General Terms

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Contracted Work Terms and Conditions

TECHNOLOGY AND MARKETING SOLUTIONS AGREEMENT

THIS AGREEMENT (“the Agreement”) is made effective on the date of an order and payment using the pay pal system via the H2O Transform.com website for the provision of CRM services - The “Effective Date”)

between:

(1) H2O Media  a Dubai Limited Company, and its wholly owned subsidiaries (collectively “H2O”) with its principal office located at 712 The Fairmont Offices, Sheikh Zayed Road, Dubai, PO Box 24459, and

(2) The Client who purchases products and services from the H2O website H2O transform and who has paid in full for those services.

1.Definitions

1.1.        “Call” means any communication in any form between Client and H2O relating to Support Services and/or Maintenance and Support.  Support will only be provided based on the number of paid service days that the client holds in credit.

1.2.        “Confidential Information” of a party means all information oral or written which is expressly stated to be confidential or which is by its nature implicitly confidential and which is provided by one party to the other pursuant to this Agreement. Information shall not be treated as Confidential Information if (1) it is legitimately in the receiving party’s possession prior to disclosure (as shown by that party’s files and records existing immediately prior to disclosure); or (2) is publicly available other than as a result of any action or omission of the receiving party, its employees or agents; or (3) is publicly released with the written consent of the disclosing party; or (4) is independently developed by the receiving party without reference to or use of Confidential Information of the disclosing party. All customer lists, potential customer lists, marketing and financial information, business plans and technical information whether written or verbal of both parties shall be deemed Confidential Information, and the Solution(s) and all code, inventions, algorithms, know how and ideas obtained from H2O shall be deemed Confidential Information. The provisions of this Agreement are the Confidential Information of H2O and Client.

1.3.         “Client Maintenance and Support” means those Support Services (including routine maintenance, help desk and other technical support of the solution and including the delivery of software Releases) ordered by a client directly from H2O.

1.4.         “Force Majeure” means anything affecting H2O Media or affecting those H2O personnel providing service to Client that is outside the reasonable control of the party including acts of God, industrial dispute or any kind of war (declared or undeclared), blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion or meteor, government restraint, expropriation or prohibition, any action or event that infringes property rights, inability or delay in granting or obtaining government approvals, consents, permits, licences or authorities (including, without limitation, government agencies), or termination or withdrawal of such approvals, consents, permits or licences.

1.5.        “Intellectual Property” means, individually and collectively, any patent right, design right, copyright, database right, rights to any trademark or trade name (whether or not registered), including any pending applications relating to the foregoing, rights to any domain name, trade secret, know-how, and all other intellectual property rights that may exist in any part of the world.

1.6.        “Order” means an order for the supply of a Solution by H2O under this Agreement.  Additional orders may be placed by appending additional Schedules of Supply, Maintenance and Support Agreements, or other exhibits to this Agreement.

1.7.        “Price List” means the then-current H2O price list for the Solution(s), as determined by the country in which the Client will use the Solution(s).

1.8.         “Release” means any update, enhancement or bug-fix of a Solution which is substantially similar to the original Version and is marketed under the same Version number and nomenclature. A Release is designated by a number to the right of the decimal point (such as Vx.1 or Vx.2).

1.9.         “Solution” means, collectively, any licensed open source or restrictive licence software, technical and consulting services, expertise and know how and Client Maintenance and Support.

1.10.     “Trouble Ticket” means the electronic file that tracks a problem or issue with a Solution that is covered under the terms of the Client’s agreement for Maintenance and Support with H2O. A Trouble Ticket is opened when Client uses H2O’s system to log Calls with H2O, and remains open to record all actions and communications relating to the problem or issue between Client and H2O until the problem or issue giving rise to the Call is resolved.

1.11.      “Version” means a specific edition of the Solution identified by H2O as a new version, and designated by a number located to the left of the decimal point (such as V1.x or V2.x). Each new Version of the Solution contains significant functionality changes or improvements.

