Outsourcing Terms and Conditions

Article 1. Application of the General Terms and Conditions

1.1 These General Terms and Conditions apply to all offers made by and all agreements with Prospera Infotech Pvt Ltd (“Prospera Infotech”), regardless of any contradictory conditions stated on the customer’s documents. By placing an order, the customer automatically agrees to Outsource’s General Terms and Conditions.

Article 2. Offers, quotations, orders and order confirmations

2.1 All offers and quotations issued by Outsource are non-binding until the moment upon which they are accepted by the customer. The agreement shall become effective as soon as the customer has returned the quotation, signed for agreement and unamended, to Outsource within 30 days. All orders placed by or order confirmations issued by the customer will bind the customer to the agreement. The agreement shall replace all previously concluded verbal and/or written agreements on the same subject (“Project”). The execution of the Project shall commence upon receipt of the signed agreement.

2.2 All changes in scope during and/or after the Project will be carried out on an hourly basis in accordance with the hourly rates applicable at that time, unless explicitly agreed otherwise.

Article 3. Cancellation of an order

3.1 The customer shall only be entitled to cancel an order if Outsource has not yet embarked upon the execution of the Project. Cancellation is only possible by registered letter with proof of receipt. In the event of cancellation, Outsource will attempt to keep further costs to a minimum, but will in any case claim payment for all expenses and commitments already made.

Article 4. Provision of services and implementation periods

4.1 Implementation periods are merely indicative and are not binding upon Outsource. Any delay in the delivery of the Project will neither entitle the customer to compensation for damage or a price reduction, nor to cancellation of the agreement.

4.2 If the parties have explicitly agreed to a binding delivery period, this period can be extended if the customer remains in default of its obligation to provide information, documents, originals or images (in due time) and to accept the corrected proofs (in due time), or if the customer places additional orders.

4.3 The agreement shall be terminated, by operation of law and without further notice of default required, in the event of the death, obvious incapacity, dissolution or bankruptcy of the customer.

Article 5. Risk

5.1 All goods belonging to the customer that are retained by Outsource will be stored at the Outsource premises at the customer’s risk.

Article 6. Prices

6.1 The prices as proposed are exclusive of VAT. Each Project is calculated on the basis of its run time, level of difficulty and urgency, and is the subject of a detailed written price quotation drawn up in advance.

6.2 All other activities that fall beyond the scope of this contract shall be the subject of a separate quotation and will also be invoiced separately.

6.3 All activities invoiced to Outsource by third parties within the context of the execution of the Project for the customer are subject to a surcharge (the “Service Fee”) of 15% additional to the amount stated on the supplier’s invoice as a standard, with the exception of the purchase of media slots, as stated in Article 6.4.

6.4 Where media slots are purchased by Outsource on the customer’s behalf, Outsource charges a Service Fee of 15% as a standard on the official price of the media slot, and not on the price following negotiations. The customer will be informed of both prices.

Article 7. Invoicing conditions

Outsource applies various invoicing options:

7.1 If the customer has agreed to a fixed price with Outsource (the “Fixed Price”), Outsource will invoice part of the total budget each month, for the coming month and on a pro rata basis calculated over the duration of the Project.

7.2 If Outsource supplies services to the customer on a time and materials basis (“Time and Materials”), Outsource will invoice each month for the work performed and all the expenses incurred with the customer’s consent within the context of the Project.

7.3 If the Project requires a financial commitment from Outsource vis-à-vis third parties, Outsource retains the right to invoice this amount to the customer immediately when placing the order, separately from the monthly invoicing. This is irrespective of whether the project is based on the Fixed Price or Time or the Materials principle, and taking into account the Service Fee as referred to in Article 6.

7.4 If the customer uses a system involving purchase orders (“Purchase Orders”), it will provide Outsource with these references on time. If the customer remains in default, Outsource will be entitled to send the invoice stating only the name of its contact person and a brief description of the Project as the reference.

Article 8. Terms and conditions of payment

8.1. Unless explicitly agreed otherwise, invoices from Outsource are payable in cash within 30 days. Notification of any disputes must be made to Outsource by registered letter within 15 business days of sending the invoice. Under no circumstances can a dispute justify a postponement or suspension of payment.

8.2. All invoices are payable on their expiry date by bank transfer to Outsource’s account. Any person or company that places an order with the request to invoice a third party is personally responsible for the payment of the invoices. Discounts granted expire if the general terms and conditions are not met.

8.3. If the customer does not proceed to make the payment within eight (8) days following receipt of a warning to do so by Outsource, the customer will owe Outsource negligence interest at the interest rate set in Article 5 of the Law of 02 August 2002 on Combating Late Payment in Commercial Transactions, plus a fixed sum of EUR 40 to cover the cost of debt collection. Likewise, a fixed-rate compensation for damage of 10% of the invoice amount will be charged, to which a minimum of EUR 125 applies. The interest owed is calculated from the date on which the warning was issued until the amount is paid in full. Moreover, Outsource reserves the right to suspend the further fulfilment of its obligations until the customer has paid the overdue invoices. Any delay in payment by the customer renders all sums owed immediately payable. In that case, the customer will no longer be entitled to use the Outsource creations.

8.4 Projects that are suspended at the order of the customer will never give rise to a suspension of payment.

8.5 Outsource is entitled to terminate the contract with immediate effect and/or to block access to the services, in full or in part, temporarily or otherwise, if the customer fails to comply, in full or in part, with one or more of its obligations arising from this agreement (such as non-payment of an invoice) without the customer being able to claim a refund for advance payments or any compensation for damages. Outsource will in all cases inform the customer of this. Furthermore, Outsource is legally entitled to terminate the agreement without further notification, by operation of law and with immediate effect, if the customer is declared in a state of bankruptcy, if the customer has requested or accepted a settlement plan, or more generally if the customer is in a state of suspension of payment.

