Last Updated: Jan 23,2020:
This Agreement (“Agreement”) is hereby made and entered into on the Date of acceptance and acknowledgment of an electronic Estimate and subsequent payment of considerations against the Commencement Invoice by You (“Effective Date”) by and between:
Muellner Internet Private Limited (hereinafter referred to as "Muellners " which term shall include its successors and heirs) of the First Part;
And You, an individual or your proposed early stage startup company to be incorporated under the laws of India, (hereinafter You referred to as the “Founder” and your proposed early stage startup as ‘Startup’) of the Second Part;
The Muellners and the Founder are each hereinafter referred to as a “Party” and collectively, as the “Parties”.
1. The Founder desires to procure and the Muellners has agreed to provide certain startup development consultancy and advisory services.
2. This Agreement sets forth the terms and conditions applicable to the provision of the consultancy services by the Muellners.
NOW THEREFORE, in consideration of the mutual agreements and covenants hereafter set forth, the Parties hereto agree as follows:
1. Services: The Muellners agrees to provide certain consultancy and advisory services (“Services”) to the Founder in accordance with the terms set out in this Agreement and the consideration for the same shall be as set forth under Clause 3. The Services shall include advisory, mentorship and strategic advice for the growth of the Founder and his/her proposed Startup and to assist the Founder in developing Startup’s business strategy.
2. Term: This Agreement shall come into force on the Effective Date and shall continue to be valid for 3 (three) months (“Term”) unless terminated earlier in accordance with this Agreement.
3. Payment Terms: In consideration for the Services provided, the Muellners representative in India shall be issued and allotted an amount of equity and voting shares of the Founder’s proposed Startup company of a minimum face value of Rs. 10 each (“Advisory Equity”) in accordance with the issued Estimate. The Muellners hereby acknowledges that:
(a) the Advisory Equity constitutes partial consideration for the Services provided hereunder; and
(b) there shall be a monetary consideration payable by the Founder for the Services provided hereunder as mentioned in the issued Estimate and Invoice.
The consideration is exclusive of all taxes under applicable law. The Founder or the Startup shall be responsible for payment of all applicable taxes for the Services rendered by Muellners hereunder.
The Parties shall enter into a separate shareholder’s agreement governed by Company’s Act, India to agree upon the terms and conditions attached to the Advisory Equity and in respect of all other actions or deeds required to be done by either Party to give effect to this Clause 3.
4. Intellectual Property Rights: The Deliverables shall be deemed to be ‘work for hire’ and all Intellectual Property Rights therein shall vest solely with the Startup company upon creation. To the extent that any right, title or interest in the Deliverables is not vested with the Startup Company by operation of law or by contract, Muellners hereby irrevocably and perpetually assigns, transfers and conveys, to the Founder any and all of such Muellners’s worldwide, right, title and interest, and to the Intellectual Property Rights, in such Deliverables. Muellners shall provide such further assurances, take such action, and execute such further documents and instruments as the Founder may reasonably request in order to carry out the purposes of this Clause 4.
To the extent that any Deliverable is based on or uses or embodies any material of Muellners that was created outside or prior to this Agreement (“Pre-existing Material”) then, in consideration for the fees payable under this Agreement, Muellners hereby grants the Founder, a limited, worldwide right to use the Pre-existing Material as long as such use is required for the use of the Deliverables by the Founder.
The Parties agree and acknowledge that all rights in and to the Pre-existing Material shall continue to be with the Muellners except for the limited rights expressly granted to the Founder under this Clause 4.
“Deliverable” for the purposes of this Agreement shall mean any report, document, paper, drawing, design, presentation, photo, graphic, logo, typographical arrangement, software or any other material not including the Pre-existing Material that is provided by the Muellners and represented to be the final deliverable in performing the Services under this Agreement.
“Intellectual Property Rights” for the purposes of this Agreement shall mean patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
5. Confidentiality: Each Party understands and acknowledges that it may receive Confidential Information (“Receiving Party”) of the other Party (“Disclosing Party”) during the term of this Agreement. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to a third party without the Disclosing Party’s prior written consent. Further, the Receiving Party shall only share Confidential Information with such of its employees and representatives who have a need to know the Confidential Information in relation to the Receiving Party’s obligations under this Agreement and who are subject to confidentiality obligations which are no less onerous than contained in this Agreement. “Confidential Information” shall mean any confidential or proprietary information, of a Party, in any form, including but not limited to the information relating to the such Party’s past, present or future products, services, research and development or business activities (and the terms of this Agreement), that is not in public domain which when disclosed is (a) marked as confidential (b) is identified as confidential at the time of disclosure; or (c) that is manifestly of a confidential nature. Confidential Information shall not include information that is: a. publicly available prior to this Agreement or is made publicly available by the Disclosing Party without restriction; b. Rightfully received by the Receiving Party from third parties without accompanying confidentiality obligations; c. already in the Receiving Party’s possession and was lawfully received from sources other than the Disclosing Party; d. independently developed by the Receiving Party.
