This Third-Party Vendor Agreement (“Agreement”) is made effective and
entered into as of [INSERT DATE] (the “Effective Date”),
A. [INSERT COMPANY NAME], with its registered office at [INSERT
ADDRESS], a company organized and existing under the laws of [INSERT
COMPANY NAME], (hereinafter referred to as the “POTOLO”), which
expression shall, unless repugnant to the context, mean and include
their heirs, administrators, successors, and permitted assigns.
B. [INSERT COMPANY NAME], with its registered office at [INSERT
ADDRESS], a company organized and existing under the laws of [INSERT
COMPANY NAME], (hereinafter referred to as the “Vendor”), which
expression shall, unless repugnant to the context, mean and include
their heirs, administrators, successors, and permitted assigns.
POTOLO and the Vendor are individually referred to as the “Party” and
collectively as the “Parties.”
I. POTOLO operates a mobile application platform ("the Platform") that
provides various services, including, but not limited to, food
ordering, task outsourcing, health consultations, gym memberships,
fleet management, laundry services, and bus ticket sales.
II. POTOLO seeks to expand its service offerings and enhance the user
experience by partnering with third-party vendors to provide
additional goods and services through the Platform.
III. [VENDOR NAME] is engaged in the provision of [NAME OF SERVICE],
respectively, and has expressed interest in partnering with POTOLO to
offer their services to POTOLO's customers.
IV. POTOLO and the Vendor desire to enter into this Agreement to
establish the terms and conditions governing their business
relationship and cooperation in providing services to POTOLO's
customers.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, both Parties mutually agree as follows:
1. DEFINITIONS
In this Agreement, unless the context requires otherwise, the
following expressions shall have the meanings set out below:
1.1. “Agreement” means this Third-Party Vendor Agreement, along with
its schedules, exhibits, and annexures, as may be amended from time to
time.
1.2. “Applicable Laws” mean all central, state, and local laws, rules,
regulations, directives, circulars, notifications, guidelines, and
orders of any kind, including statutory, administrative, and judicial,
which are in effect at the present time or in the future, and which
govern this Agreement. This includes, without limitation to, laws of
the United States (“US”), any state or local laws, and any
international laws, rules, and regulations that may apply to all the
Parties. It also includes any interpretations of these laws by
competent courts or other legal authorities.
1.3. “Confidential Information” includes all information and any idea
in whatever form, tangible or intangible, pertaining in any manner to
the business (and its assets) of the Disclosing Party or any of the
Disclosing Party’s affiliates (if any) or the Disclosing Party’s
employees, independent contractors, clients, consultants, or business
associates, which was produced by any employee, independent
contractor, or consultant of the Disclosing Party in the course of
their employment, engagement, or consulting relationship or otherwise
produced or acquired by or on behalf of the Disclosing Party.
Confidential Information shall broadly include all information that
has or could have commercial value or other utility to the business in
which the Disclosing Party is engaged or contemplates engaging, and
all information of which the unauthorized, unlawful, or illegal
disclosure could be detrimental to the interests of the Disclosing
Party whether such information is identified as Confidential
Information by the Disclosing Party. Proprietary and Confidential
Information shall mean all non-public information, written, oral, or
otherwise, disclosed or made available to the Receiving Party, which
relates to the past, present, and future business activities of the
Disclosing Party and its affiliates (if any). By example and without
limiting the foregoing definition, Confidential Information includes,
but is not limited to, the following in relation to the Disclosing
Party and its affiliate(s) (if any):
1.4. “Effective Date” means the specific date upon which this
Agreement becomes legally binding on both Parties involved. Effective
Date is designated in this Agreement itself and signifies the
commencement of all rights, responsibilities, and obligations as
stipulated therein.
INTERPRETATION
2.1.
The headings and marginal headings to the clauses are for convenience
only and have no legal effect.
2.2.
Any references in this Agreement to any statute or delegated
legislation (including by way of rules, notifications, by-laws,
circulars, guidelines) includes any and all statutory modification or
re-enactment of it or the provision referred to.
2.3.
The words “hereof,” “herein,” “hereby,” and derivative or similar
words refer to this entire Agreement and not to any particular clause,
schedule, or annexure of this Agreement.
