CLASSPLUS PARTNER AGREEMENT
This Classplus Partner Agreement (the “Agreement”) is entered on this [] day of August 2020 (“Effective Date”) at [] by and between:
[[], a Company registered under the provisions of the Companies Act, [] and having its registered office at [] (hereinafter referred to as the “Classplus Partner”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its successors, permitted assigns, representatives) of the First Part;
OR
[], son of/ daughter of [], resident of [], (hereinafter referred to as the “Classplus Partner”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to include his/ her successors, heirs and representatives) of the First Part;]
AND
Bunch Microtechnologies Private Limited, a company incorporated under the provisions of the Companies Act, 2013, having its registered office at WZ-235, B-2, Plot No. 150, Hastal Village, Uttam Nagar, Delhi, West Delhi – 110 059 (hereinafter referred to as the “Company”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its successors, representatives and assigns) of the Second Part.
The ‘Classplus Partner’ and the ‘Company’ shall hereinafter be individually referred to as a “Party”and collectively as “Parties”.
WHEREAS:
A.
The Company is a technology-based company facilitating educators in delivering quality education and enables students and parents to access quality education using its technology product.
B.
The Company owns and operates a platform styled and known as ‘Classplus’ through the website web.classplusapp.com and mobile application – Classplus and other associated/ ancillary applications, products, websites and services (hereinafter collectively referred to as “Classplus”) offering content creators, distributors, publishers, coaching institutes, tutors, parents, students access to provide quality education and intends to develop a network of Partner/ channel/ associate/ preferred partners.
C.
The Classplus Partner has made representations to the Company that it/he/she possesses requisite expertise and has extensive and close contacts/business relations with various business/ commercial establishments and wishes to use its/his/her business contacts/ relations together with its resources, infrastructure, expertise and personnel to refer Lead(s) to the Company resulting into actual sale of the Product (defined below) by the Company.
D.
The Company desires to appoint the Classplus Partner to be a non-exclusive referral partner of the Company within the territory of India (“Territory”) and the Classplus Partner, subject to the terms and conditions of this Agreement, has agreed to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, (the receipt and adequacy of which are hereby mutually acknowledged), and intending to be legally bound, the parties hereto agree as follows:
1.
DEFINITIONS
“Confidential Information” shall mean all information whether written or oral or visual or electronic relating to the Company’s business and operations and processes and shall include but not be limited to, any information which is not publicly known including the business, finances, technology (including the Product and the Documentation), trade secrets, Company’s operations, data, assets, documents and correspondence received from the Company and any other commercially sensitive information of Company regardless of the nature, together with all copies which is directly or indirectly disclosed to the Classplus Partner by the Company;
“Customer” shall mean a Person who enters into a binding arrangement with the Company to Purchase the Product and pay the fees/ consideration in full to the Company;
“Documentation” shall mean any training manuals, user manuals, operating instructions, reports or other documents provided by the Company to the Classplus Partner, in any form or medium, as may be updated from time to time by the Company;
“Intellectual Property Rights” shall mean all the present and future intellectual property rights, howsoever arising and in whatever media, whether or not registered, including trade secrets, technical data, proprietary data, technical analyses, algorithms, software and computer programs (including source code and/ or object code), know-how and all derivations, developments or representations of such material including (without limitation) copyright, patents, trademarks, service marks, tradenames, designs, design rights and other similar proprietary rights and intellectual property rights or any other rights to any applications for the protection or registration of these rights and all the renewals and extension thereof throughout the world;
“Lead” shall mean a potential or a prospective customer identified by the Classplus Partner with whom the Company does not have a pre-existing relationship;
“Person” shall mean any natural person, individual, firm, limited liability partnership, company, association of persons, partnership, unincorporated organization or other entity (whether or not having separate legal personality); and
“Product” shall mean the white labelled mobile application of an end user, including any modification, improvements, alterations, updates or changes performed of any kind on the said application.
2.
SCOPE OF APPOINTMENT
Subject to the terms and conditions of this Agreement, the Company hereby appoints the Classplus Partner on a non-exclusive basis for referring Lead(s) to the Company for the sale of the Product. The Classplus Partner further agrees and acknowledges that such appointment is on non-exclusive basis and that the leads for the Product may be generated and referred to the Company by other Classplus partners, associate partners, channel partners, preferred partners, sales representatives, or agents of the Company within the Territory or otherwise. Notwithstanding the foregoing, once a Lead by the Classplus Partner has been referred to the Company, the same shall not referred to a competitor of the Company.
3.
PROCESS AND PAYMENT OF REWARDS
3.1
The Partner shall immediately communicate, the details relating to a Lead to the Company via the designated channel manager either by email or by filling in the google form.
