AGREEMENTBETWEENX.
LTD.ANDY.
INFO LTD.ANDZ.
SOFTWARETHIS
AGREEMENT made at Mumbai dated this ____ day of _____ 2000 BETWEEN X. LTD. a
company incorporated under the Companies Act 1956 and having its registered office
at ______________________ (hereinafter referred to as `X. LTD.'' which term
shall mean and include its successors and assigns) of the First Part, AND Y
INFO LTD. a company incorporated under the Companies Act 1956 and having its
registered office at _______ (hereinafter referred to as `Y LTD'' which term
shall mean and include its successors and permitted assigns) of the Second Part
AND Z SOFTWARE (a division of Z Computers Ltd. a company registered under the
Companies Act 1956 and having is registered office at ______________ Mumbai)
(hereinafter referred to as `Z LTD.'' which term shall mean and include its
successors and permitted assigns) of the Third Part;WHEREAS
X. Ltd. is a Company engaged in the production and supply
_________________situated in _______ and has experience in the field of power
and electricity generation for ____ years;AND
WHEREAS Y. LTD. is a company engaged in the creation and development of
Software and building web pages and portals for its clients for their business
and commercial application;AND
WHEREAS Y. LTD. subcontracts some of its work to Z. LTD. which is a company
with a large experience in the development of Software and Computer
applications and Z. LTD. works together with Y. LTD. and carries out its
assignment in accordance with the specifications of Y. LTD.;AND
WHEREAS X. LTD. has approached Y. LTD. for the development of its portal and
website and certain Software in accordance with the specifications provided in
the Annexure attached herewith and Y. LTD. has together with Z. LTD. agreed to
undertake to develop such portal and website subject to and in accordance with
the terms and conditions here in contained;NOW
THIS AGREEMENT WITNESSETH:1. X. Ltd. hereby
appoints Y. LTD. and Z. LTD to carry out the development of a portal and
website for X. Ltd. in accordance with the specifications annexed herewith or
such variations as may be provided by X. Ltd. from time to time in writing.2. At the times and in
the manner set out hereunder X. Ltd. shall pay to Y. LTD. an amount of
Rs._____/- (the Contract ______) as outlined in the Terms of Payment. Y. LTD.
alone shall be responsible for making all and any payment to Z. LTD and X. Ltd.
shall not be responsible to make any payment to Z. LTD. under this Agreement.3. Project Period3.1 Y. LTD. shall use its
best endeavours to ensure that the website/portal project is completed within
____ days from the execution of these presents and on receipt of advance
payment.4. Languages4.1 The portals content
will be in three languages, i.e. English, Hindi and Tamil.5. Terms of payment.5.1 The value of the
order under this Agreement is Rs._________________ /- (Rupees
______________only) inclusive of all taxes, if any at various stages of
billing.5.2 Y. LTD. shall deliver
to X. Ltd. a claim for payment in accordance with the following Schedule.i.
Advance
on the execution of these presents: 25% (twenty-five per cent) of the Contract
amount;ii.
On
supply of 50% of content (with Wind Farm -- India Statistics) and acceptance of
such content: 25% (twenty-five per cent) of the Contract amount;iii.
On
supply of 100% of content and acceptance of it: 15% (fifteen per cent) of the
Contract amount;iv.
On
handing over of the portal: 25% (twenty-five per cent) of the Contract amount;v.
On
completion of 60 days from hand over: 10% (ten per cent) of the Contract
amount;5.3 Within seven days
after receipt by X. Ltd. of a claim for payment, X. Ltd. shall pay to Y. LTD.
an amount in accordance with Clause 5.2.5.4 All contents,
information, Software etc. shall become the property of X. Ltd. on full payment
by X. Ltd. to Y. LTD. as provided in Clause 5.2.6. Delivery Schedule:Y.
LTD. and Z. LTD. shall complete the project within days from the date hereof as
follows:i.
24th
________(Month) i.e. Purchase Order date with advanceii.
50/55th
day 13 -- 8 ________(Month) 50% of contentiii.
75th
-80th day i.e. 8 -- 13 ________(Month): 100% of contentiv.
90th
day: hand over i.e. 23rd ________(Month)6.1 In the event of delay
in the completion of the project X. Ltd. shall not be liable to pay any amount
over the project cost to Y. LTD.. In the event of delay on the part of Y. LTD.
or Z. LTD in completing the project Y. LTD. and Z. LTD shall be liable to pay a
penalty as provided below which may be adjusted against the payment due from X.