2.4.
Words denoting the singular shall include the plural, and words
denoting any gender shall include all genders.
2.5.
References to recitals, clauses, and annexures shall, unless otherwise
repugnant to the context, be deemed to be references to recitals,
clauses, and annexures of this Agreement.
2.6.
Any annexures, schedules, and exhibits form an integral part of this
Agreement.
2.7.
Any reference to “writing” shall include printing, typing,
lithography, transmissions in electronic form (including e-mail), and
other means of reproducing words in visible form but shall exclude
messages via mobile devices and smartphones or messages of a similar
nature.
2.8.
The words “include” and “including” are to be construed without
limitation.
2.9.
Words elsewhere defined shall have the meaning so ascribed.
2.10.
Where a word or a phrase is defined, other parts of speech and
grammatical forms of that word or phrase will have the corresponding
meaning.
SCOPE OF SERVICES
3.1. Description of Services
3.1.1. Food Ordering from Kitchen Partners:
The Vendor, hereinafter referred to as "Kitchen Partner," shall
provide food products and related services through the POTOLO mobile
application platform. The Kitchen Partner shall offer a variety of
food items for purchase by POTOLO customers. This includes but is not
limited to appetizers, main courses, desserts, and beverages. The
Kitchen Partner shall ensure that all food products meet the quality
standards specified by POTOLO and adhere to local health and safety
regulations. Additionally, the Kitchen Partner shall maintain accurate
inventory records and update the availability of food items in
real-time on the Platform.
3.1.2. Access to Gym Facilities with Flexible Membership:
The Vendor, hereinafter referred to as "Gym Facility," shall grant
POTOLO customers access to its gym facilities through the Platform.
The Gym Facility shall provide various membership options, including
daily passes, monthly subscriptions, and annual memberships, allowing
customers to access fitness equipment, classes, and amenities as per
the chosen membership plan. The Gym Facility shall ensure the
cleanliness, maintenance, and safety of its facilities at all times.
Additionally, the Gym Facility shall provide POTOLO with updated
information regarding membership plans, schedules, and any changes to
services offered.
3.1.3. Dry Cleaning Services with Pickup and Delivery:
The Vendor shall offer dry cleaning and laundry services through the
POTOLO Platform. The Vendor shall facilitate the pickup and delivery
of garments from and to POTOLO customers' designated locations. The
Vendor shall ensure the proper handling, cleaning, and packaging of
garments according to industry standards. Additionally, the Vendor
shall maintain a record of orders, provide timely updates on order
status, and address any customer inquiries or concerns regarding the
dry cleaning process.
3.1.4. Fleet Management Services:
The Vendor shall provide fleet management services through the POTOLO
Platform, including, but not limited to, vehicle tracking, route
optimization, maintenance scheduling, and driver management. The
Vendor shall utilize smart solutions and technology to enhance the
efficiency, safety, and reliability of fleet operations, ensuring
timely and cost-effective transportation solutions for POTOLO's
customers.
3.1.5. Worker Hiring Services:
The Vendor shall offer worker hiring services through the POTOLO
Platform, allowing POTOLO's customers to access a pool of qualified
workers for various tasks and projects. The Vendor shall facilitate
the recruitment, screening, and placement of workers based on POTOLO's
customers' specific requirements, ensuring compliance with applicable
labor laws and industry standards.
3.1.6. Health Consultation Services:
The Vendor shall provide health consultation services through the
POTOLO Platform, connecting POTOLO's customers with certified
professionals in various healthcare fields. These professionals may
include, but are not limited to, doctors, nurses, nutritionists, and
therapists. The Vendor shall facilitate remote consultations,
providing expert advice, diagnosis, treatment recommendations, and
support to POTOLO's customers in a convenient and accessible manner.
3.2. Service Standards and Requirements:
The Vendor shall adhere to the following service standards and
requirements:
3.2.1. Compliance:
The Vendor shall comply with all Applicable Laws, regulations, and
industry standards relevant to their respective services.
3.2.2. Quality Assurance:
The Vendor shall maintain high standards of quality in their products
and services, ensuring customer satisfaction and loyalty.
