This Agreement is made and entered
into on this ______ day of ___________
20____ (the “Execution Date”)
BY AND BETWEEN
Mr._________________________________son
of Mr ________________,an adult Indian Inhabitant
M/s._____________________ a
Partnership Firm through its partner Mr.
___________________________, M/s.______________________, a Company formed
and registered
under the provisions of the
__________________ having its address
at ___________________
_____________________________________________________________
___________________________________________________ Hereafter known as CLIENT
(which expression shall unless be repugnant to the context or meaning thereof
mean and include his heirs, legal representatives/successors/executors or
Administrator) (which expression shall unless it be repugnant to context or
meaning thereof be deemed to mean and include the partners constituting the said firm, the survivors or
survivors of them and executor, administrators or assign of the last surviving
partner) (which expression shall unless it be repugnant to the context or meaning
thereof be deemed to mean and include its successors and assigns) of the First
Part.
AND
Mr._________________________________son
of Mr ________________,
an
adult Indian
Inhabitant
M/s._____________________ a
Partnership Firm through its partner Mr.
___________________________, M/s.______________________, a Company formed
and registered under the provisions of the ____________________ having its
address at ___________________ _____________________________________________________________
___________________________________________________ Hereafter known as Service
Provider
(which expression shall
unless be repugnant to the context or meaning thereof mean and include his
heirs, legal representatives/successors/executors or Administrator) (which expression shall unless it be
repugnant to context or meaning thereof be deemed to mean and include the
partners constituting the said firm, the
survivors or survivors of them and executor, administrators or assign of the
last surviving partner) (which expression shall unless it be repugnant to the
context or meaning thereof be deemed to mean and include its successors and
assigns) of the Second Part.
Client and SERVICE PROVIDER
may hereinafter be collectively referred to as “Parties” and individually as a
“Party”.
WHEREAS:
(1)
Client
is engaged in the business of, inter alia retailing of Products (defined
hereinafter) and is desirous of appointing an entity for cold storage/dry
storage its goods at such entity’s facility and for provision of related
Services (hereinafter defined).
(2)
SERVICE
PROVIDER is engaged in the business of warehousing and storage activities of
agricultural commodities and also undertakes Cold storage/dry storage
activities for its clients.
(3)
Client
is desirous of appointing SERVICE
PROVIDER for storing
Client’s Products at its
facility and to provide Services to Client on a non-exclusive basis, for
storing its goods and for providing Services on the terms set forth herein.
NOW THEREFORE, THE PARTIES HERETO
AGREES AS FOLLOWS:
1.
DEFINITIONS
In this Agreement, unless the context
otherwise requires, the following expressions shall have following
meaning:
1.1 “Agreement” shall mean this Agreement including all its
Annexures, as the same may be supplemented, amended, restated or replaced from
time to time in accordance with the provisions hereof.
1.2 “Affiliate” shall mean with respect to any entity, any
other entity that, directly or indirectly: (a) owns or controls the first
entity; (b) is owned or controlled by the first entity; or (c) is under common
ownership or control with the first entity, where “control” as applied to any
entity means (i) direct or indirect ownership of more than fifty percent (50%)
of the equity interests or rights to distributions on account of equity of the
relevant entity; or (ii) direct or indirect power to direct the management or
policies of such entity, whether through the ownership of voting securities, by
contract, or otherwise; or (iii) the power to appoint over half the members of
the Board of Directors or similar governing body of such entity, through
contractual arrangement or otherwise.
1.3 “Applicable
Laws” shall mean any and all national, central, state, municipal and / or local
legislations, bye-laws, rules, regulations, orders
and notifications having the force of
law, of the central and/or state governments, municipal corporation,
municipality, local body or public authority, order, writ, injunction or decree
of any court or Governmental authority, and/or statutory authority having the
force of law as may be issued and as may be in force from time to time.
1.4 “Applicable Permits” shall have the same meaning as
ascribed to it in clause 6.1(viii).
1.5 “Chamber” shall mean an enclosed space within the
Facility of specific area demarcated by walls.
1.6 “Confidential Information” shall mean any and all
information disclosed by Client to SERVICE PROVIDER during the term of this
Agreement. Such information shall include, without limitation, all proprietary
information, schematics, customer and product development plans, forecasts,
strategies, patents, designs, trademarks, trade-names, copyrights, business
plans and/or programmes, research material, marketing strategies, evaluation
data, business contacts, list of suppliers, list of customers, business
information, samples, drawings, engineering or operational information,
financial information, costing and pricing information, policies and
procedures. Such Confidential Information may be supplied as an actual sample,
orally, in writing, through discussions, in the form of drawings.
