THIS MEMORANDUM OF UNDERSTANDING (hereinafter referred to as the “Agreement”) is made at Visakhapatnam on this _____________ by and between:
M/S. KALLAS CHEMICALS, a company organized under the Companies Act, 1956, having its registered office at 30-15-153/C-5, Second Floor, Pavan Enclave, Daba Gardens, Visakhapatnam-530020.; Factory office at 17-1-382/KSB/5, Balaji Nagar, Champapet, Saroor Nagar, Hyderabad –500079 (hereinafter referred to as the “Company”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its affiliates, successors and permitted assigns) of ONE PART; and
________ & __________, Partners of having its place at ____________________ (Hereinafter referred to as the “Distributor”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its affiliates, successors and permitted assigns) of the OTHER PART.
The Company and the Super Stockiest as under Distributor are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
- The Company is in the business of creating and Produce the Products of Industrial Cleaning Chemicals in Commercial and Domestic Segment, we are Producing Housekeeping Chemicals and Cleaning Chemicals, in any part of the commercial & Domestic segment and Tenders by establishing, managing and administering Distributors, Dealers, franchisees and Stall Points. in accordance with the norms laid down by the regulatory authorities for research, extension and instruction as may be necessary from time to time; offering full time, part time, formal and informal Business Development programs for individuals in order to help them to meet the specific needs of the industry and business and equip them to meet the changes in technology of Cleaning; developing and publishing the Brand for regular and Business programs; co-operating with Distributors, Dealers, franchisees and Stall Points. other institutions in any part of the world having objects wholly or partly like those of the Business franchisor; fostering a sense of partnership with the industry in promoting the cause of Business, research, extension and in Business resources for achieving the objectives (hereinafter referred to as the “Objects of the Company”)
- The Factory is Supplying the Material to Distributors, Dealers, franchisees and Stall Points, Parties has the capability to help achieve the Objects of the Company and therefore shall assist the company in this regards on exclusive basis and shall not provide similar/identical services to support himself or any other organization in any manner.
- The Company desires to engage the Distributor with regards to the provisioning of certain “Services” (as defined in Section 1.9 herein) and engaging it as the Super Stockiest in furtherance of the Objects of the Company in a manner as required hereunder.
- The Distributor is willing to accept such engagement and help the company in daily operations for marketing and Business Mobilization of the Company in the local area.
- The Parties are desirous of recording the same under this Agreement. It is, therefore, the intention of the Parties to execute this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, premises, provisions, Business, and agreements contained herein, the Parties agree as follows:
- “Business Day” shall mean any day on which the Company is open for business, except a Sunday.
Where a person does or must do something under this Agreement on a day which is not a Business Day, then it will be deemed to be done (in the first case) or may be done (in the second case) on the next Business Day
- “Claim” shall have the meaning attributed to it in Section 13.3 of this Agreement
- “Company’s Business “shall mean all activities carried out by the Company in pursuance of the Objects of the Company (as defined in Section 1.8herein) to the extent provided for in this Agreement
- “Competitor” means any person, entity, corporation, partnership, association, joint venture or other organization that engages in or attempts to engage in the Company’s Business or similar business 5.“Confidential Information” shall have the meaning assigned to it in Section 17.1 of this Agreement
- “Disputes” shall have the meaning assigned to in Section 16.1 of this Agreement.
- “Local Area” shall mean the geographical area assigned the Super Stockiest in which the Distributor shall be required to provide his Services (as defined in 1.9 herein) in relation to this Agreement. The Local Area may be increased or diminished upon the agreement of the Parties and upon such terms as may be agreed on between the Parties
- “Objects of the Company” shall have the meaning attributed to it in Clause A of the Recitals to this Agreement.
- “Services” means the services required of the Super Stockiest under this Agreement as defined in Section 2.2 of this Agreement.
2. WORK PROFILE AND TERMS OF ENGAGEMENT OF THE DISTRIBUTOR
- The Distributor shall undertake the Services (as defined in Section 2.2 herein) under this Agreement only after obtaining the approval from the Company at the time of the signing of the contract.