3.2
Pursuant to receipt of all relevant details of the Lead, the Company’s sales team shall arrange a demo of the Product to such Lead. Provided however, the Company may, in its sole discretion and without any liability to the Classplus Partner reject any Lead, that the Company is of the view that it violates the terms of this Agreement and/or any applicable law.
3.3
The Parties further agree and acknowledge that the Partner shall (a) ensure accuracy of the details of the Lead; (b) provide the Company with all information necessary to enable the Company to convert the Lead into a sale.
3.4
The Company agrees to pay the Classplus Partner the rewards on revenue sharing basis (i.e. after the payment has been received or realised by the Company from the Customer), in the manner specified hereinbelow. All payments are subject to deduction of all applicable taxes and payable either on the 5th day or the 15th day of the following month after receipt of Classplus Partner’s invoice.
| Types of sales | Number of Conversions | Revenue Share(Flat) |
|---|
| Fresh acquisition of new Customer for ‘Starter Package’ (or higher) or any other package that the Company sees fit and has communicated about the same. | Every Block of 3 Conversions | INR 10,000/- per block of 3 conversions |
3.5
It is clarified that in the event the Customer claims the refund or cancels the subscription within a period of 6 (six) months of the purchase date, the rewards paid to the Classplus Partner for referral of the Lead to be adjusted by the Company from the next month pay-out to the Partner.
3.6
The Classplus Partner acknowledges and agrees that no rewards shall be payable to the Classplus Partner for referral of a Lead, with whom the Company has existing business relationship, or a contact was independently established by the Company with such Lead whether directly or indirectly.
4.
DUTIES AND RESPONSIBLITIES
4.1
The Classplus Partner undertakes (a) to obtain and keep valid all licenses, permissions, registrations and other approvals necessary under applicable law for performance of Classplus Partner’s obligations under this Agreement; (b) to comply with policies and procedures of the Company, as communicated by the Company to the Classplus Partner from time to time; (c) to perform its obligations as set out herein in compliance with all applicable laws in the Territory and the instructions of the Company, including but not limited to sale, marketing, price etc.; (d) to not make or give any representations, warranties or other promises concerning the Product beyond those contained in the applicable, and then current, conditions of sale without the prior written consent of the Company; (e) to notify the Company immediately upon receipt of any complaints by Classplus Partner regarding the Product including Customers feedback on the Product; (f) to not incur any liabilities on behalf of the Company nor pledge the credit of the Company in any manner whatsoever; (g) to describe the Classplus Partner in all dealings with the Product and in all associated advertising and promotional material and (if any description is provided there) at its premises, as “classplus partner” of the Company; (h) to not, without prior reference to the Company (and then only acting strictly on the Company’s express written instructions) on behalf of the Company, to take part in any dispute or commence or defend any court or other disputes proceedings or settle or attempt to settle or make any admission concerning any such proceedings on the Company’s behalf, relating to the Product; (i) to immediately inform the Company of any change in its organisation or method of doing business; (j) to transact for all its requirements for the Product from the Company only and shall not market and/ or distribute and/ or sell any products of other companies operating in the same line of business in the Territory; (k) to not appoint any sub-partners or delegate the Classplus Partner’s rights and obligations contained in this Agreement to an Partner or a third Person.
4.2
The Parties further agree and acknowledge that the Classplus Partner shall (a) avoid and at all times refrain from applying any deceptive, misleading or unethical practices, that are or may be detrimental to the Company or the Product, including false or misleading representations or commitment with regard to the Company or the Product; (b) carry out all its obligations under this Agreement using its own resources and staff and at no other cost except the payment of rewards as agreed; (c) keep and make available to the Company on reasonable notice such information as requested including the true and accurate records that truly reflect all particulars relating to the Agreement and the activities performed by it.
4.3
The Classplus Partner agrees that it shall not make any representations or warranties concerning prices, terms of delivery, specifications, features, performance of the Product that are inconsistent with the Documentation, terms of payment, or conditions of sales except to the extent such authorisations are authorised in writing by the Company.
4.4
The Classplus Partner shall be solely responsible for its resources/ employees’ compliance with this Agreement, including all restrictions.
5.
REPRESENTATION AND WARRANTIES
The Classplus Partner hereby represents and warrants to the Company that (a) it/ he has full power, capacity and authority to accept and perform the terms and conditions provided under this Agreement and has taken necessary action (corporate, statutory, contractual or otherwise) to authorize the execution and performance of this Agreement; (b) this Agreement constitutes a legal, valid and binding obligation, enforceable against it/ him; and (c) there are no legal, quasi- judicial, administrative, arbitration, mediation, conciliation or other proceedings, claim, actions, investigations, orders, judgments or decrees of any nature made, existing or pending or, threatened or anticipated against it/ him, which may prejudicially affect the due performance or enforceability of this Agreement or any obligation, act, omission or transactions contemplated hereunder.
