A. The CL-VBPhas approached CL and has expressed its desire to act as aCL-VBPfor the purposes of selling the CL Products in accordance with the terms of this Agreement.
B. Basis the representations made by the CL-VBP, CL agrees to engage the CL-VBP for the purpose of rendering certain services, as detailed in Clause 1 of this Agreement.
C. The Parties are coming together for the purposes of present Agreement on Principal to Principal basis, and neither of the Parties have intention nor the present Agreement may create any relationship as of Principal and Agent, joint venture or partnership, and Parties intend to remain independent and function independently. The clauses in this Agreement which may confer any specific right or power to CL having predominance are only supervisory in nature for the purposes of maintaining its brand name and reputation and are not for causing any interference or control in the independent nature of relationship between Parties.
Now, therefore in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. SCOPE OF ENGAGEMENT
1.1 The Company hereby appoints the CL-VBP as its authorized CL-VBP on non-exclusive basis (as provided in Clause 2) for the Term (as defined in Clause 8) for the following limited purpose:
(a) Market the CL Products to any prospective Customers(as defined below);
(b) sell the CL Products to any prospective Customers; (hereinafter referred to as "Scope of Engagement")
(c) the CL-VBP shall not market, sell or use the CL Products in any manner which is inconsistent for the limited purpose as specified under this Agreement;
1.2 For the purpose of this Agreement, the term "Product" shall mean the test prep programsas listed on E-Centre on the official website of CL. The CL reserves the right to withdraw any products or refrain the CL-VBP to market and sell any specific product with prior notice of seven (7) days without assigning any reason thereof.
1.3 For the purpose of this Agreement, the term "Customer" means any individual student desirous of buying products of the CL due to the efforts, help and assistance from the CL-VBP via the official web portal of CL.
1.4 "CL-VBP" means an Authorized associate set up by the CL for local marketing, sales, and student support and their services include administration, coordination and follow up on behalf of student, as stipulated by the CL and based on which it is authorized by the CL for the purpose of advising, for rendering any assistance or related services, required by the students of CL.
2 NON-EXCLUSIVITY & NON-COMPETE
The Company reserves the right to enter into similar arrangement with any other individual / company / organization on any terms desirable to the Company and hence this contract is Non-exclusive. The CL-VBP agrees and acknowledges that for the Term it shall notengage in any manner whatsoever with a Competitor of the Company for similar relationship of cross selling of similar products like of the CL to any of the Customer as defined above.
3. OBLIGATIONS OF THE CL-VBP
3.1 Initial Charges: The CL-VBP agrees to pay to the CL an amount as determined from time to time as the charges for the start-up activities for the purpose of initiation and for rendering the pre-commencement training. The Initial charges mentioned above are completely non-refundable under any circumstances.
3.2 Sub-Contracting The CL-VBP shall not enter into any arrangements with any other person with a view to delegating its Services and the rights granted to it under this Agreement.
3.3 MARKETING CL PRODUCTS
3.3.1 The CL-VBP shall adhere to the guidelines and regulations defined by CL for digital marketing, use and implementation of social media networks such as Facebook, Linkedin, Youtube,Instagram, Twitter, various blogs etc and seek prior written approval from CL before creation and use of any such social media in the name of CL. The CL-VBP shall not undertake to advertise on any online platform, websites etc and implement any digital campaigns till the time prior formal written approval is sought from CL. The logo or other mark of the CL may only be used with the approval of the CL and shall always be used in the format prescribed by CL.
3.3.2 CL-VBP shall not cross sell other competing test prep and / or coaching programmes to the Students enrolled with CL.
3.3.3 The CL-VBP shall be wholly responsible for all its capital, revenue and operational costs relating to this business including those arising from the establishment, accommodation, rents, rates, taxes, maintenance, payment of communication charges towards e-mail etc. and all other costs whatsoever, arising from the existence of the CL-VBP and delivery of the Services. The CL-VBP shall ascertain for itself the financial viability of the entire project and shall fund all cost for running the said CL-VBP relationship.
