In case you are located in the India this Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
The Company is in the business providing branding services to entities across the globe (“Services”). Any Service rendered by the Company shall be subject to the terms and conditions contained herein. The Company is referred to as “We” or “the Company”. A client or design or creative professional of the Company is referred to as “You” or “the Customer” or “Consultant”.
I.Terms and Conditions to avail the services
We request you to carefully go through these Terms & Conditions to avail the Services. By availing the Services, you irrevocably accept all the obligations stipulated in these Terms & Conditions and agree to abide by them. These Terms & Conditions supersede all previous oral and written terms and conditions (if any) communicated to you by the Company.
If you do not agree with these Terms & Conditions, you may communicate the same to the Company. By continuing to avail the Services, you signify your agreement to these Terms & Conditions. These Terms & Conditions set out the legally binding terms of the Services. We reserve the right to modify or terminate any portion of the Services offered by the Company for any reason, without notice and without any obligation to provide notice to you or any third party. In the event we make any changes to the Terms & Conditions, we shall communicate the changes to You through email.
DEFINITIONS AND INTERPRETATIONS
The following definitions shall be applicable for the interpretation of these Terms and Conditions.
In addition to the terms defined herein, the following terms, and the singular or plural thereof, used in this Terms and Conditions shall have the meanings set forth below:
“Acceptance Date” shall mean the date on which the Deliverables provided by the Company to the Customer under this Terms and Conditions are deemed accepted by the Customer in accordance with Clause 1 of these Terms and Conditions;
“Confidential Information” shall mean all non-public information, of a Party which is accessible by or is available to the other Party directly or indirectly, whether marked confidential or not, whether in writing, oral, graphic, visual or any other tangible, intangible or electronic form including, without limitation, any and all information relating to such Party’s and/or its clients (whether past, present, or future), financial data, financial results and projections, costs and prices, details of suppliers, retainers, employees and consultants (past, present or prospective), technologies, technical and business strategies, business and marketing plans and reports, marketing and sales techniques, contracts, pricing and other strategies, hardware, designs, drawings, machines, tools, models, computer programs, software tools, source codes, object codes, protocols, product descriptions, development schedules, product positioning, choices of product names, trade secrets or know how, databases, customer information and Intellectual Property rights as well as any such information not generally known to third parties or received from others that is clearly identified as confidential;
“Deliverables” shall mean the Initial Deliverable, Edited Deliverable and the Final Deliverable provided by the Company to the Customer, as the case may be;
“Force Majeure” shall mean, in relation to the Parties, any circumstance beyond the reasonable control of that Party, including without prejudice to the generality of the foregoing, any act of God, act or regulation of any governmental or supra-national authority, war or national emergency, accident, epidemic, fire, riot, bandh or strike;
“Personnel” shall mean employees and/ or consultants of the Company and of their agents, and any contractors, consultants and sub-contractors engaged by the Company and any personnel whose services have been loaned to or seconded to the Company;
“Inputs” shall mean any data, whether confidential or not, in the physical or electronic form provided by the Customer and required by the Company for the purpose of providing Services;
“Intellectual Property” shall mean and include all intellectual property, whether registered or not registered, in particular: (a) all trademarks, service marks, trade names, logos; patents, design rights; trade secrets, including, know-how, technology, source code, API’s, databases, design elements including user interfaces, formulae, industrial, scientific and commercial information, techniques and inventions; processes, manuals, documentation, and scientific and technical data and information; copyrights, works of authorship, and topography rights, data base rights; computer hardware and software including computer programs and any other information in relation to the above; (b) technical know-how and information, business and market information, in relation to product and process development validation, integrated business support services, operational support services, end user services, training and support service, marketing and other allied services; (c) all rights under licenses in respect of all of the above specified at (a) herein; (d) any applications or registrations for the protection of all of the rights specified at (a); and (e) all renewals and extensions thereof;
“Services” shall mean provision of the Initial Deliverable, Edited Deliverable and/or the Final Deliverable by the Company to the Customer for the final approval of the Customer for usage by the Customer. Provided that the Services shall not result in the transfer of the ownership of the Deliverables from the Company to the Customer unless the Parties execute an assignment deed for transfer of the ownership of the Final Deliverable from the Company to the Customer;
1.1 Subject to the payment of Consideration by the Customer to the Company, the Company agrees to provide the Services on a non-exclusive basis from time to time as may be demanded by the Customer.
