This action might not be possible to undo. Are you sure you want to continue?
) Private Limited, a company organized under the Companies Act, 1956, and having its office at Microsoft Campus, Gachibowli, Hyderabad 500 032 (hereafter referred to as 'Microsoft', which expression shall, unless repugnant to the context thereof, mean and include its successors and permitted assigns) of the FIRST PART; AND Optival Health Solutions Pvt. Ltd, a company incorporated under the laws of India and having its office at 1-1-300/B/1/A, Ground Floor, Beside Syndicate Bank, Ashok Nagar, Hyderabad - 500 020. through its authorised signatory Mr. K.S. Murali Krishna , Director (hereafter referred to as 'Service Provider', which expression shall, unless repugnant to the context thereof, mean and include its successors and permitted assigns) of the SECOND PART. Microsoft and Service Provider are hereinafter also referred to as 'Parties' collectively and 'Party' individually. WHEREAS:
Service Provider is engaged in the business of Pharmaceutical Retailing and has expertise and skill in providing the Services (as defined hereinafter); Microsoft has agreed to appoint Service Provider for providing the Services upon terms and conditions set out in this Agreement.
NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1. The Services
1.1 Service Provider shall provide the services more particularly specified in Schedule 1 hereof (the
'Services') to Microsoft under this Agreement in the manner and on the terms & conditions contained herein.
1.2 Service Provider shall comply with the instructions provided by Microsoft from time to time
relating to the performance of the Service, duties, and obligations under this Agreement. The Services rendered by Service Provider shall be subject to regular review by Microsoft and its decision as to the quality thereof shall be final and absolute. 1.3 Microsoft may from time to time issue an Additional Services Notification, in the form set out in Schedule 2 hereto, requesting Service Provider to perform additional services ('Additional Services'). Microsoft shall pay Service Provider additional fees as may be mutually agreed to between the Parties in this respect. Service Provider expressly acknowledges and agrees that the Parties have entered into this Agreement on the basis that Microsoft may, in its absolute discretion, acquire from third parties, services similar to or identical to the services being provided by Service Provider under this Agreement. The Service Provider shall: (a) (b) 1.6 deploy its own employees in rendering the Services who shall, at the request of Microsoft, be placed at the premises of Microsoft; ensure that the Services are performed according to the terms and conditions of this Agreement.
Microsoft may, at any time, require Service Provider to, in which Service Provider shall, remove or replace one or more of the persons deployed by Service Provider at the premises of Microsoft to perform the Services with another employee of Service Provider with better or higher skills and personal attributes, approved by Microsoft. PAYMENT OF FEES AND EXPENSES In consideration of the Services to be provided by Service Provider and performance of the terms and conditions contained in this Agreement, Microsoft shall pay to Service Provider such fees and charges as described in Schedule 3 hereof (the 'Fees'). The Fee shall be inclusive of all expenses, taxes, levies, cost, expenses and charges which may be incurred or paid by Service Provider during and with regard to rendering the Services or as a result thereof. Service Provider undertakes not to make any claim from Microsoft regarding any additional costs, expenses or extension of the Service beyond that specifically authorized by Microsoft. Service Provider shall raise its invoice of the Fees by the first week of every month. Microsoft shall make payment for all invoices within thirty (30) days after receipt of invoice by Microsoft. Microsoft will not be accountable for payment of invoices which have not been submitted within thirty (30) days after completion of the Services unless Microsoft has been notified in writing the reasons for the invoice being outstanding and agreed to in writing by Microsoft. A copy of this communication must be submitted with invoices that are outstanding for more than thirty (30) days after provision of service, when submitted for payment. All payment by Microsoft to Service Provider under this Agreement shall be made subject to
deduction of all applicable taxes, for the time being in force. 2.5 Service Provider is solely responsible and liable for payment of all and any costs and liabilities associated with employment of its employees, who are deployed at Microsoft, including but not limited to salary, income tax, Central Provident Fund contributions, insurance, workmen's compensation, traffic and other infringements ("Employee Costs"). REPRESENTATIONS AND WARRANTIES OF SERVICE PROVIDER Service Provider warrants and represents to Microsoft that: (a) It has full power and authority to enter into this Agreement and perform the Services and it has the necessary infrastructure to duly perform the Services under this Agreement; It shall ensure that the Services are performed to the highest standards of professionalism and skill and otherwise in accordance with instructions, specifications, procedures, standards, guidelines, timeframe, if any, as are issued from time to time, by Microsoft for the performance of the Services to the satisfaction of Microsoft; It shall be responsible for its corporate and personnel taxes if any, and shall indemnify and hold harmless Microsoft for any liability in this connection; It shall perform the Services under this Agreement in such manner as to not adversely affect the reputation and goodwill of Microsoft or its business associates; It shall maintain proper and accurate records relating to the conduct of the Services under this Agreement during the term of this Agreement and for five (5) years after that and shall at the request of Microsoft provide copies of such records; It shall ensure compliance with all applicable laws and regulations in the performance of the Services under this Agreement; The persons deployed by it at the premises of Microsoft for the performance of the Services are the employees of Service Provider and have been issued requisite appointment letters appointing them as employees of Service Provider; and It shall comply with the Microsoft Vendor Code of Conduct as described in Schedule 4 hereof.
Service Provider acknowledges that Service Provider may be provided access to offices of Microsoft and allowed use of the equipment or facilities for rendering Services to Microsoft only in terms of this Agreement. Service Provider shall ensure that any products or equipment provided by Microsoft to Service Provider for the purpose of providing the Services shall be utilized for that purpose only and shall, on Microsoft's request, be returned promptly to Microsoft in good order (fair wear and tear excepted). Service Provider undertakes not to claim any right, title and interest of any nature whatsoever in the office and, or, the equipment or facilities provided by Microsoft, at any point of time during the currency of this Agreement or after its expiry.
TERM This Agreement shall commence on the date of its execution by the Parties, and shall continue for a period of 2 Years subject to earlier termination in terms of Clause 5 below.
TERMINATION If Service Provider has failed to remedy a breach of this Agreement within fourteen (14) days of Microsoft's written notification to Service Provider of such breach, Microsoft shall be entitled to terminate this Agreement without further reference or notice to Service Provider. Notwithstanding any other provision of this Agreement either of Microsoft or Service Provider may terminate this Agreement without cause on thirty (30) days written notice. The provisions of Clauses 7 and 8 shall survive the expiration or earlier termination of this Agreement. RELATIONSHIP Independent Contractor The relationship between Microsoft and Service Provider is that of principal and independent contractor. Nothing in this Agreement shall be taken as constituting Service Provider an employee or agent of Microsoft. The Parties undertake that none of their respective employees and staff shall be construed in any manner, either expressly or by implication, as the employees or agents of the other Party and the other Party shall not be liable in any manner whatsoever for any claims, demands and the like made by them.
Mutual Acknowledgements Service Provider and Microsoft acknowledge that: (a) (b) neither is the legal representative, agent, joint venturer or partner of the other for any purposes; and neither of them has any right or authority to assume or create any obligations of any kind or to make any representations or warranties, whether express or implied, on behalf of the other or to bind the other in any respect.
Service Provider's further Acknowledgement Without limitation to Clause 6.2(b), Service Provider acknowledges that neither it nor its employees, agents or representatives shall be entitled to make representations or give or purport to give warranties either on their own behalf or on behalf of Microsoft other than as authorised by Microsoft in writing.
CONFIDENTIALITY (a) Service Provider shall not use or disclose, other than for the sole purpose of performing the Services, any secret or 'Confidential Information' relating to Microsoft
or to any of its affiliates or associates disclosed to Service Provider by Microsoft or by any of Microsoft's affiliates or associates or which Service Provider may otherwise acquire. The term 'Confidential Information' shall means non-public information and items that Microsoft designates as being confidential, or which under the circumstances of disclosure ought to be treated as confidential. 'Confidential Information' includes without limitation the following in any form: (a) the terms and conditions of the Agreement, (b) Microsoft products, services and their marketing or promotion, (c) Microsoft business policies and practices, (d) Microsoft customer and supplier lists, (e) information received from third parties that Microsoft is obligated to treat as confidential, (f) personal identification information, (g) transactional or sales information, and (h) intellectual property created by or on behalf of Company in connection with performing the Services.
Service Provider acknowledges that all information relating to Microsoft's customers, whether recorded in Microsoft's database or otherwise, is confidential to Microsoft and that any ownership in respect of such information resides in Microsoft. At the sole option of Microsoft, Service Provider shall execute a Non-Disclosure Agreement with those of its employees who are associated in rendering the Services to Microsoft under this Agreement in the form of the document which constitutes Schedule 5, and on Microsoft request, Service Provider shall provide such executed agreements to Microsoft immediately.
Service Provider understands and acknowledges that all information relating to Microsoft or its related corporations which is disclosed to or acquired by Service Provider as contemplated by Clause 7.1 is secret and confidential unless: (a) (b) (c) it is in the public domain at the time of disclosure; it comes into the public domain other than as a result of a wrongful act or omission on the part of Service Provider or any one or more of Service Provider employee(s); or it is disclosed to Service Provider by a third party in circumstances which do not involve a breach of any obligation of confidentiality owed to Microsoft or to any of Microsoft's related corporations.
Service Provider shall, on request from Microsoft and, in any event, on the expiry or termination of this Agreement, return to Microsoft all documents, notes and other materials obtained directly or indirectly from Microsoft or any of Microsoft's related corporations, or prepared by or for or on behalf of Service Provider, which contain secret and confidential information belonging to Microsoft or any of Microsoft's related corporations, including all copies of such documents, notes and other materials. Privacy and Data Protection.
(a) For the purposes of this section, “Personal Information” means any information provided by Microsoft or collected by Service Provider in connection with this Agreement (i) that identifies or can be used to identify, contact, or locate the person to whom such information pertains, or (ii) from which identification or contact information of an individual person can be derived. Personal Information includes, but is not limited to: name, address, phone number, fax number, email address, EPF numbers, ESI numbers, any other social security number or other government-issued identifier, and credit card information. Additionally, to the extent any other information (such as, but
not necessarily limited to, a personal profile, unique identifier, biometric information, and/or IP address) is associated or combined with Personal Information, then such information also will be considered Personal Information. (b) Any Personal Information collected or accessed by Service Provider in the performance of the Services in accordance with this Agreement shall be limited to that which is strictly necessary to perform such Services or to fulfil any legal requirements. If the Services involve the collection of Personal Information directly from individuals, such as through a webpage, Service Provider will provide a clear and conspicuous notice regarding the uses of the Personal Information. Such notice will comply with all relevant guidelines contained at http://members.microsoft.com/privacy or as otherwise provided by Microsoft. (c) Service Provider shall use such Personal Information only as necessary to perform the Services in accordance with this Agreement and not for any other purpose whatsoever. Service Provider shall maintain such Personal Information in strict confidence in accordance with the provisions of Section 7.1 hereof. Service Provider will not share any Personal Information that is collected or possessed by Service Provider with any third parties for any reason. If Service Provider is served with a court order compelling disclosure of any Personal Information, Service Provider will oppose the order, will notify Microsoft of such order, and will provide Microsoft the opportunity to intervene before Service Provider files any response to the order. (d) Service Provider will take reasonable steps to protect Personal Information in Service Provider’s possession from unauthorized use, access, disclosure, alteration or destruction. Security measures shall include access controls, encryption or other means, where appropriate. Service Provider agrees to conduct an audit on at least an annual basis to evaluate the security of Personal Information in Service Provider’s possession and to verify that the terms of this Agreement with respect to Personal Information are being followed. Additionally, Service Provider agrees to permit Microsoft (at Microsoft’s cost and upon prior reasonable notice to Service Provider) to conduct an audit to evaluate the security of Personal Information in Service Provider’s possession and to verify that the terms of this Agreement with respect to Personal Information are being followed. (e) Upon request from Microsoft, Service Provider shall provide Microsoft with any or all Personal Information in Service Provider’s possession. Upon termination or expiration of this Agreement, Service Provider shall within ten (10) calendar days thereafter, at Microsoft's sole discretion either (i) provide Microsoft with all documents and materials (including any and all copies) containing Personal Information, together with all other materials and property of Microsoft, which are in its possession or under its control or (ii) destroy all such specified documents and materials (including any and all copies in any and all formats) and provide Microsoft with a certificate of destruction signed by an officer of Service Provider. 8. 8.1 INDEMNITY Service Provider hereby undertakes and agrees to indemnify and keep and hold Microsoft indemnified and harmless from and against: (a) all claims, proceedings, damages, losses, actions, costs and expenses arising as a consequence of: (i) any acts, omissions, negligence or fault of Service Provider, its employees, sub contractors or any of them; and
