Orangekloud Partner Agreement
WHEREAS , Orangekloud Inc. (Principal) has developed and designed a digital platform ("eMOBIQTM") to store and manage mobile application data and provide mobile application development and deployment services ("eMOBIQTM Platform");
WHEREAS , the Partner and the Principal wish to collaborate to market and procure users to take up a licence to use the eMOBIQTM Platform;
WHEREAS , the Parties intend to enter into an agreement to govern the marketing and procurement activities of the Partner.
WHEREAS, in furtherance of the objectives set forth above, the parties hereto desire to enter into this Agreement.
AND HAS BEEN AGREED UPON THE FOLLOWING:
Article 1 DEFINITIONS
1.1 In this Agreement, including the schedules hereto, unless the context otherwise requires:
“Affiliate” means any entity controlling, controlled by or under common control with the Principal;
“Commencement Date” means “transaction date of entering this partnership”
“Confidential Information” means any information of a confidential or proprietary nature which the Principal or any Affiliate has acquired or during the term of this Agreement acquires including all correspondence, technical and commercial information relating to the Principal’s or any Affiliate’s organization, the Products and purchasers which during the term hereof is divulged to or otherwise obtained by the Partner. Confidential Information shall not include any information:
18.104.22.168 which has been lawfully published or otherwise lawfully becomes a matter of public knowledge by any means other than the Partner’s default under any term of this Agreement; or
22.214.171.124 which was known to the Partner at the time of disclosure to it as evidenced by its written records maintained in the ordinary course; or
126.96.36.199 which is at any time disclosed to the Partner by any third party who it believes, after reasonable enquiry, has the right to disclose the same;
1.1.4 “Intellectual Property Rights” means any or all of the Principal’s and/or Affiliate’s patents, trademarks, trade names, copyrights, emblems, designs, models or industrial or intellectual property rights;
1.1.5 “Force Majeure” means any act, non-happening, omission or accident beyond the reasonable control of either party, including without limiting the generality thereof, any legal action by independent third parties, strikes, lock outs, labour disputes, acts of God, war, riot, civil commotion, terrorist attacks, malicious damage, compliance with any law or governmental order, rule, regulation or
The Schedules hereto form part of and are incorporated in this Agreement.
Clause headings are just for ease of reference only and shall not affect the interpretation of this Agreement.
direction, accident, breakdown of plant or machinery, fire, flood, storm difficulty or increased expense in obtaining workmen, materials or transport or other circumstances affecting the supply of goods or raw material therefor;
1.1.6 “Products” means the eMOBIQTM product distributed by the principal;
1.1.7 “Terms and Conditions of Sale” means any terms and conditions of sale of the Principal from time to time in force and with any modifications thereto made
by the Principal generally or in respect of any particular purchase;
1.1.8 “Territory” means the areas specified in Schedule B hereto.
2.1 The Principal hereby appoints the PARTNER to be its non-exclusive Partner for the sale of the Products listed in Schedule B in the Territory on the following terms and conditions.
2.2 The Partner hereby warrants that, in entering into this Agreement, he has not relied upon any oral or written representations by the Principal and is aware of the advisability of obtaining legal advice as to this Agreement.
Article 3. DUTIES OF THE PARTNER
The Partner hereby agrees that he will during the term of this Agreement diligently and faithfully serve the Principal within the Territory and in particular that he will:
3.1 Use his best endeavors to promote and extend sales of the Products throughout the Territory listed in Schedule B to all potential purchasers thereof and work diligently to obtain orders therefor and, for this purpose to develop his skills and understanding of the Products to a level to enable him to demonstrate the Products to any intending purchasers.
3.2 Regularly advertise the Products and promote and extend sales thereof to all potential purchasers by means of personal visits to and correspondence with purchasers and by distribution of advertising and other printed matter subject, however, to the prior approval of the Principal to such advertising material and printed matter. Unless otherwise stated herein, all costs incurred in the promotion and extending of sales of the Products in the Territory will be borne by the Partner.
3.3 Not without the prior written consent of the Principal be concerned or interested either directly or indirectly in the manufacture, production, importation, sales or advertisement of any products in the Territory which are like or similar to or which either alone or in conjunction with some other products perform or are designed to perform the same or a similar function to or which might otherwise compete or interfere with the sale of any of the Products and in particular (but without prejudice to the generality of the foregoing) not to accept from other principals an agency in respect of such products PROVIDED that the Partner may act as an Partner in the Territory for any products the Partner’s interest is not prohibited by this clause herein.
