TERMS AND CONDITIONS OF RETAILER PARTNER AGREEMENT

  1. DEFINITIONS AND INTERPRETATION
    1. Defined Terms
      For the purpose of this Agreement, the following words and phrases shall have the following meanings:

      1. “Affiliates” means entities that control, are controlled by, or are under common control with, a party to this Agreement.
      2. “Applicable Law” refers to all applicable statutes, legal enactments, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders of the Government and, if applicable, international treaties;
      3. “Customer” refers to a person or an entity who buys a product or service from a retailer where Nokia Protection Plans can be offered;
      4. “Device” refers to a smartphone device manufactured, distributed, marketed or sold by Nokia;
      5. “Eligible Customer” means any person/party/entity who/which is determined by Servify as eligible to buy Nokia Protection Plan and is registered directly or indirectly in Servify’s mobile application or any other computer system. The Eligible Customers are those who buy Nokia Protection Plan from Retail Partner and that the Device is not damaged and is in perfect working conditions before buying the Nokia Protection Plan, and subsequently completes the registration formalities as defined by Servify as per the terms and conditions of the Nokia Protection Plan, failing which the purchase of Nokia Protection Plan shall become null and void;
      6. “HMD” means HMD MOBILE INDIA PRIVATE LIMITED with its principal place of business at 118-A, 1st Floor, Satyam Plaza, Civil Lines, Near Civil Hospital, Gurgaon – 122001
      7. “Retail Partner “ includes –
        1. “Nokia Authorized Experience Store” which means a person or entity certified and authorized by Nokia to sell products manufactured or sold by Nokia or provide other allied services as part of the authorized program conducted by Nokia;
        2. “Nokia Authorized Retailer” which means a person or entity authorized by Nokia to sell products manufactured or sold by Nokia or provide other allied services as part of the authorized program conducted by Nokia;
        3. “Nokia Authorized Service Provider” which means a person or entity authorized by Nokia to repair products manufactured or sold by Nokia or provide other allied services as part of the authorized program conducted by Nokia;
      8. “Servify Platform” refers to a proprietary technology platform of Servify including but not limited to Mobile Application(s), web portals and API Kits developed by Servify and any other technology tools developed by Servify from time to time; and used by its customers, platform licensees, service providers / partners, authorized resellers and distributors under this Agreement;
      9. “Business Day” means a day, not being a Sunday or a public holiday, on which banks are open for business in the context of a payment being made to or from a scheduled commercial bank;
      10. “Claims” mean any demand, action, cause of action, damages expenses, settlement amounts, liabilities, suits, lawyer fees and any other claim of any nature;
      11. “Confidential Information” means any information in oral or written form that recipient knows or has reason to know is confidential information and that is disclosed in connection with this Agreement or to which recipient may have access to connection with this Agreement; including but not limited to business and marketing plans, financial information and data, personnel information, information regarding strategic alliances, costs or pricing data, and the identity of customers and prospective customers. Confidential Information shall not include any information that (i) was rightfully in the possession of recipient prior to disclosure; (ii) was independently developed by recipient without the use of confidential information; or (iii) is now or hereafter becomes, available to the public other than as a result of disclosure by recipient in violation of this Agreement;
      12. “Consent” means any permit, permission, license, approval, authorization, consent, clearance, waiver, no objection certificate or other authorization of whatever nature and by whatever name called which is required to be granted by the Government, the creditors or any other authority under applicable Law;
      13. “Governmental Authority” means the Central or State Governments, government department or governmental, quasi-governmental, supranational, statutory, regulatory or investigative body, authority, agency, bureau, board, commission, department, court of judicial authority, arbitrator, tribunal or instrumentality thereof in any applicable jurisdiction, including a Tax authority and any recognized stock exchange;
      14. “Invoice” refers to a document or electronic statement detailing the Fees payable by Retail Partner to Servify;
      15. “INR” means Indian National Rupee;
      16. “Intellectual Property” means patents, rights to apply for patents, trademarks, trade names, service marks, domain names, copyrights and all applications and registration of such worldwide, schematics, industrial models, inventions, knowhow, trade secrets, computer software programs, and other intangible proprietary information;
      17. “Person” means an individual, proprietorship, partnership, corporation, company trust or other entity which may be treated as a person under the applicable law;
      18. “Nokia Protection Plan” mean –
        1. “Nokia phone insurance” Plan is a value-added service plan provided by Nokia to the Eligible Customer’s Device. The Nokia phone insurance Plan provides damage protection coverage for a period as per the terms of the Plan from the Device’s purchase date (from date of the Eligible Customer’s purchase documented by proof of purchase) and covers unexpected liquid damage and physical damage to the Device.
