SERVICE AGREEMENT
BETWEEN
ASHTAR GLOBAL SOLUTIONS (“DEVELOPER”)
AND
OVERCLOCK CAPITAL __ (“BUYER”)
THIS AGREEMENT is made on 29 th August, 2022 (hereinafter, “Effective Date”) entered
into by the Developer and the Buyer (Developer and Buyer collectively referred to as the
“Parties” or individually as the “Party”) and includes that Party’s successors and assigns.
In consideration of covenants and agreements contained in this agreement, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Parties agree to the
following terms and conditions and to be bound thereby:
- TERM
This agreement shall be valid from 29 th August, 2022 for a period of thirty (30) days. - SERVICES
Developer covenants that the services provided by it hereunder will be of professional
quality and conform to all generally accepted practices governing the design and
development of application software of the same general nature and complexity.
Developer further covenants that they shall not knowingly introduce through any
means, any virus, worm, trap, trap door, back door, or any contaminant or disabling
devices, including, but not limited to, timer, clock, counter, or other limiting codes,
commands, or instructions intended to damage or disable (“Harmful Code”) the
Application Software or any Buyer data or other intellectual property used by Buyer.
In the event Developer introduces such Harmful Code, Developer shall immediately,
and at Developer’s sole expense, replace and install all copies of the Application
Software containing the Harmful Code.
Notwithstanding anything else contained in this Agreement, the covenants and
warranties in this Section shall be deemed to be a warranty for current and future
performance and shall continue until and for so long as Developer is engaged to
provide services to Buyer with respect to the Application Software developed
hereunder, including the maintenance and enhancement thereof. For the purpose of
any applicable statute of limitation or statute of repose, discovery of the breach of this
warranty shall be deemed to have been made when Buyer first becomes aware of such
breach.
The infra provider will be GCP for all cloud related needs (synergies and minimize
egress).
Node provider will be determined by the Buyer upon final review with both parties
(effectively once the latest capabilities of each provider has been reviewed).
Paddy’s existing API endpoints/ websocket may be used for users’ initial historical
data retrieval to GCP (if alternate solutions with the node provider do not meet
performance and developer needs).
The Design Scope and Acceptance Criteria (Closure Criteria) will be provided in
Exhibit A below.
The subscription and ETL engineer will be in another contract. - CONTRACT SUM
As consideration for the Developer’s services, the Buyer shall pay the Developer 28, 650
(USD). Upon signing this agreement, the Buyer shall pay 25% of the contract sum; the
balance of the contract sum shall be paid upon delivery of the Software.
Buyer shall reimburse Developer for any Buyer-approved out-of-pocket expenses incurred by
Buyer. Buyer is responsible for paying all taxes levied in connection with the fees and
expenses due to the Developer, exclusive of any taxes based on Developer’s income, which
shall be paid solely by Developer. Buyer agrees to either pay any tax for which it is
responsible directly or to reimburse Developer upon receipt of proof of payment by
Developer.
- ACCEPTANCE
If the delivered software application fails to substantially conform to the applicable System
Design Specification, Buyer shall notify Developer within seven (7) business days of
receiving the software application, and shall specify any failures with sufficient detail to allow
Developer to reproduce such failures (the “Rejection Notice”). Within seven (7) business days
of the receipt of a Rejection Notice, Developer shall correct the specified failures in the
software application, or provide a written estimate of the cost and time required to correct the
failures, unless such failures are caused by deficient provision of services by Developer. - OWNERSHIP
Developer agrees that the development of the Software is “work made for hire” and that the
Software shall be the sole property of Buyer. Developer hereby assigns to Buyer, without
further compensation, all of its right, title and interest in and to the Software and any and all
related patents, patent applications, copyrights, copyright applications, trademarks and trade
names. Developer will assist Buyer in obtaining and enforcing patent, copyright and other
forms of legal protection for the Software. Upon request, Developer will sign all applications,
assignments, instruments and papers and perform all acts necessary or desired by Buyer to
assign the Software fully and completely to Buyer and to enable Buyer, its successors, assigns
and nominees, to secure and enjoy the full and exclusive benefits and advantages thereof.
Where the Developer has utilized employees and/or contractors capable of designing and
implementing the Software to be developed hereunder. Developer shall arrange for such
employees and/or contractors, to execute and deliver any document or instrument reasonably
requested by Buyer to reflect Buyer’s ownership of the Software or in connection with any
application for patent or copyright.
