Terms And Conditions of Blueberry Systems Limited

1. Definition of Services:

•  The Company’s acceptance of Statement of Work “SOW” constitutes the Company’s acceptance of these Terms and Conditions. The Services provided by Blueberry, including through its affiliates, may consist of a team of IT, consulting, staff augmentation, subscription, and support personnel (the “Service Team”) to support the Company’s projects and to perform other responsibilities as designated by the Company. All charges for Services will include any necessary and related out-of-pocket expenses incurred by Blueberry in providing the Services.
• The description of Services and compensation details are outlined in a separately executed Statement of Work (SOW) between the Company and Blueberry.
•  In delivering the Services, Blueberry shall act as an independent contractor and not as an agent, employee, joint-venture partner, or partner of the Company.
• Blueberry’s affiliates encompass all entities under the same management and control, including but not limited to Blueberry Healthcare Limited, delaPlex Software Limited (companies incorporated and registered in England and Wales), and delaPlex Limited (a company incorporated and registered in India).

2.  Warranty and LIMITATION OF LIABILITY

a) Blueberry warrants, solely for the benefit of the Company, that all Services provided by the Service Team will be performed in a professional and workmanlike manner. Any software developed by Blueberry for the Company (the “Subject Programs”) will materially conform to the specifications and performance standards mutually agreed upon in writing by Blueberry and the Company in a separately executed Statement of Work (“SOW”). This warranty for each software/service component shall be valid for a period of one (1) year from the date of delivery of the respective component to the Company.

b) The Services performed by the Service Team shall be carried out under the Company’s direction and control. Should the Company identify any deficiency in the skills or performance of any member of the Service Team, it shall promptly inform Blueberry with sufficient detail to enable Blueberry to take necessary corrective action.

c) AS THE EXCLUSIVE REMEDY OF THE COMPANY FOR ANY NONCONFORMITY OR DEFECT IN ANY SUBJECT PROGRAMS, BLUEBERRY SHALL UTILIZE ITS BEST EFFORTS TO CORRECT OR CURE SUCH NONCONFORMITY OR DEFECT. HOWEVER, BLUEBERRY SHALL NOT BE OBLIGATED TO CORRECT, CURE, OR OTHERWISE REMEDY ANY NONCONFORMITY OR DEFECT IN THE SUBJECT PROGRAMS IF

• THE COMPANY HAS PERFORMED ANY MAINTENANCE TO THE SUBJECT PROGRAMS WITHOUT BLUEBERRY’S AUTHORIZATION.
• THE SUBJECT PROGRAMS HAVE BEEN MISUSED OR DAMAGED IN ANY RESPECT OTHER THAN BY PERSONNEL OF BLUEBERRY; OR
• BLUEBERRY HAS NOT BEEN NOTIFIED OF THE EXISTENCE AND NATURE OF SUCH NONCONFORMITY OR DEFECT PROMPTLY UPON ITS DISCOVERY.

d) BLUEBERRY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, WITH RESPECT TO THE SUBJECT PROGRAMS OR ANY OTHER MATERIAL FURNISHED HEREUNDER, OR ANY COMPONENT THEREOF, INCLUDING THE CONDITION, THE CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE THEREFOR.

e) THE CUMULATIVE LIABILITY OF BLUEBERRY TO THE COMPANY FOR ALL CLAIMS RELATED TO THE SERVICES OR ANY ASSOCIATED PROGRAMS, INCLUDING CLAIMS ARISING FROM CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY THE COMPANY TO BLUEBERRY DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH SUCH CLAIM AROSE. ADDITIONALLY, BLUEBERRY’S OVERALL LIABILITY UNDER THIS AGREEMENT SHALL BE CAPPED AT 20% OF THE TOTAL FEES PAID BY THE COMPANY TO BLUEBERRY. THIS LIMITATION OF LIABILITY APPLIES TO ALL CLAIMS BY THE COMPANY, REGARDLESS OF ANY OTHER PROVISIONS OF THIS AGREEMENT THAT MAY HAVE BEEN BREACHED OR DEEMED INEFFECTIVE.

f) IN NO EVENT SHALL BLUEBERRY BE LIABLE FOR ANY LOSS OF PROFITS, ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST THE COMPANY, EVEN IF BLUEBERRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THIS LIMITATION ON DAMAGES AND CLAIMS IS INTENDED TO APPLY TO ALL CLAIMS OF THE COMPANY, EXCEPT FOR ACTS OF GROSS OR CRIMINAL NEGLIGENCE BY BLUEBERRY.