        2. “Nokia phone extended warranty”  Plan is a value-added service plan provided by Nokia to the Eligible Customer’s Device. The Nokia phone extended warranty Plan provides warranty coverage for a period of 6/12 months (depending on the Plan purchased) from the Device’s limited warranty expiration date and covers the manufacturing failures that are covered in the Device’s original limited warranty.
        3. “Nokia phone screen protection” Plan is a value-added service plan provided by Nokia to the Eligible Customer’s Device. The Nokia phone screen protection Plan provides Screen Protection coverage for a period as per the terms of the SDP Plan from the Device’s purchase date (from date of the end consumer’s purchase as documented by proof of purchase) and covers unexpected physical damage to the Device.
      19. “Tax” or “Taxation” means the applicable tax laws, duties, levies, and/or imposts;
      20. “Third Party”  means any individual, person or legal entity that is not defined herein or ascribed any special meaning in this Agreement;
      21. “Territory” means the country of India;
  2. SERVICES 
    The purpose of this Agreement is to provide and set out the scope and obligations for Servify and Retail Partner inter- se for the purpose of implementation of this Agreement. Servify and Retail Partner agree to their respective obligations more fully stated and described herein. Servify shall provide Nokia Protection Plan Services for Devices bought by Eligible Customers as per the terms and conditions applicable to the respective Protection Plans. The obligations and responsibilities of the Parties are described in Annexure I. Servify may offer other services to the Retail Partner and the terms and conditions of which would be mutually agreed by the Parties.
  3. REPRESENTATION AND WARRANTIES
    Each Party represents and warrants to the other Party that:

    1. Status: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation/incorporation and has all requisite power and authority to execute and deliver, and to perform its obligations as set out under this Agreement;
    2. Power and Authority: It has all legal power and authority to enter into this Agreement and the execution, delivery and performance of the Services as agreed under this Agreement. It has been duly authorized by all necessary corporate action, and do not and will not require any further consents or approvals, or violate any provision of any law or breach any agreement presently in effect with respect to or binding on them;
    3. Legal Validity: This Agreement when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party;
    4. Non-conflict with laws: Its entry into and performance of this Agreement and the transactions contemplated by this Agreement do not and will not conflict with or result in a breach of
      1. any law, judgment or regulation or any official or judicial order;
      2. its constitutional documents; or
      3. any agreement or document to which it is party or which is binding upon it or any of its assets or revenues, nor cause any limitation placed on it or the powers of its directors or members to be exceeded or result in the creation or imposition of any security interest on any of its assets pursuant to the provisions of any such document or agreement
    5. No Consents: No consent of, giving of notice to, or registration with, or taking of any other action in respect of, any governmental authority or agency in any relevant jurisdiction or any of its shareholders or creditors is required for or in connection with the execution, validity, delivery and admissibility in evidence in any proceedings of this Agreement, or the carrying out by it of any of the transactions contemplated hereby and thereby;
      Provided that if any of such approvals as aforesaid are necessary for the execution, delivery and performance by such Party, of their respective obligations under this agreement have been obtained and are in full force and effect;
    6. Litigation: As of the date hereof, there are no pending or, to the best of its knowledge, threatened action or proceeding affecting them before any court, tribunal, governmental authority or arbitrator, which, if adversely determined, could reasonably be expected to materially adversely affect the ability of them to perform their obligations under, or which purports to affect the legality, validity or enforceability of, this agreement;
  4. COMMERCIALS
    1. Retail Partner need to create/load the wallet and maintain sufficient balance for making the payment(s) for the Nokia Protection Plan that the Retail Partner will purchase from Servify
    2. Upon receiving the payment amount from the Customer(s), Retail Partner shall retain a margin as agreed for each Nokia Protection Plan sold in the Territory and transfer the remaining amount to Servify.
    3. Retail Partner’s margin for the Services shall exclude all the applicable government duties and taxes and such taxes would be billed to Servify.
    4. Any changes to the commercial terms shall be based on mutually agreed terms and conditions and shall be notified in writing.
  5. INTELLECTUAL PROPERTY RIGHTS
    All the assets owned by or belonging to the Parties including but not limited to the Intellectual Property Rights of whatever kind shall be property of the respective Party and no Party shall be entitled to use for itself any such property otherwise than as a client or customer.
  6. NOTICES
    Any notices to be given hereunder shall be in writing and shall be delivered by one of the following means: personal delivery, email, with confirmed receipt or confirmed delivery by a courier service at the address aforementioned, or revised address if any communicated from time to time.
