Exhibit 10.6.1
BUSINESS PROCESS OUTSOURCING SERVICES AGREEMENT
Between
IBM Xxxxx Business Process Services Private Limited
and
Make My Trip Private Limited
Page 1 of 19
This Agreement is between:
| (1) |
|
MakeMyTrip India Private Limited, F-46, Malhotra Building, First Floor, near Indian Overseas
Bank Xxxxxxxxx Xxxxx, Xxx Xxxxx 000000 (“MMTL”); and |
| |
| (2) |
|
IBM Xxxxx Business Process Services Private Limited (formerly known as Xxxxx eServices
Private Limited), a company organized and existing under the laws of India and having its
registered office at 0xx Xxxxx, 00, Xxxxxxxxxx Xxxx, Xxxxxxxxx Xxxxx, Xxx Xxxxx - 110 001 and
corporate office at 000 Xxxxx Xxxxx Xxxxx-X, Xxxxxxx, 000000, Xxxxxxx, Xxxxx (hereinafter
referred to as the “IBM”, which expression shall, unless contrary to the meaning or context
thereof, be deemed to include its successors and assigns). |
This Agreement sets out the Parties’ rights and obligations with respect to MMTL’s availing of the
Services from IBM.
No machines or licensed program products may be acquired by MMTL under this Agreement. Any machines
or licensed program products must be acquired under a separate agreement.
| |
|
Agreement means this Business Process Outsourcing Services Agreement between MMTL and IBM,
including the Transaction Documents and any other documents incorporated by reference. |
| |
| |
|
Agreement Effective Date is the date that this Agreement becomes effective, as specified on the
signature page. |
| |
| |
|
Affiliate(s) is any entity which from time to time Controls, is Controlled by or is under common
Control with the relevant Party or entity. |
| |
| |
|
Affected Employees – means the individuals listed in Exhibit L-1 (Affected Employees) of Exhibit
1A (Employees) in Transaction Document |
| |
| |
|
Confidential Information has the meaning given to that term in Section 10 of this Agreement. |
| |
| |
|
Control means having the ability (including, without limitation, by means of owning or
controlling a majority of voting rights or the right to appoint or remove a majority of the
board of directors) to control the management and policies of an entity. |
| |
| |
|
Derivative Work means a work based on one or more preexisting works, including a condensation,
transformation, translation, modification, expansion, or adaptation that, if prepared without
authorization of the owner of the copyright of such preexisting work, would constitute a
copyright infringement under applicable law. |
| |
| |
|
Enterprise means any legal entity (such as a corporation) and the subsidiaries it owns by more
than 50 percent. The term “Enterprise” applies only to the portion of the Enterprise located in
India. |
| |
| |
|
Facilities means any location: 1) owned, leased, rented, or used by MMTL that IBM may use in
providing the Services; and 2) that is listed in a Transaction Document. |
| |
| |
|
Force Majeure Event has the meaning given to that term in Section 22 of this
Agreement. |
| |
| |
|
IBM Corp means International Business Machines Corporation, an IBM
Affiliate. |
| |
| |
|
Machines mean machines that are owned, leased, or rented by IBM and used by IBM to provide the
Services. Machines located at the Facilities are listed as Services Machines in a Transaction
Document. |
| |
| |
|
Materials means expressions of literary works or other works of authorship (such as programs,
program listings, programming tools, programming methodologies, documentation, reports, drawings
and similar works) that are developed by IBM, under this Agreement, and delivered by IBM to MMTL
as part of the Services, and are not available under vendor software license agreements
(including license agreements for IBM Corp or IBM Products). Materials do not include the
underlying literary works or other works of authorship upon which such Materials are based. |
Page 3 of 19
| |
|
New Service means a service IBM may provide to MMTL subject to mutually agreeable terms and
conditions to be set forth in a new or modified Transaction Document. |
| |
| |
|
Party means either IBM or MMTL, collectively “Parties”. |
| |
| |
|
Products collectively mean: |
| |
• |
|
IBM Product(s), which means any equipment, program, system, product, or
business process developed by IBM and used by IBM in conjunction with the Services
provided to MMTL under this Agreement. |
| |
| |
• |
|
IBM Corp Product(s), which means IBM Corp logoed hardware or
software made generally available by IBM Corp, IBM or its other Affiliates;
and |
| |
| |
• |
|
MMTL Product(s), which means any equipment, system, program, product, or
business process provided to IBM by MMTL under this Agreement or used in
conjunction with the Services. |
| |
|
Project means the Services to be undertaken as specified in a Transaction Document. |
| |
| |
|
Project Manager(s) means individuals assigned to a Project by MMTL and IBM, respectively, who
have the authority to represent and bind MMTL and IBM, respectively, for that Project and who
will have specific operational roles as described in a Transaction Document. MMTL and IBM will
each provide the other reasonable advance written notice of a change to the respective Project
Manager and will discuss any objections the other has to such change. |
| |
| |
|
Regulatory Requirements collectively means: |
| |
• |
|