The confidentiality obligations under this Agreement shall continue for a period of one (1) year following disclosure thereof irrespective of whether this Agreement is terminated or not. Each Party acknowledges that any breach of its obligations under this Clause 5 shall be construed to be a material breach of this Agreement.
Each Party further acknowledges and agrees that, in the event of a breach or threatened breach of any provision of this section, the Disclosing Party may have no adequate remedy in damages and, accordingly, is entitled, without waiving any other rights or remedies, to seek such injunctive or equitable relief against the Receiving Party as may be deemed proper by a court of competent jurisdiction.
6. Warranty and Disclaimers (a) The Muellners warrants to the Founder that it: (i) has all necessary rights and authority to enter into and perform this Agreement; (ii) has no conflict of interest in respect of any third party obligations that it is bound by, in performance of this Agreement. (b) The Muellners hereby disclaims, and the Founder expressly waives all other conditions, representations and guarantees, whether express or implied, arising by law, custom, oral or written statements of the Muellners or third parties including, but not limited to, any warranty of merchantability or fitness for particular purpose or of error-free and uninterrupted use or of non-infringement except to the extent expressly provided in this agreement.
7. Termination: Either Party may terminate this Agreement by issuing a written notice of termination to the other Party 30(thirty) days in advance of such intended termination. The Muellners shall not be liable to refund any amount in respect of the Advisory Equity or part thereof, or transfer any part of the Advisory Equity to the Founder upon earlier termination of this Agreement.
The Muellners shall not be liable to refund any amount in respect of the monetary considerations, startup development expenses or part thereof, or transfer any part of the unused startup development expenses or budget to the Founder upon earlier termination of this Agreement.
8. Nature of Relationship: The Muellners is engaged by the Founder in the capacity of an independent contractor to render the Services in accordance with the terms of this Agreement. Nothing in this Agreement shall be construed to mean that the Muellners is an employee, worker, agent or partner of the Founder. Nothing in this Agreement shall be construed to have created a joint venture between the Parties.
9. Limitation of Liability: In no event shall the Muellners be liable to the Founder, Startup’s employees or any person acting on its behalf, whether in contract, tort (including negligence) or otherwise for any loss of goodwill, any loss of business, profits or revenue, loss of operation time, increased costs or wasted expenditure, damages of any kind including special, indirect, incidental, consequential, punitive, exemplary, or tort damages arising out of or relating to this Agreement. The maximum aggregate amount that the Founder or any Party claiming through it can recover from the Muellners for all claims arising from, under or relating to this Agreement (whether in contract, tort including negligence or otherwise) will in no event exceed 10% of the value or consideration of the services performed under this Agreement till the date on which such claim arose.
10. Force Majeure: Neither Party shall be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, shortage of power, or other acts or causes reasonably beyond the control of such Party. The Party experiencing the force majeure event agrees to give the other Party notice promptly following the occurrence of a force majeure event and to use diligent efforts to re-commence performance as promptly as commercially practicable.
11. Non-exclusivity: The Services provided by the Muellners under this Agreement is not exclusive to the Founder and the Muellners shall have the right to enter into similar arrangements with any third party without the knowledge or consent of the Founder. Nothing in this Agreement shall prevent the Muellners from being engaged, concerned or having any financial or other interest in any capacity in any other business or entity during the term of this Agreement as long as such activity does not cause a breach of the obligations of the Muellners under this Agreement.
12. Delivery by Electronic Means: This Agreement, to the extent signed and delivered by electronic means, shall be treated in all manner and respects as an original agreement and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
13. Entire agreement: This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements, understandings, representations, conditions and all other communications relating thereto.
14. Severability: If any provision of this Agreement is held to be unenforceable or invalid, the other provisions shall continue in full force and effect.
15. Governing Law and Dispute Resolution: This Agreement shall be interpreted in accordance with the substantive laws of the Republic of India, exclusive of any choice of law provisions.
Any dispute arising under this Agreement shall be within the sole and exclusive jurisdiction of competent courts in Delhi.
Arbitration Clause: The dispute resolution shall be governed by arbitration between the parties. The choice of arbitrator shall be final and binding on both parties, decided solely by the Muellners.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the Effective Date.
This agreement can be digitally executed upon acceptance of issued Estimate and subsequent proof of payment of considerations against the Invoice by You.