    A notice or other communication received on a day other than a Business Day, or after business hours in the place of receipt, shall be deemed to be given on the next following Business Day in such place.The address or Email for serving notices can be changed by any Party by properly serving notices on the other Parties informing them of the changes of address.
    In the event that a Party refuses delivery or acceptance of a notice, request or other communication, under this Agreement, it shall be deemed that the notice was given upon proof of the refused delivery, provided the same was sent in the manner specified in this Agreement.
  7. TERMINATION OF AGREEMENT
    Termination for Cause:

    1. This Agreement may be terminated under the following circumstances:
      1. Immediately by Servify if Retail Partner fails to fulfill its obligations under this Agreement for a period exceeding 30 (Thirty) days
      2. Immediately by either Party if the other Party commits any material breach of any term of this agreement and which has not been remedied within 10 days of a written request to remedy the same; and
      3. Immediately by either Party if the other Party takes steps for the voluntary winding up or enters into any arrangement with its creditors or if an official liquidator is appointed in respect of all or any part of the business or assets of the other Party or other steps are taken for the winding up of the other Party
    2. Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a Party may be entitled to under this Agreement or under law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination
    3. In the event of any termination request by Servify, the notice for such termination would be provided for a minimum of 90 calendar days to Retail Partner. Additionally, Servify agrees to provide uninterrupted access to its Servify Platform for another 90 days to Retail Partner at no additional cost for usage or license fee keeping in mind the business continuity of stakeholders under this Agreement. Customers registered on the Servify Platform prior to the termination will be serviced by Servify for the duration of the service agreement with them.
    4. In the event of any termination request by Retail Partner, the notice for such termination would be provided for a minimum of 90 calendar days to Servify. Additionally, Servify agrees to provide uninterrupted access to its Servify Platform for another 90 days to Retail Partner at no additional cost for usage or license fee keeping in mind the business continuity of stakeholders under this Agreement. Customers registered on the Servify Platform prior to the termination will be serviced by Servify for the duration of the service agreement with them.
    5. Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a Party may be entitled to under this Agreement or under law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination
  8. GOVERNING LAW AND ARBITRATION 
    1. This Agreement and its performance shall be governed by and construed in all respects in accordance with the Laws of the India. In the event of a dispute or difference (“Dispute”) relating to any of the matters set out in this Agreement, the Parties shall discuss in good faith to resolve the Dispute. In case the Dispute is not settled within 30 (thirty) calendar days, it shall be referred to arbitration in accordance with the Clause 8.b below.
    2. All Disputes that have not been satisfactorily resolved under Clause 7.a above shall be referred to arbitration. The arbitration shall take place in Mumbai. The number of arbitrators shall be three (03), with each side to the dispute being entitled to appoint one (01) arbitrator each. The two (02) arbitrators appointed by the parties shall appoint a third arbitrator who shall act as the chairman of the proceedings. If one of the parties refuses to appoint an arbitrator within 30 days of the date of the other party appointment, the first appointed arbitrator shall be the sole arbitrator, provided the arbitrator was validly and properly appointment. The Courts of competent jurisdiction shall have jurisdiction over any matters that are ancillary to the maintenance, prosecution, and support of the arbitration proceedings mandated hereby, and the Parties hereby submit to the jurisdiction of the said Courts for such matters. The arbitration proceedings shall be conducted in the English language. Subject to Clause 8.c below, the Parties shall equally share the costs of the arbitrator’s fees but shall bear the costs of their own legal counsel engaged for the purposes of the arbitration. The Courts in Mumbai shall have exclusive jurisdiction.
    3. The Panel shall make an award in writing within 60 (sixty) Business Days of the reference of the dispute to arbitration. Such award shall be final and conclusive and binding upon the Parties and non-appealable to the extent permitted by Law.
    4. The Parties further agree that the arbitrators shall also have the power to decide on the costs and reasonable expenses (including reasonable fees of its counsel) incurred in the arbitration and award interest up to the date of the payment of the award.
    5. The provisions of this Clause 9 shall survive the termination of this Agreement.
  9. SEVERABILITY
    The Parties agree that, having regard to all the circumstances, the covenants contained herein are reasonable and necessary for the protection of the Parties. Any provision in this Agreement, which is or may become prohibited or unenforceable in any jurisdiction, shall as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in the same or any other jurisdiction. Without prejudice to the foregoing, the Parties will immediately negotiate in good faith to replace such provision with a proviso, which is not prohibited or unenforceable and has, as far as possible, the same legal and commercial effect as that which it replaces.
