DOT1 Solutions Private Limited

info@dot1.in

General Terms and Conditions


1.     INTELLLECTUAL PROPERTY RIGHTS

Each party shall retain all right, title and interest in its patents, copyrights, trademarks, proprietary and/or licensed software, service marks and trade secrets ("Intellectual Property Rights"). No interest whatsoever in the other party's Intellectual Property Rights is granted by this Agreement and use of any Intellectual Property Right permitted to one party by the other party shall be strictly in terms of this Agreement. The Parties shall not license, sell, publish, disclose, display or otherwise make available the Intellectual Property Product/ Products of the other party to any person or entity except as provided in this Agreement. Either party may include security modules in their Intellectual Property Products to protect their rights. To the fullest extent permissible by applicable law or regulations, both parties agree that they will not, nor will they allow others to, reverse engineer or disassemble any parts of the other party's Intellectual Property Products. Neither Party shall use the Intellectual Property of the other Party in any manner whatsoever without the prior consent of the other Party or as provided hereunder.

Any joint and combined usage by either Party of its own trademarks, copyrights or other intellectual proprietary material along with the trademarks, copyrights or other intellectual proprietary material of the other Party, if at all permitted by such other Party shall cease forthwith upon the expiration or termination of this Agreement. The Party so using such material jointly shall, thereafter, neither use such material in combination nor shall claim any right, title or interest in such combination nor shall register or attempt to register the said combination or any other mark or combination deceptively similar thereto, phonetically or otherwise.

CONFIDENTIAL INFORMATION

In view of the engagement under this Agreement, Company will receive information proprietary to Client, including but not limited to, Client’s business plans, customer data, sales kit (brochures, catalogues, training manuals, documents, etc.), technical and marketing information, financial records and related information, other vendors and pricing lists and policies as they may be developed by Client from time to time, and such other business information which is identified as “Confidential” or “Proprietary” or which the Company has reasons to believe is treated as confidential by the Client (“Confidential Information”).

The Company understands and agrees that all Confidential Information disclosed by Client hereunder shall be maintained in confidence and shall not be disclosed to any Third Party or used for any purpose except as expressly permitted herein without the prior written consent of the Client and vice versa. The Company shall take similar measures to prevent the disclosure and unauthorized use of Confidential Information of the Client, as it uses to protect its own confidential information, but in no event less than reasonable care. Nothing herein shall prevent Company from making reasonable and necessary disclosure of relevant Confidential Information to its affiliates, officers, employees, contractors and agents who have a need to know such information pursuant to their duties, provided that each party takes all reasonable precautions to prevent further disclosure or duplication of the Confidential Information.

The confidentiality obligations set forth herein shall survive perpetually, regardless of expiry or earlier termination of this Agreement.

Upon expiry or earlier termination of this Agreement, Company shall, at Client’s option, either promptly return all copies of the Confidential Information to the Client or destroy the same and certify destruction thereof and vice versa.

Data Protection: In case any data is provided by either Party, all such data would be stored, disseminated as per instructions of the Party granting such data and disposed off by the receiving Party, following all applicable data protection laws of India including but not limited to the Information Technology Act, 2000 (as amended from time to time) and rules framed thereunder.

INDEMNITY

Each of the Parties agree to indemnify, defend and hold harmless the other Party, its Affiliates, directors, officers, representatives, employees and agents (collectively, the “Indemnified Persons”), from and against any and all claims, actions, suits, proceedings, costs, damages, judgments, amounts paid in settlement and expenses (including without limitation reasonable attorneys’ fees and reasonable disbursements at actual) (collectively, “Loss”)  asserted against or incurred by the Indemnified Persons, to the extent directly suffered (excluding consequential or special losses), as a result of, arising from, or in connection with or relating to any matter inconsistent with, or any breach or inaccuracy of any representation, warranty, covenant or agreement made or failure to perform (whether in whole or part) any obligation required to be performed by them under this Agreement or non-observance / non-compliance of any applicable laws, rules and regulations

PROHIBITION TO UNAUTHORISED PAYMENT

It is the intent of the parties that no payments or transfers of value shall be made which have the purpose or effect of public or commercial bribery or acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining the approvals, if required. 
In the event of any party committing a breach of any of the terms and conditions contained herein then other party shall be entitled to forthwith terminate this agreement without any liability of any sorts whatsoever in respect of such termination.
 

