THIS FINANCIAL PROCESS OUTSOURCING AGREEMENT is made between:
ClickWM ( CWM ) a Company incorporated in India (COMPANY) having its principal place of business at 41/9 Giverdhan Villa 3rd floor, kishangarh Vasant Kunj Delhi -110070 India and the entity that has registered with www.clickwm.com a representative of which is agreeing to these terms and conditions on behalf of the registered user (referred to as CLIENT).
THE PARTIES HAVE AGREED:
1. GENERAL DESCRIPTION OF OBJECTIVES AND SCOPE OF SERVICE
1.1 CLIENT hereby engages COMPANY as an independent contractor and not as an employee or agent of CLIENT, to provide to CLIENT the services as set out in an agreed work schedule or schedules for the CLIENT (Work Schedule) (collectively the Services). The individual Work Schedule (details of which appear at the end of this page underCLIENT WORK SCHEDULES) will be agreed to between the COMPANY and CLIENT prior to lodgement of the CLIENT'S first uploads to the COMPANY.
1.2 COMPANY is not granted any right of authority to assume or create any obligation or liability, express or implied, on behalf of the CLIENT or in its name, or to accept service of process in any action on its behalf or in its name, or to bind CLIENT in any manner or form whatsoever.
1.3 COMPANY shall perform the Services at the reasonable direction of personnel designated by CLIENT and shall at all times work within any parameters established by CLIENT.
1.4 Each party will appoint a representative as the primary point of contact between the parties relating to the Services. The representatives shall meet at such times and places as are agreed to discuss any matters relating to the Services, this Agreement and each Work Schedule.
1.5 CLIENT and CLIENT'S designated representatives, including without limitation CLIENT'S internal and external auditors will, from time to time, conduct external and internal audits. COMPANY will allow reasonable access to CLIENT'S information and COMPANY personnel in order to complete each audit. CLIENT may incur additional charges (as agreed in advance) by the parties.
2. WORK SCHEDULES
2.1 COMPANY agrees to:
(a) perform for CLIENT the Services, including preparation of necessary documentation described in Work Schedules;
(b) perform the Services in a professional manner, using its highest standards of skill, care, and quality and employ techniques, methods, procedures and, where necessary, materials of a high quality and standard in accordance with best professional practice;
(c) comply with the reporting requirements set out in each Work Schedule;
(d) perform the Services, under the direction of personnel designated by CLIENT;
(e) perform the Services during the term setout in the relevant Work Schedule, and comply with any time frames specified in a Work Schedule by which certain tasks are to be completed;
(f) notify the CLIENT immediately if COMPANY believes there could be a delay in performing the Services, or if COMPANY identifies a problem while performing the Services.
2.2 Without limiting the foregoing, COMPANY warrants that it, and its personnel, posses and will exercise the specific skills and experience required to perform adequately the Services and will ensure that the Services will at all times be performed to CLIENT'S reasonable satisfaction.
2.3 The COMPANY shall perform the Services in accordance with the key performance indicators specified in the Work Schedules.
2.4 The COMPANY will store all clients' documents arising from performance of the Services during the applicable financial year and will then return all completed documents to the CLIENT in an orderly manner unless otherwise agreed.
3.1 Any change to the Services will be agreed in writing between the parties and when a change is requested, COMPANY will inform CLIENT of the effect of the change on the Services and any additional costs or impacts upon the timeframes. COMPANY agrees that it will not unreasonably refuse to perform any change requested by CLIENT nor seek to impose any unreasonable terms or charges.
3.2 Once the parties agree a change to the Services, the relevant Work Schedule shall be deemed to be amended accordingly. CLIENT shall not be liable to pay for any change that is not agreed in accordance with the provisions of this clause 3.
4.1 This Agreement shall commence on and shall continue until terminated by written notice by one party to the other. This Agreement will end on the later of the last day of the month in which the notice was given or if data has been forwarded to COMPANY by CLIENT during the relevant month, upon the data being processed and all relevant files have been returned to CLIENT.
4.2 COMPANY shall commence the Services on the date specified in the relevant Work Schedule and continue the Services until the expiry date as provided in that Work Schedule unless terminated in accordance with clause 4.1.