3.4 Advise the Principal from time to time as to his views as to the best price obtainable for the Products in the Territory.
3.5 Advise the Principal from time to time, to the extend he is reasonably able, of information in his possession concerning usage of, market trends, purchasers of and competitors with, the Products in the Territory to include any information as to the establishment or expansion of competitors with the Products in the Territory, and, in particular, but without prejudice to the generality of the foregoing, shall advise the Principal of:
3.5.1 the demand for the Products in the Territory;
3.5.2 the needs and requirements of the market in the Territory;
3.5.3 the legal and regulatory guidelines, laws and regulations relating to the
Products in the Territory; and
3.5.4 all other matters relating to the lawful marketing of the Products in the
3.6 Promptly submit to the Principal all enquiries or orders received by him for the Products in sufficiently full and accurate details to enable the Principal with the least possible delay to respond effectively to the enquiries.
3.7 Not accept orders or make contract on behalf of the Principal other than subject to confirmation and acceptance by the Principal and subject to the Terms and Conditions of Sale and Licensing and return policies of the Principal, its Affiliate (as relevant) and not to make any promises or representations or give any warranties or guarantees with reference to the Products except such as are consistent with the Terms and Conditions of Sales and License and return policies referred to above.
3.8 In all correspondence and other dealings relating directly or indirectly to the sale of the Products clearly indicate that he is acting as selling Partner of the Principal.
3.9 Not without the previous consent in writing of the Principal offer the Products for sale at any price other than that for the time being recommended by the Principal in its price list as current from time to time.
3.10 So far as it is reasonably able, satisfy itself by means of all proper enquiries as to the financial stability of intending purchasers of the Products whose enquiries and orders he transmitted to the Principal and advise the Principal of any change in any purchasers’ financial standing.
3.11 Not to incur liability on behalf of the Principal or in any way pledge or purport to pledge the Principal’s credit.
3.12 Immediately bring any improper or wrongful use in the Territory of the Intellectual Property Rights which comes to his notice to the attention of the Principal and will in and about the execution of his duties, use every effort to safeguard the Intellectual Property Rights and will at the request of the Principal, assist the Principal and/or Affiliate in taking all steps to defend the Intellectual Property Rights. All reasonable costs of the Partner in taking such steps shall be paid by the Principal, provided, such costs are approved in advance and in writing by the Principal. The Partner acknowledges that it has no right, title or interest in or to the Intellectual Property Rights and agrees not to use such rights or any of them otherwise
than in accordance with the terms of this Agreement and shall not at any time claim or acquire any right, title or interest of any kind therein or to any rights confusingly similar thereto by virtue of this Agreement or its operations hereunder. No license, express or implied, is granted whatsoever by this Agreement by the Principal or any Affiliate.
3.13 Promptly bring to the attention of the Principal any information received by him which is likely to be of use or benefit to the Principal in relation to the marketing or sale of the Products.
3.14 Immediately inform the Principal of any changes in his organization or method of doing business which might affect the performance of his duties hereunder.
3.15 Observe all directions and instructions given to him by the Principal in relations to the sale, marketing, distribution and exploitation of the Products and in the absence of any such directions or instructions in relations to any particular matter, act in such manner as he reasonably considers to be most beneficial to the Principal’s interest.
3.16 Employ at his own risk, cost and expense such permanent sales staff as may be necessary to promote and extend the sales of the Product in the Territory.
3.17 Report immediately to the Principal any defects, notice of defects or similar communications or complaints about the Products and take all measures necessary to obtain any information requested by the Principal in connection therewith and will support the Principal in the exercise of its rights.