1.2 The Customer shall provide the Inputs to the Company subject to which the Company shall provide the Customer with the initial deliverable (“Initial Deliverable”).
1.3 Upon submission of the Initial Deliverable, the Customer shall provide the Company with comments on the Initial Deliverable within specified days of submission of the Initial Deliverable by the Company. The Company shall complete the redesigning and the editing of the Initial Deliverable within a period of specified days from the date of receipt of Inputs by the Customer and shall submit the edited deliverable (“Edited Deliverable”) to the Customer in the manner as desired by the Customer.
1.4 Upon receipt of the Edited Deliverable, the Customer shall review the Edited Deliverable and provide its Inputs for alteration, modification, amendment or changes, if any within specified days of receipt of the Edited Deliverable. The Company shall make such modifications to the Edited Deliverable as required by the Customer and shall submit the final deliverable (“Final Deliverable”) to the Customer in the manner desired by the Customer within specified days of receipt of inputs on the Edited Deliverable. The Customer shall provide the Company with a written acknowledgement evidencing the receipt of the Final Deliverable. In the event that the Final Deliverable is not acceptable to the Customer, the Customer shall request the Company to make additional modifications to the Final Deliverable. The Company agrees that, if the modifications proposed by the Customer are minor in nature, the Company shall not take any consideration from the Customer. However, if the modifications or Inputs are substantially different from the Inputs provided by the Customer under Clause 1.2 or Clause 1.3, the Customer shall be obligated to pay such amounts to the Company for incorporating any Inputs or modifications in the Final Deliverable as may be mutually agreed to by the Parties.
1.5 The Parties agree that failure to adhere to the specified timelines under this Clause shall deemed to be acceptance by the Customer of the Edited Deliverable or the Final Deliverable, as the case may be.
2.1 In addition to the amounts payable by the Customer under Clause 1.4, the Customer hereby agrees to compensate the Company for the Final Deliverable in the manner indicated under this Clause (“Consideration”).
3.OBLIGATIONS OF THE PARTIES
3.1 Obligations of the Company
(a) The Company shall perform its obligations hereunder in a professional manner with adequately skilled personnel;
(b) The Company shall use commercially reasonable endeavours to comply with all timelines as mentioned under this Terms and Conditions;
(c) The Company shall use the requisite Inputs, wherever required for performing its obligations under this Terms and Conditions;
3.2 Obligations of the Customer
(a) The Customer shall provide the requisite acknowledgement slips from time to time which may include electronic communications for acceptance of the delivery of the Deliverables i.e. Initial Deliverable, Edited Deliverable and Final Deliverable .
(b) The Customer shall provide the Company with required modifications wherever necessary or Inputs required for the successful completion of obligations of the Company under this Terms and Conditions;
(c) The Customer shall not knowingly provide any modifications to the Deliverables that violate any third party Intellectual Property rights, the ownership of which would be determinable by the Customer based upon commercially reasonable searches of publicly available databases;
(d)If the delivery of the Deliverables and its timelines are dependent on the Customer’s instruction, feedback and/ or decision, the Customer shall provide its instruction, feedback and/ or decision promptly and without delay.
4.INTELLECTUAL PROPERTY RIGHTS
4.1 The Company shall retain all rights, title and ownership to Intellectual Property that arises out of the provision of Services under this Terms and Conditions. The Deliverables shall belong solely to the Company and the Company shall irrevocably assign the ownership in the Final Deliverable to the Customer by means of a separate assignment deed (the “Assignment Deed”). Until the execution of the Assignment Deed, the Company shall retain all intellectual property rights in the Deliverables and the Customer shall not be entitled to use the Deliverables in any manner whatsoever.
4.2 By acknowledging these Terms and Conditions, the Customer undertakes not to use Intellectual Property of the Company without the prior express written consent of the Company; and
4.3 The Parties agree that the Customer does not gain, by virtue of this Terms and Conditions, any of the Intellectual Property Rights owned by the Company. Nothing in this Terms and Conditions shall be deemed to confer any other right or title to or in any of the Intellectual Property belonging to the Company to the Customer, unless specifically agreed to in writing by the Parties.
