5 PFSI reserves the right to charge interest to the Customer on any sums, fees or other charges which are not paid on the due date and that interest may be charged from the date such payment falls due at the rate of 8% (eight percent) per annum above the Reserve Bank of India Bank Rate from time to time. Such interest shall accrue on a daily basis.

9.7 PFSI or its agent shall deliver the Products to any premises (whether in the India or in any country) notified to PFSI by the Customer and for the avoidance of doubt the Customer shall be liable for any costs incurred by PFSI in relation to carriage, postage and packing and any other applicable taxes and duties.

9.8 The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any amounts owed by PFSI and shall pay all amounts due without making a deduction of any kind.

10.1 PFSI normally allows Customers to return unopened Products, however all returns are at PFSI’s sole and absolute discretion.

10.2 Under no circumstances will PFSI accept returns of opened Products unless those Products are faulty.

10.3 In circumstances where return of Product(s) is permitted by PFSI, it will issue a credit note on a Customer’s account so that the invoice for the relevant Product is deemed cancelled. In the event a Customer has paid for goods in full, a refund will be granted.

10.4 The refund or replacement of faulty or defective Products is subject strictly to individual manufacturer’s “Dead On Arrival” (“DOA”) policies.

10.5 Individual manufacturer’s DOA policies may be obtained by the Customer by contacting PFSI’s customer service department.

10.6 The Customer must notify PFSI of a defect in the Products within the time limit provided for in the applicable manufacturer’s DOA policy.

10.7 The Customer may be required to contact the manufacturer’s technical department to troubleshoot and/or to obtain DOA authorization which is to be retained by the Customer and presented to PFSI upon request.

10.8 The Customer is also required to make a note of any call/case reference numbers issued by the manufacturer to assist PFSI with return of the DOA product.

10.9 In the case where it is established that Products are faulty or defective PFSI’s customer service department will arrange with the Customer to have the Products collected. In some instances, the manufacturer’s warranties require the Customer to contact the repair agent directly. If this is the case, the Customer will be so informed by PFSI’s customer service department.

10.10 All parts and labour charges will be waived, but the Customer is responsible for ensuring that the Products are returned in their original packaging together with all disks, manuals and cables so as to ensure safe transit and ease of identification.

10.11 The external packaging must not be damaged or defaced so it is recommended the goods are re-boxed for transport.

10.12 The Products will be tested on receipt. If no fault is found the Products shall be returned to the Customer at the Customer’s cost.

10.13 If a fault is found and an applicable manufacturer’s DOA period is exceeded, then the Products will be repaired and/or replaced under the terms of the manufacturer’s warranty.

11.1 The Customer shall: -

11.2 The Customer acknowledges that it is relying solely upon its own skill and judgement and not that of PFSI in determining the suitability of any Products and their fitness for any general or specific purpose. (This clause does not apply however in circumstances where PFSI has provided Services to a Customer and PFSI has recommended a specific Product to the Customer in writing).

11.3 The Customer warrants that any of its representatives, who enter into these Terms and any order with PFSI, have the Customer’s authority to do so and that the Customer will take responsibility for any employee, ex-employee or other person who holds themselves out to be the authorised representative of the Customer.

12.1 The title to and the Intellectual Property Rights in the Software and in the media containing such Software does not pass to the Customer. The Customer is licensed to use such Software in accordance with these Terms and in accordance with the applicable software license agreement’s terms, and by entering into the Terms and Conditions the Customer agrees to comply with such terms.

12.2 The parties agree that all Intellectual Property Rights which existed prior to the date of the Order in relation to any items used in the performance of any Services shall remain the exclusive property of the existing owner of those Intellectual Property Rights.

12.3 PFSI shall own and be fully entitled to use in any way it deems fit any Intellectual Property or Intellectual Property skills, techniques, materials, concepts or know-how acquired, developed or used in the course of performing any Services and any improvements made or developed during the course of Services. For the avoidance of any doubt, this shall include any improvements or modifications to Software during the duration of the Order. Nothing herein shall be construed or shall give effect to any transfer of right, title or interest in PFSI’s Intellectual Property Rights.