- The Distributor shall provide the following Services as required by the Company:
- The Distributor shall help mobilize the youth in the local area undergo training with the Company through various marketing activities and awareness creation activities. It is the Business Activities of Super Stockiest responsibility to conduct marketing & awareness creation activities in the local area.
- The Distributor shall utilize its local presence, and manpower to carry out the Business operations for the Kallas Chemicals Business programs. They will have manpower as agreed with Kallas Chemicals for Business Activities.
- The Distributor will ensure that the targets agreed upon are met on a month on month basis and the stated roll-out plan is adhered to.
- The Distributor shall comply with the company’s MIS, monitoring, reporting & quality guidelines always.
- The local area assigned to the Distributor shall be as per the Business issued by the Company from time to time. The Distributor permitted to start Business on behalf of the Company in any location only after receiving the Products of Commencement from the Company for that location.
- A Business may be commenced ONLY AFTER receiving the Purchase Order Along with Full Payment of Purchase order and approval in writing from the Company’s Regional office personnel from their official e-mail ID.
3. OBLIGATIONS OF THE COMPANY
- The Company shall appoint the Distributor for the provisioning of Services within the geographical Area only as mutually agreed upon between the parties.
- The Company shall be responsible for identifying and recruiting Employees. Employees will be on the Company’s payrolls. However, the Employees will be permitted to Providing all types of Kallas chemicals Business Activities only after getting an appointment by the Company after going through the training conducted by the Company
- The Business Data provided by the Company. Only the Content & Data material provided by the company shall be used by the targeted customers who required the material and Concern and its utilization fully depends upon Distributor.
- The Data provided by the Company is the Company’s sole property and cannot be utilized by the Distributor for any other activity whatsoever.
- The Distributor will pay for the Product to by the Company at a pre-determined rate per Customers
- All marketing collateral designs will be provided to the Super Stockiest by the Company in soft copy format. The printing and other expenses shall be borne by the Super Stockiest. The Super Stockiest shall be free to prepare its own marketing material but can utilize the same only after receiving approval in writing from the company. Marketing material includes Banners, Posters, Hoardings, pamphlets, etc.
- Placement of the Distributor completing the training program will be managed by the Company. It will be the Company’s responsibility to ensure that the Business targets are met for direct Business opportunities from clients.
- Distributor Must full fill the Minimum 1500 Sft of Go Down Placed in Ground Floor.
- 3 to 5 Members of Employees recruit by the Distributor for doing the business works.
- Tenders and Bulk Orders Provided by Company to Distributor, stock supply and stock maintenance Regulations Maintained by Distributor
4. OWNERSHIP AND USE OF INTELLECTUAL PROPERTY
The Distributor shall ensure that Company processes and/or business processes and databases of the Company are at any point of time reproduced, unauthorized used and/or distributed on any occasion and/or for any reason whatsoever without prior written consent taken from such persons as are duly authorized by the Company. The consent of the authorized person and such letter seeking such consent shall expressly state the materials to be reproduced and/or transmitted and the specific purpose for which the same needs to be done.
5. INTELLECTUAL PROPERTY PROTECTION POLICY WITH RESPECT TO THE COMPANY’S BUSINESS
- The Distributor shall protect the trade secret and business processes of the Company and make sure that their confidentiality is not breached by any of its employees, agents or subcontractors.
- The Distributor shall by no means whatsoever use any business processes or intellectual property generated by the Company, received during the duration of this Agreement for any commercial and/or non–commercial purpose except in connection with the Services to be provided by him under this Agreement.
