MASTER SERVICES AGREEMENT FOR AXIS BANK
CHEQUE PICK UP/DOORSTEP BANKING
This Master Services Agreement (“Agreement”) is made and entered into effective as of 18December-2015 by and betweenXXXX XXXX XXXXXXXXXXX, having registered place of
business at xxxxxxxxxxxxxxxxxxxxxxx, Bangalore 560024, Karnataka - INDIA(hereinafter called
as “Vendor”).
AndCLIENT XXXXXXXXXXX Management PrivateLimited, having registered place
ofbusiness at CLIENT ADDRESS (TO BE DISCLOSED DURING TIME OF SIGN UP),
Andheri (East), Mumbai 400 069(Hereinafter called as “CLIENT”).
Vendor and CLIENT may be referred to in this Agreement, individually, as Party and, collectively as
Parties.
WHEREAS CLIENT desires to engage the Vendor for providingPick Up of Cheque/Door Step
Banking for AXIS Bankbased on the terms and conditions contained herein; and laid out in
Schedule I attached herewith at the end.
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WHEREAS Vendor claims to possess the requisite skills, training and ample experience to perform
the Services called for under this Agreement and is willing to perform the Services based on the
terms and conditions herein and CLIENT based on the vendors claim has agreed to utilize their
services.
NOW, THEREFORE, in consideration of the mutual covenants, promises and other good and
valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge Vendor
and CLIENT agree as follows:
I. DEFINITIONS
A. “Acceptance Criteria” will mean the requirements necessary for CLIENT’s acceptance of the
Services as further set forth in each applicable Statement of Work.
B. “Acceptance Date” will mean the first business day following the date on which CLIENT accepts
the Services pursuant to Section IV.A of this Agreement.
C. “Affiliate” means CLIENT&its group companies and any present or future subsidiary thereof.
D. “Articles and Sections” are references to articles or sections of this Agreement; however, if the
terms, "article(s)" and/or "section(s)" are used in reference to any legislation, statute or regulation,
then the reference is deemed to include all related articles or sections within the same legislation,
statute or regulation (as such articles and/or sections may be amended from time to time).
E. “Deposits” means Paper Items or Electronic Media that CLIENT has indicated to Vendor are to be
processed, as set forth in greater detail in the applicable statement(s) of work.
F. “Electronic Media” means media (e.g., microfilm, microfiche), magnetic disks (e.g., floppies, zip
disks), magnetic tapes (e.g., reel, cassette, VHS, DLT, 3490, security tapes), optical disks (e.g., CDs,
DVDs) memory in the form of compact flash drives or magnetic cards (e.g., credit, debit, gift, ATM
and smart cards), ink ribbons and other removable media agreed upon by both Parties.
G. “Governmental Authority” shall mean any international, national, provincial, municipal, local,
territorial or other governmental department, regulatory authority, self-governing agencies, judicial
or administrative body, domestic, international or foreign.
H. “Information Preservation Orders (IPO’s)” or “Legal Holds” means the orders issued by CLIENT
to Vendor regarding Deposits that CLIENT has indicated to Vendor may not be destroyed or the
content of such Deposits modified in any way, as set forth in greater detail in the applicable
statement(s) of work.
I. “Intellectual Property Rights” means all patents (including originals, divisional, continuations,
continuations-in-part, extensions, foreign applications, utility models and re-issues), patent
applications, designs (including all registrations and applications therefore), copyrights (including all
registrations and applications therefore), trade secrets, service marks, trademarks, trade names, trade
dress, trademark applications and other proprietary and intellectual property rights, including moral
rights.
J. "Law(s)" shall mean any declaration, decree, directive, legislative enactment, order, ordinance,
regulation, rule or other binding requirement of or by any Governmental Authority.
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K. “Vendor Personnel” means Vendor and its officer, directors and employees, its Affiliates and
their officers, directors and employees, and any subcontractors and agents performing Services
hereunder, including without limitation (as defined below).
L. “Paper Items” will mean dry paper products, books/bound paper material, brochures/magazines,
business and multi-part forms, newspaper, computer paper, notebooks, file folders and photographs
(no need to remove metal staples, fasteners, paper clips, etc.).
M. “Services” will mean the services to be provided by Vendor as set forth in this Agreement and
any applicable Statement of Work.
N. “SLA(s)” will mean the service level agreements established in this Agreement and the applicable
Statement of Work in relation to the Services to be rendered.
O. “Statement(s) of Work” will mean the document(s) that CLIENT and Vendor will mutually
execute in the event CLIENT desires to obtain Services from Vendor. See Exhibit 1.
P. “CLIENT Materials” will mean Deposits, Electronic Media, or any physical or electronic records
II. STRUCTURE OF THE AGREEMENT AND PROCUREMENT THEREUNDER
A. Scope of the Agreement.
Vendor and CLIENT agree that this Agreement is a master agreement between the Parties and will
contain the sole and exclusive terms and conditions that will govern the rights, responsibilities, and
obligations of the Parties with respect to the Services provided by Vendor to CLIENT during the
term of this Agreement. The Agreement includes services to be performed under Statements of Work
and the schedules between the Parties for data protection, records management and secure shredding
(collectively, the “SOWs”), and the Parties agree that the SOWs will be governed by the terms of
this Agreement.
B. Procurement Pursuant to Statement(s) of Work.
Vendor Personnel will perform the Services in accordance with this Agreement and any statement of
work (“Statement of Work” or “SOW”), each of which is incorporated into and within the terms of
this Agreement. If CLIENT desires to procure Services from Vendor, CLIENT will execute with
Vendor a Statement of Work that will specify, among other things (i) the type and description of the
Services to be performed by Vendor, (ii) the premises where the work will be performed, (iii) the fee
for the Services, (iv) the commencement and completion dates for the Services, and, if applicable,
(v) any relevant acceptance criteria or service level agreements (“SLAs”), including penalties for
non-adherence. (vii) any information security requirements specific to the Services to be performed
under the Statement of Work. Vendor agrees that it will not perform any Services for CLIENT
without a Statement of Work signed by CLIENT. Exhibit 1 to this Agreement provides a template
for a Statement of Work. Any modification to a Statement of Work must be in writing and executed
by an authorized representative of each Party; such modification may be in the form of a change
order or project change request.
C. Non-Exclusive; Independent Contractor Relationship.
The Parties acknowledge and agree that the procurement of Services under this Agreement will be on
a non-exclusive basis and that neither CLIENT nor its Affiliates guarantee to Vendor any minimum
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amount of business except as agreed in the signed Statement of Work. Vendor and Vendor
Personnel may contract to perform similar services for others during the term of this Agreement
subject to Vendor’s obligations under this Agreement and any applicable Statement of Work. The
relationship between the Parties created by this Agreement is that of independent contractor and not
partners, joint ventures, agents or employees.
D. Change Management Procedures/ Modification of a Statement of Work.
All material modifications to the obligations of either Party within a Statement of Work will require
an amendment to the existing Statement of Work that is executed by an authorized representative of
each Party.
The Company would release payment in the following pattern.
After depositing the first bill, the company will reimburse the same within 45 to 50 days, after there
after all payments will be on auto mode.
ON MUTUAL Decision, XXXXXXX will be taking Rs 6,00,000(Rupees Six Lakhs Only) as a ONE
TIME Non Refundable Deposit for sub-contracting this Project to the vendor at the time of Signing
this Agreement.
Rate
Rate per cheque collection location:Rs 250
Location
Bangalore
Minimum Commitment
130 Locations for the City of Bangalore
Penalty
If any cheque(s) is/are tampered with,the vendor will have to pay a penalty of Rs 200 per location
where such an instance has been recorded.
III. STANDARDS FOR PERFORMANCE OF SERVICES
A. Vendor Services.
Vendor will select its own Vendor Personnel, and such Vendor Personnel will be and act under the
exclusive supervision and control of Vendor, subject to the requirements of this Agreement.
Notwithstanding the foregoing, any failure on the part of Vendor Personnel to comply with the terms
and conditions of this Agreement will be attributable to Vendor, regardless of the content of any such
binding written agreements.
B. Non-Exclusive.
The Parties acknowledge and agree that the procurement of Services under this Agreement or any
applicable Statement of Work shall be on a non-exclusive basis and that neither CLIENT nor its
Affiliates guarantee any minimum purchases to Vendor other than as specifically set forth in an
applicable Statement of Work. Vendor Personnel may contract to perform similar services for others
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during the term of this Agreement, but the same should not in any manner affect the rights of the
CLIENT in the Agreement or in general.
C. General Service Levels.
Vendor will adhere to the obligations regarding the provision of Services which terms may be
suitably modified by additional service level agreements in the individual Statements of Work as
mutually agreed between the Parties.
A. Vendor Management.
As a regulated entity, CLIENT is required to oversee the activities/ functions of its third party
service providers, and also prudently assess and mitigate associated risks, and demonstrate to
its regulators that its use of third party service providers are within the parameters of its
regulatory obligations. To comply with such obligations, CLIENT may from time to time
submit in writing to the lead Vendor Account Executive written requests for reasonable
information/documentation to evidence that the Services are being performed in accordance
with this Master Services Agreement. Vendor will comply with such requests in a reasonably
and timely fashion. CLIENT will consolidate such requests to minimize the disruption to
Vendor. In the event of extensive or time sensitive requests for information/documentation are
burdensome to Vendor, Vendor will inform the CLIENT Vendor Manager of the potential costs
associated with such request, and the Parties will come to agreement regarding such costs prior
to Vendor performing the requested effort. In addition, Vendor lead, an Account Executive and
the CLIENT Vendor Manager will meet at least monthly along with other personnel of each
Party as needed, to discuss the existing Services and the process by which Vendor may perform
and/or CLIENT could procure the Services more efficiently. The Parties will use commercially
reasonable efforts to set efficiency targets in such meetings that will be reviewed and updated in
subsequent periodic meetings.
B. Vendor Personnel.
1. Selection and Control.
Subject to Section (III) (C), Vendor will select its own Vendor Personnel, and these
individuals will be and act under the exclusive supervision and control of Vendor. Vendor
will ensure that all Vendor Personnel who perform Services under this Agreement comply at
all times with the terms of this Agreement and all Statements of Work. Vendor will cause
each of it Vendor Personnel assigned to perform Services for CLIENT to execute the
Acknowledgement to Service Provider attached hereto as Exhibit 2 prior to commencement
of such Services. Vendor acknowledges that CLIENT may request that such document be
executed under seal and at a reasonable frequency of CLIENT’s choosing. CLIENT may
request that an executed, duplicate copy accompany the assigned Vendor Personnel or be
produced upon reasonable request by CLIENT. Vendor understands and agrees that Vendor
is fully responsible for any and all acts and omissions of Vendor Personnel and also the
consequences of Vendor Personnel’s failure to comply with the terms of this Agreement.
Vendor further undertakes not to engage any sub-contractor or transfer the assignment to any
third party or disclose the services / assignments envisaged under this Agreement or SOWs
to any third party.
2. Skills.
In selecting Vendor Personnel to provide the Services under this Agreement, Vendor shall
select only those persons who are qualified with necessary education, training and experience
to provide high quality performance of the particular Services for which each such Vendor
Personnel is responsible.
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3. Tenure Limitation.
Vendor shall ensure that all Vendor Personnel assigned to perform Services pursuant to this
Agreement or any Statement of Work shall not perform such Services for a period longer
than two hundred forty (240) days of the previous twelve (12) consecutive months. This
agreement is extendable on mutual agreement to a total of 24 months.
4. Taxes.
Vendor shall be solely responsible for all tax liabilities which may be due in respect of its
Vendor Personnel, including: (i) central, state or local tax, employment, withholding or
reporting purposes; (ii) provident fund, gratuity, bonus, workmen’s compensation, employee
state insurance or other employment law deductions, private insurance, social security, or
central or state withholding taxes, levies, duties, etc., of any nature whatsoever. Vendor shall
indemnify and keep CLIENT indemnified against all such liabilities, and/or other amounts
(including reasonable attorney’s fees, penalties and interest) which may be assessed on
CLIENT by reason of any payment made or Services rendered under or in connection with
this Agreement, together with any costs and expenses actually incurred by CLIENT in
connection with any such assessment or threatened assessment. Vendor shall comply with all
legal and regulatory requirements relating to the employment or engagement of its Vendor
Personnel, including without limitation the registration and filings under Contract Labor
(Regulation and Abolition) Act, 1970 and all other Laws.
C. Removal of Vendor Personnel. CLIENT shall have the right to notify Vendor if CLIENT
determines in good faith that the continued assignment to CLIENT of any Vendor Personnel
is not in the best interests of CLIENT. Upon receipt of such notice, Vendor shall promptly
investigate the issue, discuss its findings with CLIENT and resolve such matter in a manner
acceptable to CLIENT. If CLIENT continues to request the replacement of such individual
after such period, Vendor, at its sole expense, shall remove the individual from providing
Services to CLIENT.
D. Solicitation. During the term of this Agreement and for a period of 6 months subsequent to
the termination of this agreement, Parties shall not directly or indirectly solicit the
employment of any personnel of either side, without the prior consent of such Party. For the
avoidance of doubt neither Party is prohibited from employing an individual who approaches
such Party about employment opportunities or who applies for a position in response to a
posting, employment advertisement or other general solicitation of employment, whether
such application is during the Agreement term or Statement of Work or thereafter.
IV. ACCEPTANCE
A. Unless otherwise specified in a Statement of Work, CLIENT may evaluate the Services in
accordance with the terms of set forth in this Agreement and any SOW. If CLIENT rejects the
Services for non-compliance with the terms and SOW, CLIENT will notify Vendor in writing,
demonstrating with particularity the nature of such non-compliance, and Vendor at its own cost and
expense will correct such non-compliance as soon as practicable thereafter or in accordance with the
applicable SLAs (if provided) unless Vendor disputes such alleged non-compliance, in which event
the matter will be handled in accordance with _Dispute Resolution clause hereof.
B. In the event that there is a system or process breach by Vendor that is material (or is repeated
sufficiently to materially degrade CLIENT’s receipt of Services hereunder, in CLIENT’s reasonable
opinion), then CLIENT Vendor Manager and the Vendor lead Account Executive will meet to
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address the Services deficiency noted by CLIENT and mutually agree on system or process changes
for Vendor with respect to the Services to cure such system or process breach.
V. SECURITY AND ACCESS
A.
Compliance with CLIENT Standards.
Vendor, for itself and Vendor Personnel, will comply with all of CLIENT’s requirements in relation
to the security of the CLIENT facilities, computing environment and otherwise. This obligation
includes the obligation of all Vendor Personnel, wherever located, to comply with the terms of this
Agreement and any Statement of Work, any CLIENT security or information processing
requirements set forth in the applicable Statement of Work or in a jointly-created information
security program between the Parties, or otherwise communicated to Vendor by CLIENT. Project
security measures for a given set of Services may be changed by CLIENT from time-to-time, and
Vendor will abide by any CLIENT security measures that are communicated to Vendor.
Vendor’s information security plan will be designed and maintained during the Term of this
Agreement to meet the Security Requirements to safeguard against the destruction, loss, alteration of
or unauthorized access to or use of CLIENT Materials.
B. Access.
Except as may be specifically set forth in a given SOW, Vendor will not knowingly or intentionally
alter or disable any hardware or software security residing on CLIENT’s hardware or systems,
including, but not limited to, allowing non-READ only access. Vendor will not intentionally cause or
knowingly allow unauthorized traffic to pass into CLIENT’s networks. If Vendor does allow
unauthorized traffic to pass into CLIENT’s systems, CLIENT may immediately terminate said
access. Further, if any Vendor Personnel, at any time during the term of this Agreement, is granted
remote access to CLIENT’s network, or is telecommuting in any capacity, then such person will be
subject to additional CLIENT data security requirements. Vendor Personnel will not possess
weapons or firearms of any kind on CLIENT’s premises.
C. Network Connections.
If a network connection is established between Vendor and CLIENT, Vendor agrees to (1) allow
CLIENT to perform network assessments based on a mutually agreed schedule and (2) maintain an
alert status regarding the security of its computing systems, including without limitation all
vulnerabilities and security patches or corrective actions, by subscribing to an industry-recognized
service, such as CERT or CIAC, or any other recognized services at its own cost. Further, Vendor
will permit CLIENT to conduct appropriately-scoped penetration testing on a schedule mutually
agreeable to the Parties, or will furnish CLIENT with independent auditor reports of such testing of
its systems, which testing must occur on at least an annual basis. Vendor understands that, should a
CLIENT assessment reveal inappropriate or inadequate security based on the pre-defined
requirements for security, CLIENT may remove Vendor’s access to the CLIENT network until
Vendor satisfactorily complies with the security requirements defined.
D. Business Continuity Plan.
Vendor’s business continuity plan (“BCP”) will be designed and implemented by Vendor to conform
to generally accepted industry standards for business continuity planning (collectively, the “BCP
Standards”).
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Vendor will provide to CLIENT its annual BCP summary (which is acknowledged to be Vendor’s
Confidential Information, as defined below), within thirty (30) calendar days of the finalization of
such annual BCP; upon receipt, such summaries shall be deemed incorporated herein by reference as
if set forth as an exhibit to this Agreement. In addition, Vendor will furnish a BCP subject matter
expert from its global security services group to assist CLIENT in its review of the BCP summary.
Vendor will maintain and exercise the BCP at regular intervals (but in no event less than annually) in
accordance with its policies and procedures to ensure that the BCP complies with BCP Standards.
Vendor will comply with the BCP during the term of this Agreement. If at any time (1) Vendor
becomes aware that it is not in material compliance with the BCP Standards, Vendor will notify
CLIENT in writing promptly, or (2) CLIENT becomes aware that Vendor is not in such compliance,
CLIENT will notify Vendor, and, in each such case, Vendor will use reasonable and
sincere/commercial efforts to cure any such non-compliance within twenty (20) calendar days
thereafter (if such non-compliance cannot be cured within such period, Vendor will use its best
efforts to cure such non-compliance as soon as practicable). Notwithstanding the foregoing, the
Parties agree that if any material non-compliance is not cured within sixty (30) calendar days,
CLIENT will have the right to terminate the affected Statement of Work immediately following such
thirty day period.
E. Data Safeguards.
Vendor has established and will maintain safeguards against the destruction, loss, alteration of or
unauthorized access to CLIENT data in its possession (“Data Safeguards”). Vendor may not modify
or discontinue any Data Safeguards without CLIENT’s prior written approval, which may be
withheld for any reason. Vendor will implement the CLIENT-requested changes to the Data
Safeguards on the schedule mutually agreed upon by the Parties. Vendor will retain all information
obtained or created in the course of performance hereunder in accordance with the longer of the
records retention guidelines of CLIENT communicated to Vendor from time to time, or as is
required by law. The Vendor shall also be liable to discharge its obligation and liabilities as
envisaged under Information Technology Act, 2000 (as amended from time to time) and Information
Technology Rules or under other applicable law for the time being in force.
F. Review of Control Standards.
1. Internal Monitoring.
As Vendor processes, possesses and maintains CLIENT’s Confidential Information, Vendor, at its
cost, will: (a) periodically test and validate key controls related to safeguarding such information; (b)
establish and maintain appropriate application and system logs to capture such information; (c)
provide to CLIENT access to view such logs upon request; and (d) ensure that all facilities used in
the provision of Services are in material compliance with this Agreement.
2. Independent/Third Party Review.
In the event Vendor processes, possesses, or maintains CLIENT’s Confidential Information, Vendor,
at its cost, will: (a) procure a mutually-acceptable third-party independent audit/evaluation that tests
and validates Vendor’s key controls in relation to the safekeeping of such Confidential Information;
(b) permit CLIENT to propose CLIENT-specific audit criteria in such review; and (c) update this
audit report annually (or more frequently as agreed by the Parties), and make the audit certification
letter available to CLIENT timely after Vendor’s receipt of the letter. In the event that Internet
connectivity is used in relation to the Services, Vendor will provide CLIENT with written assurances
of secure access as defined by industry, FFIEC, AICPA/CICA, etc standards for Trust Services
Security, Availability, Processing Integrity, and Confidentiality Criteria.
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VI. INTELLECTUAL PROPERTY RIGHTS
A. Vendor’s Property.
Subject to the terms of this Agreement, all Intellectual Property Rights in and to all technology used
by Vendor to provide the Services, including any software, inventions, discoveries, or innovations
conceived, reduced to practice or otherwise developed by Vendor Personnel or its licensors at any
time, without the use of CLIENT’s Confidential Information, CLIENT’s Intellectual Property Rights
or the CLIENT Materials (“Vendor Property”), along with Vendor Personnel’s or its agents
improvements to or derivative works of those items, are and will remain the sole and exclusive
property of Vendor or its licensors. Any CLIENT suggestions or recommendations for improvements
or modifications to the Vendor Property (“Feedback”) will be owned by Vendor without the need for
Vendor to pay to CLIENT any royalties or other compensation of any kind whatsoever for its use.
Vendor, pursuant to all of its Intellectual Property Rights in the Vendor Property, hereby grants to
CLIENTa exclusive, nontransferable license to such Vendor Property valid during the term of this
Agreement (which is fully paid-up, except for standalone software application licenses or other
development services, which will be addressed in Statement(s) of Work, as indicated below) to use
for its own internal business operations or activities, but then only to the extent required to exercise
its rights or receive the Services under this Agreement. Notwithstanding the foregoing, there may be
circumstances where CLIENT requests that Vendor modify the Vendor Property, or license to
CLIENT certain standalone software applications. Vendor may, but shall have no obligation to,
make any such requested modification or license. If Vendor agrees to do so, the Parties will address
the terms for the requested modification/license, and the associated fees and the allocation of
Intellectual Property Rights, in the applicable Statement of Work.
B.CLIENT Property.
All Intellectual Property Rights in and to the inventions, discoveries, or innovations conceived,
reduced to practice or otherwise developed by CLIENT or its agents prior to or during the term of
this Agreement that are embodied in the products and processes utilized by CLIENT in its own
internal business operations or its business activities undertaken with current or prospective
customers, consumers or service providers, including CLIENT’s Confidential Information and
CLIENT Materials (CLIENT Property), along with CLIENT’s or its agents’ improvements to and
any derivative works of those items without the use of Vendor’s Confidential Information or Vendor
Property, are and will remain the sole and exclusive property of CLIENT. Any Vendor suggestions
or recommendations for improvements or modifications to the CLIENT Property “Feedback”) will
be deemed to be the Confidential Information of CLIENT and owned by CLIENT, without the need
for CLIENT to pay Vendor any royalties or other compensation of any kind whatsoever for use by
CLIENT of the Feedback.
VII. PRICING AND PAYMENT
A. Payment Terms.
Unless otherwise specified in the applicable Statement of Work, Vendor will invoice CLIENT on a
Monthly basis for the Services actually rendered, and will use commercially reasonable efforts to do
so within thirty (30) days of the accrual of the charges set forth in that invoice. Vendor will comply
with all reasonable invoicing procedures requested by CLIENT. Vendor will not charge CLIENT
any interest for any invoices submitted after the date the Services were performed. Vendor will
waive its right to receive payment for invoices submitted to CLIENT more than (i) three (3) months
after the date that the charges accrued, or (ii) deductions made by CLIENT on account of any errors
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in the work executed by vendor. All payments due under this Agreement shall be made upon
satisfactory performance and acceptance of work by CLIENT withinSixty(60) working days at
Vendor’s address or by wire transfer to a bank account identified by Vendor. CLIENT will try and
pay the undisputed amounts in any such invoice not later than Sixty (60) days from CLIENT’s
receipt of such invoice. Disputed invoices if any,will be paid upon CLIENT’s clients accepting the
same and agreeing to pay for it.
B. Taxes.
Vendor will furnish CLIENT with accurate invoices showing separately itemized amounts due in
respect of any and all sales, use, excise, value added, or goods and services taxes, due under federal,
state/provincial, local or foreign law that are associated with the goods and/or Services purchased by
CLIENT under this Agreement (however, specifically excluding taxes in the nature of ordinary
personal property taxes assessed against or payable by Vendor, taxes based upon Vendor’s net
income, Vendor’s corporate franchise taxes and the like) (“Taxes”). CLIENT will pay or reimburse
Vendor for all Taxes due under this Agreement and Vendor will remit those amounts to the
appropriate taxing authority. Vendor will be exclusively liable for any penalties, interest and other
charges of any jurisdiction and any other fees or costs arising from Vendor’s failure to assess any
Taxes that are due in relation to Services rendered hereunder (although CLIENT will remain liable
for the amount of the underlying), or to remit any applicable Taxes that were properly collected from
CLIENT. If CLIENT has paid Taxes to Vendor, Vendor assigns and transfers to CLIENT all of its
right, title, and interest in and to any refund for those paid Taxes, such that any claim (including
initiation of litigation and/or administrative procedures) for refund of Taxes against the assessing
authority may be made in the name of CLIENT or Vendor, or both, and Vendor will cooperate with
CLIENT in pursuing any such refund claims.
C. Liquidated Damages.
CLIENT shall be entitled to liquidate damages set forth in a mutually executed Statement of Work
for Vendor’s failure to meet the terms thereof. The Parties agree that such liquidated damages will
not be construed as a penalty and may be imposed on Vendor as applicable since the Parties
acknowledge that any liquidated damages set forth in a Statement of Work is a reasonable estimate
of the damages that will be suffered by CLIENT as a result of Vendors’ failure to perform, and such
amount is not otherwise reasonably ascertainable. Except for liability of Vendor under this
Agreement other than the original breach that generated the liquidated damages liability, CLIENT
agrees that its recovery of liquidated damages in that instance shall be its sole and exclusive remedy
for such
VIII. CONFIDENTIAL INFORMATION
A. Definition.
1. Confidential Information.
Vendor’s Confidential Information consists of Proprietary and Other Confidential Information only,
and "CLIENT’s Confidential Information" consists of Proprietary and Other Confidential
Information and Customer & Employee Information.
a. Customer & Employee Information. Customer & employee Information means any and all
information or data, provided by CLIENT or any of its Affiliates to Vendor Personnel
relating to (i) any and all nonpublic personal information of CLIENT or any of its Affiliates
or their consumers or customers and employees, (ii) information containing Sensitive
personal data, or (iii) information from which a customer or consumer’s or employee’s
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identity can be ascertained, either from the information itself or by combining the
information with information from other sources.Customer and employee Information
includes, but is not limited to, financial information, medical or health-related information.
Examples are credit history, income, financial benefits, information in an application, loan or
claim information, health information such as medical records, names and address of the
customer/customers, names or lists of individuals derived from nonpublic personally
identifiable information or otherwise derived from CLIENT or an Affiliate.
b. Proprietary and Other Confidential Information. Proprietary and other Confidential
Information means any and all confidential business, technical or data processing
information, trade secret or other proprietary information disclosed to by a Party to the other
Party in relation to the Services or acquired in the course of performing under this
Agreement, or as a result of access to the premises of the other Party. Proprietary and other
Confidential Information does not include CLIENT Materials. In the case of Vendor,
Confidential Information includes pricing under this Agreement as well as all information
and data related to Vendor’s security, privacy and data protection policies and procedures and
all information arising out of or in connection with any audit performed hereunder.
2. Further Agreements.
Any legal or natural person employed by or otherwise engaged by the receiving Party (e.g.,
consultant, auditor, attorney, etc.) who will have access to the disclosing Party’s Confidential
Information must agree in writing to be bound by confidentiality terms with respect to such
Confidential Information that are substantially similar to the terms set forth in this Article VIII,
although such written documents need not specifically refer to the Confidential Information of
CLIENT, or Vendor, as applicable. Further, each Party further agrees that it will prohibit anyone
with such access from, selling, leasing, assigning, transferring, copying or revealing any of the other
Party’s Confidential Information obtained under or in connection with this Agreement without the
prior written consent of the other Party (in the case of CLIENT, such consent must be from an
Executive Vice President).
B. Non-disclosure Obligations.
During the course of this Agreement, the Vendor and Vendor Personnel may receive or have access
to CLIENT Confidential Information that is labeled confidential or proprietary or is Confidential
Information that under the circumstances surrounding the disclosure a reasonable person would
expect to be treated as confidential. Subject to the terms of this Agreement, and Article VI
(Intellectual Property Rights), the Confidential Information of CLIENT shall remain the sole and
exclusive property of CLIENT, the Vendor shall have no right or license to such Confidential
Information. The Vendor will not disclose, communicate nor publish the nature or content of such
Confidential Information to any person or entity, except (1) as strictly required to perform or receive
the Services, including to its consultants, auditors, examiners or lawyers with respect to the Services,
or (2) as otherwise expressly authorized in writing by an authorized representative of CLIENT. In
addition to the foregoing non-disclosure obligations, each party acknowledges that it is prohibited
from using the Confidential Information of the other Party for any reason, save as expressly provided
herein. To prevent unauthorized disclosure, each Party will treat the Confidential Information of the
other Party as it treats its own confidential information, using no less than reasonable care, to ensure
that it complies with the terms of this obligation of confidentiality, including the implementation of
systematic processes designed to prevent any unauthorized disclosure.
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C. Legal Proceedings.
In the event a subpoena or other legal process is served upon the receiving Party that, pursuant to the
requirement of a governmental agency or law of the India or any state thereof (or any governmental
or political subdivision thereof), or any other lawfully executed subpoena in any other jurisdiction in
which Services are performed, requires the disclosure of Confidential Information (CLIENT’s
Confidential Information or Vendor’s) disclosed to the receiving Party hereunder, the receiving Party
agrees that it will notify the disclosing Party promptly upon receipt of such subpoena or other request
for legal process unless such notice is prohibited by law. The receiving Party will cooperate with the
disclosing Party, at the disclosing Party's expense, in any lawful effort by the disclosing Party to
contest the legal validity of such subpoena or other legal process. CLIENT acknowledges that its
shipments may be subject to inspection while in transit by provincial, federal, state or local
government entities, and CLIENT authorizes Vendor to fully cooperate with such inspections.
Vendor shall bear no responsibility for loss or damage to CLIENTMaterials caused by such
government entities; the Parties agree that Vendor bears the burden of proving that any such damage
was caused by such governmental entities that inspected the shipments while in the possession,
control or responsibility of Vendor.
D. Third Party Proprietary Information.
Neither party, nor its employees, subcontractors, officers or agents will disclose any information to
the other Party that it knows to be proprietary or confidential information or a trade secret of a third
party, except as permitted by the license or other terms of use under which it received such
information from the third party. Each Party agrees to take all reasonable steps necessary to ensure
fulfillment of this obligation.
E. Injunctive Relief.
The receiving Party acknowledges and agrees that it would be difficult to fully compensate the
disclosing Party for damages resulting from a breach or threatened breach ofconfidentiality or IPR or
statutory obligations on the part of the vendor or the foregoing provisions and, accordingly, that the
disclosing Party will be entitled to seek temporary and injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions, to enforce such provisions.
F. Security Breach
In the event of any unauthorized access to or acquisition of any CLIENT Confidential Information
including resulting from a loss of CLIENT Materials, or any reasonable threat of such access or
acquisition, while in the possession of or under the control of Vendor Personnel under this
Agreement, which may compromise the security, confidentiality or integrity of such information
(.Security Breach.), Vendor will notify CLIENT of such Security Breach within twenty-four (24)
hours after Vendor has filed its Incident Report with its own security personnel. Such notice will be
directed to CLIENT security personnel at the following 24-hour phone number:
____________________Thereafter, Vendor will promptly coordinate with CLIENT to investigate
and, to the extent possible, remedy the Security Breach, in collaboration with CLIENT. Except as
may be strictly required by applicable law or regulation, each Party agrees that it will not inform any
third party of any such Security Breach without the other Party's prior written consent; however, if
such disclosure is required and permitted by applicable law or regulation, the Parties will work
together regarding the content of such disclosure so as to minimize any potential adverse impact
upon their respective clients and customers. Without limiting the generality of the foregoing, each
Statement of Work may have different notification requirements for Security Breaches related to
different kinds of CLIENT Materials. After each Security Breach, the CLIENT Vendor Manager and
Page 12 of 24
Vendor lead Account Executive will meet to discuss root cause analysis, and address whether any
changes are needed to the Services to prevent any similar issues from occurring
G. Publicity.
Except as provided in this Article, vendor will disclose the existence of this Agreement or the
business relationship with CLIENT to any outside third party, without the CLIENT’s prior written
approval by an authorized officer, which for CLIENT is a CEO (Chief Executive Officer). This
restriction includes, but is not limited to, using CLIENT’s name, likeness or logo (CLIENT’s
Identity). Vendor will not use CLIENT’s Identity, directly or indirectly, in conjunction with any
other clients of Vendor, any client list, advertisements, news releases or releases to any professional
or trade publications. The prior approval of CLIENT is necessary for all press releases by Vendor;
for CLIENT, approval is required from Corporate Communications group.
IX. WARRANTIES
A. Compliance.
To the best of each Party’s knowledge and belief, the entering into and performing of the terms of
this Agreement will not violate or constitute a breach of any obligation binding upon it. Vendor
warrants that the Services will be performed in a manner that complies with all applicable
international, federal, state/provincial and local laws (and all corresponding regulations/directives)
that apply to the performance of the Services under this Agreement. CLIENT warrants that it is the
owner or legal custodian of the CLIENT Materials and has authority to direct Vendor to perform the
Services in accordance with the terms of this Agreement.
B. Performance.
Vendor warrants that it will provide competent Vendor Personnel with sufficient skill, knowledge,
and training to perform the Services for CLIENT that are set forth in this Agreement and any
Statement(s) of Work, and that such Vendor Personnel will perform such Services in a diligent and
professional manner, and the Services will comply with: (1) all performance specifications set forth
in this Agreement and the applicable Statement of Work, including SLAs; and (2) generally accepted
industry standards. Vendor further warrants that it will comply with the descriptions and
representations as to the Services, including, but not limited to performance, capabilities, accuracy,
completeness, characteristics, specifications, configuration, standards, functions and requirements set
forth in this Agreement or the Statement(s) of Work. Except as otherwise provided herein, the
performance of Services will take place solely within the country of the CLIENT facility where the
Services originated in India, unless the Statement of Work indicates to the contrary or Vendor has
received prior written consent for the performance of Services outside the country of the CLIENT
facility where the Services originated (including transnational shipments of CLIENT Materials
outside the specified country) by no lower than a CLIENT Executive Vice President, and further that
such signed writing will set forth any necessary additional contract terms required by Vendor or
CLIENT prior to the performance of any such Services.
C. Relationship.
The Parties agree that they are independent contractors and each Party warrants to the other that is
solely responsible for complying with all laws, rules and regulations or any governmental authority
having appropriate jurisdiction relating to such employment, including, but not limited to:
immigration; taxation; worker compensation; and unemployment compensation. If any court or
administrative tribunal or agency with appropriate jurisdiction determines that any employment
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relationship has been or will be established by the performance of this Agreement, the Parties will
work out a mutually agreed settlement.
D. Warranty Pass-Through.
In the event that Vendor procures hardware, software or other items specifically related to its
performance of the Services by Vendor on behalf of CLIENT (.Related Products.), Vendor will pass
through and hereby assigns to CLIENT all warranties provided by the manufacturer(s) and/or
licensor(s) of such items, which CLIENT will enforce directly against the manufacturers. No Related
Products disclaimer will relieve Vendor of its obligations to deliver the Services pursuant to the
standards set forth in this Agreement or in an applicable Statement of Work.
E. Authority; Intellectual Property Warranty.
a. Vendor warrants to CLIENT that it has full power and authority to grant the rights granted by this
Agreement to CLIENT with respect to the Services and Vendor Property without the consent of any
other person. Vendor further warrants to CLIENT that: (1) all materials delivered pursuant to this
Agreement will be the original work of Vendor (or duly licensed by Vendor for purposes for which
they are delivered); (2) Vendor is the lawful owner or licensee of all software programs used by it in
the performance of the Services.
b. Notwithstanding anything to the contrary in this Agreement, if Vendor is in breach of the
warranties set forth in the preceding section, then Vendor shall defend, indemnify and hold harmless
CLIENT and its officers, directors and employees from and against any claim, suit, demand, alleging
that the Services infringe any Intellectual Property Rights in those countries in which Vendor is
performing Services for CLIENT hereunder, provided that CLIENT provides Vendor with written
notice of any such claim, suit or demand and consents and authorizes Vendor’s sole control of the
defense of any resulting litigation or settlement thereof. If any Services are held, or in Vendor’s
reasonable opinion could be held, to constitute an infringement or misappropriation of any third
party’s Intellectual Property Rights, Vendor will procure the right for CLIENT to continue using or
accessing the Services, if such a right or license is commercially reasonable, and if not, Vendor will
either replace the Services with a non-infringing equivalent service or modify the Services to make
them non-infringing and without compromising their functionality.
F. Virus.
Vendor represents and warrants that (1) its computing environment(s) used (or to which it provides
access) in connection with this Agreement is free from all generally-known viruses, worms, Trojans
and other .malware and that it has deployed antivirus software in compliance with applicable
industry standards; and (2) any software code furnished to or made available to the other Party will
be free from: (i) any computer code or instructions that may disrupt, damage or interfere with such
other’s use of its computer and/or telecommunication facilities (e.g. malicious code, viruses, etc.),
and (ii) devices capable of automatically or remotely stopping the code from operating (e.g.,
passwords, fuses, or time bombs, etc.).
G. Each Party warrants that it will take all necessary steps to ensure that it complies with its
obligations of confidentiality under Section VIII.
H. Each of the foregoing warranties is continuous in nature and will be deemed provided by the
applicable Party on the Effective Date hereof, and throughout the Initial Term of this Agreement and
any renewals or extensions thereof.
Page 14 of 24
I. WITH THE EXCEPTION OF WARRANTIES THAT MAY BE SET FORTH IN A
STATEMENT OF WORK, THIS SECTION IX SETS FORTH THE SOLE AND EXCLUSIVE
WARRANTIES OF THE PARTIES AND ARE OFFERED IN LIEU OF ANY AND ALL OTHER
WARRANTIES. NEITHER PARTY TO THIS AGREEMENT MAKES ANY IMPLIED
WARRANTY OF ANY KIND TO THE OTHER PARTY, INCLUDING WITHOUT LIMITATION
FOR MERCHANTABILITY OR FITNESS FOR A PARTCULAR PURPOSE OF THE SERVICES
THEMSELVES, OR ANY OTHER ASPECT OF PERFORMANCE HEREUNDER.
X. LIMITATION OF LIABILITY
A. Direct Damages Limitation of Liability.
Vendor agrees that it will be liable to CLIENT and its officers, directors, employees, agents, and
representatives (collectively, CLIENT Personnel) for any and all damages, losses, liabilities, actions,
claims, suits, judgments, obligations, penalties, costs and expenses, including but not limited to,
reasonable attorney’s fees, arising directly out of or are related to damage to, or the unauthorized
destruction or loss of, any CLIENT Materials while such CLIENT Materials are under the control of
or are the responsibility of Vendor Personnel, or for any failure or delay by Vendor Personnel in
delivering any CLIENT Materials to CLIENT Representatives or any CLIENT facility (collectively,
.Losses.):
1. To the extent that such Losses are caused by the negligence of Vendor Personnel, Vendors
liability to CLIENT shall be limited to damages, in an amount not to exceed the value of the CLIENT Materials damaged, destroyed or lost or the cost to repair or replace such CLIENT
Materials, whichever is more; plus all the incidental damages. For purposes of this subsection
only, occurrence shall mean an event in its entirety, which results in damage to or the loss of
CLIENT Materials stored, or one or more boxes containing stored Deposits.
2. To the extent that CLIENT conducts an audit pursuant to Section XIV.O (Audit) as a direct result
of a Security Breach, then CLIENT’s costs for such audit, if recoverable under Section XIV.O, are
limited to the recovery of travel and related expenses and any third party payment amounts, and
further subject to the caps set forth in Section XI.A.1.
3. The foregoing limits will not apply to Losses related to or arising from: (i) infringement claims for
Intellectual Property Rights. (ii) Vendor’s negligence or misconduct, (iii) punitive damages assessed
against CLIENT resulting from Vendor’s violation of applicable statute or implementing regulations,
or (iv) bodily injury or death. Upon the commencement of any proceedings which might result in the
assessment of punitive damages, CLIENT will permit Vendor to participate in CLIENT’s defense of
or attempt to reduce such damages, provided that CLIENT will lead and direct any such effort.
B. Indirect Damages Limitation of Liability.
EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT OR IN THE APPLICABLE
STATEMENT OF WORK, OR FOR DAMAGES ARISING PURSUANT TO ARTICLE VIII
(CONFIDENTIAL INFORMATION), ARTICLE ___ WARRANTIES AND ARTICLE __
INDEMNIFICATION, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT
OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS,
EVEN IF THE PARTIES HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
Page 15 of 24
XI. TERM AND TERMINATION
General.
“The initial term of this Agreement commences on the Effective Date and runs for a period of
one year (Initial Term.), unless ea1rlier terminated by either Party pursuant to the termination
rights set forth in this Agreement or otherwise by giving a prior notice of 45 (Forty five days). If
this Agreement is in effect as of the end of one year from effective date , this Agreement will
renew for successive one-year term thereafter and same will remain in force, unless terminated
by CLIENT .Without limiting the generality of the foregoing, the CLIENT Vendor Manager may
terminate the entire Agreement on behalf of CLIENT, and, notwithstanding the terms of Section
XIV.H below, any such termination shall terminate all Statements of Work upon the conclusion
of the final services efforts under Section XIII.E (Effects of Termination) below.”
A. Termination with Cause:
1.
a.
b.
c.
d.
e.
CLIENT may terminate, in whole or in part, this Agreement or any Statement of Work
for cause if:
Vendor breaches any material provision of this Agreement or any Statement of Work
or repeatedly breaches any such provision (other than breaches of a covenant
terminable pursuant to Section XIII.B.1.c, below), and then fails to cure or remedy
such breach within thirty (30) calendar days of receiving written notice from CLIENT
specifying in reasonable detail the nature of such breach(es);
Vendor generally fails to pay its debts as they become due, admits in writing its
inability to pay its debts generally, makes a general assignment for the benefit of
creditors or any proceedings are instituted by or against Vendor or Vendor takes any
corporate action to authorize any of the actions set forth in this Section XIII.B;
Vendor breaches any of its obligations under Article _____ (CONFIDENTIALITY)
or Section _______ (Intellectual Property Warranty);
Control of Vendor is to be transferred (whether directly or indirectly, or in a single
transaction or series of related transactions), or all or substantially all of the assets or
business of Vendor are to be acquired by any organization. In such event, Vendor
will give written notice to CLIENT of said occurrence within five (5) days of
Vendor’s execution of any letter of intent, memorandum of understanding or similar
document that Vendor is entitled by law to make known to CLIENT, or upon
Vendor’s execution of a definitive transaction agreement regarding the foregoing.
This notice will set forth the proposed transaction with sufficient detail to enable
CLIENT, in its sole discretion, to determine whether or not to terminate the
Agreement; or
Vendor fails to comply with its reporting and remedy obligations related to Security
Breaches, in accordance with the provisions of Section _____(Security Breach).
2.
Any termination pursuant to subsections XIII.B(1) (a) through (e) above will be
effective as of the date specified in such termination notice, upon CLIENT providing
Vendor with written notice of such termination pursuant to the terms of Section XIV.A
(Notice).
3.
Vendor may terminate any Statement of Work for cause if CLIENT violates a material
provision of that Statement of Work and fails to remedy or cure such violation within
thirty (30) calendar days following forty five (45) calendar days of prior written notice
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to CLIENT stating, with particularity and in reasonable detail, the nature of the claimed
breach.
4.
Vendor acknowledges that any notice and cure period permitted by CLIENT will not
operate or be construed as a waiver of any subsequent, similar or other breach.
C. Termination without Cause.
CLIENT may terminate this Agreement or any Statement of Work, in whole or in part, without cause
upon forty five (45) calendar days’ prior written notice to Vendor. In the event that CLIENT elects to
terminate only a portion of a particular Statement of Work, then Vendor shall have the right to
terminate without cause the remainder of such Statement of Work on forty five (45) days’ written
notice.
D. Mergers/Acquisition and Divestiture.
CLIENT may acquire or merge with entities that, at the time of the closing of the acquisition or
merger, have agreements in effect with Vendor. CLIENT, in its sole discretion, will have the right to
terminate this Agreement or the acquired or merged entity’s agreements with Vendor if such
agreement(s) are transferred under this Agreement or the agreement of the acquired or merged
entity(ies), whichever is applicable. Notwithstanding the foregoing, CLIENT agrees it will not
terminate this Agreement or any such merged entities’ agreements until six (6) months after the
effective date of the merger or acquisition or such longer period as the parties may otherwise agree to
reflect an investment by Vendor of greater than three hundred thousand dollars for costs associated
with securing a contract with such entity, including by way of example and not of limitation the
reimbursement of such party’s permanent withdrawal fees or other non-recurring costs and expenses
(not to exceed (12 months); and the parties will work collaboratively to ensure any required
transition is timely completed. Such termination will be without penalty or additional charge to
CLIENT or the acquired or merged entity(ies). Conversely, CLIENT may divest itself of certain
Affiliates, and such divested Affiliates shall be entitled to continue under the terms of this
Agreement and its Statements of Work for a period of ninety (90) days after the effective date of
divestiture to permit Vendor to contract with such entity under new terms and conditions.
E. Effect of Termination.
Subject to applicable law and the parties commitment to abide by the mutually-agreed transition
plan, in the event this Agreement is terminated by either Party for any reason whatsoever, Vendor
will return to CLIENT all Deposits (and metadata associated with the Deposits) and Electronic
Media, and each Party will return or destroy all other Confidential Information of the other Party (as
defined in Article VIII (CONFIDENTIAL INFORMATION), that it has in its possession at the
conclusion of Services (as discussed below), including, but not limited to, any information stored on
its own equipment, and provide the other Party with an officer’s certificate attesting thereto. In the
case of the termination of a Statement of Work, only the Deposits (and metadata associated with the
Deposits) and Electronic Media related to that Statement of Work will be affected. Further, the
Parties will work to ensure such termination of Services or transfer of Services to another service
provider selected by CLIENT (which may include CLIENT) is orderly and is non-disruptive to the
business continuation of each Party, such cooperation to include transfer of all Deposits, associated
metadata and Electronic Media. Notwithstanding the foregoing, if the transition from Vendor’s
system to a new service provider has not been completed by the termination date, Vendor will
continue to perform the Services under the terms of this Agreement and the applicable Statement of
Work on a month-to-month basis and be compensated for such Services in accordance with the terms
of Article VII (Pricing and Payment); provided, that Vendor will have no obligation to provide the
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Services for a period longer than twelve (12) months thereafter, unless otherwise agreed in the
transition plan. In the event this Agreement or any Statement of Work hereunder is terminated by
any Party for any reason whatsoever Vendor will return to CLIENT any fees prepaid by CLIENT for
which Services have not been rendered. Notwithstanding the foregoing, CLIENT will remain
obligated to pay for all undisputed fees and expenses incurred prior to the effective date of
termination and early termination fees, if any, specified in a Statement of Work. The Parties
understand and agree that no termination of this Agreement will discharge or excuse completion of
or performance of any liability or Services obligation herein undertaken or occurring prior to the
effective date of such termination. In addition, unless otherwise noted, the termination of this
Agreement will not limit any other rights or remedies available to either Party. At the time of
termination, the Parties will work cooperatively to establish the workflow, pricingand timing and
associated Materials volumes associated with such transition.
F. Survival of Certain Provisions.
In the event this Agreement is terminated, the provisions of Articles VI (INTELLECTUAL
PROPERTY RIGHTS), VIII (CONFIDENTIAL INFORMATION), X (LIMITATION OF
LIABILITY), and XI (GENERAL PROVISIONS) and Sections VII.D (Taxes), XI.E (Effect of
Termination) and XIII.F (Survival of Certain Provisions) of this Agreement will survive such
termination.
XII. GENERAL PROVISIONS
A. Notice.
All notices, consents and other communications hereunder must be in writing and will be deemed to
have been duly given when delivered personally, or one (1) business day after being sent by an
overnight courier, or three (3) business days after being sent postage prepaid by certified or
registered mail, return receipt requested, or one (1) business day after being sent via email. Faxed
notices are sufficient to meet the notice requirement, provided an original copy follows it in a timely
manner. All notices should be sent to the following addresses and indicated contacts:
To Client:
Attention of:
MrXXXXX XXXXXXXXXX,
Managing Director,
CLIENT XXXXXXXXXXX Management Pvt Ltd
Address:CLIENT ADDRESS (TO BE DISCLOSED DURING TIME OF SIGN UP),
Sahar Road, Koldongri, Andheri (East),
Mumbai 400069
To Vendor:
Attention of:
MrXXXXXXXXXXXXXX,
Chief Executive Officer,
ASTRA XXXX XXXXXXXXXXX
Address:XXXXXXXXXXXXXXXXXXXXX,
Hebbal, Bangalore 560024,
Karnataka – INDIA
B. Assignment.
Page 18 of 24
C. Relationship.
The relationship between the Parties created by this Agreement is that of independent contractor and
not partners, joint ventures, agents or employees.
D. No Third-Party Beneficiaries.
Vendor and CLIENT intend that this Agreement will not benefit or create any right or cause of
action in or on behalf of any person or entity other than the Parties.
E. Modification and Waiver.
No modification of this Agreement and no waiver of any breach of this Agreement or Statement of
Work will be effective unless in writing and signed by an authorized representative of the Party
against whom enforcement is sought. No waiver of any breach of this Agreement and no course of
dealing between the Parties will be construed as a waiver of any subsequent breach of this
Agreement or Statement of Work.
F. Severability.
The provisions of this Agreement are severable. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions
will in no way be affected or impaired thereby.
G. Interpretation.
Article and Section headings are provided for convenience only and are not to be used to construe or
interpret this Agreement. Whenever the words "include" or "including" are used in this Agreement,
they will be deemed to be followed by the words "without limitation”.
H. Contrary, Inconsistent, or Additional Terms.
Any contrary, inconsistent, or additional terms contained in a mutually executed Statement of Work
between Vendor and CLIENT securing such Services, that may be contrary to, inconsistent with, or
in addition to the terms and conditions contained in this Agreement, will be governed, interpreted,
and construed by the terms of the applicable Statement of Work solely with respect to the subject
matter of such Statement of Work. Any pre-printed terms and conditions on any materials that either
Party regularly uses (e.g., order forms or invoices) will be null and void or of no consequence
whatsoever in interpreting the Parties' legal rights and responsibilities as they pertain to any of the
contemplated Services provided hereunder.
I. Consents.
Except as provided in Article VIII (CONFIDENTIAL INFORMATION), wherever this Agreement
requires either Party’s approval, consent or satisfaction, such approval, consent or satisfaction may
not be unreasonably or arbitrarily withheld or delayed.
J. Governing Law.
This Agreement will be construed as having been made in, and will be governed in accordance with
the laws of, the 1Union of India
K. Remedies upon Default.
Unless expressly provided to the contrary in this Agreement, including without limitation any
exclusive remedy provisions or any agreed-upon limitations of liability or liquidated damages
provisions, in the event of breach by either Party, the non-breaching Party will be entitled to exercise
any and all rights and remedies as will be available to it at law or in equity. The non-breaching Party
Page 19 of 24
may exercise remedies concurrently or separately, and the exercise of one remedy will not be
deemed either an election of such remedy or a preclusion of the right to exercise any other remedy.
L. Dispute Resolution.
Subject to the terms of Section VIII.F (Injunctive Relief) and Section XIV.K (Remedies Upon
Default) set forth above, it is the intent of the Parties that any action, dispute, claim or controversy of
any kind, whether in contract or tort, statutory or common law, legal or equitable, now existing or
hereafter arising under or in connection with, or in any way pertaining to, this Agreement (Disputes)
arising under this Agreement be resolved expeditiously, amicably, and at the level within each
Party's organization that is most knowledgeable about the disputed issue. As a result, all Disputes
arising under this Agreement will be resolved by the procedure outlined in Exhibit 2 attached hereto.
Notwithstanding the foregoing, the Parties understand and agree that the procedures outlined in
Exhibit 2 attached hereto are not intended to supplant the routine handling of inquiries and
complaints through informal contact with CLIENT service representatives or other designated
personnel of the Parties.
M. Attorney Fees.
In all Disputes and matters whatsoever arising under, in connection with, or incident to this
Agreement, the Parties agree that the prevailing Party will be entitled to recover its reasonable
attorney fees from the other Party.
N. Financial Solvency.
CLIENT will examine Vendor’s publicly-available information to evaluate Vendor’s financial
solvency. In addition, Vendor will notify CLIENT in writing in the event of: (1) financial difficulty
or significant staffing reductions that may affect Vendor’s ability to perform any Services; (2)
cessation of business or material adverse change in any business of Vendor hereunder; (3) an
announced intention or the actual filing for bankruptcy protection under any existing laws of the
Union of India or other contemporary laws of other Sovereign. (4) The existence of a sanctioned
strike against any parts of its operations; or (5) the closing of any of its operational sites supporting
CLIENT.
O. Audit.
Upon five business days’ advance written notice (or other time period set forth in the applicable
Statement of Work), Vendor will reasonably make available during normal business hours to
CLIENT or its auditors (including, without limitation, any federal or regulatory auditors with
jurisdiction over CLIENT’s operations) those books and records of Vendor which provide
substantiation of the performance of Services in compliance with the terms and conditions of this
Agreement, but only in relation to the CLIENT Materials. Absent a Security Breach or Services
breach relating to a loss of Customer Information which precipitates the audit, such audits will not
occur more frequently than once in any twelve month period. In such written notice, CLIENT will
provide Vendor with the expected scope of such audit, in terms of resources and total days involved,
but the Parties agree that the scope of such audit may expand in the event CLIENT reasonably
determines in the course of such audit that there is material non-compliance by Vendor Personnel
with the terms of this Agreement. CLIENT’s auditors may enter Vendor’s premises, where
CLIENT’s Materials are located for the purpose of inspection and examination of Vendor’s security
procedures applicable to the storage of CLIENT’s Materials under this Agreement, during normal
business hours, unless otherwise agreed. If CLIENT identifies a control weakness or risk that could
adversely impact Vendor’s ability to perform its obligations under this Agreement, CLIENT will
promptly notify Vendor in writing of such control weakness, demonstrating with particularity the
nature and scope of such weakness. Unless agreed to the contrary pursuant to Section IV.B above or
Page 20 of 24
unless disputed by Vendor, Vendor will have ten (10) business days to respond to this written notice,
and to provide to CLIENT, in writing, Vendor’s project plan and a timeline for implementation, to
remedy the weakness. Nothing contained herein will allow CLIENT to review data pertaining to
other customers of Vendor or proprietary information related to Vendor’s security programs. If
CLIENT elects to have its authorized representative or auditors perform such inspection, the
authorized representative, excluding any agency with regulatory authority, must agree to abide by
Vendor’s reasonable procedures for security of the data and facility, and, if such individual are not
otherwise under a written confidentiality agreement per the terms of Section
VIII.A.2 above, shall be required to enter into a confidentiality agreement in form and substance
reasonably satisfactory to Vendor. However, Vendor reserves the right to refuse such access to any
authorized representative of CLIENT who is a competitor of Vendor or whose presence at a facility
jeopardizes the safety and security of the materials stored there (e.g., if a foreign national is sent by
CLIENT to a facility that contains ITAR-protected materials). In the event that CLIENT or its
auditors (1) discover overcharging by Vendor of amounts invoiced to CLIENT under this Agreement
by a factor of five percent (5%) or greater over the time period and Services audited, or (2) conduct
an audit under this section that is precipitated by a Security Breach, then Vendor shall promptly
remedy any such overcharging or other non-conformity (e.g., issuing a credit for amounts
overcharged, or remedying the issues noted with respect to CLIENT Materials), and will reimburse
to CLIENT the costs ,Notwithstanding the foregoing, with respect to costs or expenses related to (2)
above, CLIENT must work with Vendor to minimize the scope and/or associated costs and expenses
of any such audit.
P. Records.
Vendor will retain all information obtained or created in the course of performance hereunder in
accordance with the longer of the records retention guidelines of Vendor that may be in existence
from time to time. The Parties agree that any such records maintained and produced by Vendor under
this Agreement will be available, in English for examination and audit by governmental agencies
having jurisdiction over CLIENT’s business, including, without limitation, all Indian government
agencies having regulatory jurisdiction over CLIENT, and specifically the Office of the Comptroller
of the Currency (OCC) to the extent authorized by law or regulation. The Director of Examinations
of any Federal Agency or his or her designated representative will have the right to ask for and to
receive directly from Vendor any reports, summaries or information contained in or derived from
data in the possession of Vendor related to CLIENT. Vendor will notify CLIENT as soon as
practicable of any formal request by an authorized governmental agency to examine CLIENT’s
records maintained by Vendor, if Vendor is permitted to make such a disclosure to CLIENT under
applicable law or regulation. CLIENT agrees that Vendor is authorized to provide all such described
records, upon advance notice to CLIENT if allowed by law, when formally required to do so by an
authorized governmental agency.
Q. Work Records.
Vendor agrees that with regard to: (1) the hire, tenure and conditions of employment of employees,
their hours of work, the rates of and the payment of their wages; (2) the keeping of records and the
making of reports; and (3) the payments, collection or deduction of federal, state and local taxes and
contributions, Vendor will keep and have available all necessary records and make all payments,
reports, collections and deductions, and otherwise do any and all things so as to fully comply with all
federal, state/provincial and local laws, ordinances and regulations in regard to said matters.
Vendorwill comply with all the laws recognized by the courts in India Only.
R. Background Checks.
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Vendor will cause to be conducted third-party background checks on Vendor Personnel who will be
involved in providing Sensitive Services, defined as access to Customer/Consumer and employee
Information, or unescorted access within CLIENT’s secure facilities, or wherein modifications may
be made to CLIENT’s networks or information systems. A retrospective criminal background check,
described in greater detail below, must be completed by Vendor for all Vendor Personnel prior to
performing Sensitive Services. This check will screen for all criminal offenses involving dishonesty
or a breach of trust, including without limitation money laundering, theft, fraud and analogous
crimes, and will go back seven (7) years for any felony convictions. Such check shall include all
Counties/States of residence disclosed through the identity verification process. Driver candidates
are screened for appropriate license class and any motor vehicle violation history. Violation and
accident history for the past three (3) years are reviewed and adjudicated based upon seriousness of
the offense and frequency of occurrence (e.g., any conviction for Operating Under the Influence of
Drugs or Alcohol is an automatic disqualification). All drivers are subject to an annual motor vehicle
records check. All background and driver checks are conducted by independent, national service
providers and reported to a central corporate point of contact at Vendor to preserve the integrity of
the process and the results. Vendor represents and warrants to CLIENT that no ineligible Vendor
Personnel (under the terms of this provision) will perform Sensitive Services. In the event that
Vendor does not comply with the terms of this Section XIV.R, CLIENT will have the right, in its
sole and absolute discretion, to terminate this Agreement immediately and without penalty. The
Vendor will only adhere to its HR screening and recruitment process of employment.
S. Force Majeure.
Subject to the terms of this Agreement, especially Section V.D (Business Continuity Planning), any
failure or delay by either party in the performance of its obligations under this Agreement shall not
be deemed a default or a ground for termination hereunder if such failure or delay is caused by an act
of God, war, civil commotion, riot, strike or other event beyond a party’s reasonable control (a force
majeure event.), could not have been prevented by reasonable precautions and cannot reasonably be
circumvented by the affected party through the use of alternate sources, workaround plans, or other
commercially reasonable means. Upon the occurrence of a force majeure event, the affected party
will implement its business continuity plan and work to resume Services as soon as practicable, and
shall be excused from any further performance of its obligations pursuant to this Agreement affected
by the force majeure event for as long as such force majeure event continues. The affected party
shall promptly notify the other party of the occurrence of a force majeure event and describe in
reasonable detail the nature of the force majeure event.
T. Entire Understanding.
This Agreement includes any properly executed attachments, including, but not limited to, exhibits,
addenda or Statement(s) of Work, now or hereafter attached hereto. Further, the Parties agree that the
Recitals and the attachments contained herein are specifically incorporated into the Agreement by
the reference herein. In addition, this Agreement constitutes the exclusive and entire agreement
between the Parties with respect to its subject matter and as of its date supersedes all prior or
contemporaneous agreements, negotiations, representations and proposals, written or oral, relating to
its subject matter. Neither Party will be bound or liable to the other Party for any representation,
promise or inducement made by any agent or person in the other’s employ that is not embodied in
this Agreement.
U. Termination Clause & Refund Clause:
A. In case of premature termination for any reason such as
(i) Loss of Campaign due to any issues at Client end,
(ii) Loss of Campaign due to termination of Project from Axis Bank,
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(iii) Loss of Campaign due to Client's inability to carry on the project,
(iv) Cancellation of this project by Client within a period of 6 months from signing this Agreement
for any reasons not 'accountable' as Vendor's misconduct or activities,
(v) Any issue specific on Client's part and not limited to the above and falling within a period of 6
months from signing this Agreement.
B. Then in such scenario, the Client shall refund the full Deposit Amount of Rs6,00,000 paid to
them by the Sub-Vendor (ASTRA XXXX XXXXXXXXXXX) for the provision of this
Project.
C. For further security of the project, the Client (CLIENT XXXXXXXXXXX MANAGEMENT
PVT LTD) shall provide Cheque No _____________, issued from YES BANK Account No
XXXXXXXXXXXXXfor Rs6,00,000 (Rupees Six Lakhs only) made out to 'ASTRA XXXX
XXXXXXXXXXX' dated _______________ (valid for any date within 180 days of signing
this Agreement), as security for the amount being paid byASTRA XXXX
XXXXXXXXXXX.
D. It is also agreed that the above cheque provided as security cannot be put for stop payment by
the Client within the stipulated period of 180 days of signing this Agreement.
E. Any tampering of the cheque issued will be considered a mala-fide intention on the part of
the issuer and will be subject to prosecution under the relevant IPC acts of 138, 420, 406 and
34.
F. This Agreement is made with the trust that the Client is authorized to outsource the said
contract to the Vendor.
Schedule I
Services to be provided by the Service Provider
Quality & Schedule Specifications
1. Bank will provide to the Service Provider a list of customers requiring pick-up services. Bank
will also provide the details of the Client Code, Address, Telephone Number and Authorized
Persons for each Account. This instruction will be provided in standard format called Letter
of Intent (LOI).
2. Service Provider shall provide the Authorization Letter to Client with details of their
Employees who will be entrusted the task of carrying out the pick-up service.
3. Service Provider will send its Team for Dry Run as per Schedule Date and also hand over the
list of Authorized Representatives along with their respective photos. The said Dry Run
should be completed within 2 days from the Date of Issuance of above mentioned LOI.
4. Services at locations should start within agreed date and Service Provider should advise Bank
immediately (within 1 day) up on start of Pick-Up services.
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5. The Service Provider should pick up instruments, letters, documents, etc. from the Clients’
office situated at in the Cities mentioned in Schedule II through its own representatives for
delivery/deposit at the Branch/Head Office/Hub detailed in the LOI.
6. The Service Provider shall collect the Bank’s deposit slips duly filled up by the customer in
Triple with all details of the Instruments.
7. At the time of collection of the instruments, letters, documents, etc. an acknowledgement
should be given on the Customer Copy of the Bank Deposit Slip duly signed by the
Representatives of the Service Provider.
8. The Service Provider shall deposit the Instruments at the Bank Counters situated at said
Location before clearing cut-off time.
9. The Bank shall stamp and sign the deposit slips. One copy of the same will be retained by the
Bank and will they will hand over the remaining one copy to the Service Provider along with
the Return Cheques for handing over back to the Customer on following Working Day. Any
delay in submission of Bank Acknowledged Deposit Slip(s) and Return Cheque(s) to the
Client(s) shall invoke a penalty as detailed under Schedule III. The Deposit Slip issued by the
Bank will automatically replace the temporary receipt given by the Service Provider
previously.
10. Apart from picking up the Instruments, packets/documents, letters, etc. from Client Office,
the Service Provider shall also pick up the Instruments, Packets/Documents from Bank
Branches for further delivery to the Client Office against their acknowledgement.
11. The Service Provider shall deliver the Instruments, Parcels/Documents, Letters, etc. meant
for the addressee against their acknowledgement and such proof of having obtained said
acknowledgement from the addressee shall be produced to the Bank.
12. The Service Provider shall ensure absolute Security, Safety, Secrecy and Confidential Nature
of the Documents while offering the services and shall undertake to arrange that the
Instruments, Packets/Documents, Cheques, etc. are delivered in the same condition duly
closed, sealed as given by any of the Offices/Branches/Hub of the Bank.
AGREED TO AND ACKNOWLEDGED BY:
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ASTRA
XXXXXXXXXXX(“Vendor”)
XXXX
CLIENT
XXXXXXXXXXX
Management Limited (“Client”)
By:Self
By: Self
Name:xxxxxxxxxxxxxx
Name:xxxxxxxxxxx
Title: Chief Executive Officer
Title:Managing Director
Date: 18-December-2015
Date: 18-December-2015
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