Article 9. Targets and liability

9.1. Outsource is committed to carrying out all the services to be rendered with care. All Outsource’s activities are obligations to perform to the best of its ability. Outsource is not liable for errors in implementation to be attributed to insufficient or incorrect input provided by the customer.

9.2. Outsource cannot be held liable for any errors (including serious errors) made by itself or its employees, except in the case of fraud. Outsource cannot be held liable, whatever the cause, form or subject of the claim for which liability is invoked, for any consequential loss, such as loss of expected profits, a drop in turnover, increased operational costs, or loss of customers, which the customer or third parties claim to have suffered as the result of any error or negligence on the part of Outsource or an employee.

9.3. Outsource’s liability with respect to the services provided to the customer is, in any event, limited to either the refund of the price paid by the customer or a renewed provision of its services again, at the discretion of Outsource. Outsource’s total liability shall never exceed the price that paid to Outsource by the customer for the services that led to the damage claim.

9.4. With regard to services provided by third-party suppliers, Outsource does not accept any liability whatsoever above or beyond the liability that the third-party suppliers are prepared to accept for their products or services.

Article 10. Intellectual property rights

10.1 Outsource acknowledges that all information originating from the customer remains the property of the latter, and will be returned upon termination of the sales agreement – insofar as there are no outstanding invoices – without having retained a copy of it.

10.2 The parties explicitly agree that all information and products created by Outsource and all intellectual property rights linked to these are and will remain the property of Outsource, even following termination of this agreement.

Article 11. Suspension and termination of the agreement due to non-fulfilment

11.1 If a party is guilty of serious non-fulfilment of the agreement and fails to correct this within 14 days of receipt of a notice of default sent by registered letter, the other party has the right to either (i) suspend the contract until the first party has met its obligations or (ii) terminate the contract with immediate effect. Outsource shall always consider non-payment of one or more invoices by their expiry date as serious non-fulfilment of the agreement.

11.2 Upon termination of the agreement due to non-fulfilment, Outsource will automatically claim payment for all expenses and commitments already incurred, plus a fixed-rate compensation for damages equal to 30% of the amount that Outsource could have invoiced to the customer in the future if the agreement had been performed in full. Any advance payment made will in any case be retained by Outsource. Moreover, Outsource reserves the right to demand a higher compensation amount if it can prove that the damage it has effectively suffered is greater than the fixed-rate damage determined above.

11.3 Nonetheless, each party agrees to allow the other party a reasonable period in which to resolve its shortcomings and always to begin by seeking an out-of-court settlement.

Article 12. Confidentiality

12.1 The Parties are bound to maintaining confidentiality with regard to the commercial and technical information and professional secrets they learn from the other party, even following termination of the agreement, and only to use these exclusively for the execution of the agreement.

Article 13. Employee poaching

13.1 The customer will not take into service any employees who are entrusted by Outsource with the execution of any Projects for the customer, whether through an employment contract or otherwise, or who terminated their employment with Outsource less than six (6) months ago.

13.2 The Parties agree that a violation of Article 13.1 gives Outsource the right to compensation for damages from the customer.

13.3 With regard to employees, the compensation for damages referred to in Article 13.2, will equal the gross annual salary that was paid by Outsource to the person concerned upon their having been taken into employment by the customer, or the amount that would have been paid on a pro rata basis. This includes fringe benefits and is calculated on the basis of the relevant employee or ex-employee’s most recent pay slip.

13.4 With regard to freelance and self-employed workers, the compensation for damages as referred to in Article 13.2 is equal to the gross payment (including benefits) made to them by Outsource in the twelve (12) months prior to their being hired or the termination of the cooperation contract. If the freelance or self-employed worker’s contract runs or has run for less than twelve (12) months, the compensation for damages is extrapolated to a gross payment (including benefits) that Outsource would have paid to them if the cooperation had effectively lasted for twelve (12) months.

13.5 This clause and all its sections are applicable until eighteen (18) months following the termination of the Projects executed by Outsource for the customer.

Article 14. Processing of personal information

14.1. Within the context of the services provided to the customer, Outsource processes personal data belonging to the contact persons put forward by the customer. The contact details of these persons are processed for the purpose of ‘customer management’, i.e. to contact the customer with respect to the services. The contact persons have the right to access and update their data in accordance with the Belgian law of 8 December 1992 on the protection of privacy in relation to the processing of personal data and the General Data Protection Regulation (‘GDPR’) as adopted by the European Parliament on 14 April 2016 (Regulation (EU) 2016/679). These data are only stored for the duration of the collaboration between Outsource and the customer.

Article 15. Reference

15.1 The customer consents to the inclusion of the project implemented by Outsource on its behalf in the portfolio maintained by Outsource for the purpose of providing customer references.

Article 16. Force Majeure

16.1. Situations of force majeure, such as strikes, public unrest, administrative measures and other unexpected events over which Outsource has no control, will release Outsource from its obligations for the duration of the nuisance and for as far as it extends, without any right on the part of the customer to a reduction in price or compensation for damages.

Article 17. Invalidity

17.1. If any clause of these General Terms and Conditions is invalid, the remaining clauses shall remain fully applicable and Outsource and the customer shall replace the invalid clause with another clause that reflects the purpose and purport of the invalid clause as closely as possible.

Article 18. Applicable law – competent court

18.1. Indian law shall apply to Outsource’s contracts. Any dispute with regard to the conclusion, validity, execution and/or termination of this agreement shall be settled by the competent court in Kerala, India.