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SERVICES AGREEMENT
This Services Agreement (hereinafter referred to as ​“Agreement”​) made on this ​____ day of
____________​2015 (hereinafter referred to as the ​“Effective Date”​) by and between:
INDIAN TELECOM INNOVATION HUB-TECHNOLOGY BUSINESS INCUBATOR​, a Society under
the Travancore – Cochin Literary Scientific and Charitable Societies Registration Act, 1955, and
having its Registered Office at 41/3197, Fourth Floor, Bhageeratha Square, Near Town Hall,
Kacherippady, Cochin – 682018 (hereinafter referred to as ​“ITIH-TBI” which expression shall
unless excluded by or repugnant to the subject or context be deemed to include its successors
in interest and assigns);
MOBME WIRELESS SOLUTIONS LIMITED, ​an unlisted public company incorporated under the
aegis of the Companies Act, 1956, having its registered office at 41/3197, Fourth Floor,
Bhageeratha Square, Near Town Hall, Kacherippady, Cochin – 682018 (hereinafter referred to
as the “​MobME​” which expression shall, unless repugnant to the context or meaning thereof,
mean and include its successors and assigns); and
__________________________________, s/d/o __________________________________,
aged around ____ years, holding PAN card / Passport / Aadhar card / driving license No
_______________ and residing at _________________________________________
___________________________________ and having his/her permanent address at
______________________________________________________________________________
(hereinafter referred to as ​“Promoter” which expression shall unless excluded by or repugnant
to the subject or context thereof be deemed to include his / her heirs and permitted assigns).
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ITIH_TBI and MobME are hereinafter collectively referred to as the ​“Service Provider”​. The
Service Provider and the Promoter are hereinafter individually referred to as “​Party​” and
collectively as “​Parties​”.
WHEREAS:
1. The Promoter is ​a/the ​________________________ of [​____________________________ a
partnership firm having its registered / principal office at​] (hereinafter referred to as “​Start
Up​”, which expression shall unless excluded by or repugnant to the subject or context
thereof be deemed to include its successors in interest, liquidators, administrators and
permitted assigns).
2. The Service Provider have been providing the Start Up and Promoter with incubation
facilities and services at KINFRA Hi Tech Park, Opposite to Co-operative Medical College,
HMT Colony P.O, Kalamassery, Cochin - 683503 (“​Startup Village​”) since ________ in
accordance with the terms and conditions of a ​Physical Incubation Services Agreement
dated ________ executed between the Service Provider and the Start Up (​“Incubation
Agreement”​).
3. In consideration for the facilities and services and mentoring, which is being provided by the
Service Provider in accordance with the Incubation Agreement, which has benefited both
the Start Up and the Promoter and other Key Employees, the Parties have discussed and
agreed to certain additional consideration that is to be paid by the Promoter to the Service
Provider in certain events and are entering into this Agreement to record such terms and
conditions as mutually agreed.
NOW THEREFORE, IN CONSIDERATION OF THE PROMISES AND MUTUAL COVENANTS
HEREINAFTER CONTAINED, THE PARTIES HEREBY AGREE AS FOLLOWS:
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ARTICLE- I
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, including in the Recitals, and unless the context requires otherwise, the
following words and expressions shall have the following meanings:
a. “Agreement” means this Services Agreement, as the same may be amended, modified
and/or supplemented from time to time in writing, in accordance with the terms and
conditions hereof;
b. “Cost to Company” refers to the total expenses incurred by a company on a given
employee in a year;
c. “Key Employees” means the promoters and employees of the Start Up as mentioned in
Schedule 1 hereto;
d. “Law” includes all statutes, enactments, Acts of Legislature or Parliament, laws,
ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions,
directives and orders of any Government, Statutory Authority, Tribunal, Board, Court or
recognized Stock Exchange and if applicable, international treaties and regulations as
amended from time to time;
e. “Losses” includes all losses, claims, costs, and damages (whether direct, indirect,
general, special, absolute, accrued, conditional or otherwise and whether or not
resulting from third party claims), including interests and penalties with respect thereto
and out-of-pocket expenses, including reasonable attorneys' and accountants' fees and
disbursements;
f. “Potential Employer” means an employer referred to in Section 2.1 to whom the
Promoter of the Start Up is introduced by the Service Provider; and
g. “Premises” mean the facilities in the Startup Village provided by the Service Provider or
their associates specifically to the Start Up for its use in accordance with the terms of
the Incubation Agreement.
