________ , resident of the following address: ________ (hereinafter referred to as the "Service Provider" which expression shall unless excluded by or repugnant to the subject or context be deemed to include its legal heirs, administrators and permitted assigns) of the ONE PART
AND
________ , resident of the following address: ________ (hereinafter referred to as the "Client" which expression shall unless excluded by or repugnant to the subject or context be deemed to include its legal heirs, administrators and permitted assigns) of the OTHER PART
(The Service Provider and the Client shall hereinafter individually referred to as "Party" and collectively as "Parties")
WHEREAS
A. The Service Provider is in the business of providing the Services (as defined hereunder) and has the skills, qualifications and expertise required to perform the Services.
B. The Client desires to engage the Service Provider to provide the Services and the Service Provider has agreed to do the same.
C. Pursuant to the above, the Parties seek to enter into this Agreement to confirm and record the terms and conditions on which the Service Provider shall provide the Services to the Client and other Agreements in connection therewith.
1. DEFINITIONS AND INTERPRETATION
(a) "Applicable Law" shall include all applicable (i) statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, bye-laws, regulations, listing Agreements, notifications, guidelines or policies of any jurisdiction; and (ii) judicial quasi-judicial and/or administrative decisions, interpretations, directions, directives, licenses, permits, judgments, writs, injunctions, arbitral awards, decrees, orders, terms and conditions of governmental or regulatory approvals or Agreements with any governmental or regulatory authority;
(b) "Approvals" shall mean sanctions, permissions, consents, validations, confirmations, licenses, and other authorizations obtained and/or required to be obtained from any Government Body;
(c) "Government Body" means any government authority, statutory authority, government department, agency, commission, board, tribunal or court or other law, rule or regulation-making entity having or purporting to have jurisdiction on behalf of India or any state or other subdivision thereof or any municipality, district, or other subdivision thereof;
(d) "GST" means Goods and services tax under the Goods and Services Tax Act, 2017;
(e) "Services" means the services provided as follows:
and all other services that are incidental or ancillary thereto;
(f) "Term" means the period during which the Service Provider has provided / shall provide Services in terms of this Agreement which shall be the period as specified in Clause on (Term and Termination) of this Agreement.
(g) Interpretation
(I) The headings in this Agreement are inserted for convenience only and shall be ignored in construing this Agreement.
(II) Unless the context otherwise requires, in this Agreement:
(III) words using the singular or plural number also include the plural or singular number, respectively;
(IV) words denoting any gender shall include all genders;
(V) the words "written" and "in writing" include any means of visible reproduction;
(VI) the terms "hereof", "herein", "hereto" and similar words refer to this entire Agreement and not any particular Clause, or any other subdivision of this Agreement;
(VII) the words "include" or "including" shall be deemed to be followed by "without limitation" or "but not limited to" whether or not they are followed by such phrases or words of like import;
(VIII) references to any "person" include any natural person, corporation, judicial entity, association, statutory body, partnership, limited liability company, joint venture, trust, estate, unincorporated organization or government, state or any political subdivision, instrumentality, agency, or authority; and
(IX) references to "Clause" or any other Agreement or document in this Agreement shall be construed as references to the Clauses of this Agreement, or such other Agreement or document, as may be amended, modified or supplemented from time to time, and shall include a reference to any document which amends, modifies or supplements it, or is entered into, made or given pursuant to or in accordance with its terms.
2. SERVICES
(a) The Client agrees to avail the Services from the Service Provider and the Service Provider agrees to provide the Services to the Client on the terms and conditions specified in this Agreement.
(b) The Service Provider shall:
(I) Provide the Services in compliance with this Agreement and Applicable Laws. If any Approvals are to be obtained for the provision of Services, the same shall be obtained by the Client;
(II) Perform the Services (i) in a professional, diligent, and timely manner; (ii) as per good commercial practices; and (iii) within the budget specified by the Client;
(III) Retain and utilize a sufficient number of qualified personnel to perform the Services;
(IV) Ensure that all personnel who are deputed to perform the Services are appropriately trained and qualified to perform such Services; and
(V) Devote the time and attention necessary to provide the Services in accordance with the best of the industry standards and meet any quality standards as may be specified by the Client.