1.7 “Facility” shall mean the cold storage/dry storage
facility described in Annexure I1.
1.8 “Good Industry Practices” shall mean the exercise of that
degree of skill, diligence, prudence, foresight and operating practice which
would reasonably and ordinarily be expected from a skilled experienced and
recognized service provider engaged in the same type of undertaking as SERVICE
PROVIDER under similar circumstances and acting generally in accordance with
Applicable Laws and industry standards.
1.9 “Goods” shall mean pulses
and other agricultural products.
1.10 “Intellectual Property” shall mean and include without
limitation patents, copyrights including database, designs, labels, know-how,
trade names, trademarks, service marks, logos and other distinctive brand
features or business identifiers, technical information and equivalents of the
foregoing and all other intellectual property rights whatsoever whether
registered or unregistered, including rights in any applications or
registrations in respect of any of the foregoing in any state, country or
jurisdiction.
1.11 “Services” shall
mean the services more particularly set out in clause 5 below.
2.
PRINCIPLES
OF INTERPRETATION
Unless the context or meaning
otherwise requires:
2.1 Words denoting singular number shall include plural number and
viceversa;
2.2
Words denoting one gender shall include
the other gender;
2.3 The terms “hereof”,
“herein”, “hereto”, “hereunder” or similar expressions used in this Agreement
mean and refer to this Agreement and not to any particular Clause of this
Agreement;
2.4 References herein to
any provision of a statute shall be deemed to refer to the statute as it may,
after the date hereof, be modified, supplemented or re-enacted and any
reference to any statutory provision, shall include reference to any rule,
order or regulation made thereunder or under such re-enactment;
2.5 The headings are
inserted for convenience of reference only and shall not affect the
construction of the provisions of this Agreement.
3.
TERM
AND APPOINTMENT
3.1 This Agreement shall be valid and
binding on Parties for a period of one (1) years effective on and from
______ day of _____ 20___
(“Effective Date”)
(“Term”), unless terminated earlier in accordance with the terms hereof.
3.2 Client hereby
appoints SERVICE PROVIDER to provide the
Facility for cold storage/dry storage of Goods and to provide Services in
relation thereto, as more particularly set out in clause 4 below and SERVICE PROVIDER hereby accepts such
appointment on the terms and conditions set out herein.
3.3 The arrangement contemplated
hereunder is non-exclusive and Client shall be entitled to enter into similar
arrangements with any other entity including without limitation in the same
area as the Facility and SERVICE PROVIDER shall not object to, dispute or
challenge any such arrangement. SERVICE
PROVIDER shall not make any monetary or other claim, save and except including
for remuneration, compensation, commission or allowance in relation to any loss
or damage of whatsoever nature that may be suffered or incurred by it due to
Client exercising any of its rights under this clause 3.3.
4.
SERVICES
4.1 SERVICE PROVIDER shall:
i.
provide
a separate Chamber at the Facility admeasuring
square feet as described in Annexure II
hereto exclusively for cold storage/dry storage of Client Goods. On request
by Client, SERVICE PROVIDER shall provide additional space or reduce the space
provided within the Chamber at the Facility.
ii.
Prior
to accepting delivery of the Goods,
SERVICE PROVIDER shall inspect and examine the Goods randomly to verify
that the Goods are not damaged and are as per the specifications intimated by
Client and set out in the delivery receipt.
iii.
accept
delivery of only those Goods which have been approved by authorized
representative of Client.
iv.
at
the time of taking delivery certify the quantity, weight and quality of Goods
delivered in general in accordance with the guidelines of Client.
v.
store
the Goods delivered at the Facility in accordance with the provisions of this
Agreement.
vi.