1.12.     “H2O Indemnitees” means H2O, its parent, its affiliates, and their respective officers, directors, agents and employees.

1.13.     “H2O Trademarks” means the logo, trademarks, service marks, and trade names that H2O may adopt from time to time.

1.14.     “Project Plan” means the project description provided to the customer after a "Service Order" on the H2O Transform website that details the scope of work for those services to be deployed on - This is an estimate of the number of hours taken to complete the work, in some cases the estimate may not be sufficent to complete the work depending on the customers requirements.

1.15.     “Working Days” means Monday through Friday not including national holidays

1.16.     Other capitalized expressions used in this Agreement shall have the meanings respectively assigned to them.

2.Confidentiality

2.1.        Each party understands and acknowledges that by reason of the relationship, each party will have access to Confidential Information of the other party. Each party agrees that it will not disclose to any third party, or use in any way for its own account or the account of any third party, any such Confidential Information revealed to it by the other, other than to fulfil its express obligations under this Agreement. Each party shall take security precautions to maintain the confidentiality of the Confidential Information to at least as great as the precautions each party takes to protect its own confidential information, but no less than commercially reasonable efforts.

2.2.        Each party agrees that the unauthorized disclosure or use of the other’s Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Each party will have the right to seek an immediate injunction enjoining any breach or threatened breach of the confidentiality provisions of this Agreement, as well as the right to pursue any and all other remedies available at law or in equity.

3.Warranties

3.1.        H2O warrants that for a term of one (1) year from the date of delivery specified in the Project Plan, the Solution and associated software will perform substantially in accordance with the Project Plan. If the Client asserts a defect in the Solution during the above defined warranty period, at its sole expense and option, H2O shall: (i) repair the affected Solution such that it substantially conforms to the Project Plan; or (ii) replace the defective software components with software that substantially conforms to the Project Plan.  If H2O is unable to repair the affected Solution after expending commercially reasonable efforts, H2O and Client will jointly agree to a reasonable course of action.

3.2.        H2O does not warrant that the functions contained within the Solution(s) will meet any Clients requirements, or will operate in any combination which may be selected for use by the Client, or that the operation of the Solution(s) will be uninterrupted or error-free, or that any defects that may exist in the Solution(s) will be corrected.  Nothing in this Section 3.2 shall reduce H2O’s warranty obligations in Section 3.1.

3.3.        H2O shall not be liable under this warranty if its testing and examination disclose that the defect alleged by Client to exist in the Solution does not exist or was caused by Client or Client’s employees or any third person’s misuse, neglect, improper installation or testing, unauthorized attempts to repair or modify, or any other cause beyond the range of the intended use of the Solution, or by accident, fire, lightning, or other hazard.

4.Patent and Copyright Indemnification

4.1.        H2O shall indemnify client for any claim, demand or cause of action by a third party (“Demand”) to the extent the Demand is based upon a claim that (i) the Solution infringes any trademark or patent issued in the United States, European Union, or United Kingdom, or any valid copyright recognized by any country that is a member of the Berne Convention, or (ii) the Solution misappropriates any trade secret of any third party within the country where the  website is hosted, provided in all cases that Client gives H2O notice within seventy-two (72) hours in writing of any such Demand, permits H2O to defend against the Demand and gives H2O all available information, assistance and authority so to do. H2O shall control the defence against any Demand, including appeals and all negotiations to effect settlement. If the Solution furnished hereunder becomes, or in the opinion of H2O may become the subject of a Demand, at its sole expense and sole election, H2O will: (a) procure for Client the right to continue using the Solution and underlying software, (b) replace or modify the affected portions of the Solution so that they are no longer infringing, or (c) grant Client a refund of fees paid to H2O for the affected solution based upon a five (5) year straight line depreciation schedule, measured from the delivery date of the affected Solution. H2O shall not be liable for any cost or expenses incurred without its prior written authorization.