IBM Regulatory Requirements, which means the laws applicable to IBM in
its capacity as a provider of information technology enabled services and personnel
to support business process outsourcing; and |
| |
| |
• |
|
MMTL Regulatory Requirements, which means the laws applicable to MMTL,
including laws applicable to MMTL Business Processes. |
| |
|
Required Consents means any consents or approvals required to give IBM the right or license to
access, use and/or modify the hardware, software, firmware and other products MMTL use, without
infringing the ownership or license rights (including patent and copyright) of the providers or
owners of such products. |
| |
| |
|
Service(s) means the performance of a task, provision of advice and counsel, assistance,
support, or access to a resource (such as access to an information database), as set out in the
applicable Transaction Document, which IBM makes available to MMTL under the terms of this
Agreement. |
| |
| |
|
Services Recipients are the entities receiving Services at MMTL request and listed
in a Transaction Document. |
| |
| |
|
Software collectively means: |
| |
• |
|
Applications Software, which means the programs, including all
supporting documentation, source code, and media that: 1) perform specific data
processing and telecommunication tasks; and 2) are listed as Applications Software
in a Transaction Document; and |
| |
| |
• |
|
Systems Software, which means the programs, including all source code
(if applicable), supporting documentation and media that: 1) perform tasks basic
to the functioning of data processing and telecommunication; 2) are required to
operate the Applications Software; and 3) are listed as Systems Software in a
Transaction Document. |
| |
|
Subcontractors mean contractors, vendors, agents, and consultants selected and retained by MMTL
or IBM, respectively. |
| |
| |
|
Term has the meaning given to it in Section 20 of this Agreement. |
| |
| |
|
Termination Charge means the charge for MMTL early termination of a Service for MMTL
convenience, as set forth in the Section 20 of this Agreement. The Termination Charge is set
forth in the applicable Transaction Document. |
| |
| |
|
Third Party or Third Parties means any entity or person other than IBM and MMTL and their
respective Affiliates, directors, officers, and employees. |
| |
| |
|
Transaction Document means a document incorporated by reference herein which sets out the
Services and the associated operational, commercial and any additional terms under which IBM
will provide the Services to MMTL. |
Page 4 of 19
| |
|
Transaction Effective Date is the time and date, specified in a Transaction Document, that
the Transaction Document becomes effective. |
| |
| |
|
MMTL Business Processes means the business processes executed or supported by IBM on MMTL
behalf under this Agreement. |
| |
| |
|
MMTL Data means any information relating to an identifiable individual or legal person if
required by local law that IBM processes on behalf of MMTL in performing the Services. MMTL
Data excludes information: 1) processed by IBM for any reason other than IBM’s performance of
the Services; 2) processed by IBM because of its relationship with its customers (including
MMTL and its Affiliates) generally; and 3) relating to employees of IBM and its Affiliates. |
| |
(a) |
|
Transaction Documents are part of this Agreement. All transactions have one or more
associated Transaction Documents (such as an invoice, supplement, schedule, exhibit,
statement of work, change authorization, or addendum). |
| |
| |
(b) |
|
Unless stated otherwise in the Transaction Document, if there is a conflict between
the terms and conditions set out herein and the terms of a Transaction Document, these
terms and conditions shall prevail over the terms of the Transaction Document . |
| |
| |
(c) |
|
MMTL accept the terms in Transaction Documents by (1) signing them, (2) using the
Service, or allowing others to do so, or (3) making any payment for the Service. |
| |
| |
(d) |
|
A Service becomes subject to this Agreement when IBM accepts MMTL order by (1) sending
MMTL a Transaction Document or (2) providing the Service. |
| |
(a) |
|
IBM shall charge MMTL, and MMTL shall pay IBM, for the performance of the Services as
set forth in the applicable Transaction Document. |
| |
| |
(b) |
|
IBM will send the invoice by 10th day of every month for which services are provided
and MMTL will make the payment by end of the same month through wire transfer to IBM’s
bank account (Due Date). If the Payment is not made within the Due Date, MMTL shall be
subject to late payment charge. Such charges will be calculated at a monthly rate of 2% of
the invoice amount compounded for each period or part period of 30 (thirty) days that the
invoice remains unpaid. Monthly billing cycle shall be as follows : |
| |
(i) |
|
For the services provided in any given month, IBM will send the
invoice to MMTL through email on 10th of that month based on the locked
forecast for the same month as received earlier. MMTL then shall pay to IBM the
amount as mentioned in the invoice based on the relevant clauses in this
agreement. During the first week of next month, IBM and MMTL shall collectively
work out the variance between actual and locked forecast for the previous month.