Existing Technology. DEVELOPER owns, has developed, has acquired, or has obtained
exclusive license rights to certain software, know-how, and trade secrets, and all intellectual
property rights therein, prior to or independent of this Agreement (the “DEVELOPER
Background Technology”) that DEVELOPER deems proprietary. DEVELOPER shall retain
all rights and ownership in all the DEVELOPER Background Technology. To the extent that
any Work Product under this Agreement infringes DEVELOPER’s rights to the
DEVELOPER Background Technology, DEVELOPER grants to BUYER a perpetual,
royalty-free, non-exclusive, sub-licensable and irrevocable right and license to use, modify,
and copy such DEVELOPER Background Technology. Any such license with respect to the
DEVELOPER Background Technology shall be limited solely to BUYER’s RT Program, as
set forth in this Agreement, and BUYER may not use the DEVELOPER Background
Technology for any other program or purpose.
“Work Product” means the materials, software, tools, data, inventions, works of authorship
and other innovations of any kind, including, without limitation, any deliverables under the
Project Description/Statement of Work, and any improvements or modifications to Buyer’s
proprietary computer software programs or related materials that Developer may make,
conceive, develop or reduce to practice, alone or jointly with others, in the course of
performing the services hereunder or as a result of providing such services, whether or not
eligible for patent, copyright, trademark, trade secret or other legal protection, and any and all
related patents, patent applications, trademarks, copyrights, trade secrets, and other
proprietary rights.
DEVELOPER’s Use of the Work Product. If BUYER, in its sole discretion, determines not to
apply for a patent on any of the Work Product developed by DEVELOPER during the course
of this Agreement, DEVELOPER may request BUYER’s permission to patent such work
product at DEVELOPER’s sole expense. In the event BUYER desires to grant DEVELOPER
such permission to pursue a patent on the work product developed hereunder, the terms and
conditions under which DEVELOPER may pursue such a patent shall be set forth in a
separate agreement between the parties.
- REPRESENTATIONS AND WARRANTIES
Developer represents and warrants that: (i) it has the authority and the right to enter into this
Agreement, to perform the services and provide the Application Software to be developed
hereunder, and that its obligations hereunder are not in conflict with any other obligations; (ii)
all services will be performed in a competent and professional manner and shall conform in
all material aspects to Buyer’s requirements expressly set forth in this Agreement; (iii) to its
knowledge, neither the Application Software, nor the performance of any services by it
infringe upon or violate the rights of any third party and to its knowledge Buyer shall receive
free and clear title to all deliverables assigned to it pursuant to the Ownership Section; and
(iv) at the time of acceptance and for a period of __[Warranty Period] thereafter,
the Application Software will substantially conform to the System Design Specification, and
as Buyer’s sole and exclusive remedy for a breach of the foregoing, Developer shall use all
commercially reasonable efforts to correct or repair, at no cost to Buyer, any defect,
malfunction or non-conformity that prevents the Application Software from conforming to the
System Design Specification.
Any warranty in this Agreement shall not apply to: (i) altered or damaged Application
Software unless altered or damaged by Developer, (ii) Application Software any portion of
which is incorporated by Buyer with, or into, any derivative work or other software without
the assistance of Developer, or (iii) if the Application Software is subjected to misuse,
negligence or abuse by Buyer. - INDEMNIFICATION
DEVELOPER Defense. DEVELOPER will, at its own expense, defend and/or handle any
claim or action against BUYER based on a claim that the Application Software and/or any
deliverables furnished to BUYER pursuant to this Agreement infringe or are alleged to
infringe any patent, copyright, intellectual or industrial property right or any other similar
right including, but not limited to, misappropriation of trade secrets. Notwithstanding the
foregoing, DEVELOPER shall not be liable for any liabilities, losses, damages, costs and
expenses, including attorney’s fees, under its indemnification obligation if it is shown that
DEVELOPER’s infringement was not willful or grossly negligent, after DEVELOPER
conducted reasonable diligence. As a condition to DEVELOPER’s obligations in this Section,
DEVELOPER shall have the right to conduct the defense of any such claim or action and all
negotiations for its settlement; provided, however, that BUYER may participate, at its
expense, in such defense or negotiations to protect its interests. As a condition to the
foregoing, BUYER must promptly notify DEVELOPER in writing of any claim or action
occurring hereunder, and cooperate with, and provide all available information, assistance and
authority to DEVELOPER to defend or settle the action.
