Master Service Agreement
This Master Services Agreement (“MSA”) is made and entered into as of (Date) (“Effective Date”) by and between company website – owned by Company name. (Client company name) Located at ABCD (hereinafter referred to as the "CLIENT" which term shall include its successors) of one part and M/s.___________________, a company registered under the Companies Act, 1956 and deemed to be existing under the Companies Act, 2013 and having its registered office at __________________________(hereinafter referred to as " SERVICE PROVIDER" which term shall mean and include its successors-in-interest and legal representatives) of the other part.
CLIENT and SERVICE PROVIDER shall be referred to as severally and jointly as “Party” or “Parties” respectively as the context so requires.
WHEREAS;
SERVICE PROVIDER agrees that upon execution of this Agreement by both parties SERVICE PROVIDER will from time to time, provide the services mentioned by the CLIENT in all material respects for a fee, subject to the terms and conditions set forth in this Agreement a. Only authorized signatories of both the parties can execute the Work Orders, Purchase Orders and Statement of Work for SERVICE PROVIDER and the CLIENT respectively
b. Based on assurances and representations made by SERVICE PROVIDER, they will provide efficient services which meets the standards and expectations of the CLIENT
c. In view of the above, the parties have agreed herein to enter into the Master Service Agreement for the provision of the services, and SERVICE PROVIDER has accepted to undertake the assignment and execute the Services for the CLIENT.
THIS AGREEMENT NOW WITNESSED AS FOLLOWS:
1. Purchase and rendering of the Services The CLIENT hereby agrees to purchase, and SERVICE PROVIDER hereby agrees to provide the Services, limited to providing skilled resources for the consideration and the mutual covenants contained (which the Parties Acknowledge as sufficient and good consideration for these present), and on the terms and conditions set out in this Master Services Agreement (“Agreement”).
2. Scope of Agreement
a)This Agreement shall be the master contract between the Parties and shall govern their relationship and transactions entered into pursuant to this Agreement.
b)The scope of services in fulfillment of this Agreement shall be as per the work order/ Purchase order issued by the CLIENT.
c. In case there is a delay in on boarding skilled resources by the CLIENT after the agreed start date in the Work order/Sow or email for whatsoever reason, the CLIENT shall bear the cost of the period between the Onboarding and the start date of the actual contract.
d. The scope of work for SERVICE PROVIDER organization under this agreement is limited to providing the skilled resources requested. SERVICE PROVIDER shall no say to direct, assign work to the skilled resources provided to the CLIENT. CLIENT shall have full control of the representatives in terms of work assignments, and leave approvals etc.
3. General Terms & Conditions
a. All SERVICE PROVIDERS skilled resources engaged by CLIENT shall mandatorily undergo Information Security, Privacy & Non-Disclosure orientation before onboarding the SERVICE PROVIDER REPRESENTATIVE for operational activities.
b. This agreement mandates all individual representatives of SERVICE PROVIDERS dealing with CLIENT to sign a Non-Disclosure Agreement an individual level.
c. SERVICE PROVIDER assumes full responsibility of the actions (performance and conduct) taken by their representatives and shall be liable for repaying all damages arising out of this clause to CLIENT.
d. Resources engaged by CLIENT are not allowed to disclose, or discuss CLIENT related issues, information or business knowledge with other colleagues at SERVICE PROVIDER or acquaintances inside or outside SERVICE PROVIDER.
4. Privity of Contract
a. CLIENT has the Privity of contract with SERVICE PROVIDER only and will give instructions to them and will have nothing to do or be concerned with the terms and conditions of employment the associates working for SERVICE PROVIDER will have with SERVICE PROVIDER.
b. SERVICE PROVIDER is and shall remain for all purposes an independent contractor, and not as employees of CLIENT and SERVICE PROVIDER shall be solely responsible for the payment of its associate’s salary, benefits, expenses, and payroll taxes.
c. SERVICE PROVIDER shall provide a declaration confirming the individuals deputed to the CLIENT are in full time employment with SERVICE PROVIDER and these people are not sub-contracted from third parties, unless approved by the CLIENT.
d. SERVICE PROVIDER shall have no power, nor represent that they have any power, to bind CLIENT or to assume or create any obligation, express or implied, on behalf of CLIENT.