4.4 Except as otherwise agreed in writing between the Parties, any and all works developed in the course of providing the Services, developing the Deliverables and performing responsibilities pursuant to this Terms and Conditions, and all new inventions, innovations, or ideas developed by the Company in the course of performance of its Services under this Terms and Conditions, including the Edited Deliverable and the Final Deliverable, shall belong to the Company. The Customer agrees not to create any adaptations or derivative works based on the modifications/modified works/Deliverables provided by the Company. Subject to full and final payment of the Consideration by the Customer, the Company agrees to cooperate with the Customer and to procure the cooperation of its Personnel in executing the Assignment Deed or other document required to give effect to such understanding.
5.REPRESENTATIONS AND WARRANTIES
5.1 Each Party represents, warrants and covenants that the execution, delivery and performance by it of this Terms and Conditions:
(i) are within its corporate powers;
(ii) have been duly authorized by all necessary corporate action under its organizational documents;
(iii) require no action by or in respect of, or filing with, any governmental body, agency or official; and
(iv) do not contravene, or constitute a default under, any provision of applicable law or regulation or of the organizational documents of such Party or of any agreement, judgment, injunction, order, decree or other instrument binding upon such Party.
5.2 Each Party agrees to inform the other Party immediately if any statement set forth in this Clause ceases to be true and correct as of any date after the date of receipt of this Terms and Conditions.
6.TERM & TERMINATION
Either Party may terminate this Terms and Conditions by providing notice of at least specified calendar days in writing to the other Party at the official address for communication as provided for in of this Terms and Conditions. Provided that the Customer shall be obligated to make the payment to the Company in a proportionate manner for the Services rendered from the Effective Date until the date of termination;
6.2 Cure of breach.
Any Party may terminate this Terms and Conditions for the material breach of obligations of the breaching Party under this Terms and Conditions where such breach has not been cured within thirty (30) days of a notice from the non-breaching Party to the breaching Party regarding such material breach. Provided that in the event the Company is the breaching party and has been unable to cure the breach during the cure period mentioned above, the Customer shall be obligated to make the payment to the Company in a proportionate manner for the Services rendered from the Effective Date until the date of termination
6.3 Effect of Termination.
(a) Any termination of this Terms and Conditions shall not affect the validity or effectiveness of any other agreement between the Parties. The rights and obligations of the Parties in relation to other agreements between them shall continue to be governed by those agreements.
(b) The following clauses will survive termination of this Terms and Conditions: Clause 4 (Intellectual Property), Clause 7 (Indemnity), Clause 8 (Confidentiality), Clause 9 (Non-Solicitation), Clause 10 (Notices) and Clause 12.4 (Governing Law).
7.INDEMNITY AND LIMITATION OF LIABILITY
7.1.1 If the Deliverable delivered by the Company under this Terms and Conditions is likely to or becomes the subject of a claim of infringement of any copyright, trademark, patent or other intellectual property right of any third-party, the Customer will, at its option and expense, raise a claim or suit against the consultant of the Company who has created the Initial Deliverable (the “Company Consultant”). The Company shall on a best efforts basis assist the Customer in filing such claim or suit against the Company Consultant. The Company is not liable to the Customer for any losses arising, directly or indirectly, out of such alleged or actual claims of infringement of rights of a third party including intellectual property rights.
7.1.2 Subject to Clause 7.1.1, the Company shall indemnify, defend and hold harmless the Customer from and against all and any demands, claims, actions and proceedings arising and made by any third person in connection with or arising out of the breach by the Company of this Terms and Conditions or the Company’s obligations or the representations and warranties herein.
7.2 Limitation of Liability.
(a) The Parties shall not be liable for injuries or damages to persons or property resulting from any cause whatsoever, with the exception of bodily injuries, death or tangible property damage caused by such Party’s gross negligence or willful misconduct.
(b) The Company shall not be liable for any damages resulting from loss of data, loss of use or loss of revenue and nothing in this Terms and Conditions restrains the Company from disclaiming any and all liability for indirect and remote damages.
(c) The Company’s aggregate liability in connection with this Terms and Conditions, whether in tort, contract or otherwise, shall not exceed the actual amount paid or payable to the Company under the provisions of this Terms and Conditions.
8.1 Neither Party shall disclose Confidential Information to any third party without the prior written consent of the other Party. Provided that the Company may use the Confidential Information and disclose it to a third party for the purposes of providing Services and such disclosure shall nto require the consent of the Customer.