Mitigation by DEVELOPER. If any of the Application Software is, or in the opinion of
DEVELOPER is likely to become, the subject of a claim, suit or proceeding of infringement,
DEVELOPER may in its sole discretion (a) procure, at no cost to BUYER, the right to
continue using the Application Software; (b) replace or modify the Application Software to
render it non-infringing, provided there is no material loss of functionality; or (c) if, in
DEVELOPER’s reasonable opinion neither (a) nor (b) above are commercially feasible,
terminate this Agreement and refund the amounts paid by BUYER for the Application
Software.
No Obligation of DEVELOPER. The above obligations of DEVELOPER shall not apply with
respect to the Application Software or software programs portions or components thereof (i)
if not supplied by DEVELOPER; (ii) which are modified by BUYER, or a party other than
DEVELOPER working for BUYER unless so authorized by DEVELOPER, if the alleged
infringement relates to such modifications; or (iii) combined with other software or hardware
not provided by DEVELOPER. DEVELOPER agrees to give BUYER prompt notice of any
such claim or action that could have an adverse impact on BUYER’s use or possession of the
Application Software.
- NON-SOLICITATION
Unless otherwise agreed to in writing, neither party shall solicit the other party’s personnel for
employment during the term of this Agreement and for a period of two (2) years thereafter. - RELATIONSHIP OF PARTIES
Developer is acting as an independent contractor with respect to the services provided to
Buyer. Neither Developer nor the employees of the Developer performing services for Buyer
will be considered employees or agents of Buyer. Buyer will not be responsible for
Developer’s acts or the acts of Developer’s employees while performing services under this
Agreement. Nothing contained in this Agreement shall be construed to imply a joint venture,
partnership or principal-agent relationship between the parties, and neither party by virtue of
this Agreement shall have any right, power or authority to act or create any obligation,
express or implied, on behalf of the other party. - NON-ASSIGNMENT
Except to an entity that succeeds to all or substantially all the business or assets of a party,
neither party may assign, transfer or subcontract the performance of its services, or any of its
rights and/or obligations hereunder, without the other party’s prior written consent, and any
attempt to do so shall be void. - DISPUTE RESOLUTION
Parties agree to settle disputes under this Agreement through Negotiation. - TERMINATION
In the event of any material breach of this Agreement by either party, and failure to
remedy the breach within ninety-six hours (96 hrs) of notification of the said breach,
the non-breaching party may terminate this Agreement immediately by providing
written notice to the other party.
This Agreement may be terminated at any time by mutual written agreement of the
Parties.
Upon termination of this Agreement by either party, each party shall turn over to the
other party all of the other party’s material, property and Confidential Information, in
addition to any other deliverables required upon termination by this Agreement.
The termination of this agreement shall not discharge the liabilities accumulated by
either Party.
Any Clauses intended by the Parties or this agreement to survive the termination of
this agreement shall survive the termination of this agreement by whatever cause. - CONFIDENTIALITY
All non-public, confidential or proprietary information of a Party (Disclosing Party), whether
disclosed orally or disclosed or accessed in written, electronic or other form or media, and
whether or not marked, designated or otherwise identified as “confidential” in connection
with this Contract is confidential, solely for the use of performing this Contract and may not
be disclosed or copied unless authorized in advance by the Disclosing Party in writing. Upon
the Disclosing Party’s request, the other Party (Recipient Party) shall promptly return all
documents and other confidential materials received from Disclosing Party. Disclosing Party
shall be entitled to injunctive relief for any violation of this Section. This Section does not
apply to information that is: (a) in the public domain; (b) known to Recipient Party at the time
of disclosure, or (c) rightfully obtained by Recipient Party on a non-confidential basis from a
third party.
Recipient or its Representatives may disclose Confidential Information when compelled to do
so by a valid court order or other governmental body, provided Recipient provides prompt
prior notice to Discloser if allowed. The Recipient and their Representatives may use the
Confidential Information only for effecting this agreement. Recipient must use a reasonable
degree of care to protect the Confidential Information and to prevent any unauthorized use or
disclosure of the Confidential Information. Recipient may share the Confidential Information
with its Representatives who need to know it in connection with the purpose of this agreement
and only if they have agreed in writing to keep the information confidential on terms no less
protective of the Confidential Information, than the terms contained in this Agreement.