If it is discovered and agreed between the parties that MMTL has paid extra then
what should have been paid based on actuals, IBM then shall issue a credit note
with the next month’s invoice to MMTL. MMTL then shall pay the next month’s
payment after adjusting the amount as mentioned in the credit note. |
| |
| |
(ii) |
|
For the services provided in any given month, IBM will send the
invoice to MMTL through email on 10th of that month based on the locked
forecast for the same month as received earlier. MMTL then shall pay to IBM the
amount as mentioned in the invoice based on the relevant clauses in this
agreement. During the first week of next month, IBM and MMTL shall collectively
work out the variance between actual and locked forecast for the previous month.
If it is discovered and agreed between the parties that MMTL has paid less then
what should have been paid based on actuals, IBM then shall issue an additional
invoice for the amount in arrears with the next month’s invoice to MMTL. MMTL then
shall pay the next month’s payment after adding the amount as mentioned in the
additional invoice. |
| |
(c) |
|
The charges are exclusive of all applicable taxes, duties and levies. |
Page 5 of 19
| |
(d) |
|
If any authority imposes a duty, tax, levy, or fee in respect of services provided by IBM to
MMT excluding any income tax or any other direct taxes, then MMTL agree to pay that amount as
specified in an invoice or supply exemption documentation. |
All charges set forth in a Transaction Document exclude all applicable indirect tax or levies
(including but not limited to service tax, value added/sales tax or any other taxes of a similar
nature) which may be applicable to the services to which the charges relate.
| |
(i) |
|
applicable indirect taxes or levies (including but not limited to
service tax, value added/sales tax or any other taxes of a similar nature) on the
service provided by IBM to MMTL including any other indirect taxes that might come
into effect after entering into this contract as rendered applicable; and |
| |
| |
(ii) |
|
Intentionally left blank. |
| |
(b) |
|
The Parties agree to cooperate reasonably with each other to determine MMTL tax
liability on IBM’s charges. |
| |
| |
(c) |
|
IBM will pay all: |
| |
(i) |
|
personal property, sales, value-added, and use taxes on IBM’s personal
property operated by IBM personnel; and |
| |
| |
(ii) |
|
taxes, assessments, and other levies on IBM’s owned, leased, rented, or
purchased real property. |
| |
(d) |
|
IBM’s invoices will state applicable Indirect taxes chargeable on the Services,
if any, by tax jurisdiction. |
| |
| |
(e) |
|
The Parties will provide and make available to the other any resale certificates, tax
exemption certificates, information regarding out-of-state sales or use of equipment,
materials or services, direct pay certificates and other exemption certificates. |
MMTL will be required under law to deduct withholding taxation (TDS) on services of IBM. This will
be deducted from regular payments made to IBM. MMTL will issue a consolidated annual certificate
to IBM for deduction of such TDS.