5.1 CLIENT shall review on a continuous basis all Services performed by COMPANY, and shall notify COMPANY, in writing, if all or any part of the Services are not acceptable to it following delivery of all or such part of the Services to be performed with a written explanation of the reasons the Services have been deemed unacceptable. Upon such notice, COMPANY shall modify its performance of Services so as to provide that the same will be acceptable to CLIENT.
6.1 For Services rendered, CLIENT agrees to pay COMPANY in accordance with the rates set out in the Work Schedule. COMPANY agrees to invoice CLIENT in such format as CLIENT may reasonably require. All amounts payable by CLIENT shall be due thirty (30) days after CLIENT'S receipt of COMPANY'S invoice and the COMPANY will invoice monthly.
6.2 The amounts calculated in accordance with a Work Schedule are the only amounts payable by CLIENT in respect of the Services, and are inclusive of all taxes, charges, customs and other duties or levies. COMPANY does not charge CLIENT GST.
6.3 Payment by CLIENT to COMPANY of any amounts payable under this Agreement shall be deemed to satisfy the payment obligations owed to COMPANY in respect of the invoice to which the payment relates.
6.4 If CLIENT disputes the whole or any portion of the amount claimed in an invoice submitted by COMPANY, CLIENT will pay the portion of the amount stated in the invoice that is not in dispute and shall notify COMPANY in writing of the reasons for disputing the remainder of the invoice. The dispute shall be resolved in accordance with clause 24.
6.5 If CLIENT fails to pay an invoice on the due date, CLIENT hereby unconditionally agrees to indemnify COMPANY from and against all legal and debt collection costs and disbursements that may be incurred by COMPANY in the collection or attempted collection of monies owing under the relevant invoice.
6.6 For the purposes of the TAX AGENT SERVICES BILL 2009 (TAS Bill) and TAX AGENT SERVICES ACT when the Bill receives Royal assent, the parties agree that COMPANY is not providing tax agent services (as currently defined in section 90-5 of the TAS Bill). COMPANY is providing data entry services for CLIENT so that CLIENT may provide tax agent services to the business structure that the data relates to.
6.7 If CLIENT requires the data to be BAS ready, COMPANY will with the prior written consent of CLIENT forward the relevant files to a third party that is (or will be upon the Act receiving Royal assent) registered as a tax agent.
7.1 All COMPANY personnel are COMPANY'S sole responsibility.
8. INTELLECTUAL PROPERTY
8.1 All property and rights in all data forwarded to COMPANY and all files returned to CLIENT or acquired by the COMPANY during the performance of the Services under this Agreement shall belong to the CLIENT absolutely for its own use and benefit to the exclusion of COMPANY.
9.1 COMPANY shall take all steps necessary to ensure that the COMPANY's Personnel are engaged on the basis that the parties agree ownership of the Service Deliverables as provide in this clause 9.
9.2 CLIENT will be free to use the Service Deliverables as it wishes and it will not be subject to any obligations of confidentiality to COMPANY in respect of it.
9.3 COMPANY agrees to not have any claim over the Service Deliverables and acknowledges that it has no license to use them.
10.1 Neither party may assign any of its rights and/or obligations under this Agreement or any Work Schedule without the prior written consent of the other party.
11. AMENDMENT, MODIFICATION OR WAIVER OF AGREEMENT
11.1 No amendment, modification or waiver of this Agreement or any of its provisions shall be binding upon the parties unless made in writing and signed by both parties. A failure of either party to enforce at any time any of the provisions of this Agreement, or to exercise any option which is herein provided, or to require at any time performance by either party to this Agreement of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions of this Agreement.
12. COMPLETE CONTRACT
12.1 This Agreement and the attached Work Schedules supersede all prior agreements and understandings between the parties for the performance of the Services, and constitute the complete agreement and understanding between the two parties unless modified in writing by both parties.
13. INDEMNITY AND INSURANCE
13.1 COMPANY will indemnify CLIENT, and keep it indemnified, against all losses, damages, claims, costs, expenses, liabilities, proceedings and demands which CLIENT may incur as a result of any claim, demand, action or suit that may be made against it due to COMPANY'S willful act or omission, negligence, breach of any term of this Agreement, or claim by any person that the supply or use of any item relating to the Services which is created, enhanced, developed or modified by COMPANY, the COMPANY personnel or any other person who COMPANY is responsible for or has contracted which infringes any patent, copyright, trade secret or other intellectual property rights. Except in relation to matters relating to COMPANY'S willful acts or omissions, breach of confidentiality or infringement of intellectual property rights, CLIENT agrees that COMPANY will not be liable for any amounts for, any indirect, incidental, consequential or punitive damages of any party, including third parties.