3. Additional Payment Terms.

In addition to the compensation provisions of the SOW & this document:

• The Company shall be obligated to pay a late fee equal to ten percent (10.0%) of any amount due under this invoice which shall not have been paid within fifteen (15) days of the due date.
• The initial Compensation Rates for the Outsource Team are subject to change by Blueberry upon thirty (30) days advance notice to the Company in writing.
• The Company shall be obligated to pay Blueberry interest at the rate of Eighteen percent (18%) per annum on any amount due under this invoice which shall not have been paid within thirty (30) days of the due date thereof.

4. Assignment; Successors and Assigns. The Company may not transfer or assign any of its rights, responsibilities, or benefits under this Agreement, whether by law or otherwise, without prior written consent from Blueberry. Blueberry shall not unreasonably withhold such consent. Any attempted assignment by the Company without this consent will be considered invalid.

Subject to these requirements, these Terms and Conditions will be binding upon and benefit the Parties and their respective successors and permitted assigns. Blueberry may assign or sublicense this Agreement, either in full or in part, to any of its affiliated companies, or in the event of a merger, acquisition, or sale of all or substantially all of its assets or voting stock.

5. Non-Infringement. Acceptance of, and payment for, the Services by the Company constitutes a warranty by the Company that, except as specifically disclosed by Company in writing at the time of disclosure, any proprietary information it has disclosed to Blueberry belongs exclusively to the Company and that it holds all right title and interest to such proprietary information. Acceptance of, and payment for, the Services by the Company shall give rise to an obligation of the Company to defend Blueberry, and shall always ensure that, Blueberry shall not be harmed from any claim of infringement by third parties resulting from Blueberry’s use of the Company’s proprietary information in relation to the provision of the Services.

6. Data Protection

6.1 Both Parties shall comply with Data Protection Legislation and avoid actions that could cause the other Party to breach these regulations.

6.2 The Company grants Blueberry a non-exclusive, royalty-free right to use Company Input Data as necessary to perform its obligations under the Agreement, with the understanding that Blueberry will not retain Personal Data for its Services. The Company is encouraged to anonymize Company Input Data where possible.

6.3 If either Party supplies or authorizes the other to process Personal Data, the supplying Party warrants that:

        (a) The data is lawfully obtained.

        (b) It has the right to supply the data, including securing necessary consents.

        (c) It will comply with Data Protection Legislation.

The Processing Party warrants that it will:

        (a) Comply with Data Protection Legislation in all processing activities.

        (b) Maintain appropriate safeguards to protect Personal Data.

        (c) Process data per the data controller’s instructions.

        (d) Ensure third parties comply with this clause.

        (e) Not transfer data outside the UK without prior consent and necessary safeguards.

6.4 Upon discovering a Data Breach, a Party shall promptly notify the other and collaborate to mitigate any impact.

6.5 Each Party shall:

       (a) Keep records of all processing activities.

      (b) Provide access to these records as required to demonstrate compliance.

      (c) Destroy or return Personal Data at the other Party’s discretion.

6.6 The Company acknowledges that Blueberry relies on Company instructions for Personal Data processing and will not be liable for claims arising from acts based on such instructions.

6.7 Blueberry neither requires nor shall process or access any Personal Data to execute the services under this Agreement. However, if Blueberry accesses or processes Personal Data or Company Data, it shall do so only for lawful purposes, on request of the Company, and strictly in accordance with the purposes defined under the Scope of a separately executed SOW between the parties.

The Company shall take appropriate measures to ensure that Personal Data is not shared with Blueberry unless necessary for the performance of services under this Agreement, in compliance with applicable data protection laws, including the UK GDPR.

6.8 “Data Protection Legislation” includes GDPR, the Data Protection Act 2018, and all applicable UK privacy laws, including updates and amendments.

7. Non-Solicitation.

7.1  Non-Solicitation of Employees: During the Term of any SOW executed between the Company & Blueberry and for a period of twenty-four (24) months following its termination (the “Non-Solicitation Period”), no Party will, on its own behalf or on behalf of any other person or entity, solicit, induce, or encourage any employee of the other Party to leave such employment. Additionally, neither Party may employ or engage any employee or former employee of the other Party, directly or indirectly, during the Non-Solicitation Period. These restrictions apply only to employees with whom the soliciting Party had contact or interaction during the Agreement Term.

7.2  Non-Solicitation of Agents & Contractors: During the Agreement Term and the Non-Solicitation Period, neither Party shall, on its own behalf or on behalf of any other entity, solicit or encourage any agent, non-employee sales representative, sub-contractor, or consultant of the other Party to terminate or modify their engagement or business relationship.

