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 branding or advertising 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 design or creative professional or agency partner of the Company is referred to as “You” or “Consultant”.
A. The Service Recipient is engaged in the business of providing branding or advertising services (the “Business”).
B. The Service Recipient desires to engage the services of the Consultant in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and of the mutual benefits herein provided, the Service Recipient and the Consultant agree as follows:
1. Term of Engagement.
The Consultant shall provide the Services (as defined in Clause 2) within a period of 2 months (“Initial Term”) from [insert date] (the “Effective Date”). [The Service Recipient may renew the engagement of the Consultant for such further periods (“Extended Period”) as the Service Recipient may determine, in its sole discretion (the Initial Term and the Extended Period are collectively referred to as the “Engagement Period”). The Consultant shall ensure his/her availability for discussions with the Service Recipient at all such times which are communicated by the Service Recipient to the Consultant.
2. Nature of Services.
2.1 The services (“Services”) to be provided by the Consultant to the Service Recipient during the Engagement Period comprise of the following, unless otherwise specified by the Service Recipient :
a) Providing proprietary designs, images, brand names and any intellectual property based on the inputs received by the Service Recipient (“Deliverables”);
2.2 The Service Recipient may also require the Consultant to perform services in addition to the Services under Clause 2.1 (“Additional Services”). The Service Recipient shall pay a reasonable amount towards such Additional Services as determined mutually between the Service Recipient and the Consultant. The Consultant agrees not to refuse to perform the Additional Services if the Additional Services are essential and connected to the Business and the Services performed under the Agreement
2.3 The Consultant shall work in consultation with the point of of the Service Recipient and keep him informed of all progress and status of work.
2.4 The Consultant while performing the Services shall:
(a) maintain highest industry standards so as to promote and further the interests of the Service Recipient ;
(b) exercise due care, diligence and skill;
(c) deal with the Service Recipient in good faith;
(d) ensure that the Deliverables are original, conform to the requirements of the Service Recipient and are based on the inputs of the Service Recipient;
(e) execute any such agreements which in the opinion of the Service Recipient are necessary for protection of Confidential Information and Intellectual Property;
(f) provide, at his own cost, all equipment and resources necessary to enable him to perform his obligations under this Agreement, except where the Service Recipient agrees in writing to provide specific equipment or resources; and
(g) do all such things as are reasonably necessary or proper.
3. Remuneration; Reimbursements.
(a) Subject to the provisions hereof, the Service Recipient shall pay the Consultant a fixed fee (“Consulting Fee”) on the completion of the work and submission of the Deliverables to the Service Recipient which shall contain deductions for any applicable taxes. In this regard, the Service Recipient shall not be required to provide any applicable documentation reflecting all deductions to the Consulting Fee to enable the Consultant to declare and account for / obtain suitable tax credit in India for, all such deductions at source.
(b) The Service Recipient may, in addition to the Consulting Fee, pay any additional amounts to the Consultant as it deems fit and in its sole discretion.
(c) The Consultant agrees that he/she is not an “employee” of the Service Recipient under applicable laws and is not entitled to receive any perquisites, benefits or any amounts from the Service Recipient save and except the Consulting Fee. In this regard, the Consultant agrees that he/she is not entitled to receive any employee related benefits from the Service Recipient such as insurance, provident fund, gratuity etc. and shall only receive the Consulting Fee as determined under this Agreement.
4.1 The Consultant shall not, during the Engagement Period, provide either directly or indirectly, services similar or identical to the Services to any person or entity other than the Service Recipient, if it’s mutually conflicting and affects the business prospects of the service recipients directly. The Service Recipient may, however, be entitled to engage any other consultants to provide services to the Service Recipient.
(a) This Agreement will terminate on the expiry of the Initial Term, unless this Agreement is renewed by the Service Recipient.
(b) The Service Recipient and / or the Consultant will have the right to terminate this Agreement, at any time, by giving the other party 15 days’ notice.
(c) The Service Recipient will have the right to terminate this Agreement forthwith in addition to withholding any payments that may be due to the Consultant the event of (i) misconduct, negligence or breach by the Consultant of any terms of this Agreement; (ii) any loss caused to the Service Recipient due to any action of the Consultant which is illegal or unauthorised by the Service Recipient ; (iii) continued failure of 3 times of the Consultant to be available telephonically or by video conferencing without a reasonable cause as determined by the Service Recipient ; or (iv) any action of the Consultant which causes disrepute or damages the reputation and goodwill of the Service Recipient in any manner whatsoever.
(d) Upon termination of the Agreement and within specified days of termination, the Consultant shall return all information and data provided by the Service Recipient to the Consultant pursuant to the Services including any Confidential Information provided. In the event that such information is in the electronic format including hard disks, cds, pen drives etc., the Consultant shall destroy the same and provide a written certification to the Service Recipient that all data has been destroyed by the Consultant. Nothing contained in this Agreement shall restrict the right of the Service Recipient to seek specific performance of obligations mentioned under this clause.