6.
PROMOTION AND ADVERTISING
The Classplus Partner shall use commercially reasonable efforts to promote the sale, marketing, promotion, advertising, generation of leads for the Product in order to conclude the maximum sales of the Product in the Territory. The Classplus Partner shall be solely responsible for all the costs and expenses related to the marketing, advertising, promotion, and generation of leads for the Product and for performing its/ his obligations hereunder.
7.
INTELLECTUAL PROPERTY RIGHTS
The Company shall be the sole owner of any Intellectual Property that have been developed or derived in connection with Classplus and/ or the Product, whether now or anytime in future and the Classplus Partner acknowledge that it shall have no claims or ownership rights whatsoever over the same at any point of time.
8.
CONFIDENTIALITY
8.1
During the Term and for a period of 5 (five) years thereafter, the Classplus Partner undertakes to treat as confidential and keep secret all Confidential Information provided by the Company with the same degree of care as it employs with regard to its own Confidential Information of a like nature and in any event in accordance with best current commercial security practices.
8.2
The Classplus Partner acknowledges that all material and information supplied by the Company which has or will come into the Classplus Partner’s possession or knowledge in connection with its performance hereunder, is to be considered the Company’s Confidential Information. The ClassPlus Partner’s obligations under this clause will not apply, to any Confidential Information which: (i) is or becomes generally known to the public through no action or omission on ClassPlus Partner’s part, (ii) is generally disclosed to third parties by the Company without restriction on such third parties, or (iii) is approved for release by written authorization of the Company.
8.3
The Classplus Partner acknowledges that Confidential Information is the sole property of the Company. The ClassPlus Partner agrees that disclosure of such information to, or use by, third parties, either during or after this Agreement, will cause the Company irreparable damage. The Classplus Partner agrees to use best efforts to hold Confidential Information in the strictest confidence not to divulge any part of the Company’s Confidential Information to any person except for the performance of its obligations hereunder, to release it only to the Classplus Partner’s resources/ employees’ strictly on need to know basis.
8.4
The Classplus Partner further agrees not to release the Confidential Information to any resource/ employee who has not signed a written confidentiality agreement with the ClassPlus Partner.
8.5
The Classplus Partner will notify the Company in writing of any circumstances within its knowledge relating to any unauthorized possession, use, or knowledge of or if he becomes aware of any breach of confidence by any person who divulges all or any part of such Confidential Information. Further, it shall also give the Company all the reasonable assistance in connection with any proceedings which may be instituted against such person for breach of confidence.
9.
INDEMNIFICATION
Without prejudice to any other rights available to the Company under applicable laws (including specific performance) or equity, the Classplus Partner hereby agrees to protect, defend and indemnify and hold the Company and its officers, directors, partners, employees, agents, investors and representatives harmless from and against any and all claims, damages, costs and expenses, including attorneys’ fees, to the fullest extent, arising from or related to, directly or indirectly, in whole or in part: (i) any breach or default of any obligations, undertakings, duties and responsibilities, representation and warranties on its part under this Agreement; or (ii) any negligent act or misconduct or omission, default breach of any statutory obligations of the Classplus Partner or its employees, successors, representatives, assigns; or (iii) any liability arising out of Classplus Partner’s lead generation activities. This Clause 9 shall survive termination of this Agreement.
10.
LIMITATION OF LIABLITY
In no event, shall the Company be liable to the ClassPlus Partner or any other person or entity for any indirect, incidental, special, punitive, or consequential damages, including loss of profits, incurred by the Classplus Partner or any third party, whether in an action in contract or breach of warranty, even if the Classplus Partner or any other person has been advised of the possibility of the happening of such damages.
11.
TERM, TERMINATION AND CONSEQUENCE
11.1
This Agreement shall come into effect from the Effective Date and shall remain valid for a period of 2 (two) years from the Effective Date (“Term”). Subject to the performance of the Classplus Partner in the relevant market within the Territory, the Term of the Agreement may be renewed for such period as mutually acceptable by the Parties, 30 (thirty) days prior to the expiry on such expiry of the Term on such terms and conditions as mutually agreed upon at the time of such renewal.
