Terms & Conditions – Encore Soft Solution

General Terms and Conditions of Business (GTC)

Encore Soft Solution

These General Terms and Conditions (“GTC”) govern the provision of services by Encore Soft Solution. By using the services, you agree to these terms.

Art. 1 Validity of these General Terms and Conditions of Business

Encore Soft Solution (hereinafter referred to as “Service Provider”) shall provide services to its contractual partners (hereinafter referred to as “Client”) solely on the basis of these General Terms and Conditions of Business (hereinafter referred to as “GTC”).
These GTC shall be deemed to have been accepted by the Client upon it making use of the Service Provider’s services for the first time. The acceptance of contrary stipulations made by the Client on the basis of its own terms and conditions of business is herewith excluded, even if the Service Provider does not reject them explicitly.
Deviations from these GTC shall only be valid if these have been explicitly notified in writing to the Client.
The Service Provider primarily provides services to business customers. The Service Provider reserves the right to request confirming evidence of business status.

Art. 2 Scope of services

The Service Provider reserves the right to extend and modify its services, and to make improvements, insofar as no contractual main obligation is affected. The Service Provider shall specifically be entitled to modify its services if such modifications are made in accord with standard industry practice in India or technical progress, or if obliged to make such modifications as a result of amendments to legal frameworks or relevant jurisdiction. Appropriate consideration will always be given to the interests of the Client.
The alteration of norms, addresses or other technical standards shall have no influence on the corresponding contract.
Where the Client has been provided with fixed IP addresses the Service Provider reserves the right to change the IP address(es) allocated to the Client, should this become necessary for technical or legal reasons.
The Client is not entitled to a particular server unless expressly assured in writing. The Client is aware that it may be necessary in the normal course of business to migrate the Client to another server without prior approval in line with applicable laws. The Service Provider will inform the Client about such changes according to this clause.
Subject to an expressly deviating agreement, the Service Provider provides its services with an availability of 99.0% in the monthly mean. Availability is calculated on the basis of the time attributable to the respective calendar month in the contract period minus Maintenance. The Service Provider will carry out maintenance work during off-hours where possible (“Maintenance”). During Maintenance services provided by the Service Provider may be limited or unavailable.
Given the current state of the art, it is not possible to create hardware and software that functions flawlessly for all combinations of applications or that can be protected against any and all forms of manipulation by third parties. The Service Provider gives no guarantee that the hardware and software it provides will meet the requirements of the Client or that it is suitable for certain applications or that the hardware and software will permanently function (e.g. without regular service). The Service Provider ensures that the hardware and software function essentially in accordance with the manufacturer’s specification under customary operating conditions and with customary maintenance; this shall in no case relieve the Service Provider of his main contractual obligations.