(c) Unless otherwise authorized in writing, the Services Provider shall not have any authority pursuant to this Agreement to commit the Client to any obligation in any manner whatsoever with respect to third parties or to enter into any contracts on behalf of the Client. The Service Provider shall not have, nor represent itself as having, any authority under the terms of this Agreement to make Agreements of any kind in the name of or binding upon the Client.
(d) The Service Provider shall keep the Client promptly informed of all material matters which come to the Service Provider's attention relating to or affecting the business of the Client or any matters concerning the provision of Services hereunder by the Service Provider.
(e) The Service Provider agrees and acknowledges that:
(f) The Services shall be provided at: ________ . The Service Provider agrees and acknowledges that the provision of Services hereunder may require travel to different destinations and the Parties agree that the cost of travel and accommodation shall be borne by Client .
(g) The total budget for this shall be specified by the Client to the Service Provider in Schedule B attached hereto. Service Provider agrees to manage the designated budget responsibly and to confer with the Client in the event that there is any possibility of overruns prior to such an event. Service Provider agrees to provide the Client with all purchase or rental receipts and an itemized and annotated accounting of all expenditures. The Service Provider agrees that all items purchased with the Client's funds become the property of the Client .
(h) The Service Provider shall work for a minimum of: ________ for providing Services to the Client during the Term of the Agreement.
(i) The Service Provider shall keep the Client informed regarding the time spent on the provision of Services and in the event, that the time spent exceeds: ________ the fee payable shall only be increased if prior written approval is obtained from the Client regarding time in excess of: ________ .
(j) In the event the Service Provider does not spend at least: ________ , the fee payable shall be reduced proportionately based on the actual time spent or otherwise as may be agreed between the Parties.
(k) The Service Provider shall complete the Services on or before the ________ . In the event of delay in completion of Services by the Service Provider, the Service Provider shall be liable to pay an amount of Rs. ________ (________) per day of delay.
(l) The Service Provider shall complete the Services in accordance with the following Schedule:
3. RECORDS
The Service Provider must maintain accurate records related to the services provided under this Agreement throughout the term of the Agreement. These records must be kept for a standard period of time as required by industry practices and relevant laws. Upon request, the Service Provider must provide the Client with copies of these records.
4. CONSIDERATION
(a) In consideration of the Services rendered by the Service Provider, the Client shall pay to the Service Provider, the fixed fees of Rs. ________ (________).
(b) The Fee to be paid as specified above shall be inclusive of Goods and Services Tax (GST).
(c) The Fees payable by the Client shall be inclusive of all expenses to be incurred by the Service Provider in the provision of Services hereunder.
(d) The Client shall pay the fee within a period of 7 (seven) business days from receipt of the invoice from the Service Provider.
(e) In the event of delay by the Client in payment of fees to the Service Provider, the Client shall pay penalty at the rate of ________ % per annum on the unpaid amount from the due date till the date of actual payment.
(f) In the event of delay by the Client in payment of fees to the Service Provider, the Service Provider shall be entitled to stop the provision of further Services till such time that the Client makes the payment of outstanding dues.
(g) In the event of any service(s) provided that are not included in the list of services as specified in this Agreement, the Parties shall mutually agree upon such services, fees and expenses.
(h) All payments to be made by the Client to the Service Provider shall be subject to deduction of applicable taxes. The Client shall issue a requisite certificate evidencing such tax deduction in accordance with Applicable Laws.
5. REPRESENTATIONS AND WARRANTIES
(a) Each Party hereby warrants and represents to the other Party that:
(I) It has full power and authority to enter into this Agreement and perform its obligations hereunder;
(II) This Agreement has been duly executed by it and this Agreement constitutes its legal, valid and binding obligation enforceable in accordance with the terms contained herein;
(III) The execution, delivery, and performance by it of this Agreement does not and will not (i) breach or constitute a default under its constitutive documents, or (ii) result in a breach of, or constitute a default under, any Agreement to which it is a party or by which it is bound.
(b) The Service Provider hereby represents and warrants to the Client:
(I) It will provide the Services in compliance with the provisions of this Agreement;
(II) It will act in good faith and use reasonable skill and care in the provision of Services under this Agreement;
(III) It will comply with all Applicable Laws in the provision of the Services;
(IV) It has all requisite corporate and other approvals, licenses and permits from relevant governmental authorities to provide the Services.