5. Confidentiality and Proprietary Information
Each of the Parties shall at all times use its best endeavors to keep confidential (and to ensure that its officers, directors, employees or representatives shall keep confidential) any CLIENT information, whether marked or otherwise indicated to be confidential or not, which it may acquire, have access to or obtain, whether directly or indirectly, in relation to this Agreement or in relation to the customer, business or affairs of the other Party (or any of its respective affiliates) save for any information.
a. Which is publicly available or becomes publicly available through no act of the Party acquiring such information.
b. Which was in the possession of that party prior to its disclosure.
c. Which is disclosed to that party by a third Party which did not acquire the information under an obligation of confidentiality or
d. Which does that Party independently acquire as the case of information relating to SERVICE PROVIDER or any of its subsidiaries, for the advancement of the business result of work carried out by an employee to whom no disclosure of such information had been made.
And shall not use or disclose such information except with the approval in writing of the other party or in accordance with the order of a court of competent jurisdiction or, in the contemplated under this Agreement. SERVICE PROVIDER shall be responsible to ensure that it will comply with the provisions of this Agreement and this clause and enter into appropriate agreements in this regard in a form approved by the CLIENT. This clause 5 shall, notwithstanding anything contained in this Agreement, and survive the termination or expiry of this Agreement.
Without prejudice to the above, SERVICE PROVIDER shall not use any CLIENT Item, confidential information of CLIENT, technology or processes of CLIENT, or information relating to any product of CLIENT, or any of its affiliates acquired by SERVICE PROVIDER, for the purpose of manufacturing or production of a product or for the provision of any services other than the services rendered to the CLIENT under this Agreement.
Further, SERVICE PROVIDER shall perform other work only if it does not materially affect SERVICE PROVIDER’s responsibilities under this Agreement. The intellectual property rights and all other rights subsisting in any processes, material, reports, designs, procedures, guidelines, inter ail, developed by SERVICE PROVIDER or its employees or agents in the provision of the Services shall belong to the CLIENT and SERVICE PROVIDER hereby irrevocably assigns all rights thereto the CLIENT, and undertakes not to take any action which may dilute such rights of the CLIENT.
6. Quality and Specifications
The processes to achieve the specifications shall be provided by CLIENT and shall be approved, without prejudice, by SERVICE PROVIDER. Any change in such process shall be informed to SERVICE PROVIDER in writing.
7. Items provided by the CLIENT
a. The CLIENT may furnish and provide, Computers, equipment and materials and replacements thereof and materials attached or affixed thereto, designs and information provided during the term of this Agreement (“CLIENT Items”) hereto free of cost to SERVICE PROVIDER for use by SERVICE PROVIDER and their skilled resources solely for the purpose of providing the Services. SERVICE PROVIDER shall use the CLIENT items solely for the purpose set out above and for the duration of this Agreement or as notified in writing by the CLIENT. SERVICE PROVIDER shall be obligated to comply with the terms of this Agreement in relation to the CLIENT items. The CLIENT items shall include all material, confidential data, processes, information, inter alia, to which SERVICE PROVIDER or its employees may gain access to, during the provision of the Services. However, any such information if shared shall only be done to ease the rendering of the services by SERVICE PROVIDER to CLIENT.
b. SERVICE PROVIDER acknowledges that the CLIENT has the sole intellectual property rights subsisting in the CLIENT items, such as copyright, patents, trade secrets, designs and other intellectual property rights, and SERVICE PROVIDER warrants and undertakes that it shall not in any manner, whether directly or indirectly, affect, dilute, infringe and/or breach such intellectual property rights of the CLIENT and indemnifies the CLIENT against the same.
8. Provision of Services
a. The provision of the Services is within the parameters set out in this Agreement and rendered promptly, efficiently and competently shall be the essence of this Agreement.
b. SERVICE PROVIDER undertakes to provide sufficient number of Technical Staff based on who are competent and skilled as per the CLIENT requirements.
9. Fees
The payable to SERVICE PROVIDER for providing the services will be specified in the purchase order for each skilled resource. Taxes and other statutory charges will be exclusive of the rates. Rates and details are mentioned in the Annexure. All the reimbursements (Viz Overtime, Shift Allowance, Award, Travel, etc.) if applicable shall be paid by SERVICE PROVIDER to the skilled resources on receipt of the reimbursement amount from the CLIENT. Invoices pertaining to the reimbursements would be cleared within 30 days.
a. Payment in consideration for the provision of the Service, inclusive of all levies, duties, charges, etc., shall be paid by CLIENT within one (1) month from the date of invoice.
b. In case there is a delay in receipt of PO’s from the CLIENT and this impacts/ further delays raising the Invoices for that service period, the same will be adjusted/ deducted from the agreed credit period. If the credit period has been surpassed with the issue not been resolved, the CLIENT has to make payments due to SERVICE PROVIDER within 7 working days.
c. SERVICE PROVIDER will follow CLIENT Holiday calendar and will bill accordingly.