 

4.2.        H2O shall, however, have no liability to Client under this Section 4 if any Demand is based upon or arises out of (a) incorporating into the Solution any Intellectual Property furnished by Client or by a third-party on behalf of Client, (b) alterations to Solution by Client or any third party, (c) failure of Client to use updated Versions or Revisions of the Solution provided by H2O for avoiding infringement, (d) use of Solution in a manner for which the same was neither designed nor contemplated, as evidenced by the Project Plan, or (e) an Intellectual Property Right in which Client or affiliate or subsidiary of Client has any direct or indirect interest by licence or otherwise.

4.3.        The foregoing states the entire liability of H2O for, or resulting from, intellectual property infringement or claim thereof.

5.Limitation of Liability

Neither party shall be liable or obligated to the other party or any third party with respect to any subject matter of this Agreement or otherwise, or under any contract, negligence, strict liability or other legal or equitable theory for any loss of profits, loss of business, loss of data or use thereof, interruption of business, or for any indirect, special, incidental or consequential damages of any kind, even if a party has been advised, knew, or should have known of the possibility thereof, or for any claim by any third party. The liability of both parties hereunder whether in contract or in tort shall in no event exceed the total client fees paid under this Agreement. neither party will be liable for any representation or warranty made to any third party by the other party, any agent of the other party, any distributor or dealer or other person or entity in the distribution chain.

6.TERM AND Termination

6.1.        Term. This Agreement will commence on the Effective Date and will continue until the later of (a) one (1) month from the Effective Date; or (b) final completion of any Schedule of Supply, Sales Representation Agreement, or Maintenance and Support Agreement.  The Initial Term of this Agreement shall be one (1) month from the Effective Date.

6.2.        Termination for Convenience. After the expiration of the Initial Term, either party may terminate this Agreement for convenience upon ninety (90) days written notice.  Client shall pay H2O on a pro-rata basis for all services rendered up to the termination date.  Where H2O terminates for convenience and Client has paid for services in advance, H2O shall pay Client on a pro-rata basis for all services not rendered up to the termination date.

6.3.        Termination for Cause. This Agreement may be terminated immediately by either party upon written notice if the other party: (a) breaches any material term or condition of this Agreement (including any payment obligation of Client) and fails to remedy the breach within thirty (30) days after being given notice thereof, (b) becomes insolvent or file or have filed against it a petition for bankruptcy (which is not dismissed within thirty (30) days after it is filed), (c) makes an assignment for the benefit of creditors (d) ceases to be actively engaged in business; or (e) is rendered incapable of performing its obligations hereunder by a Force Majeure event, subject to the provisions of this Agreement. In addition, H2O may terminate this Agreement for cause in the event Client is acquired by, or otherwise comes under the control of, an H2O competitor. Termination for cause hereunder shall not be an exclusive remedy and shall be in addition to any other remedies which the non-breaching party may have under this Agreement or otherwise.

7.Effect of Expiration or Termination

7.1.        Effect of Expiration. In the event this Agreement expires according to its terms, H2O shall only be responsible for those Orders submitted and accepted during the then-current Term.

7.2.        Effect of Termination by H2O for Convenience.

7.2.1.   H2O will have no obligation to accept Orders after it has given notice to Client of its intent to terminate; and

7.2.2.   H2O and Client will continue to perform their respective obligations Client Maintenance and Support contracts existing as of the date of the termination.

7.3.        Effect of Termination for Cause or Termination by Client for Convenience.

7.3.1.   H2O will have no obligation to accept Orders after it has given notice to Client of its intent to terminate.

7.3.2.   In the event H2O terminates the Agreement for cause, H2O will, unless otherwise directed by Client in writing, cease providing Client Maintenance and Support on the effective date of the termination.

7.3.3.   In the event Client terminates this Agreement for convenience, at H2O’s election, H2O will cease providing Client Maintenance and Support as of the Effective Date of the termination.

7.4.        The terms and provisions of this Section 7 shall survive any termination of this Agreement for any reason for a period of five (5) years from the date of termination.

8.Independent Contractors

8.1.        Client and H2O are independent contractors and nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other party. Each party is solely responsible for its business practices and all of its employees and agents and its labour costs and expenses arising in connection therewith.