Save where the Customer’s software license with the manufacturer of the Software it has purchased permits such copying, the Customer shall not copy or reproduce in any way the whole or a part of the user manual or any other documentation relating to any Products or Services which is supplied to the Customer without PFSI’s prior written consent.

14.1 To the maximum extent permissible in law, all conditions and warranties which are to be implied by statute or general law into these Terms or relating to the Products or the Services are excluded. Notwithstanding this, any Products supplied under these Terms will conform substantively to any specifications given in relation to them and any Services provided under these Terms will be provided with reasonable skill and care.

14.2 PFSI warrants it has the right to provide or procure the provision of the Products and Services.

14.3 The only additional warranties which the Customer may receive are those which are given by the manufacturer or licensor (as the case may be) of such Hardware or Software to the Customer and are subject to any relevant limitations and exclusions imposed by such manufacturer or licensor (as the case may be). PFSI shall provide the Customer with details of such warranties upon request.

15.1 Nothing in these Terms shall limit PFSI’s liability to the Customer for liabilities which cannot be limited or excluded as a matter of law including:

15.2 PFSI shall not in any circumstances be liable for Consequential Losses, even if a party has been advised of the possibility of such losses

15.3 The total liability which PFSI shall owe to the Customer in respect of all claims under all Orders shall not exceed the purchase price paid by the Customer in respect of the Products to which the claim(s) relates or, in respect of any Services, the sum of INR 50,000/- (Rupees Fifty Thousand only).

15.4 No actions regardless of form, arising out of these Terms may be brought by the Customer more than two years after the Customer becomes aware or should reasonably have become aware of the facts constituting the cause of action.

15.5 The Customer shall indemnify and keep PFSI indemnified in respect of any losses, costs, damages, claims and/or expenses incurred by PFSI due to any claims by any Third Party arising out of any use, access to or modification of the Customer’s computer systems by PFSI on the Customer’s instructions and/or use of any materials supplied to PFSI by the Customer. This indemnity shall survive termination or expiry of an Order to which it relates.

Neither party shall be liable to the other party in any manner whatsoever for any failure or any delay or for the consequences of any delay in performing its obligations under these Terms (save in respect of any obligation to pay money) due to any cause beyond the reasonable control of the party in question which for the avoidance of doubt and without prejudice to the generality of the foregoing shall include governmental actions, war, riots, civil commotion, fire, flood, epidemic, pandemic, labour disputes including labour disputes involving the work force or any part thereof of the party in question, restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions and acts of God.

17.1 PFSI shall be entitled to terminate any Order and suspend all or any work on current or future deliveries and instalments of Products or the provision of any Services and on written notice to the Customer shall be entitled to cancel the undelivered or unperformed portion of the Order between PFSI and the Customer and deem that the whole of the price payable under the Order or any other agreement shall be payable immediately in the event of:

17.2 In the event of such termination PFSI shall, for the avoidance of doubt, be entitled to recover as damages from the Customer all reasonable costs which PFSI may sustain due to such termination.

17.3 In the event of such termination, should the Customer have failed to make payment in full for the Software, then the Customer shall immediately cease use of all Software (and any updates of same) and at its own expense, remove from all computers under its control all copies of the Software (and updates) and return or destroy them (certifying in writing to PFSI that such destruction has taken place).

17.4 For a period of eighteen months following termination of the Order, the Customer shall on not less than two days’ notice permit the authorised representatives of PFSI to enter its premises during normal business hours for the purposes of confirming that the Customer has complied with its post termination obligations.

17.5 The exercise of the rights conferred by this Clause 18 shall be without prejudice to any other right enjoyed by PFSI pursuant to these Terms or by law.

If a provision in these Terms is held by any competent authority to be invalid or wholly or partly unenforceable such invalidity or unenforceability shall not in any way affect the remainder of these Terms.

19.1 The Customer will not be entitled to assign the benefit or delegate the burden of the Order without the prior written consent of PFSI which it may in its absolute discretion refuse.