3.3.4 The CL-VBP will help the CL get Students for its Online Programs.
3.3.5 CL-VBP shall assist the students with the admission procedure of CL, give them all the details relating to the programs offered by the CL and help the students secure admission to the CL online programs.
3.3.6 The CL-VBP shall be responsible for payment of all applicable taxes, duties, levies, fees and other similar costs arising as a result of or in connection with the transactions contemplated under this Agreement.
3.3.7 The CL-VBP shall comply with all Applicable Laws in fulfilling its obligations under this Agreement.
3.3.8 The CL-VBPshall not and is not empowered to:
a) Put its own sign board
b) Make any false promises to the students on behalf of CL.
c) Indulge in any academic delivery activities, viz. lectures, book printing, academic counseling, or any kind of teaching activity for CL Programs;
d) Charge student any extra amount for any additional services it may want to provide.
e) Make any financial or any other commitments on behalf of CL.
f) Enter into any commitments, contracts, agreements or arrangements that bind CLin any manner whatsoever. It will not engage itself in providing any coaching classes to the students for CL programs;
g) Collect any Fees of from any Student in its name.
4. PAYMENT OF COMMISSION AND PAYMENT TERMS
4.1 It is agreed between the Parties that the CL-VBP shall be entitled to pre-defined share of the Net Collections generated from the Program Fee collectionmade from the Students enrollments.
4.2 It is herebyclarified that Collections shall mean and be construed as actual fee payment received from the Students, net of applicable taxes and refunds, and subsequently deposited in designated bank account of the CLexclusively.
4.3 The CLshall make a payment of the aforesaid Collection share to the CL-VBP in pre-defined manner.
5. INTELLECTUAL PROPERTY
a. The Parties agree and acknowledge that all present and future rights, title and Intellectual Property Rights in the Product developed by the CLvests with CL only. The CL-VBP agrees and undertakes that it shall not contest or dispute the Intellectual Property Rights in relation to the Product.
b. Furthermore, in the event the CL-VBP on its own or on basis of any feedback given by a Customer provides the Company any idea, comment, suggestion or feedback relating to the Product, then all Intellectual Property Rights created as a result of the said feedback (including new material, enhancements, modifications or derivative works) shall unconditionally vest with CL.
c. The CL-VBP shall not:
(a) use the Intellectual Property Rights for any purpose other than for carrying out its obligations under this Agreement,
(b) alter, modify, otherwise interfere with any copyright or proprietary marking on the Product, and/or their packaging, or
(c) reverse engineer, decompile, disassemble, or modify the Products in any manner whatsoever.
d. Any unauthorized use of the Intellectual Property Rights including the trademarks and/or
copyrights by the CL-VBP shall constitute a breach of this Agreement and shall also constitute an infringement of the CLrights in and to the Intellectual PropertyRights of the CLand attracting the liability of the CL-VBP. Upon any such breach or threat thereof, the CLwill be entitled to appropriate equitable relief in the form of damages from the CL-VBP.
e. The CL-VBPundertakes that it shall not during or after the Term of this Agreement, challenge the title or right of the CLin the Intellectual Property and shall not do or cause to do anything that may dilute the right or title of the CLin its Intellectual Property.
f. The CL-VBPherein agree to take all necessary steps for the protection of the CL's Intellectual Property Rights and shall take necessary steps to prevent any threatened or potential infringement or passing off action.
6. DISCLAIMER OF WARRANTY
The Product is being provided by the CL-VBP to the Customer on an âAS IS" basis without warranty of any kind, express or implied, statutory or otherwise, including implied warranties of title, non-infringement, merchantability or fitness for a particular purpose.
Without limiting the foregoing, the CL-VBP makes no warranty to the Customer: (i) the Product shall meet all the requirements of the Customers; (ii) the use of Product shall be uninterrupted, timely and/ or error free; (iii) the results that may be obtained from the use of the Product will be effective, accurate, or reliable; (iv) any errors or defects in the Product will be corrected.