In
case of cold storage maintain a temperature 20C to 40C and relative humidity (RH) of 65% to 75% in
the Chamber during the Term. SERVICE
PROVIDER shall ensure that the variation in the temperature shall not exceed 20C
to 40C and (RH) shall always be within the range of 65% to 75%.
vii.
maintain
a two hourly record of temperature and RH maintained in the Chamber during the
Term and shall also provide facility of monitoring data loggers over the
inter-net.
viii. intimate Client in writing
any variation in the prescribed temperature level or RH level and forthwith
take appropriate steps to correct the deviation in the temperature level or RH.
ix.
re-deliver
the Goods from the Facility, in the quantities and in the manner directed by
Client from time to time. Client may, at its sole discretion, engage any third
party to take re-delivery of any or all of the Goods and on request by
Client, SERVICE PROVIDER shall, within two (2) hours of such request,
place the applicable Goods for dispatch at the dispatch bay at the
Facility.
x.
ensure
that the Goods so redelivered are redelivered in the same condition and form as
at the time of delivery to SERVICE
PROVIDER at the Facility by or on behalf of Client subject to natural
deterioration and such Goods are redelivered to the third party specified by
Client.
xi.
be
solely responsible for the Goods at all times when the Goods are in its
possession or under its control and shall be solely liable for
any loss of or damage to or
shortage in the Goods when the Goods are in its possession or under its
control. SERVICE PROVIDER shall not tamper with the Goods and shall at
all times ensure that there is no deterioration in the quality of the Goods and
the packaging is not tampered with when the Goods are in its possession or
under its control.
xii.
at
all times during the Term, store and handle the Goods with due care and
prudence and shall ensure that the Goods are not exposed to any danger
including of theft or pilferage. SERVICE
PROVIDER shall take suitable safety precautions to prevent theft or pilferage
at or from the Facility. SERVICE
PROVIDER shall depute security guards at the Facility to ensure security
thereof and shall arrange to have the Facility locked at all times. SERVICE PROVIDER shall indemnify and hold
harmless Client, its officers, employees, agents and representatives from and
against any loss or damage of any kind or nature to the Goods at any time when
such Goods are in the possession or control of
SERVICE PROVIDER including loss or damage arising due to negligence
of SERVICE PROVIDER.
xiii. undertake all necessary
documentation associated with receipt, storage, handling and redelivery of the
Goods, including inventory and material balance documentation and maintain
accurate and upto date documentation in relation to the Goods in the format
desired by Client from time to time.
xiv. perform all other acts,
deeds and things as may be necessary for discharging its obligations under this
Agreement or as may be specified by Client from time to time. SERVICE PROVIDER shall upon execution of this
Agreement furnish a “No Objection
Certificate” issued by the
relevant financial institution, if any outstanding loan amount and or loan
installments are pending.
5.
TITLE
5.1 Client shall remain the owner of the Goods at
all times and in no event shall any right, title or interest in the Goods pass
to SERVICE PROVIDER.
5.2 SERVICE PROVIDER shall not sell, mortgage,
hypothecate or otherwise deal in, create security interest over or use any of
the Goods in any manner other than as per terms of this Agreement. SERVICE PROVIDER shall hold the Goods
delivered to it by or on behalf of Client in trust as a bailee and shall not,
directly or indirectly, create, incur, assume, or permit to be created,
incurred or assumed, any claim, lien, charge or encumbrance of any nature
whatsoever in favour of a third party over any Goods and shall procure that the
Goods remain free from any liens, charges or other security interests and that
no person other than Client shall have any claims to title thereon.
6.
OBLIGATIONS
OF SERVICE PROVIDER
6.1 SERVICE PROVIDER shall:
ii.
perform
all Services in a professional manner and in accordance with the terms and
conditions of this Agreement, Applicable Laws, Applicable Permits, Good
Warehousing Practices, directions, guidelines and instructions issued by Client
from time to time.
iii.
obtain,
keep valid and subsisting, and comply with the conditions of, all permits,
licenses, authorizations and consents as may be required from time to time in
respect of Facility, Chamber and infrastructure herein and thereat, and in
relation to performance of its obligations hereunder.
iv.
make
efforts to prevent any delay in the performance of its obligations hereunder
and shall work together with Client for the effective and timely provisions of
Services.
v.
perform
all other activities and services as may be necessary for due and proper
performance of its obligations hereunder in accordance with Applicable Laws,
and Good Warehousing Practices and
SERVICE PROVIDER shall perform all such activities services as if they
were expressly described herein without any additional cost to Client and all
such activities and services shall be deemed to be included in the Services to
be performed hereunder.
vi.
permit
Client and / or any person authorized by Client to inspect the Facility, the
activities being carried out at the Facility, the Goods and any and all
documents and / or books of accounts relating to this Agreement at any time
during normal business hours.
vii.