Ltd. to Y. LTD. and Z. LTD.6.2 5% of the Order
Value/week of delay at every stage i.e. as per delivery schedule refer to
clause 6. All payments to be made by X. Ltd. to Y. LTD. within ____ working
days from completion of the task as defined above.7.7.1 During the term of
the Agreement, any confidential information received by either party, under and
by virtue of this Agreement, shall be maintained in the strictest confidence
and trust. Such obligations of confidentiality shall cease when:-.7.1.1 The Confidential
Information enters the public domain otherwise than as a result of a disclosure
by any receiving party hereunder.7.1.2 A party is required
under order of court or any other competent authority to make disclosure of the
Confidential Information or any part thereof.7.17.2 In the event that any
of the parties becomes legally compelled to disclose any Confidential
Information, such party shall give sufficient notice to the other party so as
to enable the other party to seek a timely protective order or any other
appropriate relief. If such order or other relief cannot be obtained, the party
being required to make such disclosure shall make disclosure of the
Confidential Information only to the extent that is legally required of it and
no further.7.3 If any Confidential
Information enters the public domain or is available to the general public or
to any group of persons who are not members, directors or employees of either
of the parties hereto, the party that becomes aware of the fact that such
confidential Information is in the public domain shall, as promptly as
possible, inform the other party in writing thereof.7.4 For the purpose of
this Clause, the term `Confidential Information'' shall mean any and all
information (verbal or documented) exchanged between the parties hereto, under
the terms of this Agreement or incidentally thereto, and shall specifically
include the following: -7.4.1 Customer data, in
particular, names, address, sales figures and sales conditions of buyers and
users of the software and hardware of the parties hereto.7.4.2 Distribution data, in
particular, names, addresses, sales figures and sales conditions of
distributors, agents and licenses of the parties hereto.7.4.3 Manufacturing data,
in particular, procurement and manufacturing price, discounts, commissions and
other credits relating to the Software.7.4.4 Supplier's data, in
particular, names, addresses, sales figures and sales condition of suppliers of
software and hardware to the parties hereto whether in India or abroad.7.4.5 Business data,
particularly data relating to new products, promotion campaigns, distribution
strategies, license agreements and joint ventures in which either of the
parties is involved.7.4.6 Software data,
particularly information relating to the Software and the parts thereof as well
as any devices designed by the parties hereto to prevent unauthorised copying.7.4.7 Research and
development data, particularly information relating to the software and
hardware development of the parties.7.4.8 Financial data, in
particular, concerning budgets, price and revenue calculation, sales figures,
financial statements, profit expectations and inventories of the parties.7.17.27.37.47.5 For the removal of
doubts, the term `Confidential Information'' shall include any tangible
expression of such information mentioned above and including, without
limitation, photographs, plans, notes, renderings, journals, notebooks,
computer programs and samples relating thereto and shall further include any
confidential or proprietary information owned by any other person or entity and
furnished by such person or entity pursuant to an undertaking to maintain the
same in confidence.7.6 Notwithstanding
anything contained herein, the provisions of this Clause shall continue to be
applicable and to bind the parties without limit in point in time except and
until such information enters the public domain.7.7 The parties hereby
agree that they shall only make such notes, copies, photocopies, backups, or
other written, photographic or computer generated records relating to the
Confidential Information as are absolutely necessary. Immediately upon
termination of this Agreement, the parties shall collect all copies of the
Confidential Information received by them and return the same to the other
party, or, upon instruction from such other party, destroy all items of
Confidential Information in the manner specified.7.8 X. Ltd. has the right
to make other such non-conventional energy portal from Y. LTD. or mutually
agreeable terms but Y. LTD. and Z. LTD. do not have the right to make any
non-conventional energy portal without first obtaining X. Ltd's consent in writing
for any other party.7.8. Number of pages of
Content:Y.
LTD. and Z. LTD shall provide contents in the website /portal excluding of
Photographs/Graphics/Charts aggregating to ________ pages and the matter
relating to Wind statistics shall be additional. The contents to be provided by
Y. LTD. and Z. LTD. is more particularly described in the schedule annexed
hereto.8.18.28.38.48.58.68.78.88.1 Break up of content
pagination:i.
Harnessing
the wind 3%ii.
Environment:
10%iii.
Segments:
15%iv.
Government
policies and financial incentives: 20%v.
Planning
your wind power projectvi.
Spares
and Services: 10% Segments on Happenings/Expert Panel-FAQ''s/Listings &
Ads. Will have content as and when received. Deviation from above % pagination
can be 5% plus or minus, subject to 1400 Nos. (1 to 6).8.18.2 Other Sources of
Non-conventional energy:In
the Segment Harnessing the Wind, following other non-conventional energy will
be covered: Solar/Thermal/Photovoltaic/Small Hydro Power/Co
generation/Bio-Energy.9. X. Ltds
Representative X. Ltd. has nominated Mr. ___________to act on its behalf in
respect of all commercial and development related issues. Mr. __________will
have the authority to make and give all necessary instructions, approvals and
decisions required to be given in or about any commercial, development related
issue or any other issue concerning the project. The appointment of Mr.