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ARTICLE - II
TERMS OF THE AGREEMENT
2.1 Job Referral
The Service Provider may from time to time introduce the Promoter to potential
employers. If the ​Promoter receives and accepts an offer of employment from a
Potential Employer, the Promoter agrees to pay the Service Provider an amount equal
to Ten percent (10%) of the Promoter’s annual salary ​on a Cost to Company basis within
Fifteen (15) days from the date of commencement of such employment by the
Promoter, time being of the essence. For the avoidance of doubt, it is hereby agreed
and confirmed by the Promoter that the services provided by the Service Provider in
introducing the Promoter to the Potential Employer thereby assisting the Promoter in
obtaining employment constitutes adequate consideration for the amounts payable by
the Promoter in accordance with this Section 2.1.
2.2 Acquisition of the Start Up or Acquihire of Key Employees
In consideration of the mentoring and incubation facilities and services provided by the
Service Provider to the Promoter and the Start Up in accordance with the Incubation
Agreement, the Promoter agrees to pay the Service Provider Twenty percent (20%) of
the aggregate value of all cash bonuses (including sign-on bonuses and retention /
staggered bonuses) and all other consideration whatsoever (including but not limited to
cash, securities, options any other properties and assets whatsoever) received (or to be
received over a period of time) by the Promoter in the following events:
a. If the Start Up is acquired wholly / partly by any person and the Promoter
receives any such consideration as mentioned above paid / payable in cash /
kind for either (a) purchase of shares and other securities or the stake held by
the Promoter in the Start Up and/or (b) otherwise in connection with /
consideration for such acquisition; or
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b. If the business, assets, Key Employees and/or the intellectual property rights of
the Start Up are wholly / partly sold, transferred or surrendered to any other
person / entity and/or the Key Employees of the Start Up take up employment /
engagement with any one other person / entity and the Promoter receives any
consideration whatsoever in cash / kind as mentioned above in connection such
sale, transfer or surrender and/or the mass resignation and/or movement of the
Key Employees to employment / engagement with another person / entity.
2.3 It is acknowledged and confirmed by the Promoter that the mentoring and incubation
facilities and services provided by the Service Provider as per the Incubation Agreement,
which has benefited the Promoter and Key Employees as well, constitutes adequate
consideration for the amounts payable by the Promoter to the Service Provider in terms
of Section 2.2 above. The amounts referred to in Section 2.2 above shall be payable by
the Promoter within Fifteen (15) days of the Start Up / Promoter agreeing to any of the
events referred to in Section 2.2 above or the occurrence of the said events, whichever
is earlier.
ARTICLE – III
COVENANTS
3.1 The Promoter shall keep the Service Provider informed of all developments pertaining
to securing an ​employment with any Potential Employer. The Promoter shall also notify
the Service Provider in writing within Seven (7) days of receiving an offer of employment
from a Potential Employer. Such notice shall also enclose a copy of the offer letter.
3.2 The Promoter shall duly inform the Service Provider in writing within Seven (7) days of the
Start Up / Promoter entering into any discussions with any person for a sale, transfer or
surrender in whole / in part of the Start Up or its business or the Key Employees or any of
the assets of the Start Up including its intellectual property rights.
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3.3 The Promoter shall duly and promptly inform the Service Provider in writing within two (2)
days of any change in employment, engagement or time spent on the business of the
Start Up by any of the Key Employees including the Promoter.
3.4 The Promoter shall ensure compliance by the Start Up and all staff and employees,
including the Key Employees, with all of the terms and conditions of the Incubation
Agreement and all other rules and regulations that may be prescribed from time to time
by the Service Provider in / relating to use of the Premises.
ARTICLE – IV
TERM AND TERMINATION
4.1 This Agreement is valid from the Effective Date and until the exipry of a period of Five
(5) years from the Effective date.
4.2 It is hereby clarified and confirmed that termination of the Incubation Agreement will
not affect the validity of this Agreement, which will continue in full force and effect for
its term in consideration for the benefits and services already availed and/or being
availed by the Start Up and the Promoter under the Incubation Agreement and/or this
Agreement.
4.3 This Agreement can be renewed or amended on such terms as may be mutually agreed
to by the Parties.