DECLARATION: Acceptance / execution of this agreement shall be deemed to be (a) a confirmation by all the parties that no benefit, either in cash or in kind, has been provided by them  to any officer or employee, or any relative / associate of any officer or employee, of the other party  or of any of its associate companies, in order to secure this contract, and (b) an undertaking by all the parties that not to provide any benefit, either in cash or kind, to any such officer / employee/relative/associate as reward or consideration either for securing this contract or any other matter relating to this contract.

 
REPRESENTATION AND WARRANTIES

Both parties represent and warrant to each other that:

• they are establishment duly and legally organized and validly existing in India and that the responsibilities assumed under this Agreement are legally valid and binding obligations on them and enforceable against them;
• they shall comply with or cause to be complied with all legal and valid provisions of statute, law, bye-law, rules, regulations or provisions having the force of law of the central and/or state governments, municipal corporation, municipality, local body or public authority, order of courts or law, and/or revenue or tax authority in so far as the same relates to the part of their obligations/responsibilities mentioned herein and shall keep each other duly indemnified against any non-compliance or breach thereof and all losses, damages, that may be suffered and costs that may be incurred by other party. Without limiting each other’s rights and remedies, each party shall indemnify and keep indemnified on demand and hold harmless the other party for any loss suffered or costs incurred by the other party as a result of breach of the warranty set out in this clause.
• they are entitled to execute and implement this Agreement in accordance with their terms and all the requisite regulatory and corporate approvals, as applicable have been obtained by them prior to the execution of this Agreement; they are qualified and competent to perform the services covered under this Agreement; and their performance of their obligations as per this Agreement does not and will not violate or conflict in any manner with any their duty or obligation with any third party. 

NOTICES

Unless otherwise stated in this Agreement, any notice required or permitted to be given under this Agreement, shall be given in writing and shall be delivered by hand or sent by registered mail to the address of the other Party first set forth above or to such other address as a Party may designate to the other by written notice. Notice shall be deemed effected on the date when delivered, in the case of delivered by hand, or on the date of delivery as evidenced by the signed return receipt, in the case of delivery by mail, in case of Fax on the receipt of the positive transmission report.

TERMINATION

Either Party shall have the right to terminate this Agreement with immediate effect, if:

• The either Party fails to perform any material obligation under this Agreement, and such failure continues unheeded for a period of thirty (30) days following receipt of written notice of such failure, or The either Party should enter into liquidation, either voluntary or compulsory, or become Insolvent, or enter into composition or corporate reorganization proceedings or if execution be levied on any goods and effects of the other Party or the other Party should enter into receivership or bankruptcy.
• Either party may terminate the agreement at will upon giving not less than sixty days prior written notice to the other party.
• Obligations of the Parties relating to confidentiality, indemnity and intellectual property rights as contained in this Agreement shall survive the expiration or termination of the Agreement.
• In the event of termination, the parties shall render a final account to the other of all outstanding actual amounts and the net outstanding shall be paid within fifteen days of the rendering of the account. 

FORCE MAJEURE 

Force Majeure shall mean any circumstances beyond direct control of Parties such as act of God, fire, war (whether declared or undeclared), mobilization of military call up of a comparable scope, requisition, seizure, currency restrictions, insurrection and civil commotion, govt. restrictions, statutory orders, hi-jacking or an act of terrorism, epidemic, pandemic, shortage of transport, etc. In the event, if the Services cannot be resumed for a continuous period of Thirty (30) days due to any event of Force Majeure, then Company may terminate this Agreement forthwith by sending an intimation of termination to the Vendor/Service Provider. Neither Company nor Vendor/Service Provider, shall be liable for any default, delay or lapse occurring due to any event of Force Majeure. The parties agree that, if the Services are disrupted during the Force Majeure situation, neither Vendor/Service Provider is bound to render the Services, nor Company is bound to pay any consideration to Vendor/Service Provider for the period of Force Majeure.”