___________shall not prevent X. Ltd. from exercising any function under this
Agreement.9.1 Y. LTD.Y.
LTD. has nominated Mr. _______________to act on Y. LTD.''s behalf in respect of
all commercial features of this Agreement. Y. LTD.''s representative shall have
the authority to receive instructions issued by X. Ltd. under this Agreement,
to direct the development of the website/portal and completion of the project,
to issue and receive communication from X. Ltd. The representative is
responsible for the superintendence of the work so as to ensure that the
project is executed in accordance with this Agreement.9.2
Z.
LTD.Z.
LTD has nominated Mr. ________________to act in respect of all development
related issues in respect of this project.Standard
of Performance:i.
Y.
LTD. and Z.LTD acknowledge that X. Ltd. has entered into this Agreement in full
reliance upon the particular skill, experience and ability of Y. LTD. and
Z.LTD. to perform the project.ii.
Y.
LTD. and Z.LTD shall execute the project with such high degree of professional
skill, care and diligence expected of a company experienced in performing the
type of works which by this Agreement are required to be performed.iii.
Y.
LTD. and Z.LTD warrant to X. Ltd. that all materials, equipment, information,
technology, software provided and employees working on the project shall be of
the highest quality, standards and skill. All materials, equipment, content,
technology shall be suitable in all respects for their intended purposes. Y.
LTD. and Z.LTD warrant that the Project (and each part thereof) will be fit in
all respects for its intended purpose.iv.
Y.
LTD. AND Z. LTD. warrant that the latest available/published Data (i.e. the
last published) from Government Departments/Agencies will be used in the
various sections.10. Sub-contracting for
Non-Govt. sources current available Data will be used. Y. LTD. and Z. LTD. may
sub-contract any parts of the Project but not the Project as a whole. Such
sub-contracting shall not relieve Y. LTD. and Z. LTD. or any of their
liabilities or obligations under this Agreement, and all sub-contracting shall
be with the prior consent or approval by X. Ltd. at no extra cost to X. Ltd.,
and such consent or approval of X. Ltd. shall not be unreasonably withheld or
delayed.11. Project Review
Meetings:The
representatives of X. Ltd., Y. LTD. and Z.LTD. and any other persons as may be
deputed by X. Ltd., Y. LTD. and Z.LTD. shall meet at regular intervals to
discuss the progress of the Project as follows:i.
For
the First (1.5) one and a half months: Fortnightlyii.
For
the balance Period: Weekly (every Saturday)Minutes
of the Meetings will be maintained by all the parties hereto respectively.12.
Back
End:X.
Ltd. will provide the following before ''Hand Over'':2
weeks before Hand Over:-Lease
Line, terminated at site of installation of Web Master Server in Mumbai.Server
with related software in the USARecruitment
of Webmaster will be provided by TS.(Technical
details will be provided by Z. LTD. within 7 days from receipt of order with
advance).4
weeks before Hand Over:Web
Master and Portal Administrator (2 persons). This will facilitate Training and
involvement of the Web Master before Hand Over.The
above are to be provided by X. Ltd. at its own cost and does not form part of
the ''Project Cost'' provided in 5 above.Recruitment
for Web Master will be provided by Z.LTD, latest within 60 days from `Hand
Over'' and X. Ltd. will not bear any cost for recruitment.13. Training consists of
Technical and content support by Z.LTD. All Training and Support will be
provided upto the 60th day from hand over free of cost.14. Training consists of
Technical and Content support by Z.LTDAll
Training and Support will be provided upto the 60th day from hand over.15.
A.M.C.X.
Ltd. may enter into an Annual Maintenance Contract (AMC) with Z.LTD after 60
days from Hand Over at a cost of 35% of the order value. The AMC may be
renewable by X. Ltd. every quarter, subject to a notice period of 15 days
before expiry of the quarter. AMC will include Comprehensive Technical and any
other if required.16. The project sum shall
be a lump sum amount, which, subject to clause 17 dealing with variations,
shall be the lump sum to be paid by X. Ltd. to Y. LTD. for the cost of the
Project. Y. LTD. is responsible for making any payment under this Agreement to
Z.LTD and X. Ltd. is not responsible for the same. Y. LTD. shall ensure that
the project is completed at a cost, which shall not exceed the Project Sum (as
adjusted or varied from time to time in accordance with the terms and
conditions of this Agreement). Y LTD. remains and
shall be fully responsible for the cost of the Project to the intent that
(without in any way limiting the generality of the foregoing) should the cost
of the Project exceed the Project Sum (as adjusted or varied from time to time
in accordance with the terms and conditions of this Agreement), or should Y.