3.2.3. Customer Service:
The Vendor shall provide prompt and courteous customer service to
POTOLO customers, addressing inquiries, complaints, and feedback in a
timely and professional manner. The Vendor shall designate a point of
contact for communication with POTOLO regarding service-related
issues.
3.2.4. Technology Integration:
The Vendor shall integrate their systems with the POTOLO Platform to
facilitate seamless transactions, order management, and communication.
This includes providing necessary APIs, interfaces, or software
solutions for data exchange and synchronization.
4. OPERATIONAL RESPONSIBILITIES
4.1. Vendor Responsibilities
4.1.1. Quality Assurance
The Vendor shall maintain a high standard of quality in the products
and services offered through the POTOLO Platform. The Vendor shall
ensure that all goods and/or services provided by the Vendor meet
the specifications and standards agreed upon with POTOLO in writing.
4.1.2. Compliance with Laws and Regulations
The Vendor shall comply with all Applicable Laws, regulations, and
industry standards governing the provision of its services. This
includes obtaining and maintaining any necessary licenses, permits,
or certifications required for the operation of its business and
ensuring adherence to food safety regulations, health codes, labor
laws, and environmental regulations. The Vendor shall promptly
notify POTOLO of any changes in legal or regulatory requirements
that may impact its ability to fulfill its obligations under this
Agreement.
4.1.3. Staff Training and Conduct
The Vendor shall ensure that its staff members are adequately
trained and qualified to perform their respective duties. This
includes providing ongoing training to staff members on food
handling and safety protocols, customer service standards, equipment
operation and maintenance, and any other relevant areas. The Vendor
shall also ensure that its staff conduct themselves professionally
and ethically while interacting with POTOLO customers and adhere to
POTOLO's code of conduct and policies.
4.2. POTOLO's Responsibilities
4.2.1. Application Maintenance and Support
POTOLO shall be responsible for the maintenance and support of the
POTOLO mobile application platform (the “Platform”). This includes
ensuring the availability, functionality, and security of the
Platform, and addressing any technical issues, bugs, or disruptions
that may arise. POTOLO shall provide regular updates and
enhancements to the Platform, incorporating feedback from users and
the Vendor to improve user experience and optimize performance.
4.2.2. Marketing and Promotion
POTOLO shall undertake marketing and promotional activities to
promote the services offered by the Vendor through the Platform.
This includes, but is not limited to, digital marketing campaigns,
social media promotions, email marketing, and partnerships with
other businesses or organizations to increase awareness and user
engagement. POTOLO shall collaborate with the Vendor to develop
marketing materials and strategies tailored to their respective
services and target demographics.
4.2.3. Payment Processing
POTOLO shall facilitate payment processing for transactions made
through the Platform on behalf of the Vendor. This includes
collecting payments from customers, deducting applicable fees and
commissions, and remitting payments to the Vendor in accordance with
the terms of this Agreement. POTOLO shall employ secure payment
processing methods and ensure compliance with payment card industry
(PCI) data security standards to safeguard customer payment
information. POTOLO shall provide the Vendor with access to
transaction data and reports for reconciliation and accounting
purposes.
5. FINANCIAL ARRANGEMENTS
5.1. Pricing and Payment Terms
5.1.1. Pricing
The pricing for services provided by the Vendor shall be mutually
agreed upon in Annexure A by POTOLO and the Vendor prior to the
commencement of services. Pricing may vary based on factors such as
the type of service, location, and market demand. POTOLO reserves
the right to adjust pricing as necessary, with reasonable notice to
the Vendor.
5.1.2. Payment Terms
Payment terms shall be specified in this Agreement in the Annexure
A. Unless otherwise agreed, POTOLO shall make payments to the Vendor
within a specified period following the completion of services or as
otherwise agreed upon. Payment may be made via electronic transfer,
check, or any other mutually agreed-upon method.
5.2. Revenue Sharing Model
5.2.1. Agreed Upon Percentage
POTOLO and the Vendor may agree upon a revenue-sharing model whereby
the Vendor receives a percentage of the revenue generated from
services provided through the POTOLO Platform. The revenue-sharing
percentage shall be documented in Annexure B and may vary based on
the type of service and other relevant factors.