INDEPENDENT ENTITIES AND BUSINESS RELATIONSHIP

It is understood that the relationship between the parties is solely on principal-to-principal basis. DOT1 shall not acquire, by virtue of any provision of this Agreement or otherwise, any right, power or capacity to act as an agent or commercial representative of Client for any purpose whatsoever except as provided in this Agreement. Nothing contained in the contract shall be deemed or construed as creating a joint venture relationship or legal partnership etc between DOT1 and Client.

DISPUTE RESOLUTION

a)  Any and all disputes, controversies and conflicts ("Disputes") arising out of this Agreement between the Parties or arising out of or relating to or in connection with this Agreement and the performance or non-performance of the rights and obligations set forth herein or the breach, termination or invalidity thereof shall be referred for arbitration in terms of the Arbitration and Conciliation Act, 1996. Prior to submitting the Disputes to arbitration, the parties shall mutually resolve to settle the Disputes through mutual negotiation and discussions. In the event that the said Disputes are not settled within 30 days of the arising of the Disputes, the same shall finally be settled and determined by arbitration to be conducted by a sole arbitrator in accordance with the Arbitration and Conciliation Act, 1996. The place of arbitration shall be Bengaluru and the language used in the arbitral proceedings shall be English.

b) The sole arbitrator shall be decided and appointed with the mutual consent of all the parties.

c) In case of failure of both the parties to arrive an agreement of appointment of sole arbitrator within one month of arising of any dispute and notice of such dispute communicated by one party to another, such dispute or difference shall be referred to Arbitration of Arbitral Tribunal. Arbitral Tribunal shall consist of three Arbitrators, one shall be appointed by each party and third one, who shall act as Chairman of Arbitral Tribunal, shall be appointed by both the appointed Arbitrators as per the provisions of Arbitration and Conciliation Act 1996.

d) The arbitral award and decision by the arbitrator shall be in writing and shall be final and binding and shall be enforceable in any court of competent jurisdiction.

OTHER TERMS AND CONDITIONS

a) Governing Law & Jurisdiction: The language to be used in connection with this Agreement shall in all cases be the English Language. This Agreement shall be governed by and construed in accordance with the laws of India. The Courts at Bengaluru shall have exclusive jurisdiction to try the matters arising out of this agreement.

b) Assignment: Either parties cannot assign its rights and remedies nor transfer its obligations under this Agreement without prior written consent of other party. In any event, any assignment or transfer shall not operate to relieve either party of its obligations here under up to the date of assignment, nor will any such assignment impose any obligation on the assignee except in the case of an express written assumption by the assignee. However, it is understood between parties that prior consent shall not be required in case of any assignment to parent or subsidiary Companies, of the party.

c) Waiver: The failure of either Party to enforce at any time the provisions hereof shall not be construed to be a waiver of such provisions nor a waiver of such duty or obligation; nor shall it be construed as estopping such party from taking any action or exercising any remedy permitted in this agreement or under law upon the subsequent occurrence of any similar or identical failure or breach, or upon the failure of the other party to subsequently cure such breach.

d) Severability: Should any provision of this Agreement be determined to be unenforceable or invalid, or any transaction contemplated hereby determined to be unlawful by any court of law, arbitrator or competent government body for any reason, all other provisions shall continue (except if this Agreement stands terminated) in full force and effect. In the event if any such determination results in a material change in the rights and obligations of either party, the party adversely affected shall have the option to terminate this Agreement by 15 days written notice after the date of such determination.

e) Entire Agreement: This Agreement, including the Appendices, constitutes the entire Agreement of the parties with respect to the matters herein contained and supersedes all prior agreements and understandings between the parties whether written or oral with respect to the subject matter of this Agreement, and all other agreements statement or representations are hereby terminated and are of no consequence nor shall they be used to interpret or construe the provision of this agreement.

f) Amendment: No modification to this Agreement shall be binding, unless made in writing and signed by a duly authorized representative of each Party