Contracts with Terralogic and its affiliates (“Terralogic/Lollypop”) are subject to the following terms and conditions (“T&C”), which are incorporated for all purposes into the proposal to which they are attached. 

1. Binding Acceptance

1.1. By executing any proposal that references these T&C, the Customer expressly agrees to be legally bound by, and adhere to, all terms and conditions set forth herein. In the event of a conflict between any attached proposal and this T&C to proposal, this T&C shall govern. Any term or condition of any attached proposal that is not superseded by a term or condition of this T&C shall remain in full force and effect.

1.2. The definitions set below have, for the purpose of these terms and conditions following meaning:

• T&C – means these Terms and Conditions.
• Customer – means an individual conducting business or a legal entity entering into a proposal with Terralogic.
• Deliverables/Service – means any service or its part provided under a specific proposal.
• Fixed Price – means the specific fees set forth in a proposal and such fees shall apply for the Services or Deliverables to be provided under such proposal, regardless of the time it takes to perform the Services and/or provide the Deliverables. Any change in the proposal shall be mutually agreed upon. Customer shall pay the consideration for the Services upon completion of pre-defined milestones as detailed in the relevant proposal.
• Time and Materials – means projects that are either (i) paid on an hourly, weekly or monthly rate basis as detailed in proposal; and not paid on a project basis, or (ii) paid on an hourly, weekly or monthly rate basis as detailed in proposal; where payment is not tied to the acceptance of Deliverables.

1.3. The T&C is concluded either:

1. on the day of signature by both Parties (especially for all Services offered with custom settings);
2. online via acceptance through the web interface.

2. Project Management

Terralogic shall not be required to commence work unless a proposal is duly executed by authorized signatories of each Party. In the absence of a Change Order signed by the Parties, Terralogic shall not be bound to perform any additional or out of scope services beyond what is stated in any attached proposal. The Parties agree to negotiate all Change Order requests expeditiously and in good faith

3. Acceptance

3.1. Fixed Price Contracts. Unless a different time is specified in the proposal, Customer will evaluate the Deliverables for compliance with the Acceptance Criteria described in the Statement of Work and shall submit a written acceptance or rejection to Terralogic within fifteen (15) days after the delivery of the Deliverables (“Acceptance Period”). In the event that Customer fails to either accept or reject the Deliverables in writing within the Acceptance Period, such Services will conclusively be deemed accepted by Customer.

If the Deliverables fail to materially conform to the specifications provided by Customer and if such failure is the sole fault of Terralogic, Customer may reject such Deliverables; provided, however, Customer immediately notify Terralogic in writing of such rejection. Terralogic shall thereafter use commercially reasonable efforts to correct such material errors within ten (10) business days following receipt of notice of such rejection from Customer. If Terralogic subsequently delivers corrected Deliverables to Customer, Customer shall have ten (10) business days from the date of receipt of the corrected Deliverables to reevaluate and accept or reject the services in writing. If Terralogic is unable to cure such material defects within ten (10) business days, Customer may, at its sole option upon written notice to Terralogic terminate the applicable Statement of Work or extend the Acceptance Period to a mutually agreeable date. In the event that Customer fails to either accept or reject the corrected Deliverables in writing within the said ten (10) business day period, such Services will conclusively be deemed accepted by Customer.

3.2. Time and Material Projects. For Services performed on a “Time and Materials” basis, the Customer’s signature on the time card or the payment of a Time and Materials invoice, as the case may be, shall be deemed Acceptance for the purposes of this section.

If the services are rejected, Customer shall in such event, at its sole option upon written notice to Terralogic, have the right to (i) terminate the applicable Statement of Work or (ii) extend the Acceptance Period to a mutually agreeable date.

4. Price, Payment, and Tax

4.1. Price. Terralogic will bill in accordance with the rates set forth in the applicable proposal. The rates will be valid for the term of the respective proposal and shall be subject to adjustment by Terralogic at the end of such period(s) as may be agreed to between the Parties. Terralogic’s fees exclude project-specific expenses (e.g., travel), which will be pre-approved by the Customer in writing.