5.2.2. Calculation of Revenue
Revenue generated from services provided by the Vendor shall be
calculated based on the total sales or transactions facilitated
through the POTOLO Platform, excluding any taxes, fees, or other
charges. POTOLO shall provide the Vendor with periodic reports
detailing the revenue generated and the corresponding revenue share
owed to the Vendor.
5.3. Invoicing and Late Payments
5.3.1. Invoicing
The Vendor shall submit invoices to POTOLO in accordance with the
agreed-upon payment terms and schedule. Invoices shall include
detailed information regarding the services provided, quantities,
prices, and any applicable taxes or fees. POTOLO shall review and
process invoices in a timely manner, making payments as per the
agreed-upon terms.
5.3.2. Late Payments
In the event of late payments by POTOLO, the Vendor shall notify
POTOLO promptly of the overdue payment. POTOLO shall make reasonable
efforts to rectify any payment delays and shall not withhold
payments without valid cause. In the event of persistent late
payments, the Parties shall negotiate in good faith to resolve the
issue and may consider amendments to the payment terms or other
remedies as appropriate.
5.4. Audit Rights
5.4.1. Audit Clause
POTOLO reserves the right to conduct periodic audits of the Vendor's
financial records and operations to ensure compliance with the terms
of this Agreement. Audits may include, but are not limited to,
reviewing invoices, transaction records, and revenue-sharing
calculations. The Vendor shall cooperate fully with any audit
conducted by POTOLO, providing access to relevant records and
personnel as required.
5.4.2. Costs of Audit
POTOLO shall bear the costs associated with conducting audits unless
the audit reveals material discrepancies or violations of the
Agreement attributable to the Vendor, in which case the Vendor shall
reimburse POTOLO for reasonable audit expenses.
6. TERM AND TERMINATION
6.1. Agreement Duration
This Agreement shall commence upon the Effective Date and shall
remain in effect until terminated by either Parties in accordance
with the termination provisions of this Agreement.
6.2. Termination Conditions
6.2.1. Mutual Agreement
Either Party may terminate this Agreement upon mutual written
agreement of both Parties. Such termination shall be effective upon
the date specified in the termination notice, provided that all
obligations under the Agreement have been fulfilled up to the date
of termination.
6.2.2. Breach of Agreement
Either Party may terminate this Agreement in the event of a material
breach by the other Party. A material breach shall include, but is
not limited to, failure to perform obligations under this Agreement,
violation of Applicable Laws or regulations, or any conduct
detrimental to the interests of the other Party. The non-breaching
Party shall provide written notice to the breaching Party specifying
the nature of the breach and allowing a reasonable cure period. If
the breach is not cured within the specified period, the
non-breaching Party may terminate the Agreement with immediate
effect.
6.2.3. Insolvency or Bankruptcy
Either Party may terminate this Agreement immediately upon written
notice in the event that the other Party becomes insolvent, files
for bankruptcy, or undergoes liquidation or receivership
proceedings. Termination under this clause shall not relieve either
Party of any obligations accrued prior to the date of termination.
6.3. Consequences of Termination
Upon termination of this Agreement for any reason: the Vendor shall
cease all activities related to the provision of services through
the POTOLO Platform and shall promptly return any POTOLO property or
materials in its possession. POTOLO shall settle any outstanding
payments owed to the Vendor for services rendered up to the date of
termination, subject to the terms of this Agreement. Both Parties
shall cooperate in good faith to facilitate the orderly transition
of services to an alternate provider or to wind down operations in
an efficient and professional manner. Any provisions of this
Agreement that, by their nature, should survive termination,
including but not limited to confidentiality, indemnification, and
dispute resolution, shall remain in full force and effect.
7. LEGAL AND REGULATORY COMPLIANCE
7.1. 10DLC Compliance for Text Messages and Communications
7.1.1. Customer Opt-In Procedures
POTOLO shall implement robust procedures for obtaining opt-in
consent from customers regarding the receipt of text messages and
communications. Prior to sending any text messages or
communications, POTOLO shall obtain express consent from customers
through clear and conspicuous means, such as through the POTOLO
mobile application or website. Customers shall have the option to
opt-in to receive specific types of communications or to opt-out
entirely from receiving such communications.