Art. 3 Responsibilities and obligations of the client

The Client is required to use the contractual services according to the contract and applicable laws and regulations in India. The Client is specifically required to prevent the misuse of access to any contractual services, and to refrain from conducting unlawful activities over the Internet.
The Client shall ensure that the information he provides is correct and complete. The Client undertakes to immediately inform the Service Provider of any and each change to the contact details provided, and of any other data that is necessary for fulfilling the contract.
The Client assumes all responsibility for contents published through their account. If the Service Provider discovers that content is being published that is unlawful in India or other applicable regions (especially including the physical location of the server), the Service Provider is entitled to block this content.
The Client will in particular not use the contractual services in a manner that:
- Is illegal, or promotes or encourages illegal activity;
- Promotes, encourages or engages in child pornography or the exploitation of children;
- Promotes, encourages or engages in terrorism, violence against people, animals, or property;
- Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- Disables third party computer systems by sending/forwarding data streams and/or e-mails (e.g. DoS/DDoS attacks/spam/mail-bombing);
- Searches for open ports (access) to third party computer systems (e.g. port scanning);
- Falsifies IP addresses, mail and news headers or disseminates malicious software;
- Promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
- Promotes or facilitates human or sex trafficking;
- Infringes on the intellectual property rights of third parties;
- Violates the privacy or publicity rights of third parties or persons, or breaches any duty of confidentiality owed to any other third party;
- Uses technologies that place excessive stress on the Service Provider’s installations;
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware.
The Service Provider shall be entitled to block websites, products or accounts that it reasonably suspects contain any contents/technologies that violate the contract or applicable laws and regulations, particularly a violation against the above listed cases. It is at the equitable discretion of the Service Provider to additionally hold back the provision of all contractual services with immediate effect until the Client has positively ceased/canceled the violations. If possible, the Client will be notified of any of the above-named actions within a reasonable period prior to shutdown, unless a violation is imminent. In the latter case, the Client will be informed immediately after the action taken.
Service Provider expressly reserves the right to assert claims for damages. In such event of the temporary blocking/holding back of contractual services according Art. 3 Sec. 5, the Client’s obligation to pay the agreed fees shall not be affected.
The Client shall use the Service Provider’s server and the software stored on it at their own risk. Client shall be solely responsible for administration of the server, unless specific managed services are agreed upon. Service Provider shall not be obliged to proactively manage any part of the server, except installation of security updates for provided software/hardware or upon specific instruction/order by the Client under a managed service agreement. The Client therefore has sole responsibility for its content and the technical security of the server. The Client is responsible for installing security software, informing themselves regularly about security vulnerabilities that become known and for removing such vulnerabilities. If the Service Provider makes security or maintenance software available this shall not release the Client from their own responsibilities in this respect. The Client undertakes to set-up and manage their server such that security, integrity, network availability, other servers and the software and data of third parties and of the Service Provider are not put at risk.
The Client shall, on a regular basis (preferably daily) as well as before making major changes, make/have made backup copies of all data transferred to the Service Provider’s server. These backups must not be stored on the same server, in order to ensure the rapid and cost-effective recovery of the data in the event of a system failure. In the event of data loss, the Client shall re-upload the affected data files to the Service Provider’s server and restore the configurations free of charge.
The Client shall be liable for all damages that arise for the Service Provider and third parties as a result of culpable breach of duty of the Client.
The Client is in particular liable for any damages the Service Provider or others incur caused by the Client’s account, whether caused by the Client themselves or by an authorized person executing obligations to the Client, or by an unauthorized person unless the Client proves that they are not responsible for the unauthorized access.
The Client will indemnify and hold harmless the Service Provider against possible claims that may be lodged against the Service Provider by third parties as a result of illegal or non-compliant activities on the part of the Client, specifically in relation to data confidentiality, copyright, intellectual property, or competition laws, and shall bear all associated costs of the claim, including reasonable attorney’s fees, for defense or remedial action.

Art. 4 Provision of services, acceptance of services, support and SLA

The contract shall become valid upon acceptance by the Service Provider. The contract will either be expressly accepted or shall be deemed to be accepted as a result of the Service Provider commencing performance of the service.
Any delivery dates or other times mentioned are non-binding estimates only, except where explicitly agreed between the parties in writing.
Where the provision of materials or services is delayed as a result of force majeure or other events that the Service Provider is not responsible for and significantly interfere with or make impossible the provision of the contractual services, the Service Provider shall not be required to comply with agreed deadlines and periods. In such cases, the Service Provider shall be entitled to postpone the provision of the materials or services for as long as the cause of hindrance is in place, plus an appropriate period of grace.
If the Service Provider is unable to provide the services in question by an agreed deadline, the Client must grant an appropriate period of grace, and shall only be entitled to terminate the contract if the Service Provider fails to provide the services prior to termination of this period of grace.
The Service Provider shall only be under obligation to provide the Client with technical support in line with the contractually agreed services. The Service Provider is not obliged to provide the Client with any additional support services free of charge. The Service Provider shall not provide direct support for the Client’s customers unless otherwise agreed in writing.
The Service Provider may offer a Service-Level-Agreement (“SLA”) to its customers. Should the parties agree on such SLA, the terms of the SLA shall become part of the contract. The Client may have additional rights from the SLA to claim credits. Generally, such credits are the only remedy in such cases, additional damages can only be claimed according to Article 9 of these GTC.