8.2 Confidential Information shall not be afforded the protection of this Terms and Conditions if such Information:
(i) has been, is now, or later becomes publicly available through no fault of the Company;
(ii) has been, is now, or later becomes rightfully learned by the Company from a third party who is not under restriction or duty imposed by the Customer or applicable law;
(iii) has been, is now, or later is furnished to third parties generally by the Customer, if such disclosure is, or has been, made to third parties generally without similar restriction, duty or limitation of use;
(iv) was known to the Company prior to the date it received such Confidential Information from the Customer.
Notwithstanding anything contained in the Terms and Conditions, neither Party shall not solicit, employ or attempt to employ or offer any employment or other form of services directly or indirectly either by itself or through its clients to any of the personnel of the other Party under this Terms and Conditions during the term of this Terms and Conditions and for specified calendar months thereafter.
All notices, consents, or approvals required by this Terms and Conditions shall be in writing sent by certified or registered air mail, postage prepaid (confirmed by such certified or registered mail), or by facsimile or electronic mail (confirmed by an electronic receipt confirmation) to the Parties at the addresses set forth by you on need-basis.
11.1 In the event of any dispute arising out of or in the interpretation of this Terms and Conditions, the Parties shall aim to settle the dispute amicably through discussions within a period of specified days.
11.2 In the event that the dispute is unable to be settled in an amicable manner, the dispute shall be referred to a sole arbitrator who shall be mutually appointed by the Parties for arbitration under the provisions of the Arbitration and Conciliation Act, 1996. The place and seat of arbitration shall be Bangalore, India and the language of arbitration shall be English.
11.3 Courts at Bangalore, India shall have exclusive jurisdiction over any dispute arising out of this agreement that is required to be referred to litigation.
12.1 Successors and Assigns; Assignment
Failure with or without intent of any Party to insist upon the performance by the other of any terms or provision of this Terms and Conditions in strict conformity with the literal requirements shall not be treated as a modification of the relevant provision, nor shall such failure or election be treated as a waiver of the right of such Party at any later time to insist on strict performance by other of such provision.
If any term of this Terms and Conditions is declared by any jurisdictional court or tribunal to be illegal or unenforceable, it will not affect validity or enforceability of the other terms or provisions, unless the terms and provisions declared illegal or unenforceable are in the nature of a condition precedent, or the essence of this Terms and Conditions or comprises an integral part of, and inseparable from the remainder of this Terms and Conditions. In such event, Parties shall take all necessary action and shall execute any other documents required to suitably revise the illegal/unenforceable provision and facilitate the attainment of objectives of this Terms and Conditions.
12.4 Governing Law.
This Terms and Conditions shall be governed by, and construed and enforced in accordance with the laws of India. All disputes, controversies and differences of opinion arising out of or in connection with this Terms and Conditions or for the breach for any alleged wrongful termination hereof which cannot be settled amicably by mutual agreement of the Parties, shall be adjudicated by the courts in Bangalore.
12.5 Force Majeure.
In no event shall a Party be deemed to be in default of its obligations (other than payment obligations) under this Terms and Conditions if such event is due to a Force Majeure event. The affected party shall document that a Force Majeure situation exists and shall, as soon as possible, give the other party written notice of the circumstances. The affected party shall use all reasonable endeavours to remedy as quickly as possible the effects of the said event of Force Majeure. Each Party shall cover their own costs resulting from the Force Majeure situation.
12.6 Relationship of Parties.
The Parties hereto are independent contractors as to each other and nothing in this Terms and Conditions shall give rise to an employment, partnership, joint venture, or other relationship between the Parties. The personnel of the Company who will be engaged in the provision of Services under this Terms and Conditions shall be considered to be employees of the Company and in no event shall such personnel be considered to be employees of the Customer.
12.7 Entire Terms and Conditions.
This Terms and Conditions constitutes the entire understanding of the Parties hereto with respect to the subject matter hereof and supersedes all prior understandings, negotiations, discussions, writings and agreements between them. Any such prior understandings or agreements are hereby stands terminated and are of no further force and effect.
II.DECLARATION BY CUSTOMER
1. The Company has provided certain brand designing services to the Customer based on certain base deliverables (“Base Deliverables”) designed by a consultant engaged by the Company (“Services”).
2. The Customer agree that the Base Deliverable forms an integral part of the Services provided by the Company. Further, the final product delivered by the Company to the Customer (the “Final Deliverable”) is based on modification, adaptation or amendment of the Base Deliverable.