- The Distributor shall not carry out the Product or any other activities which are competing in nature to the Company’s objects or otherwise act for any organization other than the Company during the currency of this Agreement and for 24 months after the termination of this agreement
- Provided further, that the Distributor shall be allowed to pursue his/her independent profession, which must not be in competition to the Company’s objects
7. NON-COMPETITION AND NON-SOLICITATION
- The Distributor covenants and agrees that it will not directly or indirectly for the term of this Agreement and for a period of one year following the termination of this Agreement:
- Engage in, continue in or carry on any business which competes with the Company in the
Company’s Business or which is substantially similar thereto;
- Consult with, advise or assist in any way, whether or not for consideration, any corporation, partnership, firm or other business organization which is now or becomes a Competitor of the Company if the principal purpose of such consultation, advice or assistance is to permit such corporation, partnership, firm or business organization to compete with the Company in the Company’s Business, including, but not limited to, advertising or otherwise endorsing the products of any Competitor of the Company for such purpose; soliciting customers or otherwise serving as an intermediary for any such Competitor of the Company for such purpose; loaning money or rendering any other form of financial assistance to or engaging in any form of business transaction with any Competitor of the Company for such purpose;
iii. Undertake any business with or solicit the business of any person, firm or company who shall have been a customer or partner of the Company and with whom any executive of the Company or its subordinates has dealt with during the then immediately preceding 12months which might adversely affect the Company’s business relationship with such customer or partner, unless such solicited business relates to the Company’s Business; or
- Engage in any practice, the purpose of which is to evade the provisions of his covenant not to compete.
The geographic scope of the covenant not to compete shall extend across the whole of India. The Company and the Super Stockiest each hereby acknowledge and consents to the fact that restriction enshrined under this Section 8 are reasonable and not violate their fundamental right to practice their trade or profession.
The provisions of this Section7 shall survive termination or expiration of this Agreement for any reason.
- The Distributor will enjoy a business profit with the Company as per Annexure 1 on the total profit earned in the designated Local Area.
- The Distributor shall furnish a product purchase of INR 1,00,000 to the Company
- The Distributor will pay an upfront rupee of INR 1,00,000 to the company It may be noted that the above amount will not be forfeited if the Distributor or any of its associates violates any terms of this agreement.
- The compensation agreed upon and provided herein shall be binding for the duration of this Agreement following which a fresh agreement will be required to be executed by and between the Parties. The compensation agreed upon shall be revised only upon the execution of the fresh Agreement or by an addendum to this agreement duly signed by both the parties.
- The Company shall have full access to Distributor records to the extent necessary to verify and audit Distributor billing procedures, provided that the Company agrees to keep all such information confidential. The Company shall have the right, at any time, to review and audit the bills, and if the Company believes the bills are prepared by Distributor in good faith and a reasonable manner, the Company may request that the bill be independently reviewed and adjusted by an independent certified public accountant reasonably acceptable to the Company and Distributor.
The Company and the Distributor will be liable to pay their respective taxes including Income Tax and any other statutory tax liabilities. The Company will deduct Tax at Source for the payments made to the Distributor
- The Company shall have the right to terminate this Agreement and forfeit and furnished by the
Distributor immediately in the Business any of the following happens
- The Distributor fails in any material respect to observe or perform any of the provisions of this Agreement on its part to be observed or performed; or
- The Distributor becomes insolvent or if any petition is filed by or against him under any provisions of any bankruptcy, insolvency or similar laws; or
- If any obligation under this Agreement is held by judgment, rule, order or decree to be invalid by any court, commission or governmental authority in the territorial limits of India.
- Upon termination of this Agreement:
- The Distributor shall have no further right to act on behalf of the Company
- The Distributor cannot be engaged as an individual/investor/shareholder or in any capacity in any activity that is competing in nature with the Company’s Business
- However, the Company cannot terminate this agreement without providing a 90(Ninety) day notice. The Distributor and vice versa unless any of the actions under section10.1 hold true.
The permissions and licenses as hereby granted by the Company to the Distributor is exclusively for the Distributor and shall not be assigned, sublicensed, transferred, conveyed or pledged in whole or in part without the prior written consent of the Company. None of the Parties hereto may assign or transfer any of its rights, benefit, or interest in this Agreement without the other Parties’ prior approval.
12. PERIOD OF THE AGREEMENT
The term of the Agreement shall be 24 months from the date of signing this agreement. This Agreement shall be renewable at the option of the Parties on such terms and conditions as are mutually agreeable to the Parties.
13. REPRESENTATION, WARRANTIES AND INDEMNITIES
- Representations and Warranties of the Super Stockiest
The Distributor represents, warrants and covenants to the Company that:
- It has full authority to execute, deliver and perform this Agreement;
- the execution of this Agreement and the implementation of the terms and conditions contemplated hereby do not constitute a breach of any agreement, arrangement or understanding, oral or written, entered by it with any third party; and
- the execution of this Agreement does not violate any statute, regulation, rule, order, decree, injunction or other restriction of any governmental agency to which it is subject or any of the provisions of its’ constitutional documents.