maintain,
preserve and keep in safe custody any and all records in relation to this
Agreement for such periods as may be prescribed under Applicable Laws and as
may be required by Client from time to time.
viii.
at
all times during the Term of this Agreement ensure compliance with all
Applicable Laws including without limitations any and all health and safety
related laws and regulations applicable for maintaining cleanliness and
sanitation of the Facility. SERVICE
PROVIDER shall obtain, keep valid and
subsisting at all times during the Term, and comply with the terms and
conditions of, all permissions, consents, registrations and authorizations as
may be required in respect of the Facility and the infrastructure therein and
thereat and for performance of its obligations hereunder (“Applicable Permits”)
and shall pay to the relevant Municipal Corporation and / or other authority
any and all such taxes, duties, levies and charges as are liable to be paid to
own and operate the Facility. ix. ensure that the Facility is maintained in safe and proper
working order and condition at all times during the Term in accordance with
guidelines issued by Client from time to time and in accordance with Applicable
Laws and Permits. SERVICE PROVIDER shall
ensure that storage and safety conditions at the Facility are in compliance
with Good Industry Practices and the Facility is clean and hygienic.
x. ensure that the Facility is free from any and all
encumbrances, liens and charges and that all amounts due, if any, in relation
to the Facility are paid on or by their due date and certify in writing that
there is no outstanding commitment with regard to the Facility. not store in
the Facility, or permit to be stored in the Facility, any goods or products
which may adversely affect the Goods including without limitation any goods or
products that may emit foul or offensive odour or any inflammable goods. xi.
not store the
Goods at any location other than at the Facility without the prior written
consent of Client save and except in case of urgency as a safety measures.
xii.
at
its sole cost and expense, maintain the Facilities and necessary furniture,
fixtures, facilities, equipment, resources and infrastructure therein and
thereat in good and proper working condition and order and shall bear any and
all costs and expenses in relation to maintenance and repair and insurance
thereof including but not limited to rentals and all applicable municipal and
other taxes, duties, levies, charges including water and electricity charges.
xiii.
not
use the name of Client in any manner whatsoever either for credit arrangement
or otherwise and Client shall not be responsible in any manner whatsoever for
any debt or obligation of SERVICE
PROVIDER, its employees or workmen.
xiv.
at
all times during the Term ensure uninterrupted supply of electricity at the
Facility at its own cost and expense.
SERVICE PROVIDER shall at its own cost and expense ensure that the DG
set and inverters are maintained in perfect working condition at all times to
ensure uninterrupted power supply. xv.
at its own
cost and expense, display a board prominently at the Facility premises
indicating that Client Goods are stored at the Facility and such Goods are the
sole and exclusive property of Client.
xvi. shall
not store goods of or provide services similar to the Services to any third
party at the Facility on terms that are more advantageous than those offered to
Client from time to time unless such terms are offered to Client. In the
event SERVICE PROVIDER stores goods or
provides services similar to the Services to any third party on more
advantageous terms, then from the date of such storage and / or provision of
services to the third party, SERVICE
PROVIDER shall store Goods and provide Services to Client at the Facility on such
more advantageous terms.
7.
INSURANCE
7.1 SERVICE PROVIDER shall, in respect of Facility
obtain, and keep valid and subsisting at all times during the Term, adequate
insurance cover from a reputable insurance company, subject to such minimum
sums insured and other provisions as may be prescribed by Applicable Laws,
against all risks including without limitation third party risks to persons and
properties, fire and explosion risk, comprehensive motor vehicle policy risk,
workmen’s compensation or loss or injury to its personnel, loss or damage to
the Facility.
7.2 Immediately
upon execution of this Agreement and in any event within three (3) days
thereof, SERVICE PROVIDER shall provide
to Client a copy of the insurance policies and evidence of the insurance
coverage. SERVICE PROVIDER shall on
request by Client furnish to Client copies of receipts issued by the insurance
company in connection with payments of premiums under such insurance policies
and copies the renewals, if any, of such insurance policies.
7.3 SERVICE PROVIDER
shall pay the requisite insurance premiums on or by their due date in
accordance with the provisions of the insurance policies and shall deliver to
Client evidence of such payments.
7.4 Notwithstanding
any claim Client may have under any insurance policy taken by it in relation to
the Products, SERVICE PROVIDER shall not
be relieved or discharged from any of its obligations hereunder.
8.