4.2. Payment. Invoices are due and payable within thirty (15) days of the date of the invoice. Invoices shall be deemed to have been accepted if the Customer does not furnish a written objection specifying the nature of the dispute within seven (7) days from the date of receipt of the invoice.

4.3. Delays in payment/Non-payment. Past due invoices are subject to finance charges at 1.5% per month (18% per annum), or the maximum amount permitted by law, whichever is less, until paid. Furthermore, if Customer is late with payments, Terralogic shall send a written notice to Customer conveying the default. Customer shall be entitled to a ten (10) day period to cure the default (“Cure Period”). In the event Customer continues to remain in default at the end of the Cure Period, Terralogic may without any further notice to Customer: (a) stop all Services under active proposal until assurances of payment satisfactory to Terralogic are received or payment is received, (b) demand prepayment for Services or purchase orders; (c) retain all work in progress until all outstanding invoices are paid in full.

4.4. Tax. All Terralogic fees are exclusive of all taxes. Customer shall be liable and will pay for all applicable tax liabilities such as sales, services, use, or value-added taxes.

5. Term and Termination

5.1. Term. These T&C shall remain in effect for as long as there is an active proposal between the parties.

5.2. Termination. Either Party may terminate proposal (i) at any time upon thirty (30) days prior written notice to the other Party, or (ii) immediately, in the event that the other Party is in material breach of proposal and such material breach has not been cured within seven (7) days after written notice thereof to such other Party. Except as otherwise specifically provided for herein and without prejudice to any other claims or rights, in any event, Customer shall be required to pay to Terralogic any unpaid portion of the fees which already become due prior to the termination of the proposal. The termination of a proposal on account of the other Party’s breach shall not limit any other rights or remedies available to the terminating Party.

If either Party is unable to pay its debts generally as they come due, or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment of the benefit of all or substantially all of its creditors, or enters into an T&C for the composition, extension or readjustment of all or substantially all of its obligations, then the other Party may, by giving prior written notice thereof to such Party, terminate proposal as of a date specified in such notice of termination.

6. Indemnification

6.1.  Each Party (the “Indemnitor” as applicable) shall indemnify, defend, and hold harmless the other Party (the “Indemnitee” as applicable) and its officers and directors, employees, agents, and representatives from and against any damages, costs, attorneys’ fees, penalties, fines, liabilities, or expenses that arise from third Party actions or claims against the Indemnitee (collectively, “Losses”), to the extent proximately caused by:

1. Indemnitor’s gross negligence resulting in death or injury to persons;
2. damage to tangible property;
3. a violation of applicable laws;
4. breach of any representations, warranties, or covenants in the  proposal;

6.2. Promptly after an Indemnitee receives notice of any claim for which it would seek indemnification pursuant to any attached proposal, the Indemnitee will promptly notify the Indemnitor of the claim in writing. No failure to notify the Indemnitor will abrogate or diminish the Indemnitor’s obligations under this Section if the Indemnitor has or receives knowledge of the claim by other means or if the failure to notify does not materially prejudice its ability to defend the claim. The Indemnitee shall have given authority to the Indemnitor to defend or settle such request or claim and also give reasonable assistance and information (at the Indemnitor’s request and expense) in the defense of the same. Neither Party will settle any claim for which it indemnifies the other Party without the permission of the other Party if the terms of the settlement would require such other Party to pay money or admit liability.

6.3.  The indemnity obligations set forth in this Article are in lieu of any other liability, whether or not based on indemnity or warranty, express or implied, with respect to intellectual property

6.4.  Notwithstanding any provision of the proposal, Indemnitee shall not have any indemnity obligations for the portion of the losses which was caused by or contributed to by the wrongful act or omission or breach of the terms of any attached proposal by the Indemnitor.