7.1.2. Customer Opt-Out Mechanisms
POTOLO shall provide customers with easily accessible and
user-friendly opt-out mechanisms to unsubscribe from receiving text
messages and communications. Opt-out mechanisms shall be clearly
communicated to customers in all communications and shall be
promptly processed upon receipt of opt-out requests. POTOLO shall
maintain updated opt-out lists to ensure compliance with customer
preferences and regulatory requirements.
7.1.3. Record Keeping and Auditing
POTOLO shall maintain detailed records of customer opt-in and
opt-out preferences, including timestamps, consent methods, and any
associated communications. These records shall be securely stored
and made available for audit purposes upon request by regulatory
authorities or third-party auditors. POTOLO shall conduct periodic
audits of its opt-in and opt-out processes to ensure compliance with
10DLC requirements and to address any deficiencies identified.
7.2. Data Protection and Privacy
POTOLO shall implement and maintain robust data protection and
privacy measures to safeguard customer information and comply with
applicable privacy laws and regulations. This includes implementing
industry-standard security controls to protect against unauthorized
access, use, or disclosure of customer data, conducting regular
security assessments and audits, and providing clear and transparent
privacy policies to inform customers about the collection, use, and
sharing of their personal information.
7.3. Intellectual Property Rights
POTOLO and the Vendor shall respect each other's intellectual
property rights and shall not infringe upon or misappropriate the
intellectual property of the other Party. Any use of trademarks,
logos, or other intellectual property owned by POTOLO or the Vendor
shall be subject to prior written authorization and shall be used in
accordance with Applicable Laws and industry standards. POTOLO shall
retain ownership of all intellectual property associated with the
POTOLO Platform, including, but not limited to, software, designs,
and branding elements.
8. CONFIDENTIALITY
8.1. Obligation to Maintain Confidentiality
Both Parties understand and agree that the Confidential Information
is a valuable, special, sensitive, and unique asset of the Party who
discloses the Confidential Information to the other Party (the
“Disclosing Party”), and the disclosure, reveal, use, or
dissemination of the Confidential Information, other than as
specifically authorized by this Agreement, by the Party who receives
the Confidential Information from the Disclosing Party (the
“Receiving Party”) would cause irreparable harm and loss to the
Disclosing Party. The Receiving Party shall hold all Confidential
Information in strict confidence and shall not disclose, reveal,
disseminate, or use any Confidential Information for any purpose
other than the performance of obligations and duties under this
Agreement, without the prior express written consent of the
Disclosing Party. The Receiving Party also agrees not to disclose,
reveal, use, or disseminate any Confidential Information to any
third party, including individuals, entities, or organizations,
without the prior express written consent of the Disclosing Party,
except as required by the Applicable Laws. The Receiving Party shall
take all necessary precautions and care to prevent the unauthorized,
unlawful, and illegal use, disclosure, or dissemination of the
Confidential Information.
8.2. No Obligation for Disclosure
Subject to the terms, conditions, and obligations of this Agreement,
the Receiving Party acknowledges and agrees that this Agreement does
not constitute any obligation or compulsion on the part of the
Disclosing Party to disclose or share any of its Confidential
Information. The extent and nature of the Confidential Information
that the Disclosing Party chooses to share, if at all, remains
entirely within the Disclosing Party’s absolute and sole discretion,
subject to the terms, conditions, and obligations as outlined in
this Agreement. Notwithstanding the above, the Receiving Party
agrees that its obligations to maintain the confidentiality and
non-use of Confidential Information, as stipulated in this
Agreement, shall remain unaffected by the disclosure or
non-disclosure of Confidential Information or the continuation or
discontinuation of any transaction or relationship between both
Parties.
8.3. Permitted Disclosure
The Receiving Party may disclose, reveal, use, or disseminate the
Confidential Information: to the extent necessary to perform duties
and responsibilities under this Agreement, provided that the
Receiving Party shall take all reasonable steps to ensure that the
Confidential Information is protected against unauthorized,
unlawful, and illegal disclosure, reveal, use, or dissemination; and
to the Receiving Party’s legal and financial advisors who need to
know the Confidential Information for the purpose of providing legal
and financial advice to the Receiving Party, provided that such
advisors are bound by confidentiality obligations substantially
similar to those contained in this Agreement.