REPRESENTATIONS
AND WARRANTIES
8.1 Each
Party represents and warrants that:
(a)
it
is a company duly and legally organized and validly existing under the laws of
India;
(b)
this
Agreement constitutes its valid and legally binding obligations, enforceable in
accordance with its terms;
(b)
it
has full corporate power and authority to execute and deliver this Agreement in
accordance with its terms and to perform all its duties and obligations arising
or created under or pursuant to this Agreement and all requisite corporate
approvals, as applicable, have been obtained by it prior to the execution of
this Agreement; and
(c)
the
execution of this Agreement and delivery and performance by it of its
obligations hereunder do not and shall not violate or conflict in any manner
with or result in a breach or default under
Applicable Law or any of its duties or
obligations under any
agreement, understanding or
arrangement, written or oral, to which it is a party.
8.2 SERVICE PROVIDER represents and warrants to
Client that:
(a)
it
is the occupant and possessor of or otherwise well and sufficiently entitled to
the Facility and that it has requisite experience, knowledge, expertise,
ability, manpower and infrastructure (and the capability to supplement and
augment the same) to perform its obligations under this Agreement;
(b)
it
has apprised itself of all Applicable Laws in so far as the same relates to
performance of its obligations hereunder and shall at all times comply with all
such Applicable Laws;
(c)
it
has obtained all necessary Permits required for performance of its obligations
hereunder and shall comply with the conditions thereof and keep all such
Permits valid and subsisting during the Term;
(d)
the
Facility is free from all encumbrances and all dues pertaining to the Facility,
statutory or otherwise, have been paid on time.
SERVICE PROVIDER is authorised to receive, store, handle Client Goods at
the Facility and re-deliver them in accordance with Client instructions;
(e)
it
shall receive and hold the Goods as a bailee in trust for Client;
(f)
it
shall provide the Facility and provide Services to Client on a priority basis
and on most favoured customer terms, including in respect of price and
payment.
9.
CONSIDERATION
AND TAXES
9.1 As full consideration for provision of the
Facility and Services, Client shall pay
SERVICE PROVIDER at the rates and on the payment terms set out in Annexure III (Payment Terms and Mechanism).
9.2 The
consideration payable by Client to
SERVICE PROVIDER under this Agreement as determined in accordance with Annexure III shall be: (i) subject to
deduction of tax at source in accordance with applicable tax laws of India and
(ii) net of all other taxes and duties including without limitation central
sales tax, local sales tax, VAT, levies and any other charges of similar nature
except otherwise expressly agreed by Parties.
SERVICE PROVIDER shall be solely liable and responsible for bearing and
paying all such applicable taxes.
10.
PAYMENT
TERMS
10.1 SERVICE PROVIDER shall, in respect of the
Facility and Services provided in any calendar month, submit an invoice to
Client, together with such supporting documents as may be prescribed by Client
from time to time, no later than on the seventh day of the immediately
following month.
10.2 Client shall make
payment of undisputed invoiced amounts within thirty (30) working days of
receipt of correct invoice together with all supporting documents. Client shall
advice SERVICE PROVIDER within [30] working
days of the date of receipt of the invoice of any disputed amounts in such
invoice. SERVICE PROVIDER shall promptly
provide necessary clarifications and / or corrections to Client. Client shall
pay the amount due, if any, after resolution or determination
of the dispute, within [10]
working days of resolution or determination of such dispute in accordance with
clause 15.
11.
TERMINATION
11.1 This Agreement may be terminated by Client
without assigning any reason thereof at any time by giving 30 days prior
written notice to SERVICE PROVIDER.
11.2 Without prejudice to any other rights or
remedies available in law or under this Agreement, either Party may terminate
this Agreement forthwith on or at any time after the occurrence of any of the
events specified herein below:
(a)
insolvency
of the other Party;
(b)
material
breach of any of the terms or conditions of this Agreement by the other Party
which breach is not remedied by such other Party to the satisfaction of the
non-breaching Party within three (3) days of notice of the breach;
(c)
if
a petition for winding up of the other Party is decreed in any Court or a
resolution is passed for winding-up the business of such other Party or if any
receiver, manager, liquidator, administrator or other similar official is
appointed to the other Party or a substantial part of the other Party’s
property.
12.