- Indemnification by the Distributor
The Distributor hereby agrees to indemnify, defend and hold the Company harmless from and against any and all actions, suits, proceedings, claims, costs, damages, judgments, amounts paid in settlement and expenses (including without limitation attorney’s fees and disbursements as may be incurred in connection with investigating, preparing to defend, defending or appeal against any such action, suit, proceeding, claim, inquiry or investigation) (“Claim”) whether or not the Company is a party thereto or which may be asserted against or incurred by the Company, as a result of or arising from, or in connection with or relating to:
- Any breach by the Distributor or in the accuracy of any representations, warranties, and covenants made by the Distributor
- failure by the Distributor to comply with all applicable laws and regulations, except in so far as any such claims may arise from any breach of this Agreement by the Company; or iii.failure by the Distributor to perform (whether in whole or part) any obligation required to be performed by the Distributor pursuant to this Agreement except in case such failure is due to Force Majeure (as defined in Section 19.1 of the Agreement) or non-cooperation of the Company.
- Except as otherwise expressly provided herein, all notices and other communications provided for hereunder or thereunder shall be (i) in writing (including telex and telecopier) and (ii) telexed, telecopied or sent by person, overnight courier (if for inland delivery) or international courier (if for overseas delivery) to a Party hereto at its address and contact number specified below, or at such other address and contact number as is designated by such Party in a written notice to the other Party hereto.
The address for service of the Distributor shall be:
- Attention: ____________ & ___________
- Address:___________________________________ _______________________________________________
- Email ID:
- Tel Number:
The address for service of the Company shall be:
- Attention: Mr. Surya
- Address: #30-15-153/C-5, Second Floor, Pavan Enclave, Daba Gardens, Visakhapatnam – 530020.
- Email ID email@example.com
- Tel Number: +919705451797.
- All such notices and communications shall be effective (i) if sent by telex, when sent (with the correct answer back), (ii) if sent by tele copier, when sent (on receipt of a confirmation to the correct tele copier number), (iii) if sent by person, when delivered, (iv) if sent by courier, (a) same Business Day after deposit with an overnight courier if for inland delivery and (b) 5 (five) Business Days after deposit with an international courier if for overseas delivery and (v) if sent by registered letter when the registered letter would, in the ordinary post, be delivered whether actually delivered or not.
Provided however that any notice or communication to the Super Stockiest or the Company shall be effective only on actual receipt by the officer of any such Person for whose attention the notice or communication has been expressly marked.
- An original of each notice and communication sent by telex or telecopy shall be dispatched by person, overnight courier (if for inland delivery) or international courier (if for overseas delivery) and, if such person or courier service is not available, by registered airmail (or, if for inland delivery, registered first class mail)with postage prepaid, provided that the effective date of any such notice shall be determined in accordance with Section 15.2 without regard to the dispatch of such original.
15. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of India. The Parties undertake and agree that they shall always during the term of this Agreement ensure compliance with all applicable laws, while discharging their responsibilities under this Agreement.
16. DISPUTE RESOLUTION
- Any and all disputes, differences, controversies and questions directly or indirectly arising at any time under, out of, in connection with or in relation to this Agreement (or the subject matter of this Agreement) including, without limitation, all disputes, differences, controversies and questions relating to the validity, interpretation, construction, performance and enforcement of any provision of this Agreement (“Disputes”)shall, so far as it is possible, be settled amicably through consultation between the Parties.
- If after 30 (thirty) days of consultation, the Parties have failed to reach an amicable settlement, on any or all the Disputes, such Disputes shall be submitted to final and binding arbitration at the request of either of the Parties upon written notice to that effect to the other. Such arbitration shall be in accordance with the Arbitration and Conciliation Act, 1996 and shall be held in Kolkata. All proceedings of such arbitration shall be in the English language. The arbitral tribunal shall consist of three arbitrators, one each appointed by the Super Stockiest and the Company and the third appointed by the two arbitrators. Any award rendered upon such arbitration shall be final, conclusive and binding on the Parties.