4.4 The Service Provider shall have every right to terminate this Agreement and/or the
Incubation Agreement and/or deny incubation services as set forth in the Incubation
Agreement after giving a Fifteen (15) days’ notice, in the following circumstances: -
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a) Where the Promoter / Start Up violate / fail to comply with any of the terms and
conditions of this Agreement or the Incubation Agreement; or
b) Where the Promoter / Start Up violate any representation and warranties
mentioned hereinabove or in the Incubation Agreement and/or such other rules
and regulations as may be framed by the Service Provider, from time to time; or
c) Where the Promoter / Start Up commit any fraud, theft or any other offence
punishable under Law; or
d) Such other circumstances as the Service Provider may deem fit in the interest of
the Service Provider.
4.5 In consideration for benefits enjoyed by the Promoter by virtue of the services already
availed and/or being, or expected to be, availed in accordance with the Incubation
Agreement, the Promoter acknowledges that he/she shall not be entitled to terminate
this Agreement.
4.6 Upon the termination of this Agreement, the Promoter and Start Up shall:
i. Be prohibited from accessing the Premises of the Service Provider,
ii. Not be permitted to use Service Providers’ address for communication purposes
in any form whatsoever.
4.7 If the Promoter violates / fails to comply with any of the clauses mentioned in this
Agreement, the Service Provider will have absolute discretion to take necessary actions
including but not limited to initiating legal action for specific performance, claiming
damages or other remedies as available under Law.
ARTICLE V
5.1​ Indemnification
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The Promoter shall keep the Service Provider indemnified in the event of Losses or
damage suffered and/or incurred by the Service Provider due to fire or natural calamities
of the structures / equipment / fittings or part thereof, or from any third party liability
arising from such event, or any other accident / event within the Premises and / or
Startup Village and/or any fraud, negligence or misrepresentation on the part of
Promoter and/or any default by the Promoter or Start Up of any of the terms of this
Agreement and/or the Incubation Agreement.
ARTICLE – VI
6.1 Applicable Law & Settlement of Disputes
This Agreement shall be construed, governed by, interpreted and applied in accordance
with the Laws of India. Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or termination, shall be referred
to and finally resolved by arbitration under Arbitration and Conciliation Act, 1996. The
award made by the arbitrator shall be final and binding on both Parties. The seat of
arbitration shall be Cochin, Kerala. All arbitration proceedings shall be conducted in
English language. The arbitration shall be conducted by a sole arbitrator in case Service
Provider and Start up agree upon the appointment of a sole arbitrator, failing which the
arbitration shall be conducted by a panel of Three (3) arbitrators consisting of One (1)
arbitrator jointly appointed by the Service Provider, One (1) arbitrator appointed by the
Start up and the third arbitrator jointly appointed by the two arbitrators appointed as
aforesaid. Subject to the above, the courts in Cochin, Kerala shall have jurisdiction over
all matters relating to this Agreement.
ARTICLE – VII
MISCELLANEOUS
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7.1 ​Service of Notice
Service of a notice or any communication must be effected by one of the following
methods:
(a) by hand to the relevant address as set out in Section 7.2 and shall be deemed
served upon delivery, if delivered during a business day or at the start of the next
business day, if delivered at any other time; or
(b) by prepaid first-class post/registered post/speed post to the relevant address set
out in Section 7.2 and shall be deemed served at the start of the Fourth (4th)
business day after the date of posting; or
(c) by electronic mail transmission in “portable document format” (“.pdf”) to the
relevant e-mail addresses set out in Section 7.2 and shall be deemed served on
dispatch, if dispatched during a business day or at the start of the next business
day, if dispatched at any other time, provided that in each case a receipt indicating
complete transmission of the notice is obtained by the sender.
7.2​Address for Service
ITIH-TBI:
Name: __________________________________________
Designation: _____________________________________
Address: _________________________________________________________________
________________________________________________________________________.
Email: __________________________________________________
MobME:
Name: __________________________________________
Designation: _____________________________________
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Address: _________________________________________________________________
________________________________________________________________________.
Email: __________________________________________________
Promoter:
Name: __________________________________________
Designation: _____________________________________
Address: _________________________________________________________________
________________________________________________________________________.
Email: __________________________________________________
7.3​Headings
The headings of various Articles and clauses herein are inserted for convenience of
reference and are not deemed to affect the construction of the relative provisions.
7.4 English Language
All notices or formal communications under or in connection with this Agreement shall be
in the English language.
7.5​Assignment
Unless specifically otherwise provided in this Agreement, neither Party shall have the right
to assign their respective rights hereunder or transfer their respective rights and
obligations, in whole or in part, to any third party. Provided however that the Service
Provider, may at their discretion, assign, transfer, novate and/or delegate any of their
rights and obligations to any third party.