Art. 5 Third-Party Services and Licenses

Where the Client independently administers, installs or distributes licenses installed on the servers, the Client ensures proper and complete licensing. Client will support Service Provider with any information necessary to help determine the number of licenses or licensed products. This includes providing the relevant data to Service Provider in a timely fashion or, upon Service Provider’s request, installing or condoning the installation through Service Provider of a service program for this purpose on Client’s server.
The Service Provider grants the Client the non-exclusive, non-transferable right to use the Service Provider’s software and third-party software for their own business purpose as provided under the customer contract. This right of use shall be limited to the term of the contract. Transferring the right to use the software, other than with the agreement of the Service Provider for the purpose of contract transfer, or granting sub-licenses for the software to third parties is not permitted. Continued use of the software following termination of the contract term is not permitted. The Client shall delete any copies of all software provided following termination of the contract term. Upon request by Service Provider, the Client shall give proof or confirmation about the deletion to the Service Provider within 14 days after termination of the contract.
For open source programs the respective current usage agreements of the software providers shall apply in addition. The Service Provider shall make these license agreements available to the Client upon request. Where the terms and conditions of the software provider contradict these GTC, the terms and conditions of the software provider shall take precedence.
Some services offered by the Service Provider may involve third-party software or services (e.g., Microsoft products). The usage of such third-party services may be subject to the respective third-party’s End User Licence Agreement (“EULA”) or terms, which may be incorporated by reference. By using such third-party products, the Client agrees to the applicable regulations and policies. The Service Provider remains the Client’s primary contractual partner unless explicitly stated otherwise.
Furthermore, the license agreements of the respective software manufacturer and, where appropriate, the manufacturer’s or software-specific additional terms and conditions of the Service Provider shall also apply.
The Service Provider shall be entitled to regularly check or audit the Client’s server for compliance with the contractual agreements and provisions, in particular the licensing provisions. In line with this, the Service Provider is in particular entitled to examine whether the Client has obtained a sufficient number of software licenses. The Client shall be obliged to cooperate during the performance of these audits. This includes providing the Service Provider necessary information and data in a timely fashion and adequate amount as well installing a perpetual software for this purpose or allowing an installation through the Service Provider. The business secrets of the Client will be adequately accommodated.

Art. 6 Charges

Unless otherwise explicitly stated, all charges are quoted exclusive of Goods and Services Tax (GST) and any other applicable taxes under Indian law. If applicable, Service Provider will bill the respective, then currently valid, GST rate to the Client. Client agrees to pay all amounts due for services at the time of order or as otherwise invoiced.
For payments made using payment gateways like PayPal or similar services, the Client authorizes the Service Provider to collect the corresponding invoice amount via one-time charges or subscription payments as per the gateway’s terms.
If payments are made by electronic bank transfer (e.g., NEFT, RTGS, IMPS), the Client shall ensure sufficient funds are available. The Client shall bear any bank charges associated with the transfer, ensuring the Service Provider receives the full invoiced amount. The Service Provider reserves the right to charge the Client for transaction fees incurred due to insufficient funds or chargebacks.
Service Provider may participate in recurring billing programs or account updater services supported by the Client’s credit card provider. If the Service Provider is unable to successfully charge the Client’s existing payment method, the Client’s credit card provider (or bank) may notify the Service Provider of updates to the Client’s credit card number and/or expiration date, or they may automatically charge the Client’s new credit card on the Service Provider’s behalf. Service Provider will automatically update the Client’s payment profile upon receiving such updates. The Service Provider makes no promise that updated credit card information will be requested or received.
Client acknowledges and agrees that it is their sole responsibility to modify and maintain their account settings, including but not limited to (i) cancelling products and (ii) ensuring the associated payment method(s) are current and valid. Failure to do so may result in the interruption or loss of services.
Service Provider shall be entitled to adjust prices by giving adequate notice (e.g., 30 days), if the price increase is reasonable for the Client under consideration of the interest of the Service Provider (e.g., due to increased operational costs). Should the Client not dissent within an appropriate deadline set by Service Provider, the price change shall be deemed accepted by Client. In case the Client refuses the price change, either party is entitled to terminate the contract within two weeks in written form. Otherwise the contract continues under the original conditions. The Service Provider will inform the Client in the change notice of the scope and timing of the price adjustment and will indicate the period of objection and the respective legal consequences.
Should the Service Provider deliver additional services free of charge that are not part of the contractual duties, the Client shall have no right to claim performance. The Service Provider shall, within a reasonable period, be entitled to discontinue such additional services previously made available free of charge, to amend such services or to only offer such services against payment. In such cases the Service Provider shall inform the Client in good time thereof.