7. Limitation of Liability

7.1.  Notwithstanding anything to the contrary elsewhere, neither party shall in any event, regardless of the form of claim, be liable for (1) any indirect, special, collateral, exemplary, punitive, indirect, incidental, or consequential damages (including, without limitation, loss of goodwill, loss of profits or revenues, loss of savings, loss of use, interruption of business, and claims of customers), whether such damages occur prior or subsequent to, or are alleged as a result of, tortious conduct or breach of any of the provisions of any attached proposal, even if either party has been advised of the possibility of such damages; or damages relating to any claim that accrued more than one (1) year before the institution of adversarial proceedings thereon.

7.2. Subject to the above and notwithstanding anything to the contrary stated elsewhere, the maximum aggregate liability of Terralogic with respect to any of the services covered by or furnished under or in connection with any attached proposal, shall be, regardless of the form of claim, the consideration received by Terralogic for any attached proposal to which the claim relates.

8. Disclaimer of Warranty

Except as specifically set forth herein, Terralogic assumes no liability or warranties (express, implied, or statutory) for the service or its components, including any warranties for a specific purpose or non-infringement. The customer is not relying on any representations or promises not explicitly stated in any attached proposal. The offer does not guarantee the System’s suitability for the Customer’s purposes or its ability to achieve intended results.

9. Force Majeure

If the whole or any part of the performance by either Party of its obligations under this T&C is prevented, hindered or delayed or otherwise made impracticable by reason of any event beyond the reasonable control of such Party including but not limited to strikes, labor disputes, floods, fires, accidents, earthquakes, riots, explosions, wars, hostilities, acts of government or other cause of like or different character beyond the control of either Party (“Force Majeure Event”), the Party whose performance is thus prevented, hindered or delayed shall be excused from such performance during the continuance of the Force Majeure Event and for so long as the Force Majeure Event shall continue to prevent, hinder or delay such performance. In the event of a Force Majeure, the Parties shall immediately consult each other to find an equable solution and shall use all reasonable effort to minimize the consequences of the event of Force Majeure.

10. Non-solicitation and Non-hire

Customer shall not during the term of attached proposal and for one (1) years after the expiry or termination thereof, (i) solicit, encourage or attempt to solicit or encourage any employee or contractor of the Terralogic to terminate such work relationship, (ii) solicit, encourage or attempt to solicit or encourage any employee or contractor of Terralogic to be employed by or provide services to any person or entity other than Terralogic, or (iii) hire, employ or engage any employee or contractor of Terralogic to work for a person or entity other than Terralogic.

11. Intellectual property rights

11.1. Upon receipt of full and final payment, Terralogic will convey to Customer good and marketable title to the Work Product/Deliverables/Service, free and clear of all liens, claims, and encumbrances to its knowledge and belief

11.2.  Notwithstanding anything stated herein, Terralogic shall retain full ownership of its pre-existing intellectual property, know-how, processes, and methodologies (“Terralogic IP”). All residual knowledge and intellectual property which is used in, enhanced or developed during the Services which is of a general abstract character, or may be generically re-used, Terralogic shall own and continue to own all such materials including all methodologies, delivery procedures, manuals, generic software tools, routines, libraries, templates, quality processes and testing procedures, developed in work outside of that contracted for by Customer. Terralogic shall own and continue to own all Terralogic IP and any methodologies, generic routines, libraries, quality processes, and testing procedures developed by Terralogic during the term of the proposal at its own expense and initiative.

Each Party owns, and will continue to own all right, title and interest in and to any inventions, however embodied, know how, works in any media, software, information, trade secrets, materials, property or proprietary interest that it owned prior to proposal, or that it created or acquired independently of its obligations pursuant to proposal (collectively ”Retained Rights”). All Retained Rights not expressly transferred or licensed herein are reserved to the respective owner.

11.3. Notwithstanding the above, Terralogic shall have the permission to use Customer’s name and logo in identifying Customer as a customer of Terralogic in announcements intended solely for internal distribution or in any disclosure required by legal, accounting or regulatory requirements and/or in any promotional or marketing materials, web sites, customer lists, referral lists or business presentations.