EXCEPT AS SPECIFIED ABOVE THE SERVICE PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. 88252855885 82 585 825585
(5) 855822 252 22522525282 22 252 52588828 252 888222 8888 82-2225522 8825 252 5258882 25288525 58 252 5258882 25288525 5258225882 52858528;
(8) 552 888222 85588 2528852 82225252822 525 528522228 58 252 5258882 25288525 5258225882 52858528 225 252 252888822 22 52588828.
7. TERM AND TERMINATION
(a) This Agreement shall commence on ________ ("Commencement Date") continue to be in full force and effect till ________ ("Term"), unless terminated as specified below. Thereafter, this Agreement may be renewed upon the mutual consent of the Parties.
(b) This Agreement may be terminated as follows:
(I) By either Party upon providing written notice of 30 (thirty) business days prior written notice to the other Party; or
(II) By the Client, in the event a material breach of any provision hereof is committed by the Service Provider, by providing 15 (fifteen) days written notice to the Service Provider with reasons of termination stated thereunder; or
(III) By the Service Provider, in the event a material breach of any provision hereof is committed by the Client, by providing 15 (fifteen) days written notice to the Service Provider with reasons of termination stated thereunder; or
(c) Notwithstanding anything to the contrary, provisions in respect of Dispute Resolution, Indemnity, Limitation of Liability, and the other provisions of this Agreement which are expressly or impliedly intended to survive the expiration or termination of this Agreement, shall survive the expiration of the Term or any termination of this Agreement.
8. OWNERSHIP OF INTELLECTUAL PROPERTY
(a) Client shall retain all right, title, and interest in and to Client's intellectual property and no right, title or interest therein is transferred or granted to Service Provider under this Agreement except for use in performing Services hereunder and for no other purpose. Service Provider shall retain all right, title, and interest in and to its own technology and information and, except as expressly set forth in this Agreement, no right, title or interest therein is transferred or granted to Client under this Agreement.
(b) In connection with the provision of the Services, the Service Provider may generate, create, write, or produce literary works or other works of authorship including, but not limited to, manuals, training materials, reports, advice, methodologies, code, test data, analyses, studies, research, and documentation (hereinafter referred to as "Work Product").
(c) The Work Product and copyright and all Intellectual Property rights in and to such Work Product created and provided by the Services Provider to the Client pursuant to this Agreement shall be owned by the Client.
9. FORCE MAJEURE
If and to the extent that a Party's performance of any of its obligations under this Agreement, hindered or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of such Party (each, a "Force Majeure Event"), and such non-performance, hindrance or delay could not have been prevented by reasonable precautions, then the non-performing, hindered or delayed Party will be excused for such non-performance, hindrance or delay, as applicable, of those obligations effected by the Force Majeure Event for as long as such Force Majeure Event continues and such Party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The Party whose performance is prevented, hindered, or delayed by a Force Majeure Event will immediately notify the other Parties of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event.
If the Force Majeure Event continues for a continuous period exceeding 30 (thirty) days, the Parties shall mutually agree on the future course of action. However, despite all efforts made by the Parties in good faith, if the Force Majeure Event continues for a period of 90 (ninety) days, either of the Parties shall have the right to terminate this Agreement by giving the other Parties notice of termination in writing.
10. INDEMNITY
Each Party ("Indemnifying Party") hereby agrees to indemnify and hold the other Party harmless from all damages, costs, attorney's fees, or other losses arising out of or relating to:
(a) breach of this Agreement by the Indemnifying Party;
(b) breach of any representation or warranty by the Indemnifying Party.
11. LIMITATION OF LIABILITY
Neither the Service Providers nor the Client will be liable for, nor will the measure of damages include, any punitive or consequential or indirect losses or damages, including lost profits or third-party claims arising out of or relating to its performance or failure to perform under this Agreement. Liability for all punitive or consequential or indirect losses or damages is hereby expressly excluded.
Notwithstanding anything contained in this Agreement, a Party's liability for any loss or damage, direct or indirect, for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement) with respect to claims (whether third party claims, indemnity claims or otherwise) shall not under any circumstances exceed the project amount.
12. TAXES
Service Provider shall be responsible for all taxes in respect of this Agreement including without limitation payment of goods and services tax, if applicable, on the Services provided hereunder.
