APPLICATION SERVICE DISTRIBUTOR AGREEMENT

 

This  Application  Service  Distributor  Agreement  (“Agreement”)  is  effective as of 30th Day of August 2019 (“Effective Date”), by and between Invincible Publication Pvt Ltd (“Distributor”), with offices located at Office No.201A, 2nd Floor SAS Towers, Sector-38, Gurgaon, Haryana-122003 having CIN U74999HR2019PTC077783 and ___________________________(“Content Creator”), with offices located at _______________________________________, on the following terms and conditions:

 


AGREEMENT OVERVIEW

Distributor provides its proprietary application known as Invincible E-Learning (“Software”) and associated services to support Content Creators at either its data center located at Office No.201A, 2nd Floor SAS Towers, Sector-38, Gurgaon, Haryana-122003 or a third party data center (“Data Center”). This Agreement describes the services to be provided by Distributor and the respective responsibilities of the parties. This Agreement incorporates the following Attachments, which are hereby incorporated by reference and shall be considered an integral part of this Agreement:

Attachment 1:  Scope of Services

 

SCOPE OF SERVICES

Distributor will perform the services (“Services”) as described in the Scope of Services, set forth in Attachment 1. The general scope of services addressed by this Agreement includes the operation, maintenance and support of the Content Creator’s Database which are Electronic form of Educational Video Lectures,Educational Books, Chaptersand other Education Contentfor the Software provided under this Agreement. The Services specifically exclude operation and maintenance of the following:

Content Creator hardware, including without limitation, Content Creator’s servers, printers, network hardware (including routers and switches) and other computing equipment located at the Content Creator site;Content Creator licensed software other than noted in the Scope of Services; andContent Creator Local Area Networks (“LAN”).

TERM

The Term of the Agreement shall commence as of the Effective Date and shall continue for Two year (“Initial Term”) unless terminated earlier as set forth below. This Agreement shall renew on the anniversary of the Effective Date unless otherwise terminated by the Content Creator or Distributor in writing prior to the renewal date (“Renewal Term”). If not terminated prior to the start of the Renewal Term, Content Creator owes Distributor for the entire Renewal Term.

 

FEES AND PAYMENT

Content Creator shall invoice Distributor upon the later of (i) signature of this Agreement, (ii) installation of Content Creator data. The Invoice will raised on a monthly basis which will be sent to Distributor of all purchases made by the General Public Consumers which is available in the sales Dashboard made available to the Content Creator. The sales will be shared on 50:50 Basis, wherein 50% of the sales belong to the Distributor and 50% belongs to the Content Creator. All invoiced fees shall be due and payable within 30 days of the date of an invoice. All payments shall be made in Indian Rupees with deduction TDS @ 10% (94J- Professional Services/Payment of Royalty) and shall be settled by mode of Internet Bank Transfer/Demand Draft/Banker’s Cheque as applicable by the distributor. Any amounts not paid when due will be subject to interest accrued at twelve percent (12%) per annum, or the maximum rate permitted by law, if lower. Upon termination of this Agreement for any reason except a material breach by Distributor, Content Creator will be obligated to pay the balance due on in accordance with Attachment 2 within thirty days of invoice date. In the event of a dispute between the parties that does not result in a termination of the Agreement, Content Creator agrees to make payments due under the Agreement pending the resolution of the dispute.

 

RESPONSIBILITIES

Distributor’s responsibilities are set forth in the Scope of Services, Attachment 1. The Content Creator is responsible for:

 

Ø  Assigning a primary and alternate Content Creator representative to coordinate all communications and activities related to Distributor services.

Ø  Although a Help Desk is available to support and assist Content Creator in diagnosing and resolving connectivity problems of all types, it is Content Creator’s responsibility to diligently analyze suspected problems at the Content Creator location to determine their specific nature and possible causes before calling the Distributor for assistance. Notwithstanding this diligence requirement, Content Creator is responsible for reporting of problems and Content Creator analysis of same to Distributor in a complete and timely manner.

Ø  The Distributor will provide a platform showing the dashboard of Sales and Returns made through their content from the software to the Content Creator and this dashboard depicts the actual data and transparency of both parties.

 

OWNERSHIP OF DATA

Content Creator shall not obtain any ownership rights, title or interest in the software, hardware or systems developed or employed by Distributor in providing Services under the Agreement.  Distributor shall not obtain any ownership rights, title or interest to Content Creator’s data files. Upon expiration or termination of the Agreement for any reason, Content Creator may obtain a copy of Content Creator’s data files, as they exist at the date of expiration or termination pursuant Attachment 1 “Obligations upon Termination of Contract”.