12. Confidentiality

12.1. “Confidential Information” shall mean and include any and all information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in a written or other tangible form which shall be clearly marked as being “Confidential” or “Proprietary” (or words of similar connotation) at the time it is provided to the Receiving Party or otherwise by its nature proprietary and confidential. Oral information shall not be deemed Confidential Information unless it is (a) designated as Confidential or Proprietary by the Disclosing Party at the time of the oral disclosure, and (b) summarized and identified as being Confidential or Proprietary in writing, which shall be received by the Receiving Party within thirty (30) days after such oral disclosure.

12.2. The Parties agree to treat and maintain as confidential and proprietary all Confidential Information furnished by the other Party pursuant to or in connection with any attached proposal to the same extent and with the same degree of care as it uses in handling its own confidential and proprietary information of similar nature (but with not less than a reasonable degree of care), and further agree not to use such Confidential Information for any purpose other than the performance of any obligation under any attached proposal. Neither Party shall use such Confidential Information for commercial purposes except as herein provided and shall not disclose any Confidential Information to anyone other than its employees who have a need to know the Confidential Information in the performance of proposal. The foregoing provisions shall not apply to any information that, (i) prior to disclosure by the Disclosing Party, the information was known or becomes generally available in the industry due to reasons other than by unauthorized disclosure, (iii) is legally furnished to the Receiving Party by a third Party without restriction, or (iv) was or is developed by the Receiving Party independently without any use of any of the Confidential Information. The Receiving Party’s obligation under this Article shall survive any termination or expiration of any attached proposal and shall extend for three (3) years following the termination or expiration of such attached proposal.

13. Specialized Equipment and Software;Terralogic

Proprietary Software

13.1. Customer and Terralogic may jointly identify certain hardware and software as necessary for a Statement of Work, which hardware and/or software shall be either provided by Customer or purchased by Terralogic, with the cost to be reimbursed by Customer (“Specialized Equipment and Software”). Such purchases will be agreed to in writing by the Parties in the applicable Statement of Work, and the Specialized Equipment and Software shall be used by Terralogic for the sole purpose of executing projects for the Customer.

13.2. When a Statement of Work requires the purchase of Specialized Equipment and Software, Terralogic agrees to safeguard the Specialized Equipment and Software while in Terralogic’s possession and ensure that the Specialized Equipment and Software is handled properly and returned safely, subject to normal wear and tear, at the end of the project (or term if used for multiple proposal) at Customer’s expense.

13.3. If necessary, Customer shall provide Terralogic an initial set of Customer proprietary software tools (hereinafter “Customer Proprietary Software”). Customer will further provide Terralogic with access to and the necessary rights to operate, modify, and enhance its Customer Proprietary Software, as necessary for Terralogic to perform its obligations under the T&C. The list of Customer Proprietary software will be as agreed in the specific proposal(s). The Customer will pay any license, maintenance, access, or other fees associated with obtaining rights to Customer Proprietary Software. If additional data, software, equipment or documentation is required to be provided by Customer to Terralogic for the execution of the proposal, Customer shall provide the same to Terralogic by the dates set forth in the executed proposal.

13.4. In all cases, Terralogic shall not be liable for any damages or costs resulting on account of malfunctioning, defect, infringement of any patent, copyright, or other intellectual property rights of any third party in regard to Customer Proprietary Software or any Specialized Equipment and software.

13.5. To the extent Terralogic is requested to purchase any Specialized Equipment and software, Customer must pre-approve the purchase prior to Terralogic incurring any expenses. Terralogic will invoice the actual cost towards reimbursements at any time, and the Customer shall make the payment within 15 days from the date of the invoice. Notwithstanding the foregoing, Terralogic shall not be obligated to purchase any Specialized Equipment and software. Customer understands that any delays in providing these materials can (i) adversely affect agreed-upon schedules and milestones, (ii) prevent Terralogic from timely meeting its commitment dates, and (iii) may increase the costs associated with the applicable proposal. Any delay caused by Customer’s failure to timely supply any required additional data, software, equipment, or documentation will not, in any way, be treated as by Customer as a breach by Terralogic of its obligations.