LTD.''s or Z. LTD''s prices, charges, fees or claims for any reason whatsoever
for carrying out the completion of the Project exceed the Project Sum (as
adjusted or varied from time to time in accordance with the terms and
conditions of this Agreement), Y. LTD. shall be responsible for the excess. The
Project Sum is fixed and shall not be subject to rise and fall in costs, and
may only be adjusted or varied from time to time in accordance with the terms
and conditions of this Agreement.17. Variationsi.
X.
Ltd. may issue instructions to Y. LTD. in writing to reduce or increase or
otherwise vary the Project (a "Variation"). Y. LTD. shall not carry
out any Variations and X. Ltd. shall not be required to pay for any variations
which are not contained in or confirmed by written instructions from X. Ltd. to
Y. LTD..ii.
The
Project Sum shall be adjusted up or down (as the case may be) by the value of
each Variation, and the period for practical completion may be reduced or
extended by X. Ltd. if the Project is abridged, delayed or disrupted by the
Variation, by whatever period is reasonable and necessary in the circumstances.18. In consideration of
the Project granted hereunder to Y. LTD. and Z.LTD, Y. LTD. and Z.LTD agree
that they shall not compel, directly or indirectly, not own, manage, operate or
control, participate in or be connected with the ownership, management,
operation or with the business of X. Ltd. anywhere in the world during the term
of this Agreement and for a period of one (1) year thereafter.18.1 X. Ltd. has the right
to make other such non-conventional energy portal from Y. LTD./ Z.LTD on
mutually agreeable terms but Y. LTD./ Z.LTD does not have the right to make any
non-conventional energy portal without having of X. Ltd.''s consent, for any
other party.19. Other Services:19.1 Y. LTD. and Z.LTD
shall help X. Ltd. in setting up the portal including giving presentations,
organizing press conference and in preparing business plans and presenting to
potentials.20. Termination:20.1 This Agreement shall
come into effect on the date hereof and shall continue for a period of ___
days/years from such date unless terminated earlier than such date in
accordance with the terms of this Agreement or if renewed with the mutual
consent of the parties at least one month before its expiry.20.2 This Agreement may be
terminated at any time before its expiry with the mutual written agreement of
the parties.20.3 This Agreement may be
terminated at any time before the expiry hereof by either party by giving ____
month's written notice of such termination to the other party.20.4 This Agreement may be
terminated by any party (the ''Non-Defaulting Party'') in the event the other
party (the ''Defaulting Party'') commits any of the following acts:i.
Sells
or otherwise disposes of all or substantially all of its assets;ii.
Files
or voluntary winding-up, or in the event a petition for winding up has been
filed in respect of the Defaulting Party and has not dismissed within ninety
(90) days from the date of filing;iii.
The
Defaulting Party is in material breach or defaults under the terms of this
Agreement, provided that the Defaulting Party has been given notice of such
breach by the Non-Defaulting Party and the Defaulting Party fails to cure such
breach within 30 days.4.120.120.220.320.420.120.220.320.420.5 The termination of
this Agreement shall not affect any of the obligations of the parties hereunder
which have accrued by, and are not discharged prior to (in accordance with
their terms), such termination, nor affect the rights of either party hereto to
recover damages from such other party by reason of any breach of this Agreement
which has accrued prior to or would by its nature accrue after such
termination.20.6 Nothing contained
herein shall be construed as limiting in any way, the right of the parties
hereto seek any other remedies as may be available to them under law in
addition to the remedies herein contained.20.7 Notwithstanding
anything contained herein and regardless of the expiry or earlier termination
of this Agreement, the confidentiality obligations contained in Clause ___ above
shall continue to be binding on the parties hereto in accordance with the terms
thereof.21. Except as provided
below, Y. LTD. and Z.LTD shall defend and indemnify X. Ltd. from and against
any damages, liabilities, costs and expenses (including reasonable attorney''s
fees) arising out of any claim that the software or any part thereof infringes
any valid patent or copyright or misappropriates a trade secret of any third
party, provided that (i) X. Ltd. shall have promptly provided Y. LTD. and Z.LTD
written notice thereof and reasonable co-operation, information and assistance
in connection therewith, and (ii) X. Ltd. shall have sole control and authority
with respect to the defence, settlement, or compromise thereof.21.1 Y. LTD. and Z.LTD
shall have no liability or obligation with respect to any patent, copyright or
trade secret infringement or claim thereof based upon (i) use of the Software
or any part thereof in an application or environment for which it was not
designed or contemplated, (ii) modifications, alterations or enhancements of
the software or any part thereof not created by or for X. Ltd. or (iii) any
claims of infringement of a patent, copyright or trade secret in which X. Ltd.