 

WARRANTY DISCLAIMER/LIMITATION OF LIABILITYEXCEPT AS EXPRESSLY SET FORTH HEREIN, DISTRIBUTOR SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, OR WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE, ANY WARRANTY OF ERROR- FREE PERFORMANCE, OR ANY WARRANTY OF THIRD PARTY PRODUCTS, OR FUNCTIONALITY OF THE CONTENT CREATOR’S HARDWARE, SOFTWARE, FIRMWARE, OR COMPUTER SYSTEMS. DISTRIBUTOR SHALL NOT BE LIABLE FOR ANY PUNITIVE,EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, (INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST REVENUES OR PROFITS, LOSS OF USE OR EQUIPMENT DOWN TIME, AND LOSS OF OR CORRUPTION TO DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CONTENT CREATOR HEREBY AGREES THAT DISTRIBUTOR'S TOTAL LIABILITY FOR ANY AND ALL LIABILITIES CLAIMS, OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWSOEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING BREACH OF CONTRACT OR WARRANTY, TORT, STRICT LIABILITY, STATUORY LIABILITY OR OTHERWISE, SHALL NOT, IN THE AGGREGATE, EXCEED FEES PAID TO DISTRIBUTOR DURING THE PREVIOUS 24 MONTH PERIOD. THE PARTIES ACKNOWLEDGE AND AGREE TO THE FOREGOING LIABILITY RISK ALLOCATION.

 

TERMINATION FOR DEFAULT

 

Either party may terminate this Agreement if (i) the other party fails to perform a material obligation of the Agreement and such failure remains uncured for a period of 30 days after receipt of notice period of 90 Days from the non-breaching party specifying such failure; or (ii) a party ceases to conduct business, becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency which is not dismissed within 90 days or makes an assignment for the benefit of creditors.; or (iii) Both Parties to the agreement mutually agree not to pursue the said agreement due to mutual disagreement.

 


Upon termination for whatever reason and regardless of the nature of the default (if any), Content Creator agrees to pay Contractor in full for all goods and/or services provided to, and accepted by, Content Creator under this Agreement and/or any task order hereto within 30 days of the invoice date.

 

NON-WAIVER OF RIGHTS

The failure of either party to insist upon performance of any provision of this Agreement, or to exercise any right, remedy or option provided herein, shall not be construed as a waiver of the right to assert any of the same at any time thereafter.

 

RIGHTS AND REMEDIES NOT EXCLUSIVE

Unless otherwise expressly provided herein, no right or remedy of a party expressed herein shall be deemed exclusive, but shall be cumulative with, and not in substitution for, any other right or remedy of that party.

 

SEVERABILITY

If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any manner.

 

ASSIGNMENT

 

Neither the Agreement nor any duties or obligations hereunder shall be assigned or transferred by either party without the prior written approval of Distributor, which approval may not be unreasonably withheld, delayed or denied.

 

GOVERNING LAW

 

The Agreement shall be governed and construed in accordance with the laws of the State of Haryana without regard to choice of law principles. Both parties consent to the jurisdiction of such courts and waive any objections regarding venue in such courts.

 

INTERPRETATION

 

The captions and headings used in this Agreement are solely for the convenience of the parties, and shall not be used in the interpretation of the text of this Agreement. Each party has read and agreed to the specific language of this Agreement; therefore no conflict, ambiguity, or doubtful interpretation shall be construed against the drafter.

DISPUTES

 

The parties will seek a fair and prompt negotiated resolution within ten (10) days of the initial notice of the dispute (“Dispute”). If the dispute has not been resolved after such time, the parties will escalate the issue to more senior levels. If the parties are unable to resolve any dispute at the senior management level, then any controversy, claim or Dispute arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the Indian Council of Arbitration then in effect. Before commencing any such arbitration, the parties agree to enter into negotiations to resolve the Dispute. If the parties are unable to resolve the Dispute by good faith negotiation, either party may refer the matter to arbitration. The arbitration shall take place in the County of India. The arbitrator(s) shall be bound to follow the provisions of this Agreement in resolving the dispute, and may not award any damages, which are excluded by this Agreement.

 

The decision of the arbitrator(s) shall be final and binding on the parties, and any award of the arbitrator(s) may be entered or enforced in any court of competent jurisdiction.

MULTIPLE COPIES OF COUNTERPARTS OF AGREEMENT

 

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

FORCE MAJEURE

 

Neither party shall be liable for any failure of or delay in performance of its obligations (except for payment obligations) under this Agreement to the extent such failure or delay is due to acts of God, acts of a public enemy, fires, floods, power outages, wars, civil disturbances, sabotage, terrorism, accidents, insurrections, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees' demands are reasonable and/or within the party's power to satisfy), failure of common carriers, Internet Service Provides, or other communication devices, acts of cyber criminals, terrorists or other criminals, acts of any governmental body (whether civil or military, foreign or domestic), failure or delay of third parties or governmental bodies from whom a party is obtaining or must obtain approvals, authorizations, licenses, franchises or permits, inability to obtain labor, materials, power, equipment, or transportation, or other circumstances beyond its reasonable control (collectively referred to herein as "Force Majeure Occurrences"). Any such delays shall not be a breach of or failure to perform this Agreement or any part thereof and the date on which the obligations hereunder are due to be fulfilled shall be extended for a period equal to the time lost as a result of such delays. Neither party shall be liable to the other for any liability claims, damages or other loss caused by or resulting from a Force Majeure Occurrence.