d. The CLIENT shall be entitled to deduct taxes at the rates applicable thereon.
e. The fee mentioned in this Agreement may be adjusted based on mutual consent, which should be in writing.
f. All statutory compliance costs that are incurred due to variable allowance will be billable to CLIENT
g. CLIENT shall make the said payment as per the invoice to SERVICE PROVIDER within 30 days of date of Invoice. Any adjustments in salary paid to a deputed person on account of loss of pay, for instance, shall be adjusted in the following months invoice.
h. SERVICE PROVIDER shall provide timesheets approved by CLIENT on time to time basis every month by 10yh of following month. Payment by CLIENT for the services provided shall be a fundamental obligation under the agreement. Any default of payment, subject to the terms of this agreement or without reasonable cause shall entitle SERVICE PROVIDER to suspend or terminate this Agreement giving 7 days-notice periods.
i. CLIENT shall make the said payment as per the invoice to SERVICE PROVIDER within one (1) month of date of Invoice. Any adjustments in salary paid to a deputed person on account of loss of pay, for instance, shall be adjusted in the following months invoice.
j. Service Provider does the basic education, address & ID checks by reviewing their original documents and whenever asked by client they will provide the softcopy/Photocopy of those documents”. Upon CLIENT’s discretion, a BGC check or medical checkup or both for every Associate can be arranged, expenses of which will be borne by the CLIENT.
1.Education Mark sheets (Secondary, Senior Secondary, Graduation and P.G and certificates if any
2.Date of birth certificate
3.Previous employer verification – 3 months’ salary slip, Resignation Acceptance (email/portal), Relieving Letter from the previous employer, Address & ID proof, PAN card, 2 Passport Size photograph (professional pic in formal dress code only), Aadhaar Card.
k. Billing period should be calculated monthly.
l. Furlough/Compulsory shut down will not be billed to the CLIENT.
11. Withdrawal of Deputies
a. CLIENT will through its designated person seek withdrawal of skilled resources in case of theft, fraud and acts that constitute moral turpitude. CLIENT will brief SERVICE PROVIDER with full details in such cases and SERVICE PROVIDER will take appropriate action.
b. CLIENT may also request for the withdrawal of a skilled resources, if the performance of the associate is not to the satisfaction of the CLIENT. SERVICE PROVIDER shall provide notice of one (1) weeks to Service Provider, if the performance of the skilled resources is not to the satisfaction of the CLIENT.
c. CLIENT shall inform SERVICE PROVIDER for the withdrawal of skilled resources by giving 7 days’ notice period in case of a project closure/roll- off. If the CLIENT fails to give notice to SERVICE PROVIDER, then the notice period will be billable to the CLIENT on actual PO cost for the duration of deficit days.
d. CLIENT can ask for replacement of a candidate, in case the candidate absconds or resigns from work, and SERVICE PROVIDER will provide the replacement with a new candidate of same skill sets, within one (1) weeks from the day SERVICE PROVIDER was informed of the same.
12. Representations & Covenants of the Parties
a. SERVICE PROVIDER represents that it currently possesses all necessary and appropriate registrations and licenses and has fulfilled all appropriate statutory compliance requirements in respect of the performance by it of its obligations under this Agreement.
b. SERVICE PROVIDER is responsible and liable for the implementation of all statutory provisions applicable to them and their employees.
c. SERVICE PROVIDER hereby represents, warrants and covenants that in the course of performing its obligations under this Agreement, have not paid, offered or promised to pay, and/ or authorize the payment of, and / or shall not in the future pay or offer to pay, whether directly or indirectly of any money or anything of value to any CLIENT personnel or representative.
13. Sub-Contracting
Neither Party shall sub-contract or transfer its obligations under or in connection with this Agreement without the prior approval in writing of the other party, provided that the term “CLIENT” under this Agreement shall include any affiliate or sister company of the CLIENT.
14. Non-Compete
Both CLIENT and SERVICE PROVIDER will not work directly or indirectly with each other’s customers or employees during the tenure of this agreement. The Clause is applicable to only with regard to Staffing and Professional Services in India and the CLIENT and SERVICE PROVIDER are free to conduct business in any other areas which does not create conflict between the parties.
15. Non-solicitation
During the term of this agreement, and for a period of six (6) months thereafter, each party agrees not to solicit or induce any employee of the other party to terminate its employment with the other party, and not to hire any employee of the other party without the other party’s prior written approval. General advertisements by either party not directed at any particular employee of the other shall not be construed as a violation of this section.