Art. 7 Terms of payment

All charges shall typically be invoiced and paid in advance on a monthly basis, unless otherwise agreed. To the extent that a monthly charge is invoiced for any incomplete month’s period, such charge shall be invoiced on a pro rata basis. The initial charges shall be due before the service is made available, and all subsequent charges shall become due before the commencement of each new payment period.
The Client shall be deemed to be in default if payment is not made within 14 days of the due date specified on the invoice, without the need for a separate reminder notice.
If a payment is not made in whole or in part on the agreed due date, the Service Provider shall have the right, after providing reasonable notice, to retain its services by blocking or suspending the services booked by the Client until receipt of full payment. This does not apply in the case of only minor arrears or a bona fide dispute regarding the invoiced amount.
If the Client is in default of payment or fails to meet other obligations to cooperate, the Service Provider shall be entitled to claim for any losses and additional expenditure arising as a result. In the event of payment default, the Service Provider shall be entitled to demand interest on the overdue amount at the rate of [18% per annum or specify rate based on legal advice] or the maximum rate permitted by applicable Indian law, whichever is lower.
In the event of default, the Service Provider explicitly reserves the right to claim further compensation from the Client.
The Client cannot set off against claims of the Service Provider, nor exercise a right of retention, except for undisputed or legally established claims.

Art. 8 Force Majeure

The Service Provider shall be released from the obligation to provide services in cases of force majeure. As a consequence, the Client shall be released from their obligation to pay for the relevant time.
All unexpected events, as well as events that influence the performance of contractual obligations and are not the responsibility of either party, shall be considered to be events of force majeure. These events include specifically: acts of God, war, terrorism, riots, legal industrial disputes, imposition of official requirements, failure of communication networks and gateways of other operators, pandemics, epidemics, and significant failure of essential third-party services.

Art. 9 Liability of the Service Provider

The following regulations apply to the liability of the Service Provider as well as to the liability of its employees, agents, and representatives, regardless of the legal reason:
a. The Service Provider shall be liable for damages resulting from injury to life, body or health, and in the event of intentional or grossly negligent breach of duty.
b. For slight negligence, the Service Provider shall be liable only for the breach of essential contractual obligations (cardinal obligations), the fulfillment of which is essential for the proper execution of the contract and on which the Client regularly relies. In such cases, liability shall be limited to the damage typically foreseeable at the time of conclusion of the contract.
c. The Service Provider is not liable for slight negligence of other non-essential obligations.
d. In cases of initial impossibility, the Service Provider shall be liable only if aware of the impediment to performance or unaware due to gross negligence.
e. Liability for loss or damage of data is limited to the typical recovery costs that would have arisen if the Client had performed regular and risk-appropriate data backups (as required under Art. 3 Sec. 8).
f. Any statutory liability under applicable Indian law (e.g., specific provisions under the IT Act, if relevant) remains unaffected.
The limitation period for claims for damages against the Service Provider is [one year or specify period based on legal advice and Indian Limitation Act] from the statutory commencement of the limitation period, except in cases of intent, gross negligence, or injury to life, body, or health.
Insofar as the Service Provider provides technical information or acts in an advisory capacity free of charge and this information or advice does not belong to the contractually agreed scope of services, liability is excluded except for gross negligence or intentional misconduct.