13. NON-COMPETE
The Parties shall not use any Confidential Information directly or indirectly to procure a commercial advantage over the other Party or otherwise use any designs, ideas or concepts created by or belonging to the other Party without the express written consent of the other Party.
14. 888-582585585588
822882582525822 522 252888822 22 252 82225552, 2585 22 252 2552828 525228 2552 252 2552828 (25 522 225822 2252822 2552 22 252 2552828) 85588 222:
( ________ ) 58528282 25 8258528282, 2552225 8825 25 22225 8222 522 58288822 25 5852 25 5222222 22 5852 225 522 2552282 8552822825 (8522525 58 52 22282222, 8228582522, 5588825, 82522225222 8222558225, 2552225 25 225258882) 522 22282222 25 8228582522 22 252 22525 25522;
( ________ ) 58528282 25 8258528282, 52252585, 8528588, 8288882, 25 225258882 222882 58822 522 828222882 8552822825 (8522525 8585 828222882 88 82 8585, 2825, 25 5 822228822 22 252 8522 25 82 522 22525 252225), 522 222822228, 8225258, 858222258, 82285825228, 8222558225, 25 52222 22 252 22525 25522.
15. SEVERABILITY
If any provision of this Service Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Service Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Any invalid or unenforceable provision of this Service Agreement shall be replaced with a provision that is valid and enforceable and most nearly gives effect to the original intent of the invalid/unenforceable provision.
16. ENTIRE AGREEMENT
This Service Agreement constitutes the entire Agreement and understanding of the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, Agreements, understandings duties or obligations between the Parties with respect to the subject matter hereof.
17. NO OTHER RIGHTS GRANTED
Nothing in this Agreement is intended to grant any rights under any patent, copyright, or other intellectual property rights of any Party in favour of the other, nor shall this Agreement be construed to grant any Party any rights in or to the other Party's Confidential Information, except the limited right to use such Confidential Information in connection with the Services to be provided under this Agreement. The Client or Service Provider shall not receive any intellectual property rights in the Confidential Information of the other Party other than a limited right to use the Confidential Information for the purposes specified in this Agreement. All intellectual property rights shall continue to vest with the Party disclosing the Confidential Information.
18. AMENDMENTS
Any change, alteration, amendment, or modification to this Service Agreement must be in writing and signed by authorized representatives of both Parties.
19. DISPUTE RESOLUTION
(a) Any dispute(s) arising out of this Agreement shall, as far as possible, be settled amicably between the Parties hereto failing which the following shall apply:
(I) Any dispute under this Agreement shall be referred to arbitration by a sole arbitrator to be appointed jointly by the Parties.
(II) The arbitration proceedings shall be held in ________ in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force.
(III) The Parties agree that the arbitration award shall be final and may be enforced as a decree.
(IV) The Parties further agree that subject to the above only the competent courts at ________ shall have jurisdiction in all matters arising hereunder.
(V) The Parties further agree to keep the arbitration proceedings and the arbitral award confidential.
(b) If either Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover reasonable costs and attorneys' fees.
20. INDEPENDENT PARTIES
Nothing contained or implied in this letter creates a joint venture or partnership between the Parties or makes one party the agent or legal representative of the other party for any purpose.
21. EXCLUSIVITY
Nothing in this Agreement restricts a Party or its group companies from discussing similar arrangements and/or any related transaction with any other party, any regulatory body in India and their respective successors.
22. ASSIGNMENT
This Agreement shall not be assignable by any Party without prior written consent of the other Party.
23. ANNOUNCEMENTS
A Party shall not make any news releases, public announcements, give interviews, issue or publish advertisements or publicize in any other manner whatsoever in connection with this Agreement, the contents/provisions thereof, other information relating to this Agreement, the Confidential Information or other matter of this Agreement, without the prior written approval of the other Party.
24. NOTICES
Except as otherwise specified in this Service Agreement, all notices, requests, consents, approvals, Agreements, authorizations, acknowledgements, waivers, and other communications required or permitted under this Service Agreement shall be in writing and shall be deemed given when sent to the address specified below.
In the case of Client:
In case of Service Provider
Either Party may change its address for notification purposes by giving the other Party 10 (ten) day's notice of the new address and the date upon which it will become effective.
25. GOVERNING LAW
This Agreement and all issues arising out of the same shall be construed in accordance with the laws of India.
IN WITNESS WHEREOF THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT:
SERVICE PROVIDER: