SERVICES AGREEMENT
This Services Agreement hereinafter called “Agreement” entered into by and between ___________, a company registered under the COMPANIES ACT of _____, with its Registered office located at _______________________________________ (hereinafter referred to as “The Company” which expression shall, unless repugnant to the context, include its successors and permitted assigns) and xxxxxx with its registered office located at xxxxx(hereinafter referred to as “The Service Provider” which expression shall, unless repugnant to the context, include its successors and permitted assigns)
The Company and the Service Provider are hereinafter referred to jointly as “Parties” and individually as “Party”.
WHEREAS, the Company is currently presenting its credentials and capabilities as listed in Schedule A hereto amongst qualified manufacturers of original equipment (including defence equipments) and other connected enterprises.
WHEREAS, the Service Provider has represented to the Company that it has the capacity to assist the Company in presenting its credentials and capabilities as aforesaid.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the Parties wish to record their understanding with regard to the foregoing as follows:
1. Definitions
Capitalized terms used in this Agreement shall have the meanings respectively assigned to them as follows:
“Applicable Law” means any statute, law, regulation, ordinance, rule, judgment, order, decree, bye-law, approval of any Authority, directive, guideline, policy, requirement or other governmental restriction or any similar form of decision of or determination by, or any interpretation having the force of law of any of the foregoing by any Authority having jurisdiction over the matter in question, whether in effect as of the date of this Agreement or at any time hereafter.
“Purchaser” shall mean any qualified manufacturers of original equipment (including defence equipments) and other connected enterprises in any country as will be agreed between the Parties from time to time.
“Territory” shall have the meaning assigned to it in Clause 2 of this Agreement.
“Work Order” shall mean a work order issued by the Company upon the Service Provider to render any services, and issued, as far as practicable, in accordance with the proforma as provided in Schedule-D.
2. Appointment and Scope
2.1 Subject to the terms and conditions hereof, and for the compensation herein provided, the Company hereby authorizes the Service Provider to present the credentials and capabilities amongst qualified manufacturers of original equipment (including defence equipments) and other connected enterprises throughout the world (“Territory”) in accordance with the scope of work set out in Schedule B hereto.
2.2 Save and except as specifically set forth herein, the Service Provider shall not be responsible to maintain any minimum quality of service or performance towards the Company.
3. Confidentiality
3.1 In this section:
(i) “Confidential Information” means and includes any and all facts, knowledge and information of any nature whatsoever, whether written, oral (if confirmed in writing within seven (7) days of such oral disclosure), in electronic, magnetic and/or optical form or otherwise, relating to the Agreement which includes, but is not necessarily limited to, reports, drawings, development plan, project studies and reports, commercial reports, contractual documents, past expenditures, projected budget, licenses, orders, permits, marketing, sales, financial, operating, performance, business and process information or data, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer programming and other software and software techniques and such other notes, interpretation, derivative or analysis of such data, in whatsoever manner such information is documented, that has been or may hereafter be provided or shown to the Receiving Party by the Disclosing Party or is gathered, received or obtained directly or is otherwise obtained from review of the Disclosing Party’s documents or property or discussions with the Disclosing Party by the Receiving Party.
Notwithstanding the foregoing, the following information will not constitute Confidential Information for purpose of this Agreement
(a) the Receiving Party can conclusively prove, was already lawfully in its possession and was available to it on a non-confidential basis prior to its disclosure by the Disclosing Party;
(b) is obtained by the Receiving Party from a third party who, insofar as is known to the best knowledge of the Receiving Party, is not prohibited from disclosing the information to the Receiving Party under a contractual, legal or fiduciary obligation to the Disclosing Party;
(c) is lawfully and demonstrably in the public domain or becomes part of public domain after the date of disclosure other than through a breach of this Agreement by the Receiving Party;
(d) is approved for release by the Disclosing Party; and
(e) is developed by the Receiving Party independently of the disclosures made hereunder.
(ii) “Disclosing Party” means the Party that has disclosed Confidential Information to the Receiving Party pursuant to this Agreement.
(iii) “Receiving Party” means the Party to whom the Confidential Information is disclosed by the Disclosing Party pursuant to this Agreement
3.2 The Confidential Information divulged by the Disclosing Party to the Receiving Party, or acquired by the Receiving Party in the course of any studies or analysis conducted by the Receiving Party, shall be received and treated by the Receiving Party as strictly confidential and shall be subject to its obligations herein contained. The Receiving Party shall not, without the prior written consent of the Disclosing Party or as expressly permitted herein, disclose to any other Person, or use or allow others to disclose or use, the Confidential Information.
3.3 The Receiving Party shall utilise the Confidential Information only for carrying out its obligations under this Agreement and the Receiving Party shall not use the Confidential Information for any other purpose or in any other manner whatsoever and shall, in particular, ensure that the Disclosing Party’s interests are not adversely affected or prejudiced in any manner whatsoever.
3.4 The Receiving Party shall be entitled to disclose the Confidential Information to such of the following persons who are directly involved with the transaction and have a clear ‘need to know’ in order to evaluate the assets:
(a) employees, officers, and directors of the Receiving Party; or
(b) any professional consultant including but not limited to accountants, valuers, engineers and lawyers retained by the Receiving Party for the purpose of evaluating the Confidential Information; or
The Receiving Party shall expressly inform all such persons to whom Confidential Information is disclosed of its confidential nature and shall ensure that such persons observe the restrictions contained in this Agreement. Further, prior to making any such disclosures to persons under subparagraph (b) above, however, the Receiving Party shall obtain an undertaking of confidentiality, in the same form and content as this Agreement, from each such person.
3.5 The Receiving Party shall not copy, reproduce or reduce in writing the Confidential Information or any part thereof and that all originals and any copies, reproductions or reductions to writing so made shall remain at all times the exclusive property of the Disclosing Party provided, however, that consent to disclosure, duplication, or reproduction shall be deemed to have been given by the Disclosing Party of the Confidential Information to the Receiving Party or to those persons referred to in Clause 3.4(a) and (b) above who are required to have the Confidential Information in order to conduct the investigation and evaluation subject to restrictions as set out in clause 3.4 above.
3.6 The Receiving Party shall keep a record so far as is reasonably possible of the location of the Confidential Information provided to it by the Disclosing Party and of the persons possessing such Confidential Information and shall supply the Disclosing Party with such record forthwith upon request.
3.7 If the Receiving Party is compelled under Applicable Law to disclose (whether by way of announcement or otherwise) any Confidential Information, it shall give prompt written notice of such fact to the Disclosing Party so that the Disclosing Party may seek an appropriate remedy to prevent such disclosure or waive compliance with the provisions of this Agreement.
Provided that the Receiving Party may furnish only such part of the Confidential Information that the Receiving Party, in the written opinion of its legal counsel, is legally compelled to disclose or else stand liable for contempt or suffer other material censure or penalty.
3.8 The Receiving Party acknowledges the competitive value and confidential nature of the Confidential Information and the resultant damage to the Disclosing Party if the Confidential Information is disclosed or allowed to be disclosed to any unauthorised person or used for any purpose other than for carrying out its obligations under this Agreement. The Receiving Party confirms that it is imperative that all confidential information remains confidential. The Receiving Party also acknowledges that the Disclosing Party possesses a copyright and other valuable intellectual property rights in the Confidential Information.
3.9 The Receiving Party undertakes that upon receipt of the Confidential Information, it shall ensure that it complies with Applicable Law including, in particular, laws relating to insider trading.
4. Compliance with laws
4.1 The Service Provider warrants that in performing the duties required under this Agreement, it will comply with the Applicable Law and shall take no action which constitutes a violation of Applicable Law and which would subject the Company to penalties under Applicable Law. The Company will provide to the Service Provider within reasonable time, such approvals, documents and information as may be requested by the Service Provider in order to comply with the provisions of this Agreement or Applicable Law.
4.2 Without prejudice to the generality of the foregoing, the parties undertake not to give, offer, or promise to give, directly or indirectly, any gift, consideration, reward, commission, fees, brokerage or inducement, to any person in the service of the Government of India or otherwise in procuring any contract, approval or credit from the Government of India to any person, company or other entity.
5. SCOPE OF WORK
5.1 The Company, in order to be entitled to avail the services of the Service Provider shall be required to provide a work order. A work order will be issued, as far as practicable, in accordance with the proforma as provided in Schedule D hereto and shall become effective upon its acceptance in writing by the Service Provider.
5.2 (i) The Company shall be entitled to terminate any Work Order issued under this Clause 5 upon:
(a) material failure by the Service Provider to provide any of the Services in accordance with the provisions of such Work Order; or
(b) material breach by the Service Provider of any of the provisions, covenants or undertakings of this Agreement.
(ii) The Service Provider shall be entitled to terminate any Work Order if the Company fails or neglects to pay by the Due Date any undisputed amounts due pursuant to any invoice issued by it in accordance with the provisions of this Agreement in relation to Services availed of under such Work Order.
(iii) Unless otherwise specified in the Work Order, termination under the Work Order shall become effective (a) upon expiry of 30 Business Days from the date of any notice issued in relation to Clause 5.2 (i) (a) or (b) in the event that such failure or breach has not by that time been remedied by the Service Provider (b); upon failure to pay any undisputed invoice for two consecutive months in relation to Clause 5.2 (ii).
(iv) Upon termination notice becoming effective, in addition to any consequences as may be specified in Work Order, such provisions of the Work Order as are intended to survive shall survive termination of such Work Order including any accrued liability of the Company to pay fees to the Service Provider for a period prior to the effective date of termination.
5.3 The Company shall be responsible for providing to the Service Provider such product literature, brochures and information with regard to the Company, its management and its capabilities as may be required by the Service Provider to carry out its obligations under this Agreement or as may be required by the Purchasers to evaluate the credentials and capabilities of the Company.
5.4 The Company reserves the right to approve or to disapprove and to accept or reject any orders placed by the Purchaser and no order shall be effective unless and until accepted by the Company in writing.
6. Independent Entities
The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties hereto. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the Company and either the Service Provider or any employee or agent of the Service Provider.
7. Limitations on Authority
The Service Provider shall not have any authority (i) to assume or create any obligation, express or implied, on behalf of the Company; (ii) to represent the Company as agent, employee or in any capacity other than herein specifically set forth; or (iii) to make any payment to any person on behalf of the Company.
8. Fees
8.1 The Company agrees to pay the Service Provider the fee schedule more particularly detailed in Schedule C hereto.
9. Term and Termination
9.1 The term of this Agreement shall commence on the date of execution of these presents and shall be valid for two years.
9.2 Notwithstanding the foregoing, such provisions of this Agreement as are intended to survive the expiry of term or termination of this Agreement shall so survive and continue to binding on all concerned parties.
9.3 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the applicable term by giving thirty (30) days prior written notice to the breaching party, provided however, that this Agreement shall not terminate if the breaching party cures the breach prior to the expiration of such thirty (30) day period.
9.4 Upon a premature termination of the Agreement by the Company under 9.3 above, the Service Provider shall have the option to either continue to perform its obligations under any Work Order or to terminate all subsisting Work Orders.
9.5 Termination of this Agreement or any Work Order issued hereunder shall be without prejudice to rights and obligations of the parties accrued prior to the date of such termination and the remedies the Parties may pursue in law as appropriate.
10. Representations and Warranties
10.1 Each Party represents and warrants to the other Party on the date of this Agreement that:
10.1.1 It is duly organized and validly existing under the laws of the jurisdiction in which incorporated and has the necessary corporate power and authority under Applicable Law to carry on its business and or perform its functions.
10.1.2 This Agreement:
(a) is within its powers and has been duly authorised by it;
(b) constitutes its legal, valid and binding obligations; and
(c) does not conflict in any material respect with any law or regulation or its constitutional documents or any document binding on it and that it has obtained all necessary consents for the performance by it of this Agreement.
10.2 The Company hereby represents and warrants that it lawfully owns the Confidential Information and has the right and authority to disclose the Confidential Information to The Service Provider. The Disclosing Party further represents and warrants that the Confidential Information shall be accurate and complete when so required by the Purchaser or under Applicable Law. Save and except specifically provided in this Agreement, neither The Company nor the Service Provider makes any other representations and warranties.
11. Notices
Any notice to be given under this Agreement shall be deemed to have been duly given upon receipt when in writing and delivered in person, by facsimile transmission, by telex or by courier at the address for such delivery upon proof of such delivery as is specified in this regard by the Parties to this Agreement.
12. Governing Law
This Agreement shall be interpreted, construed and enforced in accordance with the laws of India.
13. Arbitration
13.1 In the event of any claim, dispute or difference arising out of or in connection with or in relation to this Agreement, the Party aggrieved will notify the other Party of the claim, dispute or difference and set out in such notice the claim, dispute or difference, giving details of such claim, disputes or differences and notify the other Party that it desires such claim, dispute or difference to be settled by arbitration.
13.2 If any Party has given a notice as provided for in this Agreement, then such dispute or difference shall first be amicably settled between the senior representatives of the Parties. If such dispute or difference remains unresolved for a period of forty-five (45) days from the date of such notice, then the aggrieved Party or the other Party shall refer such disputes, claims or differences to arbitration in accordance with the Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof. The reference shall be to three arbitrators, one to be appointed by the Service Provider, the other by the Company and the third being the presiding arbitrator, to be appointed by the two arbitrators appointed by the Parties. The presiding arbitrator shall be appointed before the commencement of the arbitration.
The notice should accurately set out the disputes between the Parties, the intention of the aggrieved Party to refer such disputes to arbitration as provided herein, the name of the person it seeks to appoint as an arbitrator with a request to the other Party to appoint its arbitrator within thirty (30) days from the date the subject dispute or difference remained unresolved by the senior representatives of the Parties. All notices by one Party to the other in connection with the arbitration shall be in writing and shall be made as provided in this Agreement.
13.3 If the other Party fails to appoint an arbitrator within thirty (30) days from the receipt of the request to do so from the aggrieved Party or if the two (2) appointed arbitrators fail to agree on the presiding arbitrator within thirty (30) days from the date of their appointment, the Parties shall be free to approach the High Court of Delhi for appointment of an arbitrator or the presiding arbitrator in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and the decision of the High Court of Delhi shall be final and binding on the parties.
13.4 The arbitrators shall hold their sittings at New Delhi, India.
13.5 The arbitration proceedings shall be conducted in the English language.
14. Jurisdiction
Subject to clause 12, the courts at New Delhi, India shall have exclusive jurisdiction to settle any disputes that may arise out of or in connection with this Agreement.
15. Amendments
No amendment, supplement, modification or clarification to this Agreement shall be valid or binding unless set forth in writing and duly executed by the Parties to this Agreement.
16. Assignment
A Party may not assign its rights and obligations under this Agreement to a third party without first obtaining the prior written consent of the other Party.
17. Severability
Any term or provision of this Agreement which is determined by a competent Authority to be invalid, illegal, prohibited or unenforceable shall be ineffective to the extent of such invalidity, illegality, prohibition or unenforceability without invalidating or rendering illegal, prohibited or unenforceable the remaining terms and provisions hereof. To the full extent permitted by Applicable Law, the Parties hereto waive any term or provision prohibited or unenforceable in any respect.
18. Entire Understanding
This Agreement constitutes the entire understanding between the Parties concerning the subject of this Agreement and supersedes any prior agreements between the Parties relating to the subject matter hereof, whether written or oral.
19. Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed and sealed in duplicate counterparts, each of which shall be deemed an original, the day and year first above written.
For ________________ For xxxxx
By: ___________ By: ________________________
_____________________
_____________________ _____________________________
Date:_______________ Date: _____________
SCHEDULE A
The credentials and capabilities of the Company:
1.
2.
3.
SCHEDULE - B
SCOPE OF WORK
1.1 Presenting all the credentials and capabilities of the Company detailed in Schedule A to the manufacturers of original equipment (including defence equipment) and other connected enterprises all over the world.