6. Non-Disclosure of Confidential or Proprietary Information.
(a) The Consultant acknowledges that during the Engagement Period, he will have and / or has had access to information about the Service Recipient or otherwise in its possession and that his engagement with the Service Recipient shall bring him into close contact with many confidential affairs of the Service Recipient , including information regarding management, methods and operating techniques; procedures and methods; sales, advertising and marketing methods; development and service methods; the business techniques; information regarding customers and products; information regarding employees and personnel; training techniques, manuals and procedures; hardware systems and software programs; information relating to the prior, current or contemplated products or services offered and information that the Consultant has a reasonable basis to believe was accepted by the Service Recipient under obligations of confidentiality (collectively, “Confidential Information”).
(b) The Consultant acknowledges that such Confidential Information is not readily available to the public other than in normal course of business and was developed by the Service Recipient.
(c) In recognition of the foregoing, during the Engagement Period, at any time and until such time as the Confidential Information is generally published or is available to the general public other than through the Consultant’s unauthorized disclosure, the Consultant shall not, without the prior written consent of the Service Recipient, disclose, use or make available for anyone to use any Confidential Information.
(d) All documents, records, data, apparatus, equipment and physical property, whether or not pertaining to Confidential Information, which are furnished to the Consultant by the Service Recipient or are produced by the Consultant in connection with his engagement with the Service Recipient will be and remain the sole property of the Service Recipient. The Consultant will return to the Service Recipient all such materials and property, including any material or medium from which any Confidential Information may be ascertained or derived, as and when requested by the Service Recipient.
7. Intellectual Property Rights.
(a) The Consultant acknowledges that all works including the Deliverables are made on a “work for hire” basis for the Service Recipient and thereby hereby assigns to the Service Recipient , all rights, title and interest in any intellectual property arising out of or in connection with the Consultant’s engagement, including without limitation any copyrights, rights to derivative works, trade secrets, know-how and any other intellectual property rights pertaining to the Consultant’s engagement, created or conceived (including, but not limited to, any tools, designs or methodologies) in the Service Recipient ’s premises or outside or using the Service Recipient ’s property or other proprietary rights therein.
(b) The Consultant agrees to promptly disclose any such intellectual property arising out of or in connection with the Consultant’s engagement with the Service Recipient and treat such intellectual property as Confidential Information and as the trade secrets of the Service Recipient. The Consultant will assist the Service Recipient to the full extent possible to obtain, and, from time to time, enforce proprietary rights relating to inventions made by the Consultant. The Consultant’s obligation to assist the Service Recipient with respect to proprietary rights relating to such inventions shall continue beyond the expiration or termination of the Engagement Period. The Consultant agrees to execute all such documents as may be required by the Service Recipient to perfect the title of the Service Recipient in all the intellectual property developed by the Consultant during the Engagement Period.
(c) The Consultant hereby waives any and all claims, of any nature whatsoever, which the Consultant now has or may hereafter have against the Service Recipient or its employees, officers and agents for infringement of any proprietary rights assigned hereunder to the Service Recipient by the Consultant. To the maximum extent permitted by applicable law, the Service Recipient ’s rights herein associated with any such assignment of proprietary rights shall not lapse for any reason whatsoever (other than as expressly agreed to by the Service Recipient ), including but not limited to non-usage and / or non-enforcement of such right within one (1) year of such assignment.
(d) The Deliverables submitted by the Consultant shall not infringe upon the Intellectual Property Rights held by any third parties. Further, in the event of an actual or alleged claim of infringement, the Service Recipient and/or its clients shall stand indemnified by the Consultant to the fullest extent.
8.1 The Consultant shall indemnify (“Indemnifying Party”) and hold harmless the Service Recipient , its directors, employees and agents (“Indemnified Party”) from and against all actions, suits, proceedings, loss, damages, cost, charges, expenses, and other liabilities whatsoever, brought against, suffered or incurred by, or caused to, the Indemnified Party by reason of any (i) breach, default, contravention, non-observance, non-performance, improper performance, non-compliance, or improper compliance, by the Indemnifying Party or any of its obligations under this Agreement or of any of the terms, conditions, representations, warranties, covenants and provisions contained in this Agreement; (ii) breach of the applicable laws; (iii) action undertaken by the Consultant which is outside the scope of the Services and the Additional Services and not authorized by the Service Recipient ; (iv) action undertaken by the Consultant which damages the reputation or goodwill of the Service Recipient ; (v) action undertaken by the Consultant which causes damage to the employees, agents, property, equipment or any other resources of the Service Recipient ; (vi) claim by a third party against the Consultant in relation to alleged or actual infringement of rights of the third party including intellectual property rights.
8.2 The Consultant shall indemnify and hold harmless a client/customer of the Service Recipient who has received the Deliverables from the Service Recipient from any losses arising to the client/customer of the Service Recipient out of receipt of such Deliverables including any claims filed by a third party against the client/customer for infringement of their rights including infringement of intellectual property rights of such third party.
9. Limitation of Liability.
9.1 The Service Recipient will not be liable for injuries or damages to persons or property resulting from any cause whatsoever, with the exception of bodily injuries or death caused solely and directly attributable to the Service Recipient’s gross negligence or proved willful misconduct.