EFFECT
OF TERMINATION
12.1 Upon termination of this Agreement:
i. unless
otherwise directed by Client, forthwith deliver to Client all Products in SERVICE PROVIDER’s possession or control or
in the Chamber or in any other part of the Facility in the same form and
condition save and except natural detoriaton as when delivered to it without
causing any damage or loss thereto. ii. both Parties shall be relieved of their respective rights
and obligations under the Agreement save such rights, obligations and
liabilities which (i) accrued prior to such termination; and
(ii) survive termination of this
Agreement;
iii.
Client
shall not be liable to make any payment to
SERVICE
PROVIDER other than for Services provided by SERVICE PROVIDER till the date of termination hereof save and
except any statutory liability arising in future and not part of the present
agreement and SERVICE PROVIDER shall not be entitled to make any claim on
Client for compensation or for loss or damages in respect of goodwill or
otherwise save and except their legal claim;
iv.
each
Party shall forthwith return to the other Party the property of such other
Party including, but not limited to, all documentation and Confidential
Information including details of future sales plans or models together with any
copies thereof or any other documents entrusted to such other Party during the
Term and hardware and software relating to this Agreement.
13.
CONFIDENTIALITY
13.1 SERVICE PROVIDER shall maintain in
confidence, in accordance with the standards of care and diligence that it
utilises in maintaining its own Confidential Information, any and all
confidential information received by it from Client in connection with or in
the course of performance of this Agreement and shall not, and shall ensure
that its officers, directors, employees and representatives do not, disclose to
any person any Confidential Information of Client, without the prior written consent
of Client.
13.2 This clause 13 shall survive
expiry or termination of this Agreement.
14.
INTELLECTUAL
PROPERTY
14.1 Client does not grant
to SERVICE PROVIDER any right, title or interest in any of its
Intellectual Property except as expressly authorised in writing by Client
and SERVICE PROVIDER shall not have any right, title or interest
in the Client Intellectual Property other than the right to use it for purposes
of this Agreement for the Term hereof.
SERVICE PROVIDER shall comply with any and all instructions issued by
Client in relation to the display of any logo, trademark, copyright or any
other Intellectual Property of Client. Upon expiry or earlier termination of
this Agreement, SERVICE PROVIDER shall
immediately cease and desist for all times from any use of or reference to
Client’s Intellectual Property and shall return to Client copies or materials
containing such Intellectual Property.
14.2 Parties hereby acknowledge and confirm that:
(a)
All
Intellectual Property Rights in or relating to the Goods are and shall at all
times remain the property of Client and / or its licensors;
(b)
SERVICE
PROVIDER shall notify Client immediately if
SERVICE PROVIDER becomes aware of any illegal or unauthorized use of any
of the Goods or any of the Intellectual Property therein or relating thereto
and will assist Client in taking all steps necessary to protect and defend
Client rights therein.
14.3 The provisions of this
clause shall survive the termination of this Agreement.
15.
ARBITRATION
15.1 Any claim, dispute or
difference arising out of or in connection with this Agreement or its validity,
interpretation, implementation or alleged breach of any of the provisions
hereof or any contracts, dealings or transactions pursuant hereto or any
rights, obligations, terms or conditions contained in this Agreement or the
interpretation or construction of this Agreement or anything done or omitted to
be done pursuant to this Agreement, shall as far as possible, be resolved by
Parties by mutual consultation.
15.2
If Parties fail to reach agreement by mutual consultation within thirty (30)
days after a Party has made a request for mutual consultation or such longer
period as the Parties may agree in writing, then in that event the claim,
dispute or difference may be referred to arbitration by either Party, to a sole
arbitrator appointed by Parties by mutual consent and if
Parties are unable to agree on such
sole arbitrator within forty five (45)
days of expiry of the aforesaid
thirty (30) days period, then the dispute may be referred by either Party to
arbitration by an arbitration tribunal comprising of three (3) arbitrators, one
arbitrator to be nominated by each Party and the two arbitrators so appointed
to jointly nominate and appoint the third arbitrator.
15.3 If the two (2)
arbitrators appointed by the Parties are unable to agree on the third
arbitrator within [ ] days of
appointment of the second arbitrator, then either Party may apply to the
competent courts of Mumbai, India for appointment of the third arbitrator.
15.4 The arbitration proceedings shall
be conducted at ____________.
15.5 The arbitration shall
be governed by the provisions of the Arbitration and Conciliation Act. The
arbitration proceedings shall be conducted in the English language and the
arbitral award shall be in English and shall provide reasons thereof. The award
passed by the arbitrator shall be final and binding on the Parties.