1.2 The Scope of Work shall not include interceding, facilitating, or in any way recommending to the Government of India or its functionaries, whether officially or otherwise, to the award of any contract by the Government of India to the Company or any other person, company or entity.
SCHEDULE C - FEES
A. Registration Fees:
The Company shall pay to the Service Provider a one time registration fees of ____________. The fees shall be payable at the time of the execution of this Agreement.
B. Expenses:
In addition to the above said Fee, the Company shall reimburse the Service Provider for all reasonable expenses billed at actuals for items incidental to the performance of their services, such as photocopying, messengers, travel expenses, hotel bills, long-distance telephone calls, facsimile transmissions, postage, and other such expenses. Payment shall be net thirty (30) days in accordance with established policies and shall be on a monthly invoicing basis. The Service Provider agrees to provide to the Company all receipts, invoices, and any other documents necessary to evidence the expenses incurred by the Service Provider.
C. Performance Based Fee:
With respect to each Work Order the Company shall pay to the Service Provider a performance based fee as specified in each Work Order. The performance based fee shall be a fee of around __________worth opportunity culminating into contract, in consideration of the Services rendered by the Service Provider. However, the final agreed level of the fee will depend upon the size of the business generated and derived through assistance of the Company with regard to its capabilities, pursuant to this Agreement.
D. Taxes:
All fees are exclusive of taxes and the Company will pay any and all taxes arising from this Agreement in the manner prescribed by Applicable Law now in effect or that may become effective during the term of this Agreement, or reimburse Service Provider in the event that it has paid or is required to pay any such taxes but excluding tax deducted at source, if any applicable, under the Indian Income Tax Act.
SCHEDULE – D
PROFORMA OF WORK ORDER
(See section 5.1)
WORK ORDER NO. ___________
The Company M/s _____________, in pursuance of the Agreement dated __________ (‘the Agreement’) hereby issues this Work Order upon the Service Provider M/s
1. Interpretation
Capitalized terms used in this Work Order shall have the meanings respectively assigned to them in the Agreement. The terms of this Work Order are subject to the provisions of the Agreement, and in the event of a conflict between the terms of this Work Order and the provisions of the Agreement, the provisions of the Agreement shall prevail.
2. Statement of Work:
The Service Provider shall present all the credentials and capabilities of the Company to the manufacturers of original equipment (including defence equipment) and other connected enterprises, in order that those manufacturers and enterprises award contracts to the Company for the supply of [please insert the details of the specific project].
3. Term:
The work order, unless terminated by either party under Section 5.2 shall be valid till such time the work included in the Statement of Work in section 2 above is completed by the Service Provider.
4. Fee Schedule and Payment Terms:
(i) Performance-based fee:
The Company shall pay to the Service Provider a performance-based fee of _____ for every ___________worth of contracts awarded to the Company either during the term of this Work Order or within 12 months of its termination pursuant to the service provided by the Service Provider under this work order. The Service Provider will raise its invoice upon the Company receiving an irrevocable commitment/contract in its favour. The payment of the performance based fee shall be made within 30 days of the date of the invoice raised by the Service Provider.
(ii) Expenses:
In addition to the above said Fee, the Company shall reimburse the Service Provider for all reasonable expenses billed at actuals for items incidental to the performance of their services, such as photocopying, messengers, travel expenses, hotel bills, long-distance telephone calls, facsimile transmissions, postage, and other such expenses. Payment shall be net thirty (30) days in accordance with established policies and shall be on a monthly invoicing basis. The Service Provider agrees to provide to the Company all receipts, invoices, and any other documents necessary to evidence the expenses incurred by the Service Provider
5. Modification:
The Company shall have the right to amend the Work Order by issuing another Work Order specifying modifications, within the broad scope of the Services, by giving at least fifteen (15) days prior written notice to the Service Provider. Upon written acceptance of any changed Work Order by the Service Provider in relation to the Services, such Work Order shall take effect from the date of such acceptance, and upon the revised schedule of fee as mentioned in such Work Order.
COMPANY:
SERVICE PROVIDER
By:
(Authorised representative)
By
(Authorised representative)
Name:
Name:
Title:
Title:
Date:
Date:
