1.1 Each Party hereby represents and warrants that:
1.2 The Seller hereby represents and warrants that:
1.3 The Company’s obligations under this [Annexure] shall only arise upon receipt of a Purchase Order from the Buyer and the subsequent acceptance or confirmation of the same by Seller.
2.1 Excess raw material:
2.2 Excess raw material:
3.1 The Parties hereby agree that the Products may be returned back to the Seller, in part or full, within [•] working days in the event that:
3.2 Furthermore, where the Buyer notifies the Company regarding any inconsistency or error in the invoice that it has received, the Company shall promptly notify the Seller in writing, of any such discrepancies or inconsistencies.
3.3 Parties also agree that the termination of this [Annexure] under Clause 5 of this Annexure below shall result in the cancellation of any Purchase Order made prior to such termination. Such Purchase Order(s) shall be deemed to remain cancelled unless it is agreed to remain valid by mutual agreement of Parties. In the event of such cancellation of the Purchase Order, if some quantity of the ordered Products has been made ready for delivery, the Seller shall adhere to the terms envisaged above.
4.1 Seller hereby grants to the Company and Company’s affiliates a royalty-free, non-exclusive, worldwide, irrevocable right and license to use, reproduce, perform, display on the Fashinza Portal and in advertising and other marketing communications that consist of text or a logo or other derivative work) provided or made available by Seller or is affiliates to Company or its affiliates.
4.2 Notwithstanding the foregoing, nothing in the [Annexure] will be construed as restricting the Company from using any Seller trademarks in a manner permitted under applicable law without a license from Seller (such as fair use or referential use, or valid license from a third party). All goodwill arising out of use of Seller trademarks by the Company will inure solely to the benefit of Seller.
5.1 Both Parties shall have the right to terminate this [Annexure] with a 30 (thirty) days prior written notice. It is hereby clarified that, as set out under Clause 3.4 above, the termination of this [Annexure] shall result in the cancellation of any existing Purchase Order unless mutually agreed between the Parties. Where the Parties have not chosen to cancel an ongoing Purchase Order, the Parties hereby agree to work together till the supply of Products under the relevant Purchase Order and payment for the same in accordance with Clause 3 above, is completed.
5.2 Without limiting other remedies, the Company may terminate the [Annexure] in the event of material breach without any prior notice. For the purpose of the [Annexure] “material breach” shall mean any of the following:
5.3 The provisions of this [Annexure] which by their nature are intended to survive termination of the [Annexure] (i.e., including representations, warranties, payment obligations, indemnification, non-circumvention, confidentiality and choice of law and jurisdiction) shall survive termination.
6.1 Subject to Company’s prior written approval, which shall not be unreasonably withheld or delayed, the Seller shall have the right to subcontract any or all of its obligations under this [Annexure] to an affiliate of the Seller or a third-party subcontractor, provided Seller shall remain responsible for the performance of such affiliate or subcontractor. It is hereby clarified that nothing in this Clause shall entitle the Seller to subcontract any or all of its obligations under this [Annexure] to any Competitor. For the purpose of this Clause, “Competitor” shall mean [●].
6.2 Seller shall cause its affiliates to which it has subcontracted any or all of its obligations under this [Annexure] in accordance with the Clause 6.1 to abide by the terms and conditions of this [Annexure]. All references to the Seller in this [Annexure] shall be deemed to be, where applicable, a reference to the Seller’s affiliates and subcontractors to which the Seller has subcontracted any or all of its obligations under this [Annexure] in accordance with the Clause 6.1 above.
6.3 The Parties agree that in case of any damage or loss incurred by the Company due to any fault by the subcontractor, the Seller shall indemnify the Company for any such loss or damages incurred.
7.1 Parties hereby agree to:
7.2 Nothing in this Clause 7 shall apply:
(a) if the receiving Party can demonstrate by competent evidence (i) that the information in question was known to it prior to the disclosure by the disclosing Party; or (ii) has been rightfully received from a third party with the right to make such disclosure; or (iii) has been approved for release by the disclosing Party’s prior written authorization; or (iv) was independently developed by the receiving Party without using the Confidential Information of the disclosing Party.;
(b) if the receiving Party has to disclose such Confidential Information to its employees and agents for the performance of this [Annexure]. Provided however every such employee or agent should have signed appropriate confidential [Annexure]s with the receiving Party.;
(c) if such disclosure is required by law; but in this respect, the receiving Party shall notify the disclosing Party of such requirement and provide copies of related information so that the disclosing party may take appropriate action to protect its Confidential Information.;
8.1 Parties agree to indemnify, defend and hold harmless each other and their respective officers, directors, agents and employees harmless from and against all claims, damages, liabilities, costs, losses and expenses, including reasonable attorneys’ fees and expenses incurred for any claim against each other or from any third party arising out of a breach by the breaching Party of the obligations (including any representations) under this [Annexure], resulting from their respective performance of this [Annexure] and/or non-compliance of applicable laws (“Claims”).