It is hereby clarified that the CLmay provide any warranty related to the Product as provided in the Independent Contract and that such warranties shall have no bearing or liability imposed on the CL-VBP or the Scope of Engagement under this Agreement.
7. INDEMNITY
Each Party shall fully indemnify and keep indemnified the other Party, its affiliates, employees and directors against all losses, liabilities, claims, taxes, demands, damages, causes of action, governmental inquiries and investigations, costs and expenses, including reasonable attorneys and accountants fees, consequently, directly and indirectly incurred, arising from, as a result of, or in connection with actions, errors, omissions, breaches or default of the other Party and/or its employees, representatives and CL-VBPs under this Agreement including any acts or omissions which are a result of other Party's negligence or willful misconduct which may be brought against the Party or which it may sustain or incur at the instance of any third party.
8. TERM AND TERMINATION
The term of this Agreement commences from the date License Fee payment is realized by CL , and shall continue for a period of one (1) year ("Term"). After the expiry of the Term, the Parties may renew their relationship on mutually agreeable terms and conditions.
9. MISCELLANEOUS PROVISIONS
13.1 Arbitration: All disputes and differences of whatsoever nature arising out of this Agreement, barring any disputes arising out of infringement of Intellectual Property Rights and / or breach of Confidentiality, whether during its term or after expiry thereof or prior termination shall be referred to arbitration in terms of the Arbitration and Conciliation Act 1996, to be conducted by a sole arbitrator who shall be mutually appointed by the Parties. The decision of the arbitrator shall be final and binding on the Parties. The venue of arbitration shall be Delhi. The Sole Arbitrator shall follow summary procedure while adjudicating the dispute(s) referred to him.
13.2 Governing Law and Jurisdiction: This Agreement shall be governed by the Laws of India. The Parties agree to settle all their disputes and differences through arbitration as per process set out above and agree to seek the intervention of court at New Delhi only for the purposes set out in the Arbitration and Conciliation Act, 1996 and for obtaining injunctive relief.
13.3 Severability: In the event that any provision of this Agreement, or any portion thereof,
shall be held invalid, illegal or unenforceable under applicable law, such defect shall not
vitiate the other provisions of the Agreement and the remainder of the Agreement shall
continue to be legal, valid, effectual and binding on the Parties hereto;
13.4 Amendment: This Agreement may not be amended or modified except by an instrument
in writing signed by the Parties herein.
13.5 Waiver: Failure of either Party at any time to require performance of any provision of this Agreement shall not affect the right to require full performance thereof subsequently, and
the waiver by either Party of a breach of any provision shall not be taken or held to be a
waiver of any subsequent breach thereof or as nullifying the effectiveness of such
provision.
13.6 Force Majeure: Neither Parties shall be liable for any loss or damage caused to the others, provided that the Party experiencing the delay promptly notifies the other of the delay for
its failure to perform any or all of its obligations under this Agreement during any period
in which such performance is delayed or rendered impractical or impossible occasioned
by or caused due to events which are beyond the reasonable control of Parties such as acts
of god which includes natural calamities, fire, floods and droughts; wars, riots,
insurrection, acts of the public enemy, terrorism ("Force Majeure Event"); provided,
however, that in the event a Force Majeure Event persists for Sixty (60) days or more,
either Party shall have the right, but not the obligation, to terminate this Agreement.
13.7 Relation between Parties: The relation between the Parties shall be on a principal to
principal basis and nothing in this Agreement is to be construed to make a Party a partner, or legal representative of the other for any purpose. Neither Party has any rightor authority to accept any service of process or to receive any notices on behalf of the other
Party or to enter into any commitments, undertakings, or Agreements purporting to
obligate such other Party in any way, or to amend, modify or vary any existing
Agreements to which such other Party may be a party.