 

RELATIONSHIP OF PARTIES

 

Contractor is an independent contractor in all respects with regard to this Agreement. Nothing contained in this Agreement shall be deemed or construed to create a partnership, joint venture, agency, or other relationship other than that of contractor and Content Creator.

 

THIRD PARTY BENEFICIARIES

 

This Agreement does not create, and shall not be construed as creating, any rights or interests enforceable by any person not a party to this Agreement.

 

WAIVER OR MODIFICATION

 

No provision of the Agreement may be waived or modified unless in writing specifically referencing this Agreement and signed by representatives of both parties against whom enforcement of the purported modification or waiver is sought. Waiver of default of any provision of the Agreement shall not operate or be construed as a waiver of any subsequent default of such provision, nor shall a waiver of any one provision of the Agreement be deemed to be a waiver of any other provision.

 

ENTIRE AGREEMENT; CONFLICTING PROVISIONS

 

The Agreement and any attachments thereto contain the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous proposals, discussions, agreements, Content Creator issued purchase order or document of like intent or purchase, understandings, commitments, representations of any kind, whether oral or written, relating to the subject matter hereof or the Services to be provided hereunder.

AUTHORIZATION

 

Each of the parties represents and warrants that the Agreement is a valid and binding obligation enforceable against it and that the representative executing the Agreement is duly authorized and empowered to sign the Agreement

 

SURVIVAL

 

The provisions of sections 4, 6, 7, 14, 16 and 22 shall survive the termination or expiration of this Agreement.

 

COUNSEL

 

By execution of this Agreement, each of the Parties acknowledges and agrees that it has had an opportunity to consult with legal counsel and that it knowingly and voluntarily waives any right to a trial by jury of any dispute pertaining to or relating in any way to the transactions contemplated by the Agreement, the provisions of any federal, state or local law, regulation or ordinance notwithstanding.

 


 

IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representative(s).

 

“Distributor”                                                                “Content Creator”

       For Invincible Publication Pvt Ltd                                                   [Client Name]

 

______________________________________                 ______________________________________

______________________________________                 ______________________________________

______________________________________                 ______________________________________

______________________________________                 ______________________________________

______________________________________                 ______________________________________

______________________________________                 ______________________________________

 

Signature                                                                      Signature

Date:                                                                            Date:               


Witness Details:
______________________________________                 ______________________________________

______________________________________                 ______________________________________

______________________________________                 ______________________________________

______________________________________                 ______________________________________

______________________________________                 ______________________________________

______________________________________                 ______________________________________


Signature                                                                      Signature

                        Date:                                                                            Date:               




ATTACHMENT 1 - SCOPE OF SERVICES

 

The services, functions, processes and activities described below will be collectively described as the “Services” for purposes of this Agreement. All Services will be provided by the Distributor to the Content Creator.

 

Application

Application refers to the Software known as Invincible E-Learning. The Application for purposes of this Agreement also include the operating system, utilities, scheduled batch cycles, database software and all necessary licenses required to successfully and adequately operate the Software in accordance with this Agreement. The Software will be provided to the Content Creator through the mode of Mobile Application available in Apple App Store,Android Play Store and on Web Portal.

 

Hardware

The Application will be hosted on Distributor supplied servers in the Data Center located at Distributor’s office. If required and requested by Content Creator, Content Creator shall provide the telecommunications equipment (including the routers to be installed at the Data Center and Disaster Recovery Center site), communication line and services for connection from Content Creator’s site to the Data Center and Disaster Recovery Center.

 

Database Instances

A single Production Database instance will be maintained for Content Creator. This Production Database will provide the daily, real-time transaction data to the registered Users.

 

Hours of System Operations

The Application will be accessible and available to the Content Creator and capable of any and all normal operating functions 24 hours a day, seven days a week except for previously approved and Scheduled Maintenance. The Distributor will not be held responsible for inaccessibility arising from communications problems occurring anywhere beyond the Distributor’s side of the router resident at the Distributor’s Data Center, nor will these hours of unavailability be counted as unavailable for purposes of the Service Level.