3. The Customer agrees that the Company is not liable for any losses, direct or direct, borne by the Customer and arising out of the usage of the Final Deliverable delivered by the Company. In the event that any losses are borne by the Customer with regard to usage of the Final Deliverable including costs arising out of defense to third party claims of alleged or actual infringement of rights of such third party including intellectual property rights, the Customer shall initiate proceedings, claims or any other relief against the consultant only and the Customer expressly waives all rights and remedies available to it against the Company under applicable laws.
4. The Company may, at its discretion, assist the Customer with regard to any indemnity claims or legal remedies availed of by the Customer from the consultant.
III.INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
THIS AGREEMENT made effective as of the [insert date] day of [insert month], 2018 (hereinafter referred to as the “Effective Date”).
BETWEEN: WinnerBrands Online Private Ltd, having his principal place of business at Flat No. 4118, Block -4, Prestige, Kensington Gardens, HMT Fact,, JALAHALLI,, Bangalore, Karnataka, India, 560013 (the “Assignor”)
Customer, a sole proprietor or partnership firm or private limited company duly incorporated under the laws of India having its registered office at any specified address (the “Assignee”)
A. The Assignor owns the intellectual property and any/ all graphical representations of the same (hereinafter referred to as the “IP”), whether registered or unregistered or applied for registration with the concerned statutory authorities,
B. The Assignor desires to assign the ownership of the IP to the Assignee and the Assignee desires to accept the assignment of the ownership of the IP.
C. The Assignee desires to acquire all of Assignor’s right, title and interest, in and to the IP together with all the goodwill of the business symbolized thereby, and Assignor desires to assign all such right, title and interest in and to the IP Marks to Assignee, upon the terms and conditions set forth herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereby agree as follows:
1. Assignment of IP
a. The Assignor agrees to assign the ownership of the IP and any/ all graphical representations of the same, whether registered or unregistered or applied for registration, as more particularly described in the assignee’s electronic communications and made a part hereof to the Assignee prior to acquisition of the registered ownership thereof, and the Assignee accepts the assignment of the ownership of the IP.
b. The Assignor and the Assignee agree to execute any document required to give effect to such assignment upon grant or issuance of the registration certificates for the IP.
c. The Assignor hereby conveys and assigns to Assignee, all of Assignor’s right, title and interest in and to the IP. The IP is assigned without any restrictions on its usage or the territorial restrictions on the usage and shall come into effect on the Effective Date.
d. The consideration for assignment of the IP is INR 1,000 and the Assignee agrees to pay the same.
2. No Further Use
After the Effective Date, the Assignor agrees to make no further use of the IP or any mark confusingly similar thereto, anywhere in the world, except as may be expressly authorized by the parties in writing, and the Assignor agrees to not challenge Assignee’s use or ownership, or the validity, of the IP;
3 . Governing Law and Dispute Resolution:
This Agreement and all questions of its interpretation shall be construed in accordance with the laws of the Republic of India, without regard to its conflicts of laws principles and shall be enforceable against the parties. Any or all disputes that may arise out of the contract between the parties will be subjected to arbitration as per the rules of the Arbitration and Conciliation Act, 1996 and seat of the arbitration shall be at Bangalore.
a) This Agreement may be signed by each party separately, in which case attachment of all of the parties’ signature pages to this Agreement shall constitute a fully-executed agreement.
b) Any provision of this Agreement that is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions of this Agreement in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction.
c) For the purposes of stamp duty, this agreement is valued at Rs. [client to insert amount] and each party shall bear its own costs and expenses in relation to the negotiation, presentation, execution, delivery and completion of this Agreement and any other related documentation
d) If any term of this Agreement is declared by any jurisdictional Court or tribunal to be illegal or unenforceable, it will not affect validity or enforceability of the other terms or provisions, unless the terms and provisions declared illegal or unenforceable are in the nature of a condition precedent or the essence of this Agreement or comprises an integral part of, and inseparable from, the remainder of this Agreement. In such event, Parties will take all necessary action and shall execute any other documents required to suitably revise the illegal/ unenforceable provision and facilitate the attainment of objectives of this Agreement.
IV. Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Winnerbrands is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without WinnerBrands prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
V. Copyright/Trademark Information.
Copyright © 2018, WinnerBrands. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
VI. Contact Information:
+91 74062 70000 OR +91 7406255557