Article 4 DUTIES OF THE PRINCIPAL
The Principal hereby agrees that it will during the term of this Agreement diligently and faithfully assist the Partner in performing his obligations under this Agreement and, in particular, that it will:
4.1 Within a reasonable time of the date of this Agreement, at the expense of the Principal, supply to the Partner the sales and advertising literature, information and documents relating to the Products and thereafter supply the Partner with such sales and advertising literature, information and documents as is reasonably requested by the Partner with a view to promoting the sales of the Products within the Territory;
4.2 Keep the Partner informed as to the Products and any improvement thereto, the current price list for the Products and give the Partner adequate notice of any proposed change in its price structure;
4.3 Without undue delay upon notice of an order received by the Partner, enter into a Sales and License Agreement with purchasers, invoice and collect payment from such purchasers, and provide such purchasers, access to the Products;
4.3 Provide the Partner with such training, technical assistance and commercial training as the Principal deem necessary in relation to the Products;
4.4 Permit the Partner to indicate by such manner as may be acceptable to the Principal that the Partner is the non-exclusive selling Partner of the Products in the Territory;
4.5 Be responsible for invoicing of the Products to purchasers and collection of all sums due from purchasers to the Principal.
Article 5 RIGHTS OF THE PRINCIPAL
The Principal reserves to itself the following rights notwithstanding anything to the contrary herein contained:
5.1 To decline to accept any order transmitted to it through the Partner. The Principal will notify the Partner within a reasonable time of the decision not to accept such an order;
5.2 To visit purchasers in the Territory from time to time accompanied by the Partner and contact purchasers directly where necessary;
5.3 To vary the Products from time to time where necessary with prior notice to the Partner;
5.4 To conclude contracts directly with purchasers in the Territory and to maintain normal
business contacts with any purchaser or potential purchaser but will inform the Partner accordingly, of any sales of the Products to that purchaser;
Article 7 CONFIDENTIALITY
7.1 The Partner hereto agrees that during and after the term of this agreement, the Partner, its management servants, employees or staff will not in any manner, whatsoever, either directly or indirectly, disclose or communicate to any person, firm or entity, any trade secrets or other Confidential Information which may have become known from the Principal during the course of the activities contemplated herein, concerning any matters relating to the business of the Principal.
7.2 The provisions of this article shall survive termination of this agreement and shall continue until such trade secrets and confidential information become public knowledge.
Article 8 LEGAL RELATIONSHIP OF THE PARTIES
8.1 The PARTNER is an independent contractor acting for his own account. Parties agree that this Agreement does not constitute the PARTNER to be an employee of the principal for any purpose whatsoever.
8.2 The PARTNER is not granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the principal, or to bind the principal in any manner whatsoever.
Article 9 NON-COMPETING CLAUSE
9.1 The Partner agrees that during the term and for a period of two years thereafter, it shall not, in the Territory, directly or indirectly attempt to engage or engage in any business activity or endeavour which is similar to any business activity or endeavour engaged in by the Principal.
Article 10 ASSIGNMENT
10.1 ThisAgreementispersonaltothePartnerwhomaynot,withoutthepriorwrittenconsent of the Principal, assign, transfer, charge or deal in any other manner with this Agreement or its rights hereunder or part or parts thereof.
10.2 The Principal may, without the prior written consent of the Partner, assign, transfer, charge or deal in any other manner with this Agreement or its rights hereunder or part or parts thereof, or purport to do any of the same, or subcontract any or all of its obligations hereunder.
Article 11 TERM
11.1 This Agreement shall come into force on the Commencement Date and subject as otherwise provide herein continue thereafter for an initial one (1) year period from that date unless otherwise extended by agreement of the Principal and the Partner for such further period.
Article 12 TERMINATION
12.1 Notwithstanding Article 14 above either party may terminate this Agreement at any time with immediate effect and without any compensation due, for reasons constituting under the proper law of the contract good and sufficient grounds for termination, by notice in writing to the other party upon the occurrence of the following events:
12.1.1 incaseofanyimportantmodificationofthelegalstructure,themanagementor the financial situation of the other party, which could have serious repercussions on the results that the other party may expect from the execution of the agreement;
12.1.2 if the other party is or shall become insolvent, if it declares itself bankrupt or if they are instituted by or against it proceedings for bankruptcy or under any insolvency law or for re-organization, receivership or dissolution or if it otherwise seeks to take advantage of any bankruptcy or insolvency statute, or if it admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of its creditors or any general arrangement with the creditors, or consents to the appointment of a trustee or receiver (or any other fiduciary however named) of all or a substantial part of its property or such appointment is made without its consent and is not discharged within 30 days or if it discontinues business or adopts a resolution providing for dissolution or liquidation, or if a judgement is returned against it unsatisfied.