7.6 Severability
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If any provision of this Agreement is or becomes invalid, illegal or unenforceable under
the laws of any jurisdiction, then such provision shall (so far as it is invalid or
unenforceable) be given no effect and shall be deemed not to be included in this
Agreement but without invalidating any of the remaining provisions of this Agreement
which shall not in any way be affected or impaired. The Parties hereto shall then use all
reasonable endeavours to replace the invalid or unenforceable provisions with a valid
and enforceable and mutually satisfactory substitute provision, achieving as nearly as
possible the intended commercial effect of the invalid, illegal or unenforceable
provision.
7.7 Waivers And Remedies
No failure or delay by the Parties in exercising any right or remedy provided by Law
under or pursuant to this Agreement shall impair such right or remedy or operate or be
construed as a waiver or variation of it or preclude its exercise at any subsequent time
and no single or partial exercise of any such right or remedy shall preclude any other or
further exercise of it or the exercise of any other right or remedy.
7.8 Variation
The Service Provider shall be entitled to vary the terms of this Agreement (or of any of
the documents referred to in this Agreement) at such circumstances as they may deem
fit in the interest of the Parties to this Agreement. Such variation shall not come into
effect unless it is made by an instrument in writing and signed by duly Authorized
Representatives of each of the Parties hereto. The expression “variation” shall include
any variation, amendment, supplement, deletion or replacement however effected.
7.9 Counterparts
This Agreement may be executed in one or more counterparts, each of which when duly
executed and delivered shall be deemed an original but all of which together shall
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constitute one and the same instrument and any Party may execute this Agreement by
signing any one or more of such originals or counterparts. The delivery of signed
counterparts by facsimile transmission or electronic mail in “portable document format”
(“.pdf”) shall be as effective as signing and delivering the counterpart in person.
7.10 Costs and Expenses
Each of the Parties shall bear their own legal costs, disbursements charges and expenses
incurred in and about the negotiation, preparation and execution of this Agreement and
any other document executed in connection with this Agreement. However, stamp duty
payable in relation to this Agreement and any other document executed in connection
with this Agreement shall be borne by the Start Up.
7.11​ Waiver not to impair the rights of the Service Provider
No delay in exercising or omission to exercise any right, power or remedy accruing to
the Service Provider upon any default under security documents or any other
document shall impair any such right, power or remedy nor shall be construed to be a
waiver thereof nor any acquiescence in such default, nor shall the action or inaction of
the Service Provider in respect of any default, or any acquiescence by it in any default
affect or impair any right, power or remedy of the Service Provider in respect of any
other default.
SCHEDULE 1
LIST OF KEY EMPLOYEES
1. ___________________________________________ (name), _______________________
(designation), s/d/o ________________________________________________, ​aged
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____ years, holding PAN card / Passport / Aadhar card / driving license No
_______________ and ​residing at
_______________________________________​___________________________ and
having permanent residence at _____________________________________________
_________________________________________. Tel No: _______________________.
Cell No ____________________​.
2. ___________________________________________ (name), _______________________
(designation), s/d/o ________________________________________________, ​aged
____ years, holding PAN card / Passport / Aadhar card / driving license No
_______________ and ​residing at
_______________________________________​___________________________ and
having permanent residence at _____________________________________________
_________________________________________. Tel No: _______________________.
Cell No ____________________​.
3. ___________________________________________ (name), _______________________
(designation), s/d/o ________________________________________________, ​aged
____ years, holding PAN card / Passport / Aadhar card / driving license No
_______________ and ​residing at
_______________________________________​___________________________ and
having permanent residence at _____________________________________________
_________________________________________. Tel No: _______________________.
Cell No ____________________​.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT TO BE DULY
EXECUTED AND DELIVERED BY THEIR DULY AUTHORISED REPRESENTATIVES AS OF THE DAY
AND YEAR HEREINABOVE WRITTEN
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Signed and delivered for and on behalf
of ​INDIAN TELECOM INNOVATION
HUB-TECHNOLOGY BUSINESS
INCUBATOR (ITIH -TBI)
By:
Title:
Signed and delivered by PROMOTER Mr. /
Ms. _______________________________
Signed and delivered for and on behalf
of ​MOBME WIRELESS SOLUTIONS
LIMITED
By:
Title:
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