7.3  Right to Equitable Relief: Both Parties recognize that any breach or threatened breach of Sections 7.1 and/or 7.2 will cause irreparable harm for which monetary damages may not be sufficient. Therefore, each Party agrees that the other shall be entitled to equitable relief, including temporary restraining orders or injunctions, without needing to prove the inadequacy of legal remedies. Both Parties affirm that the terms of Section 11 are fair and reasonably necessary to protect each Party’s goodwill and legitimate business interests.

8. Arbitration. Except as otherwise specified below, any dispute, controversy, or claim arising out of or in connection with, or relating to, these Terms and Conditions, the SOW, any Invoice raised, or the provision of Services, including any breach or alleged breach thereof (each a “Dispute”), shall initially be submitted to mediation. The mediation shall be conducted in accordance with the CEDR Model Mediation Procedure. If the Dispute is not resolved within thirty (30) days (or such longer period as the parties may agree) after the appointment of a mediator under CEDR, the Dispute shall be submitted to binding arbitration.

The arbitration shall be conducted in accordance with the arbitration rules of the London Court of International Arbitration (LCIA) in effect at the time of the dispute. Arbitration shall take place in [Location, as desired], and a single arbitrator appointed by the LCIA shall preside over the proceedings. The arbitration award shall be final and conclusive upon the parties, and judgment on the award may be entered and enforced in any court having jurisdiction.

The expenses of the arbitration shall be borne equally by the parties, provided that the arbitrator may award reasonable attorneys’ fees and expenses (including arbitration expenses) to a party if it is determined that the opposing party was unduly litigious, presented a claim or defence with no reasonable basis in law or fact, or caused unreasonable delay in the arbitration proceedings. Additionally, Blueberry shall be entitled to recover its reasonable attorneys’ fees and expenses (including arbitration or litigation expenses) incurred in the collection of any amount due from the Company.

9. Confidentiality. 

During each Party’s performance of their respective obligations under this Agreement it may be necessary for each to disclose Confidential Information to the other. The receiving Party will maintain the confidentiality of the Confidential Information of the disclosing Party with at least the same degree of care that it uses to protect its own Confidential Information, but with no less than a reasonable degree of care under the circumstances. The receiving Party will use the disclosing Party’s Confidential Information only for the purpose of performing the receiving Party’s obligations under this Agreement. Without the prior written consent of the disclosing Party, a receiving Party shall not disclose any Confidential Information of the disclosing Party to any person except to those of receiving Party’s employees, independent contractors, professional advisors, and Affiliated Companies who, in each case, have a need to know such information and who are each contractually obligated to protect such Confidential Information under terms at least as extensive as those set forth herein; provided, however, that the receiving Party shall be liable for any breach of the confidentiality obligations under this Agreement by any such person or entity. Notwithstanding the foregoing, a receiving Party may disclose Confidential Information of a disclosing Party to the extent it is required to do so pursuant to any applicable laws, regulations or any judicial or other government order, provided, however, that the receiving Party shall give the disclosing Party reasonable notice prior to such disclosure (to the extent that it is legally permitted to do so), and the receiving Party shall comply with any protective order issued with regard to such Confidential Information. Each party specifically agrees not to reverse engineer, decompile, or reverse decompile, disassemble, decode, or otherwise attempt to obtain, or obtain access to, the source code of any computer software which is copyrighted or claimed as Confidential Information of the other Party.

Further these obligations shall not apply to Confidential Information which:

        (a) at the time of disclosure is in the public domain; or

       (b) after disclosure by either party, becomes part of the public domain by publication or otherwise, other than by an unauthorized act or omission by a party to this Agreement; or

       (c) the receiving party can show by written records was in its possession at the time of the disclosure and which was not acquired, directly or indirectly, from the disclosing party; or

       (d) any party to this Agreement rightfully received from a third party, and which was not acquired, directly or indirectly, from any other party to this Agreement; or

       (e) was developed by any party independent of any disclosure hereunder as shown by written records.

10. Miscellaneous.

       (a) Governing Law. The SOW (including these Terms and Conditions) will be governed by and construed in accordance with all applicable laws of England & Wales, without regard to the principles of conflicts of laws.

       (b) Severability. If any provision of these Terms and Conditions is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable, and these Terms and Conditions shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of these Terms and Conditions, and the remaining provisions of these Terms and Conditions shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance here from.