16. Indemnity
a. SERVICE PROVIDER and CLIENT shall indemnify and hold harmless, each other from any responsibility for bodily injury and property damage liability or loss which may arise or grow out of performance of duties under this Agreement, resulting from negligence or willful misconduct of CLIENT or SERVICE PROVIDER or its personnel respectively.
b. SERVICE PROVIDER and CLIENT shall indemnify and hold harmless each other from any and all claims, actions, demands, losses and causes of action by CLIENT or SERVICE PROVIDER arising from any violation of state, local laws and regulations.
c. The liability of SERVICE PROVIDER under this Agreement if any shall be as per actuals.
17. No Publicity
Relationship with Company: SERVICE PROVIDER agrees that, in its relationship with CLIENT, its affiliates or CLIENT’s end client under this Agreement, it is acting in the capacity of an independent contractor and that it has no authority to represent or act on behalf of CLIENT, its affiliates or CLIENT’s end client under this Agreement without Company’s prior written consent. SERVICE PROVIDER shall not hold itself out to any third person as purporting to act on behalf of, or serving as the agent of CLIENT, its affiliates or CLIENT’s end client and SERVICE PROVIDER is not authorized to enter into any agreements, whether oral or written, on CLIENT, its affiliates or CLIENT’s end client’s behalf.
SERVICE PROVIDER shall not(i) use the name of CLIENT, its affiliates or CLIENT’s end client in any publicity or advertising, or (ii) issue a press release or otherwise publicize or disclose any information related to the existence of this Agreement or the terms and conditions hereof, without the prior written consent of CLIENT; provided, however, that SERVICE PROVIDER may, to the extent necessary to perform the Services, disclose to third party vendor and suppliers that Supplier is performing the Services for CLIENT. In no case shall the SERVICE PROVIDER disclose its affiliation with CLIENT, its affiliates or CLIENT’s end client to any of its other clients or public in general through its written contracts, advertising or on any public forums such as (but not limited to) linkedin, github, glassdoor, or its website etc.
18. Termination
a. This Contract commences on the Commencement Date, which is and, unless otherwise extended or terminated in accordance with this Contract, shall continue in full force and effect for a period of Six (6) months or expiry of the contract term if earlier. Upon expiry of the said Six (6) months period, both parties may mutually agree in writing, to extend the term of this contract for a further period of Six (6) months.
b. Either Party may also terminate this agreement by giving Thirty (30) days prior notice in writing to the other party.
c. CLIENT shall at its sole discretion have the option of terminating this Agreement in the event SERVICE PROVIDER commits any breach of the terms and conditions or the work is unsatisfactory, or the employees of SERVICE PROVIDER are negligent or there is non-compliance under the statutory legal requirements, provided CLIENT has given one week time to SERVICE PROVIDER informing of the breach, negligence, etc and asking SERVICE PROVIDER to rectify the above and the same remains unrectified.
19. Effect of Termination
Upon the expiration or termination of this Agreement.
a. CLIENT shall pay to SERVICE PROVIDER as per agreed terms all amounts remaining due to SERVICE PROVIDER as may be applicable. However, CLIENT shall not make any payments if termination is due to nonperformance or violation the agreement clauses.
b. SERVICE PROVIDER skilled resources shall return to CLIENT, all CLIENT items and materials received from the CLIENT concerning to the provision of the Services, including any document or information thereof which are then in the possession of SERVICE PROVIDER upon termination of services.
c. All skilled resources shall follow an exit clearance mechanism of the CLIENT at termination of services.
d. Even after the expiration or termination of this Agreement, the Parties shall perform their respective obligations under all contracts for the completion of any assignments for the provision of Services, which have not been fully performed before the date of such expiration or termination.
20. Force Majeure
SERVICE PROVIDER will not be held responsible for the damages or sabotage caused to the property of CLIENT due to riots; armed dacoits, terrorist activity, etc. In the event of mob violence, riots, communal violence, strikes, natural calamities resulting in SERVICE PROVIDER being totally disabled from carrying out its duties, under such circumstances, SERVICE PROVIDER shall carry out its duties to the best of its ability that is expected of a professional company and shall not under the first signs of disorder refuse its obligation to carry out its duties.
21. Discipline
SERVICE PROVIDER shall observe all applicable disciplinary rules of while carrying out work as may be required. In the event of breach of the disciplinary rules, shall be entitled to discontinue the services of SERVICE PROVIDER.