  10. ENTIRE AGREEMENT
    This Agreement represents the entire agreement between the Parties in relation to the terms of the matters contained in this Agreement and shall supersede and extinguish any previous drafts, agreements or understandings between all or any of the Parties (whether oral or in written) relating to the subject matter herein and shall include all schedules and amendments executed by the Parties mutually in writing.
  11. AMENDMENTS AND WAIVERS
    Any provision of this Agreement may be amended or waived if, and only if such amendment or waiver is in writing and signed, in the case of an amendment by each of the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective. No waiver by any Party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded, will be cumulative and not alternative.
  12. VALIDITY
    This Agreement shall be valid for a period of one (01) year from the effective date which may further be renewed for such periods on such terms and conditions as may be mutually agreed upon by both the Parties.
  13. CONFIDENTIALITY
    “Confidential Information” means any information disclosed by either Party to the other Party consisting of past, present and future business, financial, technical and commercial information, including but not limited to business concepts, prices and pricing methods, marketing and customer information, financial forecasts and projections, technical data, schematics, analyses, ideas, methods, trade secrets, processes, know-how, computer programs, prototypes, designs, specifications, techniques, and drawings. Confidential Information shall be marked or identified at the time of disclosure as “Confidential” or similar legend. Any oral or visual disclosure of Confidential Information by either Party to the other Party shall be summarized in writing and transmitted to the other Party within ten (10) days of the date of disclosure.Each Party shall hold Confidential Information received from the other Party in confidence and shall not disclose, publish, or disseminate the other Party’s Confidential Information to any third-party. Each Party shall use not less than the same degree of care to prevent disclosure of the other Party’s Confidential Information as it employs with respect to its own confidential information of like importance, and shall disclose the other Party’s Confidential Information only to its employees, consultants, and contractors under the direct supervision of its employees, with a need to know and who have agreed in writing to protect and preserve the confidentiality of such disclosure on terms no less restrictive than those herein.Information disclosed shall not be deemed to be Confidential Information and neither Party shall have any obligation with respect to any such information which: (a) can be demonstrated to have been known to the receiving Party prior to receipt from the disclosing Party; (b) is, or becomes, generally available to the public through no wrongful act of or breach by the receiving Party; (c) is received by the receiving Party from a third-party without similar restrictions and without breach of this Agreement; or (d) is independently developed by the receiving Party without the use of or reference to the Confidential Information disclosed hereunder. The receiving Party shall bear the burden of proof in any dispute regarding the applicability of any exclusion.
    All Confidential Information disclosed pursuant to this Agreement shall be deemed the property of the disclosing Party. Upon the termination or expiration of this Agreement, or at anytime, on ten (10) calendar days written notice, the receiving Party shall, at the disclosing Party’s sole option, either return all Confidential Information in the form of documents and other tangible property provided pursuant to this Agreement, and all copies thereof, or provide the disclosing Party with a written assurance that all such information has been destroyed. The confidentiality obligations of Recipient shall remain in effect for two (2) years following the date of termination or expiration of this Agreement.
    All Confidential Information, including, but not limited to, patents or other intellectual property rights, shall remain the property of the disclosing Party. No license or other rights to Confidential Information, including, without any limitation whatsoever, any invention, discovery, or improvement made, conceived, or acquired, prior to or after the date of this Agreement, is granted or implied by this Agreement. The receiving Party shall not include Confidential Information in any copyright registrations, patent applications, or similar registrations of ownership.
    ALL CONFIDENTIAL INFORMATION DISCLOSED BY EITHER PARTY TO THE OTHER PARTY, EXCEPT INFORMATION DISCLOSED WITHIN THE CONTEXT OF A SPECIFIC COOPERATION WHERE THE INFORMATION IS NECESSARY FOR THE OTHER PARTY TO FULFILL ITS DUTIES UNDER THIS AGREEMENT, IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER, WHETHER EXPRESS, STATUTORY OR IMPLIED, AS TO ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
  14. FORCE MAJEURE
    Neither Party will be in default if its performance is delayed or becomes impossible or impractical by reason of any cause beyond such Party’s reasonable control.
  15. INDEMNITY
    The Parties to this Agreement shall indemnify and hold each other harmless from and against all direct, indirect, incidental or consequential liabilities, demands, losses, costs and actual expenses suffered or incurred by or awarded against either Party in consequence of or arising out of any actions of the other Party that is in breach of its obligations, warranties, representations under this Agreement or are otherwise in violation of the existing laws.