- Nothing shall preclude either party from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the Parties to pursue any remedy for monetary damages through the arbitration described in this Section.
- This Agreement and all information exchanged between the Parties under this Agreement or during the negotiations preceding this Agreement is confidential to them and may not be disclosed to any third party. Except with the prior written consent of the other Party, each Party shall hold in strictest confidence and take all necessary precautions to secure any Confidential Information of the other Party. Disclosure of such information shall be restricted solely to employees, agents, consultants and representatives on a strict need-to-know basis who have been advised of their obligation with respect to Confidential Information and have agreed to such obligation. The term “Confidential Information” shall mean all non-public information that this Agreement or the disclosing Party designates as being confidential, or which, under the circumstances of disclosure bought to be treated as confidential. “Confidential Information” includes, without limitation, the existence and the terms and conditions of this Agreement, information relating to the financial and accounting books and records, marketing or promotion of any product or services, business policies or practices, customers, potential customers or, documentation, or information received from others that a Party is obligated to treat as confidential. If a Party has any questions as to what comprises such Confidential Information, that Party shall consult with the other Party. “Confidential Information” shall not include information that was known to a Party prior to the other Party’s disclosure, or information that becomes publicly available through no fault of the Party.
- The obligations of confidentiality do not extend to information which:
- is disclosed to employees, legal advisers, auditors and other consultants of a Party or its related bodies corporate, requiring the information; or
- is disclosed with the consent of the Party who supplied the information; or
- is, at the date this Agreement is entered, lawfully in the possession of the recipient of the information through sources other than the Party who supplied the information; or
- is required by law, regulation, governmental or judicial order to be disclosed; or
- is generally and publicly available, other than because of breach of confidence by the Person receiving the information.
- To the extent any Party is under an obligation to disclose information to any governmental authorities, it shall promptly inform the other Party of such obligation (prior to making the disclosure, if possible and practicable) and shall afford the other Party the ability to take protective measures, if need be, to safeguard their own legitimate interests. In case there is any governmental agency or instrumentality or Court order requiring the Super Stockiest to part with any of such information, the Super Stockiest, its agent or subcontractor, as the case may be, shall provide an express notice of twenty four hours to the Company before complying with any such requirements and in such eventuality of compliance, they shall also be required to observe strict diligence in order to make sure that breach of Company and business confidentiality with the Company can be limited to the minimum extent possible.
- Force Majeure
Neither party shall be in default of this Agreement or liable to the other party for any delay or default in performance where occasioned by any cause of any kind or extent beyond its control, including but not limited to, armed conflict or economic dislocation resulting there from; embargoes; shortages or labour, raw materials, production facilities or transportation; labour difficulties; civil disorders of any kind; action of any civil or military authorities (including priorities and allocations); fires; floods; telecommunications failures; Internet slow-downs; and accidents. The dates on which the obligations of a party are to be fulfilled shall be extended for a period equal to the time lost reason of any delay arising directly or indirectly from:
The validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired if any provision of this Agreement is rendered void, illegal or unenforceable in any respect under any law.
Should any provision of this Agreement be or become ineffective for reasons beyond the control of the Parties, the Parties shall use reasonable endeavours to agree upon a new provision which shall as nearly as possible have the same commercial effect as the ineffective provision.
- No Waiver:
Neither the waiver of any provision of this Agreement nor consent to any departure from it by any party shall be effective unless it is in writing. A waiver or consent shall be effective only for the purpose for which it is given. No default or delay on the part of any Party in exercising any rights, powers or privileges operates as a waiver of any right, nor does a single or partial exercise of a right preclude any exercise of other rights, powers or privileges.
- Entire Agreement:
This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matters of this Agreement and supersedes all prior agreements and undertakings, both written and oral, with respect to the subject matter hereof except as otherwise expressly provided herein.
No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless made in writing specifically referring to this Agreement and duly signed by each of the Parties.
- No Partnership:
Nothing in this Agreement shall be deemed to constitute a partnership between the Parties or constitute it her Party the agent of the other for any purpose other than those agreed on in this Agreement.
This Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which will constitute one and the same instrument.