19.2 PFSI will be entitled to assign the benefit or delegate the burden of the Order.

PFSI shall be free to sub-contract any or all of its rights and obligations under these Terms as it sees fit. The Customer will not be entitled to sub-contract all or any part of its obligations under these Terms without the prior written consent of PFSI. PFSI will not withhold such consent unreasonably.

21.1 Each party agrees with the other in respect of all information of a confidential nature disclosed in the course of the supply of Products or information as to the operation of the business of PFSI and information relating to the Products and for PFSI, any information about the Customer’s business ("Confidential Information"):

21.2 This obligation of confidentiality shall survive the termination of any Order.

22.1 The Customer during the term of the Order and for a period of 24 months thereafter for any reason shall not, except with the prior written consent of PFSI directly or indirectly, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit PFSI’s name and their employees to be used in connection with, any business or enterprise which is engaged in other business that is competitive with any business or enterprise in which the PFSI is engaged.

22.2 The Customer will not solicit, induce to terminate employment, or otherwise entice away whether directly or indirectly through another firm or company, any employee of PFSI professionally or otherwise directly associated with PFSI during the term of the Order or for 24 months thereafter

22.3 For the avoidance of doubt, there is no restriction on the Customer employing any person who is employed or acting for PFSI where that person responds to a bone fide public advertisement for employees.

23.1 No amendment of these Terms shall be binding unless executed in writing and signed by an authorized representative of PFSI and by an authorized representative of the Customer

23.2 The failure of PFSI at any time to enforce a provision of these Terms shall not be deemed a waiver of such provision or of any other provision of these Terms or of PFSI's right thereafter to enforce any such provision(s).

Any demand, notice or other communication shall be in writing and may be served by hand, registered post or email and shall be deemed effectively delivered only: (i) upon personal delivery, (ii) upon delivery by a courier service as confirmed by written delivery confirmation, (iii) upon delivery by facsimile as confirmed by transmission receipt, or (iv) three (3) days after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid (v) electronic mail. Either party may change its address for notice by giving notice to the other party in accordance with this clause.

No Third Party may enforce any provision of these Terms

These Terms (and any license proffered by or on behalf of the owner of the Products and/or Software supersedes all previous written or other documents or agreements (written or oral) relating to the subject matter of these Terms. )

27.1 The formation, construction, performance, validity and all aspects whatsoever of these Terms shall be governed by laws of Republic of India and the parties hereby submit to the exclusive supervisory, injunctive and interpretational jurisdiction of the courts in Bangalore, Karnataka, India.

27.2 The parties agree that they shall in good faith work towards implementation of these Terms and any dispute arising out of or in relation to these Terms shall be referred to Arbitration to be conducted by a Sole Arbitrator. Such Sole Arbitrator shall be appointed as per the rules of Arbitration Centre-Karnataka as amended from time to time. The arbitration shall be held in Bangalore, India and shall be conducted in English. The decision of the Sole Arbitrator shall be written, reasoned, final, binding and conclusive on the parties, and judgment thereon may be entered in any court having jurisdiction over the parties and the subject matter hereof. When any dispute is under arbitration, the parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under these Terms during the pendency of the arbitration proceedings. During the conduct of Arbitration proceedings, the parties hereto shall bear the cost of the proceedings. Eventually, all costs and expenses of the Arbitration shall be borne by such party in such manner as awarded by the Arbitral Tribunal.

These Terms and/or respective Order(s) may be amended only by a subsequent writing that specifically refers to these Terms and/or respective Order(s) and is signed by both the parties, and no other act, document, or usage shall be deemed to amend these Terms and/or respective Order(s).

These Terms or the Order(s) may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute a single agreement.

Neither party shall by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party of any of the provisions of these Terms. Further, the waiver by either party of a particular breach of these Terms by the other shall not be construed as or constitute a continuing waiver of such breach or of other breaches of the same or other provisions of these Terms.

Neither party shall, for any purpose, be deemed to be an agent of the other party. The relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other party, whether express or implied or to bind the other party in any respect whatsoever.