8.4. Duty of Care
The Receiving Party shall exercise the same degree of care, but no
less than a reasonable degree of care, in protecting the
Confidential Information as the Receiving Party would in protecting
its own Confidential Information and proprietary information of a
similar nature. The Receiving Party shall take appropriate measures
to maintain the confidentiality, integrity, and security of the
Confidential Information, including implementing reasonable
safeguards and complying with any security protocols or guidelines
provided by the Disclosing Party.
8.5. Exceptions to Confidentiality
The obligations of the Receiving Party under this Agreement do not
extend to information that: was in the public domain at the time it
was disclosed by the Disclosing Party or has entered the public
domain through no fault of the Receiving Party; was known to the
Receiving Party, without restriction, at the time of disclosure, as
demonstrated by files in existence at the time of disclosure; is
disclosed with the prior express written consent of the Disclosing
Party; becomes known to the Receiving Party, without restriction,
from a source other than the Disclosing Party, without breach of
this Agreement by the Receiving Party and otherwise not in violation
of the Disclosing Party’s rights; or is required to be disclosed by
law, regulation, or order of a court of competent jurisdiction,
provided that the Receiving Party gives the Disclosing Party
reasonable prior written notice of such required disclosure and
cooperates with the Disclosing Party, at the Disclosing Party’s
cost, in any lawful action to contest or limit the scope of such
required disclosure.
8.6. Ownership of Confidential Information
All Confidential Information, whether prepared by the Receiving
Party or otherwise coming into the Receiving Party’s possession,
shall remain the exclusive property of the Disclosing Party and
shall not be removed from the Disclosing Party’s premises without
the prior express written consent of the Disclosing Party, except in
the furtherance of the Receiving Party duties and obligations under
this Agreement.
8.7. Return or Destruction of Confidential Information
Upon termination of this Agreement for any reason, the Receiving
Party shall: immediately cease to use the Confidential Information;
return to the Disclosing Party, or at the Disclosing Party’s option,
destroy, all documents, materials, and other property of the
Disclosing Party in the Receiving Party’s possession or control that
contain or reflect any Confidential Information; and provide a
written certification to the Disclosing Party that the Receiving
Party has fully complied with the obligations under this clause.
9. LIABILITY AND INDEMNIFICATION
9.1. Limitations of Liability: To the maximum
extent permitted by Applicable Laws, neither Party shall be liable
to the other for any indirect, incidental, consequential, special,
or punitive damages arising out of or relating to this Agreement,
including, but not limited to, lost profits, lost revenue, loss of
data, or business interruption. Each Party's total liability to
the other Party under this Agreement shall be limited to the total
amount paid or payable by POTOLO to the Vendor under this
Agreement during the twelve (12) month period preceding the event
giving rise to the liability.
9.2. Indemnification by Vendor: The Vendor shall
indemnify, defend, and hold harmless POTOLO, its officers,
directors, employees, and agents from and against any and all
claims, damages, liabilities, losses, costs, and expenses
(including reasonable attorneys' fees) arising out of or related
to:
- (a) any breach of this Agreement by the Vendor;
-
(b) any negligence, willful misconduct, or fraudulent acts of
the Vendor or its employees or agents;
-
(c) any claims by third parties arising from or related to the
Vendor's products or services provided through the POTOLO
Platform; and
-
(d) any violation of Applicable Laws or regulations by the
Vendor.
POTOLO shall promptly notify the Vendor in writing of any claim
subject to indemnification hereunder. POTOLO shall have the right
to control the defense and settlement of any such claim.
10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1. Governing Law: This Agreement and the
rights of the Parties hereunder shall be governed by and construed
in accordance with the laws of the US, exclusive of conflict or
choice of law rules. Both Parties agree that the laws of the US,
without regard to principles of conflict of laws, shall govern
this Agreement and any dispute of any sort that might arise
between both Parties. The courts in the [INSERT STATE NAME], US
shall have exclusive jurisdiction over any of the disputes arising
out of or in relation to or in connection with this Agreement.