 

Availability

If the Application is available less than 95% of all “Available Hours” in the calendar quarter, Content Creator may at its option terminate this Agreement and Distributor will waive the Service Termination Fee identified in Section 5 of Attachment 2. Scheduled Maintenance hours will not count as unavailable hours. “Available Hours” means the product of the number of days in the quarter times 1440 minutes, less Scheduled Maintenance. Should the Content Creator identify an instance of non-compliance related to availability, the Content Creator will deliver written notification to the Distributor. Upon notification by the Content Creator of Contractual Non-Compliance, the Distributor will research the problem and respond to the Content Creator by the next business day.

 

Help Desk Operations

Distributor will maintain a Help Desk to receive Content Creator calls to report, log and resolve any problems with the Services identified by the Content Creator.Content Creator will be allowed unlimited calls to the Help Desk as long as Content Creator remains in compliance with all contractual commitments between Content Creator and Distributor.

While the Application will be available to the Content Creator on Holidays, the Help Desk will operate on an “after Business Hours” schedule on Holidays. Distributor currently recognizes the following Holidays:

 

New Years Day

Republic Day

Holi

Eid Ul-fitr

Independence Day

Ganesh Chaturthi

Gandhi Jayanti

Diwali

Christmas Day

 

 

 

 

Additional Holidays may be added upon prior written notice to Content Creator.


Help Desk Inquiry Settlement - Content Creator inquiries to the help desk will be settled in a timely manner. Help desk personnel will attempt to resolve the inquiries themselves. In more complicated cases, the inquiry may be settled by escalating a task to the engineering team or a Data Center specialist. Distributor will track the average time that is needed to resolve a help desk incident.

 

Scheduled Communication - Regularly scheduled Distributor communications with the Content Creator      will be performed in a timely manner.  The list of regular communications will be mutually determined. These may include, but are not limited to, newsletters and issue updates.

 

Communication On Request – Ad-hoc requests for information by the Content Creator will be handled in a timely manner based on the timing commitment made by Distributor in each case. The delivery times for ad-hoc communications will be estimated by Distributor  as they are requested, based on their criticality and the length of preparation time required.

 

Data Center Announcements – Distributor will notify the designated Content Creator representative by email of anticipated changes in the system availability with as much advance notice as possible.

 

Feedback – Distributor will conduct periodic surveys of key Content Creator contracts to assess general Content Creator perceptions of the level of service being provided. Surveys will be formatted to support Service Level Objectives.

 

Notwithstanding the foregoing, the Distributor shall not be responsible for the maintenance, accuracy or completeness of the Content Creator data except as set forth herein.

 

Backup Retention- Backups will be made daily in three (3) month increments. After 90 days, a new cycle will begin and the existing backups will be overwritten.

 

Maintenance- The Distributor will complete Scheduled Maintenance of the Application on a weekly basis. This Scheduled Maintenance will consist of downtime of the Application mutually agreed upon by the Content Creator and the Distributor. Scheduled Maintenance will include database reorganization and  any other weekly requirements that allow the Application to successfully and adequately operate.

 

If the Distributor is required to perform additional maintenance outside of the Scheduled Maintenance window, it will notify the Content Creator in writing of its request. The Content Creator and the Distributor will mutually agree on the downtime, which will then be considered Approved Maintenance.

 

Data Recovery- In the event of a loss of data because of a failure of Distributor or Data Center, the databases will be successfully restored as quickly as possible.

 

Obligations Upon Termination of Contract- Content Creator’s Obligations Upon Termination or Expiration Upon termination or expiration for any reason, all rights granted hereunder to the Content Creator shall forthwith terminate, and:Content Creator shall immediately and permanently cease to use the Application and Services in any manner whatsoever except as reasonable required to obtain its data,


Content Creator shall make all payments due. If Content Creator fails to give notice of termination before the start of any renewal period, Content Creator owes Distributor for the entire renewal period.

 

Distributor’s Obligations Upon Termination or Expiration Upon termination or expiration for any reason, all rights granted by Content Creator hereunder to the Distributor shall forthwith terminate, and:

Distributor shall immediately and permanently cease to use, in any manner whatsoever, all of the Content Creator’s Proprietary Marks and distinctive forms, slogans, signs, symbols, and devices associated with the Content Creator including, without limitation, all signs, advertising materials, displays, stationary, forms and any other articles which display such proprietary marks,

Distributor will allow Content Creator reasonable access to the Content Creator’s Production Database, and any and all other databases, scripts, utilities or files maintained by Distributor on behalf of Content Creator for Content Creator to obtain its data,

Distributor will use commercially reasonable efforts to assist Content Creator in affecting a smooth transition of the Application and Services to Content Creator or any other vendor chosen by Content Creator, and

Distributor, when directed by Content Creator to do so, will delete all of Content Creator’s data in Distributor’s possession from any data storage media under control of the Distributor. Unless otherwise agreed in writing, Distributor shall have no obligation to retain the data for more than thirty (30) days after termination of the Agreement.Insert your text here

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