    Further, Parties shall indemnify and shall keep indemnified, hold harmless and undertake to defend other Party and its Affiliates and their respective employees, officers and directors against all “Claims” losses, or damages, including attorneys’ fees and costs including but not limited to any third-party Claims with regard to:

    1. any damages for bodily injury (including death) and damage to real property and tangible personal property in any way arising out of or caused or alleged to have been caused by other Party or any of its representative;
    2. any claim on account of an alleged breach of confidentiality and security of data occurring as a result of acts of omissions or commission of other Party including any misappropriation of property connected to this Agreement;
    3. violation of applicable laws or claims by Government or agencies for fines, penalties, sanctions or other remedies arising from or in connection with other Party’s failure to comply with its Statutory requirements or any damage to other Party on account of misrepresentation or due to breach of conditions of this Contract;
    4. any claim occurring on account of misconduct, negligence or wrongful acts of omission and commission of employees of other Party and
    5. any claim or action by, on behalf of the either Party’s personnel based on his or her employment with the Party, including claims arising under occupational health and safety, worker’s compensation, provident fund or other applicable laws or regulations.
  16. LIMITATION OF LIABILITY
    In no event will either Party be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either Party or any third party, whether in an action in contract or tort, even if the other Party or any other person has been advised of the possibility of such damages
  17. BINDING PROVISIONS
    This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, assigns, and all other successors-in-interest.
  18. MODIFICATIONS
    Except as otherwise provided in this Agreement, no modification to this Agreement will be binding unless in writing and signed by an authorized representative of each Party.
  19. INDEPENDENT CONTRACTORS
    The Parties are independent contracting parties and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture, or employer-employee relationship.
  20. FURTHER ASSURANCES
    Each of the Parties shall, at any time and from time to time upon the written request of the other Party, promptly and duly execute and deliver all such further instruments and documents and do or procure to be done all such acts or things, as may be reasonably deemed necessary or desirable in obtaining the full benefits of this Agreement.
  21. CUMULATIVE RIGHTS
    All remedies of either Party under this Agreement whether provided herein or conferred by statute, civil law, common law, and custom or trade usage, are cumulative and not alternative and may be enforced successively or concurrently as is permissible in law.
  22. SURVIVAL OF PROVISIONS
    Notwithstanding any other provision to the contrary herein, terms which by their nature survive termination or expiration of this Agreement shall bind the Parties following any expiration or termination of this Agreement.

ANNEXURE I – Nokia Protection PLANS

  1. Servify’s responsibilities and obligations:
    1. Servify shall provide Nokia Protection Plan for the Device owned by Eligible Customers as per the terms and conditions applicable to the respective Nokia Protection Plan.
    2. This includes services such as on-boarding of such Eligible Customers on Servify’s technology platform, verification of eligibility, activation of the Nokia Protection Plan, managing the damage claims from those Eligible Customers regarding the Device and associated customer services (collectively “Services”)
    3. Providing access of Servify’s portal and mobile application to the Retail Partner(s)
    4. Providing support related to any relevant queries from the Retail Partner regarding the Nokia Protection Plan and the terms of Nokia Protection Plan
  2. Retail Partner’s responsibilities and obligations:
    1. Retail Partner shall declare all the Nokia Protection Plan sales made to Servify (“Sales Data”) on a daily basis using the authorized tools and means of reporting mandated by Nokia (“Nokia Platform”), for which Nokia Protection Plan or Services are being rendered by Servify, in a format mutually agreed by Parties (containing details of sales such as, IMEI/Serial Number of the Device, Retail Partner location where billed, date of billing, Device name, and such other information);
    2. Retail Partner shall also provide the Nokia Protection Plan data to Servify for delivering its Services in the agreed manner via Servify Platform or via a pre-defined process on a defined schedule.
    3. Retail Partner shall use the Nokia Platform to onboard the customers, in a timely manner, as per the process defined by Servify from time to time.
    4. The Retail Partner will maintain sufficient balance in the wallet for purchase of Nokia Protection Plan. On receipt of payment by Servify, the Nokia Protection Plan will be activated. The payment process flow is detailed in Annexure II
    5. The Retail Partner shall remain liable to deduct and deposit the tax at source under the Income Tax Act, 1961 and to comply with all other related statutory compliances in relation to his operations for performance of his obligations under this Agreement.
    6. The Retail Partner shall be solely responsible for all the costs and expenses incurred/payable by the Retail Partner in connection with performance of its obligations under this Agreement.
    7. Retail Partner agrees to issue proper invoice as per Tax Rules for the Nokia Protection Plan purchased by Eligible Customers. All invoices shall be in writing and stated in INR. Unless otherwise specifically agreed in writing, the Nokia Protection Plan include all the applicable government/state duties and taxes from time to time.