10.2. Dispute Resolution: In the event of any
dispute, controversy, or claim arising out of or in relation to or
in connection with this Agreement or its breach, termination, or
validity thereof, both Parties shall follow the dispute resolution
procedure set forth below:
-
10.2.1. Mutual Negotiations: Both Parties shall
first engage in bona fide mutual and amicable negotiations with
respect to the dispute, controversy, or claim to resolve the
dispute informally.
-
10.2.2. Mediation: If the Parties are unable to
resolve the dispute informally within thirty (30) days of
initiating mutual negotiations, then either Party may initiate
mediation proceedings by providing a written notice to the other
Party. Both Parties shall then engage in mediation within thirty
(30) days from the date of receipt of the written notice, using
a mediator selected by mutual agreement or by a mediator
appointed by a court of competent jurisdiction as per the
Applicable Laws. Both Parties shall also mutually decide the
rules and procedure for the mediation proceedings in writing
unless institutional mediation is selected by both Parties in
writing, wherein the mediation shall be governed by the rules
and procedure of the mutually selected mediation institution.
-
10.2.3. Arbitration: If the Parties are unable
to resolve the dispute through mediation within thirty (30) days
from the date of initiating mediation, then either Party may
initiate arbitration by providing a written notice to the other
Party as per the Applicable Laws. The arbitration shall be
conducted in accordance with the rules and procedures as may be
mutually determined by the Parties in writing. The seat and
venue for arbitration shall be the [INSERT STATE NAME], US. The
arbitration shall be conducted by a sole arbitrator mutually
selected and appointed by both Parties. In case the Parties fail
to appoint an arbitrator, they may request the competent court
to appoint a suitable arbitrator under the Applicable Laws. The
arbitration shall be conducted in English language only. The
decision of the arbitrator shall be final and binding on both
Parties. In the event that a Party fails to proceed with
arbitration, unsuccessfully challenges the arbitrator’s award,
or fails to comply with the arbitrator’s award, the other Party
is entitled to recover the costs associated with enforcing or
defending this award. This includes, but is not limited to,
reasonable attorney’s fees, court costs, and necessary
disbursements in addition to any other relief to which the Party
may be entitled.
11. MISCELLANEOUS
11.1. Force Majeure: Neither Party shall be
deemed in default or otherwise responsible for any delay or
failure in performance under this Agreement to the extent that
such delay or failure is attributable to any event or circumstance
beyond their reasonable control, including, but not limited to,
pandemics, epidemics, acts of God, war, riot, embargoes, acts of
civil or military authorities, fire, floods, accidents, strikes,
or shortages of transportation facilities, fuel, energy, labor, or
materials (a “Force Majeure Event”). Upon the occurrence of a
Force Majeure Event, the affected Party shall notify the other
Party of such an event in writing and its impact on its ability to
perform its obligations under this Agreement. The affected Party
shall use reasonable efforts to mitigate the effects of the Force
Majeure Event and resume performance under this Agreement as soon
as reasonably practicable. If such Force Majeure Event continues
for a period exceeding sixty (60) days, either Party may terminate
this Agreement upon written notice to the other Party. During the
pendency of any Force Majeure Event, the performance of the
affected Party’s obligations, to the extent affected by such Force
Majeure Event, shall be suspended, and any timelines or deadlines
set forth in this Agreement shall be extended accordingly as per
mutual written agreement between both Parties.
11.2. Severability: If any provision of this
Agreement is held by a court of competent jurisdiction to be
invalid, illegal, or unenforceable in any respect, such provision
shall be modified, rewritten, or interpreted to include as much of
its nature and scope as will render it enforceable. If the court
finds the said provision cannot be modified, rewritten, or
interpreted to become enforceable, the said provision shall be
severed from this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect as if such
provision was not included. In the event such an invalid, illegal,
or unenforceable provision is an essential part of this Agreement,
both Parties shall immediately commence good faith negotiations to
replace such provision with a mutually acceptable provision that,
to the greatest extent possible under Applicable Laws, achieves
the same economic, legal, and other benefits as the severed
provision. This clause shall be applied and construed both with
respect to this Agreement taken as a whole, and with respect to
the parts and sub-parts of this Agreement taken separately.