or any affiliate of X. Ltd. has an interest.21.2 Y. LTD. and Z.LTD''s
liability for damages to X. Ltd. for any cause whatsoever, regardless of the
form of any claim or action, shall not exceed the aggregate licence fee paid by
X. Ltd. under this Agreement. In no event shall either party be liable for any
loss of date, profits or use or for any special, incidental, indirect or
consequential damages arising out of or in connection with the use or
performance of the software.21.3 In no event will Y.
LTD. and Z.LTD be liable to third parties for any damages whatsoever.21.4 X. Ltd. will immediately
inform Y. LTD. and Z.LTD as soon as X. Ltd. becomes aware of any threatened or
actual liability claim by a third party relating to the software.22. Any notice or
communication from one party to the other shall be in writing and either
personally delivered or sent via facsimile or certified mail, postage, prepaid
and return receipt requested addressed, to such other party at the address
specified below or such other addresses as either party may from time to time
designate in writing to the other party.If
to X. Ltd.: ________________ Pvt Ltd._____________________________________________Attn:Fax:Telephone:If
to Y. LTD. & Z.LTD: ____________________ Ltd.______________________________________________Attn:Fax:Telephone:No
change of addresses shall be binding upon the other party hereto until written
notice thereof is received by such party at the address shown herein. All
notices shall be in English and shall be effective upon receipt.23. This Agreement and
any amendments thereof supersede all previous agreements and arrangements
between X. Ltd. and Y. LTD. and Z.LTD in respect of the subject matter herein
contained.24. This Agreement may be
amended with the mutual consent of the parties by a separate deed recording the
terms of the amendment. Each such amendment to this Agreement shall supersede
the terms of this Agreement to the extent that they are inconsistent with any
such amendment.25. The failure, with or
without intent, of any of the parties to insist upon the performance (in strict
conformity with the literal requirements) by the other party, of any term or
stipulation of this Agreement, shall not be treated as, or be deemed to
constitute, a modification of any terms or stipulations of this Agreement. Nor
shall such failure or election be deemed to constitute a waiver of the right of
such party, at any time whatsoever thereafter, to insist upon performance by
the other, strictly in accordance with any terms or provisions hereof. All
terms, conditions and obligations under this Agreement shall remain in full
force and effect at all times during the subsistence of this Agreement except
where otherwise amended or modified by them by mutual written agreement.26. Should any part of
this Agreement be declared illegal or unenforceable, the parties hereto will
co-operate in all ways open to them to open substantially the same result or as
much thereof as may be possible, including taking appropriate steps to amend,
modify or alter this Agreement.If
any term or provision of this Agreement shall be hereafter declared by a final
adjudication of any tribunal or court of competent jurisdiction to be illegal,
such adjudication shall not after the validity or enforceability of any other
term or provision, unless the terms and provisions so declared are expressly defined
as a condition precedent or as of the essence of this Agreement, or comprising
an integral part of, or inseparable from the remainder of this Agreement.27. This Agreement shall
be governed and interpreted according to the laws of India. The courts in Mumbai
shall have jurisdiction over all disputes, controversy or claims between the
parties under this Agreement.28. Any controversy or
claim arising out of or relating to this Agreement, or any breach or alleged
breach thereof, shall be finally settled by arbitration in accordance with the
provisions of the Arbitration and Conciliation Act, 1996. The arbitration
proceedings shall be held in Mumbai, India. The arbitration panel shall
comprise one member each, selected by the two parties hereto and a third member
who shall be agreed upon by the two arbitrators already named. The award
rendered by the arbitration panel shall be a written award and shall include
reasons in writing in support of such award. Judgment upon the award rendered
may be entered in any court of competent jurisdiction. However the law
governing the arbitration proceedings shall be the laws of the Republic of
India. The costs of arbitration should be paid by the defaulting party.SIGNED
AND DELIVERED by the with in named)X.
LTD. LTD. by its )Authorised
signatory Mr.___________________ )In
the presence ofSIGNED
AND DELIVERED by the with in named)Y.
INFO LTD. by its Authorised )Signatory
Mr._________________________ )In
the presence of )SIGNED
AND DELIVERED by the with in named)Z.
SOFTWARE by its Authorised )Signatory
Mr.________________ )In
the presence of )