16.
INDEMNITY
AND LIMITATION OF LIABILITY
16.1 Each Party shall indemnify, defend and hold
the other Party, and such other Party’s Affiliates and the directors, officers,
agents, authorized representatives and employees of each of the foregoing
(“Indemnified Parties”) harmless from and against any and all losses, liabilities,
demands, actions, claims, suits, proceedings, damages, costs, expenses,
including without limitation attorney's fees and costs relating to or arising
from or in connection with
i.)
bodily
injury or death of any person or damage to real and/or tangible personal
property, personal injury, caused by the misconduct, breach of this Agreement
or negligence of SERVICE PROVIDER or any
other person acting for or on behalf of
SERVICE PROVIDER.
ii.)
resulting
from a breach of any obligation, warranty, representation, covenant or any
other provision of this Agreement by
SERVICE PROVIDER.
iii.)
any
loss of or damage to Products.
16.2
In
no event shall Client and its Affiliates aggregate liability to
SERVICE PROVIDER and its Affiliates in
connection with this Agreement, however caused, exceed in the undisputed amount
payable by Client for Services provided by
SERVICE PROVIDER under this Agreement.
16.3
In
no event shall Client be liable to the
SERVICE PROVIDER for any punitive, exemplary, special, indirect,
incidental or consequential damages [including but not limited to, lost
profits, lost business opportunities, loss of use or equipment down time)
arising out ofor relating to this Agreement, regardless of the legal theory
under which such damages are sought.
16.4
Any
claim made by SERVICE PROVIDER hereunder
must be made in writing and presented within one (1) year from the date on
which the breach occurred, in respect of which the claim is made. Failure of
the SERVICE PROVIDER to make such a claim shall be deemed to have waived such a
claim.
17.
LIQUIDATED
DAMAGES
17.1 Without prejudice to any other rights or
remedies available to Client under this Agreement or in law, if SERVICE PROVIDER fails to take delivery of or re-delivery of
any Goods on the date and at the time specified by Client in accordance with
this Agreement, SERVICE PROVIDER shall be liable to pay to Client, as
ascertained and agreed, liquidated damages not amounting to penalty, of an
amount equivalent to [ ] % of the agreed service charges of the Goods of which delivery was not taken or
re-delivered by SERVICE PROVIDER on the date and the time so specified, for
each day of delay or part thereof
17.2 Client may, at its sole discretion and
without prejudice to its right to recover any or all of the liquidated damages
by any other method of recovery, deduct the amount of such liquidated damages
from any monies due or which may become due to
SERVICE PROVIDER.
17.3 The payment or recovery of liquidated damages
in accordance with this clause 17 shall not relieve SERVICE PROVIDER from any
of its obligations or liabilities under this Agreement.
18.
NOTICES
18.1 All notices, requests, consents, waivers or other
communication required or permitted hereunder shall be in writing and shall be
deemed properly served: (i) if delivered by hand and received by an authorized
employee or officer of the Party, (ii) three (3) days after being given to an
internationally reputed courier with a reliable system for tracking delivery,
(iii) upon receipt of confirmation receipt when sent by facsimile; or (iv)
fourteen (14) days after the date of dispatch by certified or registered mail,
postage prepaid, return receipt requested; (v) when sent by electronic mail
upon confirmation of delivery thereof.
All notices and other
communication shall be dispatched to the following addresses of the Parties:
|
In
case of Client |
In
case of SERVICE PROVIDER |
|
Attn.: |
Attn.: |
|
Address: |
Address: |
|
Fax No.: |
Fax No.: |
|
E-mail: |
E-mail: |
19.
RELATIONSHIP
19.1 This Agreement is on a principal–to-principal basis and
nothing in this Agreement shall create any association, partnership, joint
venture or relationship of principal – agent or employer-employee relationship
between the Parties hereto, it being understood that the parties hereto are
with respect to each other independent contractors, and neither party shall
have any authority to bind the other or the other’s representatives in any way
and shall not represent to any third party that it has such authority nor will
either party enter into any contract, make any representation, give any
warranty or incur any liability on behalf of the other party. SERVICE PROVIDER shall be solely responsible
for payment of all compensation owned to its employees, as well as employment
related taxes. SERVICE PROVIDER shall
maintain appropriate workers’ compensation for its employees as well as general
liability insurance.