11.2
The Company may at its convenience terminate this Agreement by serving a 30 (thirty) days written notice to the ClassPlus Partner. Further, the Company reserves the right to terminate this Agreement without any notice in the following events: (i) in the event the Classplus Partner generates leads for the competitors, markets and/ or distributes any competing range/ line of products; or (ii) in the event the Classplus Partner is not actively performing the activities under this Agreement or has failed to generate any Lead(s) in a reasonable period of time as determined by the Company in its sole discretion; or (iii) in case of Classplus Partner’s failure to protect the Confidential Information and Intellectual Property; or (iv) in the event the Classplus Partner breach any of the terms of this Agreement and such breach is not cured within a period of 15 (fifteen) days from the receipt of notice from the Company to cure the said breach.
11.3
On the expiry of the Term or upon early termination as provided above the Classplus Partner undertake to give all the particulars as may be required by the Company for the purpose of closure of the transactions initiated or pending under this Agreement and return all marketing and promotional material including the Documentation.
12.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of India, subject to Clause 13 (Dispute Resolution), the courts at New Delhi, India shall have exclusive jurisdiction with respect to any dispute arising between the Parties.
13.
DISPUTE RESOLUTION
In the event of any dispute between the Parties arising in connection with this Agreement (“Dispute”), the Parties shall use all reasonable endeavours to negotiate with a view to resolving the Dispute amicably. If the Parties are unable to resolve the Dispute amicably within 30 (thirty) days from the date of receipt of notice detailing the dispute by a Party, the Parties shall refer the Dispute to arbitration and the Dispute shall be finally settled by arbitration under the Arbitration and Conciliation Act, 1996. The Parties shall jointly appoint sole arbitrator and in the event the Parties fail to mutually appoint a sole arbitrator, such sole arbitrator shall be appointed in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The venue of arbitration shall be New Delhi, India and the language of arbitration shall be English. The award of the arbitrator shall be final and binding on the Parties.
14.
NOTICES
Any notice or other communication required to be given under this Agreement shall be in writing and shall be addressed to the details as provided herein below.
| In the case of notice to the Classplus Partner: | In the case of notice to the Company: |
|---|
| Name: | Name: |
| Designation: | Designation: |
| Address: | Address: |
| Email: | Email: |
15.
INDEPENDENT CONTRACTOR
The Company and the Classplus Partner are independent contractors. Neither Party is an employee, agent or representative of the other Party. Neither Party shall have the right, authority to enter into any agreement for and on behalf of the other Party, or to incur any obligation or liability or otherwise bind the other Party. This Agreement do not create a joint venture or partnership between the Parties nor impose any partnership liability upon either Party.
16.
NON-COMPETE AND NON-SOLICIT
16.1
In consideration of the commission payable to the Classplus Partner and the mutual covenants contained herein, the suffice of which the Classplus Partner shall not call into question in the future, during the Term, the Classplus Partner shall not, directly or indirectly, generate leads for any competitor of the Company in the Territory.
16.2
The Classplus Partner hereby further covenants and agrees that during the Term and for a period of 2 (two) years following the expiry or termination of this Agreement, the ClassPlus Partner shall not, for whatever reason, either individually or in partnership or jointly or in conjunction with any Person as principal, agent, employee, shareholder, investor, partner or in any other manner whatsoever, carry on or be engaged in or be concerned with or interested in, or advise, invest, lend money to, guarantee the debts or obligations or permit its name or any part thereof to be used or employed by any Person engaged in or concerned with or interested in the business of developing any product similar to or competitive with the Product.
16.3
During the Term of this Agreement and for a period of 2 (two) years thereafter, the Classplus Partner agrees that it/ he shall not solicit for hire, or hire or advice or assist others with the opportunity to do the same, any employee of the Company.
17.
WAIVER
The failure, with or without intent, of any Party hereto to insist upon the performance by the other Party, of any term or stipulation of this Agreement, shall not be treated as, or be deemed to constitute, a modification of any terms or stipulations of this Agreement. Nor shall such failure or election be deemed to constitute a waiver of the right of such Party, at any time whatsoever thereafter, to insist upon performance by the other, strictly in accordance with any terms or provisions hereof.
18.
SEVERABILITY
If any provision of this Agreement be declared illegal or unenforceable, the Parties hereto will co- operate in ways open to them to obtain substantially the same result or as much thereof as may be possible, including taking appropriate steps to amend, modify or alter this Agreement.
19.
ASSIGNMENT
The Classplus Partner shall not assign or transfer any of its rights, benefit, or interest in this Agreement without the Company’s prior written consent.
20.
COUNTERPARTS
This Agreement shall be executed in two counterparts one each to be retained by the respective parties. Each counterpart shall be treated as an original and shall be capable of being enforced without reliance on the other counterparts as an original document.