13.6. Terralogic’s failure to perform its contractual responsibilities, to perform the services, or to meet agreed service levels shall be excused if and to the extent Terralogic’s non-performance is caused by Customer’s failure to provide Specialized Equ

13.7. Terralogic shall arrange and pay for maintenance and insurance for Specialized Equipment and Software purchased by Terralogic and charged to Customer, or purchased and provided by Customer, as the case may be. Customer shall reimburse Terralogic for all such hardware and software maintenance and insurance expenses at the rate set forth in the applicable Statement of Work, or otherwise as mutually agreed in writing by the Parties. Costs of any special voice or data telecommunication will be paid for by the Customer.

14. Applicable Law and Jurisdiction

These T&C and any attached proposal shall be governed by the laws of [the US/ India]¹, without regard to conflicts of laws. Any disputes will be resolved under the personal and exclusive jurisdiction of the court in [Texas, US/Bangalore/India]².

15. Settlement of disputes

15.1. The Authorized representatives of both Parties shall use commercially reasonable best efforts to settle disputes in good faith related to the attached proposal within 30 (thirty) days of notice of a dispute by a Party.

15.2. In the event such Parties are unable to resolve a dispute within such 30 day period, senior management of either Party shall, upon the request of the authorized representatives, utilize a non-binding resolution procedure whereby each presents its case before a panel consisting of two senior executives of each of the Parties and a mutually acceptable neutral advisor. The hearing shall occur no more than ten (10) business days after receipt of such request by the authorized representative(s).

15.3. If the matter cannot be resolved by such senior executives within 60 days, the neutral advisor may be asked to assist such senior executives in evaluating the strengths and weaknesses of each Party’s position on the merits of their dispute. The Parties shall each bear their respective costs incurred in connection with the procedure set forth in this clause, except that they shall share equally the fees and expenses of the neutral advisor, if any, and the cost of the facility for the hearing

15.4. If the Parties have not been successful in resolving a dispute related to any attached proposal or its breach through the steps defined above, it will be resolved by arbitration. The arbitration will be held in [the US/India]³ and conducted in the English language. The Parties to the dispute will instruct the Arbitrator to render a decision within 30 days of the date of appointment.

1.The jurisdiction and arbitration for this agreement will be in either India or the US, and will be determined based on the specific Terralogic/Lollypop affiliate clarified in the proposal.

2.ibid

3.ibid

16. Waiver

The failure to exercise or delay in exercising a right or remedy under this T&C shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this T&C shall prevent any further exercise of the right or remedy or the exercise of any right or remedy.

17. Severability

The illegality, invalidity, or unenforceability of any provision or term of this T&C for any reason whatsoever shall not affect the validity of any other provisions or terms of this T&C, and the illegal, invalid or unenforceable provision or term shall be severable from this T&C and shall be deemed deleted from this T&C.

18. Publicity

Neither Party shall, without the express written consent of the other Party, divulge the terms of the T&C or make any public statement about the specifics of the Services performed/Products licensed under the T&C to any third party.

19. Entire agreement

These T&C are non-assignable by the Customer and constitute the entire understanding between the parties, with no representations valid unless specified herein; any amendments or waivers must be in writing. These T&C and any attached proposal shall be considered one, fully integrated document. The termination or expiration of any shall not impair any Party’s then accrued rights, obligations, liabilities, or remedies. Notwithstanding any other provisions of any attached proposal to the contrary, the terms and conditions of this T&C which by their nature ought or intend to survive the termination/expiry of any attached proposal including without limitation to Articles or any other articles which shall by its nature ought to survive, shall survive the termination/expiry of any attached proposal.