11.3. Assignment: No Party shall assign in whole
or in part its rights or obligations under this Agreement without
the prior written consent of the other Party. In case of such
assignment, it shall be binding on and inure to the benefit of the
respective successors of the Parties thereto.
11.4. Waiver: No forbearance, failure, delay, or
negligence in exercising any power, right, or privilege under this
Agreement by any Party shall constitute a waiver thereof. Any
single or partial exercise of any right, power, or privilege under
this Agreement by any Party shall not preclude any other or future
exercise thereof or the exercise of any other right, power, or
privilege. Waiver by any Party of a breach or violation of any
provision of this Agreement shall not constitute a waiver of any
subsequent breach, default, or violation. Any waiver, permit,
consent, or approval of any kind under this Agreement must be made
explicitly in writing and shall be valid only to the extent of its
express terms and conditions.
11.5. Amendments: Any amendment, modification, or
waiver of any provision of this Agreement, or any consent to any
departure therefrom, shall be effective only if it is in writing
and signed by both Parties.
11.6. Entire Agreement: This Agreement
constitutes the full and complete understanding and contractual
agreement between both Parties, superseding all prior or
contemporaneous oral or written communications, proposals,
agreements, understandings, or representations about the subject
matter herein. All prior understandings, discussions,
negotiations, and agreements, whether oral or written, are merged
herein.
11.7. Notices: All notices, requests, demands,
and other communications that are required or may be given under
this Agreement shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by facsimile
transmission, by telex, by registered mail, by fax or by
electronic mail, to the respective Parties. Notice shall be deemed
given: if delivered personally, upon receipt; if sent by telex,
upon confirmation of receipt; if sent by registered mail, within
three (3) days of depositing in the mail; if sent by fax or
electronic mail, upon electronic confirmation of receipt; or if
posted on the other Party's last known residence, the next
business day after posting. A notice is deemed to be received if
it is delivered personally, when it is delivered; if sent by
telex, on the third business day after posting; if sent by
registered mail, on the date of signature of the courier’s receipt
or if sent by e-mail or fax, at the time of transmission, provided
that no “out of office,” “delivery failure,” or “not read” message
relating to such e-mail is received by the sender within one (1)
hour of transmission.
11.8. Counterparts and Execution: This Agreement
may be signed in two or more counterpart originals, each of which
shall constitute an original document and will be deemed fully
executed when both Parties have affixed authorized signatures,
whether or not on a single page. All the Parties agree that this
Agreement may be executed and delivered by facsimile, e-mail,
electronically transmitted Portable Document Format (“PDF”), or
any other electronic means, method, and/or mode of transmission as
mutually agreed between both Parties in writing, in accordance
with the Applicable Laws. Both Parties hereby agree and
acknowledge that electronic signatures shall be considered as
valid, legal, and binding as traditional and original handwritten
signatures to the extent permitted by the Applicable Laws.
11.9. Review by Legal Counsel: By signing this
Agreement, both Parties agree that they have had sufficient
opportunity to review the terms and conditions of this Agreement
with their legal counsel and agree to abide by this Agreement.
11.10. Acknowledgment and Acceptance: Both
Parties acknowledge and accept that they have carefully read this
Agreement, understood its terms and conditions, had an opportunity
to consult with legal counsel of their choice, have considered the
restrictions contained in this Agreement and their impact on their
future activities, and agree that the restrictions contained in
this Agreement are fair, reasonable, and are required for the
protection of the legitimate business interests of both Parties.
IN WITNESS WHEREOF, both Parties have caused this
Agreement to be executed by their respective, fully authorized
representatives as of the Effective Date.
SIGNED AND DELIVERED by the within named POTOLO,
i.e., [●], through its Authorized Signatory [●], in the presence
of [●]
1. [Signature]
2. [Signature]
SIGNED AND DELIVERED by the within named Vendor,
i.e., [●], through its Authorized Signatory [●], in the presence
of [●]
1. [Signature]
2. [Signature]