any breach of Service Provider's covenants and obligations under this Agreement including, without limitation, any breach of Clauses 6.2(b) or 6.3 concerning representations or warranties made or given by Service Provider, its employees engaged in providing the Services hereunder or any of them in respect of products and, or, services;
all claims, proceedings, damages, losses, costs and expenses arising from injury to Microsoft or its employees, contractors or agents or damage to or loss of any property of Microsoft as a consequence of any wrongful or negligent act or omission of Service Provider, its employees, contractors and agents; and all liability for Employee Costs, as defined in Clause 2.5 above, and any costs, penalties, interest and expenses that are paid or payable by Microsoft as a consequence of Service Provider or any one or more persons deployed by Service Provider at the premises of Microsoft for performance of Services, making any claims of employment against Microsoft, or as a consequence of any payments made by Microsoft to Service Provider being or deemed to be wages or salary within the meaning of any statute.
Service Provider hereby undertakes to keep and hold Microsoft indemnified and harmless against all costs, expenses, claims, liabilities and proceedings which may be caused to or suffered by Microsoft or made or taken against Microsoft, which are directly or indirectly arising out of breach of this Agreement by Service Provider or by any act or omission of the persons engaged by Service Provider for performing the Services or otherwise employed or engaged by Service Provider. The foregoing indemnity to Microsoft shall apply to all claims including, but not limited to: (a) Claims for personal injuries (including death) of any of Microsoft’s officers, employees, workers, agents and directors, on the premises of Microsoft arising for reasons attributable to the fault of or negligence of Service Provider; Loss of and/or damage to any and all property of Microsoft; Violations or alleged violations of applicable laws, rules and regulations or the terms of this Agreement by Service Provider, its employees and subcontractors; Any breach of any representation or warranty by Service Provider, its employees and subcontractors; or The infringement or violation of any patent, copyright, trademark, trade secret or other proprietary right of a third party by Service Provider.
(b) (c) (d) (e) 8.4
To the fullest extent permitted by applicable law neither Microsoft nor its affiliates shall be liable for any special, indirect, consequential, or incidental damages (including but not limited to damages for loss of business profits, business interruption, loss of business information, and the like) arising out of this Agreement, any documents referenced in this Agreement, or any addenda or amendment hereto even if Microsoft has been advised of the possibility of such damages.
VARIATIONS Except as expressly provided for in this Agreement, no variation or amendment of this Agreement shall be effective unless it is in writing and signed by a duly authorised representative of each Party.
FORCE MAJEURE Neither Microsoft nor Service Provider shall be responsible to the other for delays or failures in performance resulting from acts beyond its control, but each shall use its best endeavours to minimise such delays. Where a Party's ability to meet its obligations under this Agreement is adversely affected by an act beyond its control, it shall immediately notify the other Party of that circumstance, and shall provide its best estimate of the extent and duration of such adverse affect. TRADEMARKS, SERVICE MARKS AND COPYRIGHT This Agreement does not constitute a trademark or service mark licence. Service Provider acknowledges that:(a) the trademark and trade name 'Microsoft', and all trademarks and tradenames derived from it, and the trade marks used in association with Microsoft products ('Trademarks') are the exclusive property of Microsoft Corporation or one of its affiliated companies; and Service Provider is not entitled, either by implication or otherwise, to any title in or use of the Trademarks, except in accordance with the express written permission of Microsoft, such permission to be given or withheld at the sole discretion of Microsoft. Except as otherwise agreed to by the parties in writing, Service Provider acknowledges that all right, title and interest, including all intellectual property rights, in and to all methods, inventions, discoveries, designs, works, materials, software, source, executable or object code, documentation, methods, apparatus, systems, reports and documents ('Works') and the like developed or created by Service Provider in the course of the performance of this Agreement have been specifically ordered and commissioned by Microsoft and shall be the property of Microsoft. Service Provider understands that the Works shall be deemed to be 'works-made-forhire' for Microsoft for copyright purposes. Service Provider has acquired and/or shall acquire from each of its employees all rights to all such Works produced or developed by such employees in performing Services under this Agreement that are or may be necessary for Service Provider to convey to Microsoft the rights granted in this Clause. Service Provider shall obtain the cooperation of each such party to secure to Microsoft or its nominees the rights Microsoft has acquired and shall hereafter acquire in accordance with the provisions of this Clause.