Art. 10 Duration of contract, termination

The contract runs for an initial runtime as chosen by the Client during signup or as mutually agreed upon in writing by the parties.
Unless otherwise agreed, the contract renews automatically for the same duration as the initial runtime, if not terminated in writing by either party giving notice at least [one month (for runtimes up to 6 months) or 3 months (for annual runtimes) – Adjust as needed] prior to the end of the current term.
The date on which the notification of the contract termination is received by the other party shall determine whether the notification period has been met.
Both parties have the right to immediate termination of the contract for material breach or other valid reasons as permitted under Indian law. If the reason is the breach of a contractual obligation, termination is generally admissible only after the unsuccessful expiry of a reasonable period designated for remedial action or after an unsuccessful warning, unless such notice is not required under applicable law.
Material reasons for termination by the Service Provider shall include, but are not limited to:
- Situations where it is unreasonable to expect the Service Provider to continue the contract;
- Severe or repeated violations of the duties listed in Article 3;
- If the Client is in default with payments by an amount equivalent to at least two basic monthly fees (for contracts with a minimum term of two months or more).

Art. 11 Data Protection

The Service Provider collects, processes, and uses the Client’s personal data in accordance with applicable Indian data protection laws, including the Digital Personal Data Protection Act, 2023 (DPDP Act) and relevant rules thereunder. More information can be found in the Service Provider’s Privacy Policy.
Insofar as the Service Provider processes personal data provided by the Client (e.g., data of the Client’s end-users), the Service Provider acts as a “Data Processor” and the Client acts as a “Data Fiduciary” under the DPDP Act. The processing shall be governed by a separate Data Processing Agreement (DPA) if required by law or requested by the Client, outlining the roles, responsibilities, and technical/organizational measures.
Client acknowledges that IP addresses may be registered on their behalf with regional internet registries (e.g., APNIC, RIPE NCC). The terms and conditions of the respective registries apply.

Art. 12 Non-disclosure

Each party is obligated to treat confidentially all information received from the other party that is designated as confidential or should reasonably be understood to be confidential (“Confidential Information”). Neither party shall produce copies of Confidential Information or make it available to third parties, unless necessary to meet obligations arising from the contract or required by law or court order. This obligation does not apply to information that is publicly available, lawfully received from a third party without confidentiality restrictions, or independently developed.
These confidentiality obligations shall survive the termination of this contract. Parties shall ensure that their employees and agents with access to Confidential Information are bound by similar confidentiality obligations.
Obtaining business secrets of the Service Provider by observing, investigating, dismantling or testing products or objects lawfully in the Client’s possession, but not publicly released by the Service Provider, is expressly prohibited.
The Client undertakes to keep passwords received from the Service Provider for accessing services strictly confidential. The Client shall immediately inform the Service Provider if they become aware that their credentials have become known to unauthorized third parties. Service Provider reserves the right to suspend access in case of unauthorized access or suspicion thereof, as outlined in Art. 3 Sec 5.

Art. 13 Concluding provisions

Any declaration of intent (such as notices or other information) and any correspondence may be sent by registered post or email to the addresses provided by the parties. All information and notices issued by the Service Provider can be addressed to the Client through electronic communication channels, including via the customer portal or by email to the email address provided by the Client.
The Client agrees that invoices will primarily be provided electronically via email.
Place of Performance and Jurisdiction: The place of performance for the services shall be deemed to be [City where Encore Soft Solution operates, e.g., Mumbai], India. Exclusive place of jurisdiction for all disputes arising out of or in connection with this contractual relationship shall be the competent courts located in [City, State, e.g., Mumbai, Maharashtra], India.
Governing Law: This Agreement and the contractual relationship between the parties shall be governed by and construed in accordance with the laws of India, without regard to its conflict of laws principles.
Severability: Should any provision of this agreement be or prove to be invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that accords with or at least approximates the intended economic purpose of the agreement. The same shall apply to any unintended gaps in the agreement.
Language: This Agreement is executed in the English language, which shall be the official and binding version.

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