Recipient shall promptly notify the Discloser of any unauthorized disclosure of the
Confidential Information or any other breach of this Agreement by such Party or, to such
Party’s knowledge or by its Representatives.
Each party acknowledges and agrees that, in the event of a breach or threatened breach of any
of the foregoing provisions, the other party will have no adequate remedy in damages and,
accordingly, shall be entitled to injunctive relief against such breach; provided, however, that
no specification of a particular legal or equitable remedy shall be construed as a waiver,
prohibition or limitation of any other legal or equitable remedies in the event of a breach
hereof.
- ADVERTISING
Neither party will use the other party’s name or marks or refer to or identify the other party in
any advertising or publicity releases, or promotional or marketing correspondence to others,
without such party’s written approval, such approval not to be unreasonably withheld. - FORCE MAJEURE
For this Agreement, “Force Majeure” means an event which a diligent party could not have
reasonably avoided in the circumstances, which is beyond the control of a party and includes,
but is not limited to, war, riots, civil disorder, earthquake, storm, flood or adverse weather
conditions, strikes, lockouts or other industrial action, terrorist acts, confiscation or any other
action by government agencies. A Party’s failure to fulfill its obligations due to Force Majeure
shall not be considered a breach of this Agreement, provided that the Party has taken all
reasonable precautions, due care, reasonable alternative measures, and minimal delay all to
carry out the terms of this Agreement. - DRAFTING RESPONSIBILITY
Neither party shall be held to a higher standard than the other party in the interpretation or
enforcement of this Contract as a whole or any portion hereof based on drafting
responsibility. - CHANGES TO THE AGREEMENT
Either Party may request changes to the agreement, but they will only be effective if agreed in
writing, and signed by all Parties. If any ambiguity is found in the agreement or various
documents forming this agreement, the Parties shall issue any necessary clarification or
instruction. - NO WAIVER
Except where otherwise provided, failure by either Party to enforce any of these terms or
conditions shall not be a waiver of their right to enforce them. No waiver by either Party of
any breach of, or of compliance with, any condition or provision of this Agreement by the
other Party shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time
- SEVERABILITY
The provisions of this agreement are severable. If any provision is held to be invalid or
unenforceable, it shall not affect the validity or enforceability of any other provision. - COUNTERPARTS
This agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which taken together shall constitute one instrument. - ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties. It supersedes all prior
oral or written agreements or understandings between the Parties concerning the subject
matter of this agreement. All documents annexed to this agreement shall be subject to the
terms under this agreement, provided that the Parties append their signatures on the
documents. The Parties will exercise utmost good faith in this agreement. - HEADINGS
The article and section headings in this agreement are for convenience; they form in no part of
this agreement and shall not affect its interpretation. - PRONOUNS
All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular, or plural, as the identity of the person or entity may require. As used in this
agreement: words of the masculine gender shall mean and include corresponding neuter
words or words of the feminine gender, and words in the singular shall mean and include the
plural and vice versa. - NOTICES
Any notice required to be given between the Parties pursuant to the provisions of this
Agreement shall be in writing and shall be deemed duly given:
(i) if delivered by hand and receipted for by the party addressee, on the date of such
receipt,
(ii) (ii) if mailed by domestic certified or registered mail with postage prepaid, on the
third business day after the date postmarked, or
(iii) sent by email.
at the following addresses or such changed address as the Party shall have specified by
written notice, provided that any notice of change of address shall be effective only upon
actual receipt.
Any notice delivered by email shall request a receipt thereof confirmed by email or in writing
by the recipient, and the effective date of such notice shall be the date of receipt, provided
such receipt has been confirmed by the recipient.
Developer: _________________________________________________
Buyer: ____________________________________________________ - GOVERNING LAW
This Agreement shall be governed in all respects by the laws of Pakistan, and its Courts
without regard to its conflict of law provisions.
IN WITNESS WHEREOF, each of the Parties has executed this agreement, as of the day
and year set forth below.
Signed by the duly authorized representative
of the DEVELOPER
Signature:
Name: …………………………………………
Designation: ……………………………………
Date: …………………………………………….
Signed by the duly authorized representative
of the BUYER
Signature:
Name: …………………………………………
Designation:
……………………………………
Date:
…………………………………………….
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