13.2 Without limiting the generality of clause 13, COMPANY agrees to indemnify the CLIENT against any additional costs or expenses should COMPANY fail to meet its legal obligations as an independent contractor.
13.3 COMPANY must take out and maintain for the term of this Agreement adequate insurance in respect of any potential liability, loss or damage arising at law or under any statute in respect of claims for property damage, personnel injury, public liability, workers' compensation and occupational disease for work related injuries or incapacitations and professional indemnity relevant to the performance of its obligations under this Agreement. COMPANY agrees to provide evidence of such insurance to CLIENT upon demand.
14.1 COMPANY shall keep in strict confidence CLIENT'S information, know-how, knowledge, system, technique or business, including the terms of this Agreement and each Work Schedule (Confidential Information), which COMPANY obtained in the course of discharging its obligations under this Agreement, and shall not, whether during the term of this Agreement or after its termination or expiration, disclose or divulge the Confidential Information to any third party without the prior written permission of CLIENT. All Service Deliverables and any items or documents created or developed for CLIENT in the course of performing the Services shall be the Confidential Information of CLIENT.
14.2 COMPANY will:
(a) use the Confidential Information solely for the purposes of carrying out the Services and not for any other purposes or otherwise for the benefit of it;
(b) effect and maintain adequate security measures to safeguard the Confidential Information from access or use by unauthorized persons and to keep the Confidential Information under its control;
(c) not disclose the Confidential Information, or permit the Confidential Information to be disclosed, to any person other than such directors, officers, employees, agents, contracts and advisers who need to know the Confidential Information in order to further the purposes for which the Confidential Information was disclosed, provided that:
(i) it has first advised such director, officer, employee, agent, contractor or adviser of the confidential nature of the Confidential Information; and
(ii) not copy or otherwise duplicate any Confidential Information except for the purposes for which it was disclosed.
14.3 If COMPANY is requested or required by law to disclose any Confidential Information, it will immediately notify CLIENT that a requirement to disclose has arisen by law. COMPANY will allow CLIENT a reasonable opportunity, on COMPANY'S behalf and at CLIENT'S cost (unless the disclosure is required as a result of COMPANY breaching its obligations under this Agreement), to take any lawful action intended to restrict or prevent the disclosure of the particular Confidential Information.
14.4 In the absence of any agreement between parties, COMPANY'S obligations under this Agreement will continue in full force and effect until the Confidential Information enters the public domain other than directly or indirectly through COMPANY'S default under this Agreement.
14.5 COMPANY also acknowledges that its undertakings in this Agreement are in addition to, and do not detract from, the duties of confidentiality which are imposed on COMPANY by law and in equity.
14.6 The confidentiality obligations of this clause 14 do not apply to:
(a) where the information which is in or enters the public domain through no fault of the COMPANY; or
(b) to the extent disclosure is required by law; or
(c) information that the parties agree in writing to release from the terms of this Agreement; or
(d) where the COMPANY can prove that it obtained the relevant information from sources other than the CLIENT or that it otherwise possessed the information prior to the date of this Agreement.
15. RETURN OF CONFIDENTIAL INFORMATION
15.1 If COMPANY completes the Services, or CLIENT requests the return of any Confidential Information, COMPANY will promptly:
(a) return all Confidential Information relating to the relevant Work Schedule (whether documents, reports, exhibits and other papers, and whether on paper or in any electronic information storage and retrieval system or in any other storage medium in its possession or control); and
(b) return any analysis, studies, notes, memorandum or other documents prepared by or for COMPANY which contain or reflect any information in the Confidential Information.
15.2 Upon the return of all Confidential Information, COMPANY will provide to CLIENT a certificate stating that the Confidential Information returned comprises all the Confidential Information in COMPANY'S possession or control.
16. FORCE MAJEURE
16.1 Neither party shall be liable for any delay in meeting, or failure to meet, its obligations under this Agreement or the relevant Work Schedule to the extent that such delay or failure is caused by any event outside its reasonable control (including, without limitation, and delay or failure caused by any act or omission to the other party). If the party is prevented from meeting its obligations under this Agreement or a Work Schedule due to circumstances outside its reasonable control, it shall immediately notify the other of the circumstances and any alternative means for performance of the obligation and consult with the other as to the means, and use its best endeavors, to minimize the effects of its inability to perform its obligations under this Agreement or the relevant Work Schedule.