19.2 SERVICE PROVIDER shall observe and be liable
under the Applicable Laws including labour and industrial laws and any other
similar enactment or amendment in respect of such persons employed/engaged by
the SERVICE PROVIDER, including any accident, injury sustained by any persons
and/or loss of life and limb of any person employed by the SERVICE PROVIDER for
performance of its obligations hereunder.
19.3 SERVICE PROVIDER
shall indemnify the Client and hold it harmless against any claims or demands
made by SERVICE PROVIDER’s employees or sub-contractors or their employees
against Client or its employees, to the extent of the consideration value on any ground whatsoever.
20.
FORCE
MAJEURE
20.1 Neither Party shall be
responsible or liable for any delay or failure in performance by it of its
obligations hereunder, if such delay or failure is due to act of God namely
declared war, hurricane, flood, cyclone, terrorism, or any order of any Governmental
or statutory authority.
21.
ASSIGNMENT
21.1 This Agreement shall
not be assigned either fully or in part by any Party hereto to any third party
without the prior consent, in writing, of the other Party, provided however
that, Client shall be entitled to assign any or all of its rights or
obligations hereunder to any of its Affiliates without any requirement of
consent of SERVICE PROVIDER .
22.
ENTIRE
AGREEMENT AND AMENDMENTS
22.1 This Agreement shall
be final and binding on the Parties and it constitutes the entire understanding
between Parties in respect of the subject matter hereof and supersedes all
prior negotiations, discussions and/or documents exchanged between Parties.
This Agreement or any renewal thereof shall not be amended, altered or modified
except by an instrument in writing expressly referring to this Agreement and
signed by authorized representatives of both Parties.
23.
GOVERNING
LAW, JURISDICTION AND LANGUAGE
23.1 This Agreement shall
be interpreted and construed exclusively in accordance with the laws of
_______________ and subject to clause 15, parties agree to submit to the
exclusive jurisdiction of competent courts in _________________.
23.2 The language to be
used in connection with this Agreement shall in all cases be the English
language.
24.
WAIVER
24.1 No failure or delay on
the part of either Party in the exercise of any right, power, privilege or
remedy provided under this Agreement shall operate as a waiver of such right,
power, privilege or remedy or as a waiver of any preceding or succeeding breach
by the other Party to this Agreement nor shall any single or partial exercise
of any right, power, privilege or remedy preclude any other or further exercise
of such or any other right, power, privilege or remedy provided in this
Agreement (all of which are several and cumulative and are not exclusive of
each other) or of any other rights or remedies otherwise available to a Party
at law or in equity. Waiver, if any, has to be in writing by authorized
personnel of the respective Party.
25.
SEVERABILITY
25.1 If any provision of
this Agreement shall be found by any court of competent jurisdiction to be
invalid or unenforceable, the invalidity or un-enforceability of such provision
shall not affect the validity or enforceability of any other provision of this
Agreement and all provisions not affected by such invalidity or
unenforceability shall remain in full force and effect. Parties hereby agree to
attempt to substitute any invalid or unenforceable provision with a valid or
enforceable provision, which achieves to the greatest extent possible the
economic, legal and commercial objectives of the invalid or unenforceable
provision.
26.
SET
OFF
26.1 Client shall be
entitled to set off or retain out of any monies which may be or become due
to SERVICE PROVIDER from Client under
this Agreement, any amounts owed to Client by
SERVICE PROVIDER.
27.
CUMULATIVE
REMEDY
27.1
No right or remedy made available to Client under or pursuant to this Agreement
is intended to be exclusive of any other right or remedy provided to Client
hereunder or available under Applicable Law, or in equity or under contract or
otherwise.
28.
COUNTERPARTS
28.1 This Agreement may be executed in any number of
counterparts, and each of said counterparts shall be deemed to constitute one
and the same instrument.
IN WITNESS WHEREOF, Parties
hereto have caused this Agreement to be duly executed as of the Effective Date,
such Parties acting by their officers, being thereunto duly authorized.
|
Client |
SERVICE
PROVIDER |
|
Signature:
|
Signature:
|
Name:
Name:
Title: Title:
Date: Date:
In the presence of:: In the presence of:
Annexure I
Description of Facility
Annexure II
Description of Chamber
Annexure
III
Payment
Terms and Mechanism
SERVICE PROVIDER shall
raise its invoice on Client for Services provided under the following
heads:
i.) Storage fees ii.)
Reimbursement for unloading and
loading charges iii.) Other charges
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