       (c) Merger Clause: The SOW and these Terms and Conditions set forth the entire understanding of the parties. Any previous agreements or understandings between the parties regarding the subject matter hereof are merged into and superseded by these Terms and Conditions. All representations, warranties, covenants, terms, conditions and provisions herein shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, legal representatives, successors and permitted assigns of the Company and Blueberry. Neither any SOW executed between the Company and Blueberry nor any rights, interests or obligations thereunder may be assigned by any party without the prior written consent of the other party thereto.

       (d) Section Headings. The section headings herein have been inserted for convenience of reference only and shall in no way modify or restrict any of the terms or provisions hereof.

       (e) Notices. All notices, requests, demands and other communications which are required or permitted hereunder shall be sufficient if given in writing and delivered personally or by delivering utilizing either:

• Any reputable international courier service.
• by depositing it with the Postal Service, registered or certified mail, postage prepaid, return receipt requested, addressed to the appropriate party (and marked to a particular individual’s attention); or
• by facsimile or email. Provided, however, any email notification related to a default of a party hereunder must also be accompanied with notification as provided in (i) or (ii) above.

Such notice shall be deemed delivered at the time and date of personal delivery, the day immediately following the date of deposit for delivery with a courier, or the date such notice is sent by facsimile or email. Rejection or other refusal by the addressee to accept the notice shall be deemed to be receipt of the notice. In addition, the inability of the. Postal Service or any courier service to deliver the notice because of a change of address of the party to whom such notice shall have been addressed, as to which change of address no notice shall have been given to the other party as provided below shall be deemed to be receipt of the notice. The addresses, facsimile numbers and email addresses of each party to which notice is to be sent may be changed by such party by notice to the other party in writing. Addresses for notices are as follows:

                                                                                                       If to the Company, to the address as mentioned in SOW.

                                                                                                       If to Blueberry:

                                                                                                       Blueberry Systems Limited

                                                                                                      Attn: _______________________

                                                                                                      C/O Mavani Shah & Co., 2nd Floor,

                                                                                                      Amba House, 15 College Road, Harrow,

                                                                                                      England, HA1 1BA

(f) Modification and Waiver. Any of these Terms and Conditions may be waived in writing at any time by the party, which is entitled to the benefits hereof, and these Terms and Conditions may be modified or amended at any time by the Blueberry and shall be duly updated in the website of Blueberry for review & reference of the Company. No supplement, modification or amendment of these Terms and Conditions shall be binding unless executed in writing between Blueberry and the Company. No waiver of any of the provisions of these Terms and Conditions shall be deemed or shall constitute a waiver of any other provision hereof nor shall such waiver constitute a continuing waiver.

(g) Taxes. All amounts payable to Blueberry under any SOW executed between the Company and Blueberry are exclusive of any sales or use taxes, value added tax (VAT), goods and services tax (GST) or any and all similar taxes if any, or legally imposed fees, duties or contributions based on such amounts payable, all of which shall be the sole responsibility of Company whether due now or subsequently imposed by any jurisdiction. The Company is not responsible for any taxes based upon the net income of Blueberry or its employees.

(h) Third Party Beneficiaries. Except as otherwise set forth therein, this document shall not confer, and it is not intended to confer, any rights or remedies upon any person or entity other than the Company and Blueberry (including its affiliate entities and its holding & subsidiary companies).

(i) Publicity; Press Releases. Blueberry may, on one or more occasions, reference the Company in advertisements, brochures, Company lists, presentations, financial reports or other marketing, promotional or related materials. Additionally, with the Company’s prior written approval Blueberry may issue a press release (or similar public announcement or communication) publicizing the relationship between Blueberry and Company created by this Agreement.

(j) Entire Agreement. Each Statement of Work executed pursuant to, or making reference to, this document shall be deemed to incorporate all of the terms, conditions, provisions and obligations of these Terms & Condition into such Statement of Work by this reference, and each such Statement of Work shall constitute the entire and complete agreement between Blueberry and Company and shall supersede all prior and contemporaneous agreements, proposals or communications, whether oral or written, between the Parties relating to the subject matter of such Statement of Work. Other than a validly executed Change Request, nothing contained in any purchase order or other document, or instrument issued by Company will in any way modify or add any additional terms or conditions to this Agreement or any SOW, and any such modified or additional terms or conditions are expressly rejected and excluded from the Parties’ agreement hereunder and/or in such SOW. This Agreement and each SOW may not be amended, modified, or supplemented orally and may only be amended, modified, or supplemented by a written instrument signed by both Parties.

In the event of any inconsistency between these Terms & Condition and any SOW executed between the Company & Blueberry, this Agreement controls and governs over the SOW to the extent necessary to resolve the conflict or inconsistency.