9.2 In no event shall the Parties be liable to each other for any damages resulting from loss of data, loss of use or loss of revenue and each Party further disclaims any and all liability for indirect, incidental, special, consequential, punitive or other similar damages.
9.3 The Service Recipient’s aggregate liability in connection with this Agreement, whether in tort, contract or otherwise, shall not exceed the actual amount payable to the Consultants under this Agreement.
10.1 During the term of the employment with the Service Recipient and thereafter, the Consultant agrees not to make any statement that disparages or tends to disparage the Service Recipient and those associated with the Service Recipient. The Consultant shall also not make any public statement to the media concerning the Service Recipient , the business objectives, management practices, or management personnel of the Service Recipient , and shall not take action that would cause the Service Recipient or its employees embarrassment or humiliation, or otherwise cause or contribute to the Service Recipient or any employee of the Service Recipient being held in disrepute by the general public or the Service Recipient ’s employees, suppliers, or customers.
11. Representations and Warranties:
11.1 The Consultant represents that:
(i) The Consultant has the right to enter into this Agreement and to carry out the duties and responsibilities hereunder without thereby being in breach of or default under any employment, confidentiality, non-compete or other agreement by which the Consultant may be bound.
(ii) He/she is not bound by any restrictive covenants, including but not limited to non-competition, non-disclosure and non-solicitation covenants under any of previous employments. You agree to indemnify and hold harmless the Service Recipient for any liability not exceeding total remuneration you get from the Service Recipient till such time, that the Service Recipient may suffer and/or incur as a result of the existence and / or enforcement of any such covenants, obligations or commitments.
(iii) He/she is not concealing any details about his/her past experience and educational qualifications. Further, the Consultant also represents that you have never been involved in any illegal activities and have no criminal charges laid or pending against the Consultant.
(iv) All information, details and data provided is true, accurate and correct.
(v) The Deliverables are not infringing on the intellectual property of any third party.
12. Binding Agreement, Assignment.
This Agreement shall be binding upon and inure to the benefit of the Parties hereto, and, as regards the Service Recipient alone, the Service Recipient’s administrators, successors-in-title and assigns. The Consultant shall not be entitled to assign to any other person or party any rights and / or obligations under this Agreement (nor this Agreement itself), except with the prior written consent of the Service Recipient which the Service Recipient is entitled to withhold, delay or deny as it chooses in its sole discretion. The Service Recipient may, however, assign its rights and obligations under this Agreement and this Agreement itself to any third party or person, including without limitation, any of its affiliates or group entities.
13. Entire Agreement; Termination of Prior Agreements.
(a) This Agreement and the agreements and documents referred to herein contain the entire understanding of the Consultant and the Service Recipient with respect to the engagement of the Consultant by the Service Recipient and supersede any and all prior understandings, written or oral, between the Consultant and the Service Recipient and between the Consultant and any affiliate or predecessor of the Service Recipient. Any such prior understandings or agreements are hereby terminated and are of no further force and effect.
(b) This Agreement may not be amended, waived, discharged or terminated orally, but only by an instrument in writing, specifically identified as an amendment to this Agreement, and signed by the Consultant and a duly authorized officer of the Service Recipient.
If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent for any reason including by reason of any law or regulation or government policy or any amendment thereof, the remainder of this Agreement and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision, which is valid and enforceable and most nearly reflects the original intent of the unenforceable provision.
15. Governing Law, Arbitration and Submission to Jurisdiction
(a) This Agreement shall be governed by, and construed and enforced in accordance with, the laws of India.
(b) All disputes, controversies and differences of opinion arising out of or in connection with this Agreement or for the breach or for any alleged wrongful termination hereof which cannot be settled amicably by the Parties hereto shall be referred to arbitration in accordance with the Arbitration and Conciliation Act, 1996. The arbitral tribunal shall consist of a sole arbitrator appointed by the Service Recipient. The arbitration proceedings shall be conducted in English. The venue of arbitration shall be Bangalore.
16. Relationship of the Parties
Nothing expressed or implied in this Agreement will constitute either Party as the partner, agent, employee or officer of, or as a joint venture with, the other Party (or, specifically in the Consultant’s case, as a partner, agent, employee or officer of, or as a joint venture with, the Service Recipient), and neither Party will make any contrary representation to any person. It is expressly clarified and agreed that the status of the Consultant is that of an independent contractor in business on his own account.
(a) Any notice provided for in this Agreement shall be provided in writing and shall be deemed to have been duly given (a) when delivered if sent by hand delivery; or (b) on the second day after mailing, mailed if by registered post acknowledgment due or return receipt requested or by a nationally recognized courier service. Notices shall be properly addressed to the Parties at their respective addresses specified in this Agreement or to such other address as either Party may later specify by notice to the other.
(b) Nothing in this Agreement shall be deemed to establish a relationship of partnership, agency or employment.
(c) No delay or omission by the Service Recipient or the Consultant in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Service Recipient or the Consultant on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
(d) This Agreement may be executed in two (2) counterparts, each of which shall be deemed an original and enforceable against the Parties actually executing such counterpart, and all of which together shall constitute one and the same instrument.
(e) The headings of the Clauses of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.