12.2 Notwithstanding Article 14 above, the Principal may terminate this Agreement forthwith by notice in writing at any time on the occurrence of any of the following events:
12.2.1 if the Partner commits a breach of any of the terms or conditions of this Agreement and if such breach is remediable fails to remedy within thirty (30) days of notice by the Principal requesting it to do so; or
12.2.2 if the Partner is guilty of any conduct which in the opinion of the Principal is prejudicial to the Principal’s interest, image or credibility.
Article 13 CONSEQUENCES OF TERMINATION
13.1 On expiry or termination of this Agreement for whatever reason, the Partner shall:
13.1.1 return to the Principal forthwith or otherwise dispose of as the Principal may instruct all business documents and papers and any other information, material supplied by the Principal and in the Partner’s possession or custody or under his power or control including any customer list, source codes, manuals and technical pamphlets. The Partner will certify in writing that no such documents, information and material have been retained or copied by him; and
13.1.2 ceaseusingtheIntellectualPropertyRightsandremoveallreferencetothetrade names and trademarks of the Principal and any Affiliate from its advertising and all other property in its possession or control, if required to do so by the Principal.
13.2 The Partner agrees that for a period of 1 year following termination of this Agreement, he shall not supply and products directly or indirectly competitive with the Products to customers of the Principal in the Territory.
Article 14 FORCE MAJEURE
14.1 Events of force majeure shall relieve either party (“the Non Performing Party”) from obligations imposed upon it by this agreement, for so long as such event and its effect shall continue.
14.2 For the purpose of this agreement, an event of force majeure shall include, without limitation, Acts of God, war, riot, fire, explosion, accident, flood, earthquake, sabotage, strike or other employees other than those of the Partner and its subcontractors, inability to obtain power, fuel, material or labor or acts of any government. The Non Performing Party shall promptly notify the other party hereto of (a) its best reasonable assessment of the nature and duration of the event of force majeure, and (b) the steps it is taking in order to cure or reduce the effect of such event of force majeure. The Non Performing Party shall use its best reasonable efforts to cure or reduce the effect of the event of force majeure. The other party hereto shall have no right to claim damages for any resulting performance, partial performance or delay in performance by the Non-Performing Party of its contractual obligations hereunder.
14.3 If, due to any event of force majeure, either the Principal or the Partner is wholly unable to perform its obligations under this Agreement for more than sixty (60) consecutive days, and the parties have not agreed upon a revised basis for their obligations, including adjustment of prices or deliver date(s), then either party may, immediately terminate the order affected by such event or force majeure upon written notice
Article 15 ENTIRE AGREEMENT AND MODIFICATION
15.1 This agreement, including the appendices incorporated herein by reference, constitutes the entire agreement between the parties and supersedes all prior agreements, oral or written, between the parties relative to the subject matter hereof.
15.2 No amendment or modification of this agreement shall be binding on the parties, unless made in writing and duly executed by both parties.
Article 16 WAIVER OF DEFAULT
16.1 Waiver by either party of any particular default by the other party shall not affect or impair that party's rights in respect of any subsequent default of the same or a different kind
nor shall any delay or omission of either party to exercise any right arising from any default affect or impair that party's rights as to the same or any future default.
Article 17 NOTICES
17.1 Any notice to be served on either of the parties by the other shall be sent by prepaid recorded delivery or registered post or by electronic mail and shall be deemed to have been received by the addressee within 72 hours of posting of 24 hours if sent by electronic mail to the correct electronic mail address of the addressee.
Article 18 GOVERNING LAW
18.1 All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this letter shall be governed by and construed in accordance with the law of United States and each party hereby submits to the non-exclusive jurisdiction of the courts of United States.
Article 19 SEVERABILITY
19.1 In the event that any of the provisions of this agreement are determined to be invalid under applicable rules, statutes and laws, they are deemed to that extent to be omitted and shall not affect the validity of the remainder of the agreement which will continue without said provisions.
Article 20 PARTNER LICENSE
20.1 The Partner is required to commit to a partner license fee costing of USD 250 monthly or USD 3000 yearly, payable upon signing of this contract unless it is a Free Trial sign up for seven days.
20.2 Each partner license fee is only applicable for one country.
The partner shall be appointed in the territory mentioned on the partnership registration.