8.2 In addition to Clause 8.1 above, the Seller shall indemnify the Company from any loss, expense, or liability of any kind incurred in connection with any Claims of any kind arising out of:
8.3 Parties further agree that in case of any breach by Seller that results in a Claim against the Company, the Seller shall, if required by the Company, promptly defend against such Claim and shall, during the time of such defence, regularly consult with the Company and give due consideration to the views of the Company. Any liability in respect of such Claim shall be borne by the Seller. Additionally, if the Company fails to defend such Claim or defends the claim without requiring the Seller to defend, the entire liability under such Claim and the cost of such defence shall be borne by the Seller.
8.4 Notwithstanding the above, the Parties agree that the maximum liability of Company under this [Annexure] shall be an amount equivalent to value of the [relevant Purchase Order]1. Parties acknowledge that such sums paid shall constitute liquidated damages and not penalties and are in addition to all other rights and obligations. The Parties further acknowledge that (i) the amount of loss or damages likely to be incurred is incapable or is difficult to precisely estimate, (ii) the amount bears a reasonable relationship to, and in the parties' genuine and good faith estimation are not disproportionate to the probable loss likely to be incurred in connection with any breach to the [Annexure].
8.5 Notwithstanding the generality of the foregoing, in no circumstances neither of the Parties shall be liable for any indirect, consequential or incidental losses, claims or damages arising out of or in any manner connected with this [Annexure] and incurred by other party.
9.1 Subject to Clause 9.2 and 9.3 below, the Courts in Delhi shall have exclusive jurisdiction in any disputes hereunder.
9.2 Any dispute arising out of or in connection with this [Annexure], including any question regarding its existence, validity or termination shall be referred to and finally resolved by arbitration conducted specifically in the English language in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996.
9.3 The arbitral tribunal shall be seated in Delhi and be presided by a sole arbitrator appointed with the mutual consent of the Parties. If the Parties are unable to mutually appoint an arbitrator, the sole arbitrator shall be appointed in accordance with the Indian Arbitration and Conciliation Act, 1996.
9.4 The Parties hereby agree that except for the fee of the sole arbitrator, each Party shall bear their respective costs for the resolution of the dispute and/or arbitration.
10.1 Parties accept and acknowledge that the Company has invested heavily in the aggregation and organisation of the Fashinza Portal and structuring processes (including manufacturing processes) for the Seller. The Seller agrees to not, at any time during the subsistence of the MOU and for a period of [-] (-) years thereafter, directly, or indirectly through a party other than Company, deal with any of the Buyers of the Company. Further, in any event that the Seller has to make a direct communication to the Buyer, the Seller shall ensure that the Company is copied on all such communications between Seller and Buyer.
10.2 The Seller understands and accepts that if it works directly with any Buyer in a way that is contrary to the undertaking under Clause 10.1 above, Company will suffer irreparable damages, and the Seller shall be liable to pay the Company an amount equivalent to [•] % of the revenue received by the Seller from such non-compliance. Parties hereby acknowledge that the above payment is a genuine pre-estimate of the losses that the Company would suffer in the event of a breach of the provisions of Clause 10.1 by the Seller and is not in the nature of a penalty.
10.3 The Parties hereby agree that in the event of any actual or threatened default in, or breach of, the terms of this Clause 10, the Company shall have the right to specific performance and injunctive relief, in addition to any and all other rights and remedies at law or in equity.
11.1 If and to the extent that a Party's performance of any of its obligations pursuant to this [Annexure] is prevented, hindered or delayed directly or indirectly by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, strikes, pandemic, epidemic, events beyond such Party’s control which generally affect the geographic area where such Party is located, or any other causes of a similar nature beyond the reasonable control of such Party (each, a "Force Majeure Event"), and such non-performance hinderances or delay could not have been prevented by taking of all reasonable precautions by the non-performing, hindered or delayed Party, then the non-performing, hindered or delayed Party will be excused for such non-performance, hindrance or delay, as applicable of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Party continues to use efforts consistent with industry standards and practices to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means.
11.2 The Party whose performance is prevented, hindered or delayed by a Force Majeure Event will immediately notify the other Party of the occurrence of the Force Majeure Event, describing in reasonable detail the nature of the Force Majeure Event.
12.1 Severability: If any provision of the MOU or the application thereof shall be invalid, illegal or unenforceable to any extent for any reason including by reason of any Applicable Law, the remainder of the MOU shall not be affected thereby, and each provision of the MOU shall be valid and enforceable to the fullest extent permitted by Applicable Law. Any invalid, illegal or unenforceable provision of the MOU shall be replaced with a provision, which is valid, legal and enforceable and most nearly reflects the original intent of the invalid, illegal and unenforceable provision.
12.2 Assignment: The Seller shall not assign its rights or obligations under the MOU except with the prior written consent of the Company. [In addition to the above, the Company may assign its rights, benefits and obligations under the MOU to its affiliates including any entity that acquires more than 50 percent of Company.]1