8.2.        Nothing in this Agreement is to be construed as creating a partnership, association, trust or joint venture between H2O and Client. Neither H2O nor Client nor any of its employees, agents, representatives or contractors is deemed an employee, agent, representative or contractor of the other party. Neither H2O nor Client has the authority to bind or incur any liability on behalf of the other party and no such authority is to be implied.

9.Force Majure

9.1.        Notwithstanding any other provisions of this Agreement, a party does not breach this Agreement and is not liable to any other party for a delay or failure to perform an obligation under this Agreement (except an obligation to pay money), resulting from a Force Majeure event. The party affected by the event or circumstance will be granted a reasonable extension of time to perform its duties and obligations under this Agreement, if:

9.1.1.   it notifies the other party as soon as reasonably practicable of the event or circumstance and of the period for which it expects performance of its duties and obligations to be delayed or prevented; and

9.1.2.   it takes all reasonable steps to limit the effects of the event or circumstance.

9.2.        If a delay or failure to perform a party’s duties and obligations due to a Force Majeure event exceeds thirty (30) days, the other party may terminate this Agreement on notice to the first party, but only if it has otherwise complied with the provisions of this Agreement.

10.Non-Solicitation of Employees  Client and H2O jointly agree not to solicit for employment, nor to hire, nor to contract with each other’s employees during the term of this Agreement and for six (6) months thereafter, unless mutually agreed to by the parties

11.PAYMENTS

11.1.     Payment. Client agrees to pay H2O the fees as required for all work to be completed - should failure to pay the issued invoices or monthly contracted fees the clients service shall be automatically suspended within seven days after the payment due date.

11.2.     In the event of non-payment by Client to H2O, H2O has the exclusive right to withhold services, expertise, information and any relevant domain registration and cease work on the solution, or cancel the delivery of the Solution under the provisions pursuant to Section 7.

11.3.     Client shall pay one thousand (1000) AED to H2O in administration charges for any cheque not honoured by Client’s bank.

11.5.     In the event Client gives written notice to H2O that services have not been provided in accordance with the Agreement and H2O fails to provide those services within thirty (30) days of the written notice, Client may withhold payments for those services that are due or may become due until those services are provided pursuant to the Agreement.

13.Product SELECTION. Client agrees that H2O may, in its sole discretion, choose between open source and commercial production software components utilized in the delivery of the Solution.

14.Client agrees not to use the Solution with any material that could reasonably be construed as pornographic, paedophilia, or slanderous or offensive to religious values, racist, with any material that may incite violence or political turmoil or racial tension or with any derogatory material targeted at any named person. Client agrees that the Solution will not be used to bulk send emails to unsolicited email addresses.

15.General

15.1.     Entire Agreement. This Agreement, the exhibits, and any documents explicitly referred to therein, constitute the entire agreement between the parties, and no representation, condition, understanding or agreement of any kind, oral or written, shall be binding upon the parties unless incorporated herein. This Agreement may not be modified or amended, nor will the rights of either party be deemed waived, except by an agreement in writing signed by authorized representatives of Client and H2O. This Agreement supersedes and cancels any previous agreements between H2O and Client.

15.2.     Governing Law.  Any relevant terms and conditions, policies and notices shall be governed by and construed in accordance with the laws of England without giving effect to any principles of conflict of law. Client and H2O agree to submit to the non-exclusive jurisdiction of the courts of the United Kingdom.

15.3.     Compliance with Laws.  H2O agrees to comply with all applicable export laws, restrictions, national security controls and regulations of the United Kingdom and all other applicable foreign agencies and authorities. Client will comply with all such laws and obtain licences to export, re-export or import, as may be required.

15.4.     Assignment. Client may not transfer or assign any right or interest, nor delegate any duty or obligations under this Agreement without the prior written consent of H2O.

15.5.     Waiver. The failure or delay of either party to enforce any term of this Agreement shall not be deemed a waiver of such term.

15.6.     Severability. If any part of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction then the remaining provisions shall remain in full force and effect.