Service Provider irrevocably assigns, transfers and conveys in perpetuity to Microsoft, its successors and assigns, Service Provider's entire legal and beneficial right, title and interest in the aforesaid Works on worldwide basis. Service Provider agrees to do such further acts and execute and deliver to Microsoft such instruments and documents as may be required to perfect, register or enforce Microsoft's ownership of the rights so conveyed in and to the Works. If Service Provider fails or refuses to execute any such instruments and documents, the Service Provider appoints Microsoft as the Service Provider's attorney to act on the Service Provider's behalf solely for the purpose of executing such instruments and documents. This appointment shall be irrevocable and deemed to be a power provided for valuable consideration.
NOTICES All notices referred to in this Agreement shall be in writing and shall be deemed to be properly given and served on the Party to whom such notice is to be given if sent either by fax or courier to the Party at its address shown on the first page of this Agreement. Either Party may from time to time designate by written notice to the other Party a substitute address which it desires to be used for service. Service of any notices may also be made personally. GOVERNING LAW This Agreement will be governed by and construed in accordance with the laws of India.
DISPUTE RESOLUTION In the event that any dispute arises between the Parties in connection with this Agreement, the construction of any provision of this Agreement or the rights, duties or liabilities of the Parties hereto under this Agreement, the Parties shall conduct negotiations in good faith to solve such dispute. If mutual resolution cannot be reached within sixty (60) days after the commencement of such negotiations, either of the Parties shall be free to refer such dispute to arbitration under the Arbitration and Conciliation Act, 1996 by three (3) arbitrators. One arbitrator shall be appointed by each Party and the third arbitrator shall be appointed by the arbitrators so appointed. The venue of arbitration shall be New Delhi. The arbitration proceedings shall be conducted in English. Any award made in such arbitration will be final and binding on the Parties.
ENTIRE AGREEMENT This Agreement (i) constitutes the entire agreement between the Parties, and (ii) supersedes all prior and contemporaneous agreements or communications, with respect to its subject matter.
WAIVER No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of that provision or any other provision of this Agreement. No waiver shall be effective unless made in writing and signed by an authorised representative of the waiving Party.
SEVERANCE If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be severed and the remaining provisions shall remain in full force and effect.
RIGHTS ENURE The rights and obligations under this Agreement shall enure to the benefit of the successors and assigns of the parties. However, Service Provider may not assign any rights or obligations under this Agreement without the prior written consent of Microsoft.
INTERPRETATION Unless the context otherwise indicates: (a) (b) (c) A reference to this Agreement or another document includes any variation or replacement of either of them. Headings are inserted for convenience only and do not affect the interpretation of this Agreement. If a provision of this Agreement is inconsistent with the provision of another Agreement between the parties made before the date of this Agreement, the provision of this Agreement prevails. A reference to a statute or other law includes regulations and instruments under it and all consolidations, amendments, re-enactments or replacements of any of them. A reference to this Agreement incorporates a reference to the Schedule to this Agreement. References (including defined terms) to the singular include the plural and vice versa and to a person includes body corporate and vice versa.
(d) (e) (f)
Executed as an agreement by the duly appointed officers of the respective Parties. Microsoft India (R&D) Private Limited By: ________________________________ Name: Amaresh Ramaswamy Witness: ___________________ Name: Keith Dias
Designation: Director Finance
Service Provider By:______________________________ Witness: ___________________
K.S. Murali Krishna
Designation: Director Optival Health Solutions Pvt. Ltd.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.