22. Further Provisions
a. The relationship between the Parties is that of independent contractors. Neither Party shall do anything, which has the effect of creating an obligation on the other Party to a third Party. If either Party breaches this clause, that Party shall indemnify the other Party for all damages and costs the injured Party incurs which arise from the breach. Further, it is agreed that the CLIENT shall not, in any manner be responsible for any act, omission or commission of the staff engaged by SERVICE PROVIDER and such staff members shall have no claim whatsoever against the CLIENT. The CLIENT shall also not be liable either in tort or under any applicable statute, for any acts or omissions, whether direct or indirect, to SERVICE PROVIDER. The CLIENT shall also have the option to adjust or set off any monies payable by the CLIENT against such amounts as indemnified by SERVICE PROVIDER.
b. This Agreement constitutes the entire agreement of the Parties with respect to the provision of the Services by SERVICE PROVIDER to CLIENT and supersedes all prior representations, warranties, agreements and understandings, of any kind, written or oral of the Parties.
c. This Agreement may not be modified or amended except by written amendment specifically referencing this Agreement signed by the authorized representatives of the Parties.
d. This Agreement shall be executed in two originals, one of which shall be kept by CLIENT and the other by SERVICE PROVIDER, and shall not be binding on SERVICE PROVIDER until signed by both the designated signatories of SERVICE PROVIDER listed on the signature page of this Agreement.
e. Should any part or provision of this Agreement be held invalid or unenforceable, the invalid or unenforceable part or provision shall be replaced with a provision which accomplishes, to the extent possible and lawful, the original business purpose and economic intent of such Party or provision in a valid and enforceable manner, and the remainder of this Agreement shall remain effective and binding upon the Parties.
f. No waiver by either Party of any provision of or right, remedy or power of that Party under this Agreement shall be effective unless it is in writing signed by a duly authorized officer of that Party and such waiver shall be effective only in the specific instance and for the specific purpose for which it was given. No failure or delay by either Party to exercise any right, remedy or power under this Agreement or to insist on strict compliance by the other Party with any obligation under this Agreement, and no custom or practice of the Parties at variance with the terms of this Agreement, shall constitute a waiver of a Party’s right to demand exact compliance with this Agreement at any time or otherwise constitute a waiver of any other or future rights under this Agreement.
g. The rights, remedies and powers of each of the Parties contained in this Agreement are cumulative and not exclusive of any rights, remedies or powers provided to the Parties by law. No single or partial exercise by either of the Parties of any right, remedy or power under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right, remedy or power.
h. This Agreement is governed by and shall be construed in accordance with the laws of India. The courts of competent jurisdiction at Jaipur shall have exclusive jurisdiction over all disputes relating to this Agreement or performance there under, and the Parties waive any objections thereto, and submit to the said courts.
i. Vendor agrees that they shall not discuss on any information related to (company name)
j., its internal affairs, its clients or any other business information that might be considered as confidential in related to Company name and its clients with the resources deployed. Any such discussion shall be considered as breach of confidentiality and vendor and concerned consultants shall be liable for legal action taken by Company name.
k. BGV of the consultants supplied to Company name on Vendor Cost and BGV report of the candidates within 7 days of confirmation. In case if arrangement is such BGV is conducted by BGV agency on factors provided
by client to the vendor. If the report is negative, the resource shall be withdrawn.
The BGV must at least include:
• Address verification
• Last company verification
• Highest education verification
• Criminal check
l. Vendor should execute legally binding NDA with all the consultants supplied to (COMPANY NAME) where consultant agrees not to disclose any information about (COMPANY NAME) and its clients to anyone.
m. All candidates are required to successfully clear the detailed ISMS and Privacy training within 2 days of onboarding. However, basic induction shall be done as per HR induction process.
n. In case client provided laptop to resource is not recoverable then it is required for vendor to bear the complete cost. It is the vendor and consultant’s responsibility to safeguard all (COMPANY NAME) provided resources like laptop, information and other tangible or intangible resources.
o. In case consultants work from home, then vendor shall ensure that they have broadband connection of sufficient bandwidth to ensure uninterrupted services to the client.
p. At the time of conclusion of assignment with (COMPANY NAME), all consultants shall be required to sign an exit NDA that legally binds them not to share any information regarding (COMPANY NAME) and its clients.
q. It is understood that all consultants shall be provided only 1 Paid leave from (COMPANY NAME). Any further leaves or shortfall in working hours shall attract appropriate adjustment for the pay out of consultants.
r. All decisions related to point O above shall be (deduction of pay out to vendor for any consultant) shall be made by the respective directors at (COMPANY NAME) and there shall be final.
s. Any weekend support provided shall be done at the same cost of the day rate.
t. This Agreement is signed and executed at (Location)
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized representative.
This Agreement has been executed by or on behalf of the parties with full effect from the Effective Date.
The foregoing is agreed to by: (company name) Pvt. Ltd.