16.2 If either party is unable for a period of not less than 60 days to perform its obligations under this Agreement or a Work Schedule by reason of any cause outside its reasonable control, the other may, by written notice, terminate this Agreement or the Work Schedule as relevant.
17.1 A notice, consent or approval to be given under this Agreement (Notice) may be given by either party to the other by personally serving it or by sending by post, or by transmitting it by facsimile to the address set out in CLIENT'S registration details or COMPANY'S details as set out in these terms and conditions (or such other address as the party to be notified may advise for the purpose from time to time):
17.2 Any notice or document so given shall be deemed to be given at the time when it was actually delivered, sent by facsimile or within 72 hours after the time it was mailed to the recipient at the respective address set out above.
18.1 Each party warrants that it has the full power and authority to enter into and perform this Agreement and each Work Schedule in accordance with its terms.
18.2 COMPANY warrants that:
(a) all the Services provided by it under this Agreement and each Work Schedule will be performed with due care and skill in a competent and professional manner and in accordance with best practice;
(b) all Services will be performed by suitable personnel who possess suitable skills, education and experience including adequate knowledge;
(c) the Services will be performed so as to meet any requirements specified in the relevant Work Schedule
19.1 A party may, by notice to the other party, terminate this Agreement in accordance with clause 4.1.
19.2 On termination of this Agreement or a Work Schedule, COMPANY will immediately deliver up to CLIENT all property or items CLIENT (or its customers or suppliers) has provided to COMPANY or which are produced by COMPANY and owned by CLIENT, provided CLIENT has paid for Services performed by COMPANY to the termination date of the AGREEMENT.
19.3 Any provisions which by their nature survive termination will survive the termination of this Agreement including without limitation clause 14.
20.1 COMPANY shall not subcontract any of its obligations under this Agreement without CLIENT'S prior written consent.
21. NO WAIVER
21.1 No failure or delay by the parties in exercising any right, power or privilege under this Agreement will operate as a waiver, nor will any single or partial exercise preclude any other or further exercise or the exercise of any right, power or privilege under this Agreement.
22.1 If any provision of this Agreement is held to be invalid, illegal or unenforceable, it will be severed and the remainder of the Agreement will remain in full force and effect.
23. GOVERNING LAW
23.1 The formation, validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Western Australia and each party submits irrevocably to the exclusive jurisdiction of the courts of the above State and where applicable the courts of the Commonwealth of India.
24.1 Any dispute arising out of or in connection with this Agreement which cannot be settled by negotiation between the Chief Executive of each party personally or through nominees within 10 working days of the dispute arising, may be referred to mediation by either party, by notice to the other party setting out a full description of the matter in dispute. If the parties cannot reach agreement within 10 working days after receipt of notice, the dispute will be referred to arbitration. The location for arbitration shall be in Delhi, India. The language of arbitration shall be English.
25. BAR TO PROCEEDINGS
25.1 Client hereby unconditionally agrees that the CLIENT is entering into this agreement with the COMPANY and none of ClickWM ( CWM) nor www.clickwm.com CLIENT hereby unconditionally agrees that is entering into this agreeemnt with COMPANY as a result of their own due diligence and investigations not on any recommendation of any of ClickWM (CWM) or www.clickwmcom This agreement is made between COMPANY and CLIENT and CLIENT unconditionally agrees that none of clickwm ( CWM) or clickwm.com are a party to that agreement. CLIENT agrees that this agreement may be pleaded in bar to any action, suit or proceeding commenced or taken by CLIENT against any ClickWM ( CWM )or clickwm.com in respect to the Services or any associated matter.
CLIENT WORK SCHEDULES
Work Schedule Number 01 - FPO Transaction Processing Services provided on a monthly basis include:
Receipt of client documentation
Based on information received from the client, preparation of monthly journal entries and recording of business transactions into accounting system
Maintaining books of accounts in compliance with GAAP
Retention of accounting documents of current year and submit to Client after completion of tax return by tax accountants
Standard FPO Transaction Processing Reports
Creation and distribution of monthly reports as directed by Client:
Profit and Loss Statement;
Detailed trail balance;
List of Journals;
Bank Reconciliation Reports.