|
|
|
| 5. |
|
Changes to the Agreement Terms |
| |
(a) |
|
Should the Parties mutually agree upon any addition, modification or change to any
terms of any Transaction Document, including the Services, fees, or schedules attached
thereto, such addition, modification or change shall be done as per the procedure stated
below and be signed by the Parties’ authorized representatives (such a signed document, a
“Change Order”). Failure of the parties to agree on the entitlement to or the scope or
amount of an equitable adjustment shall be treated and resolved as a dispute under the
Section 19 of this Agreement. |
| |
| |
(b) |
|
Project Change Control Procedure: The following
process will be followed if a change to a Transaction Document for a Service is required. |
| |
(i) |
|
A project change request (“PCR”) will be the vehicle for communicating
change. The PCR must describe the change, the rationale for the change and the effect
the change will have on the Services. The designated Project Manager of the
requesting Party will review the proposed change and determine whether to submit the
request to the other Party. |
| |
| |
(ii) |
|
Both Project Managers will review the proposed change and recommend it for
further investigation or reject it. A PCR must be signed by authorized
representatives from both Parties to authorize investigation of the recommended
changes. |
| |
| |
(iii) |
|
A written change authorization and/or PCR must be signed by authorized
representatives from both Parties to authorize implementation of the investigated
changes. Until a change is agreed in writing, both Parties will continue to act in
accordance with the latest agreed version of the Transaction Document. |
| |
(c) |
|
Changes Made by IBM on an Emergency Basis: Except for changes made by IBM on
an emergency basis, IBM will schedule change activities in accordance with the Project
Change Control Procedure with the goal of minimizing unreasonable interruptions to MMTL
business |
Page 6 of 19
| |
|
|
operations. With respect to changes made by IBM on an emergency basis, IBM will
provide MMTL with documentation of such changes within five business days after such changes were
made. |
| |
(a) |
|
Unless otherwise set forth in a Transaction Document, any notices, requests or other
communications required or permitted to be given hereunder shall be in writing and shall
be delivered by hand, by overnight courier, or by facsimile transmission or e-mail, or
mailed by registered or certified mail, return receipt requested, postage prepaid, and
addressed to the appropriate Party at its address or to its fax number, as appropriate, as
set forth below: |
| |
|
|
| MMTL Contact Information |
|
IBM Contact Information |
MakemyTrip India Private Limited
Xxxx Xx 000, Xxxxx X, Xxxxx Xxxxx
Xxxxxxx
Haryana, India
|
|
IBM Xxxxx Business Process Services Private Limited
DLF Building No. 8, Tower X
0xx Xxxxx, XXX Xxxxx Xxxx
XXX Xxxxx XX, Xxxxxxx – 122002
Haryana, India |
|
|
|
Attention: [Xxxxxx Xxxxx]
|
|
Attention: [Xxxxxxxxxxxx Xxxxxxxxxxx] |
Fax:[ ]
|
|
Fax: [0124 = 0000000] |
|
|
|
|
|
With a copy to: General Counsel, IBM India |
|
|
Fax: [Insert] |
| |
(b) |
|
Any such notice, request, or other communication shall be considered given on the date
of hand or courier delivery if delivered by hand or overnight courier, on the date of
receipt if delivered by fax or e-mail, or on the date of deposit in the mail as provided
above. By giving at least two (2) days’ prior written notice, either Party may from time
to time and at any time change its mailing address or fax number hereunder. |
| |
(a) |
|
Each Party is responsible for the supervision, direction, control, and compensation of
its respective personnel. IBM reserves the right to determine the assignment of its
personnel. All Services shall be furnished by IBM as an independent contractor. Under no
circumstances shall any IBM employee utilized by IBM to perform the Services be deemed to
be MMTL’s employees. The Parties are not joint employers for any purpose under this
Agreement. |
| |
|
During the Term of this Agreement and for a period of two (2) years after the date of
termination of this Agreement, neither Party will knowingly solicit any of the other Party’s
employees who, were directly involved in the delivery or receipt of the Services. The
restrictions contained in this paragraph regarding non-solicitation of employees will not apply
to any of the following: (a) to the extent that any such employee has ceased to be employed by
a Party for at least six (6) months prior to being solicited; or (b) to the extent that an
employee responds (without specific solicitation) to a general advertisement through newspapers
or other publications of general circulation, placement agencies or similar means; or (c) as
otherwise mutually agreed upon by the Parties. |
| |
|
IBM will provide MMTL with reports at such intervals as may be specified in the applicable
Transaction Document. Such reports will include performance against any specified agreed
performance metrics, and shall be in a format and include such other content as mutually
agreed. |
Page 7 of 19
| |
(a) |
|
Each Party’s mutual objective under this Section 10 is to provide appropriate
protection for confidential information while maintaining its ability to conduct its
respective business activities. The Parties agree that the following terms apply when
either party discloses confidential information to the other under this Agreement. |
| |
| |
(b) |
|
For the purposes of this Section 10, “Confidential Information” means information
provided by the disclosing Party (“Discloser”) to
the receiving Party (“Recipient”) that
(1) is marked with a restrictive legend of the Discloser or is identified as confidential
at the time of disclosure; or (2) contains the Discloser’s customer lists, customer
information, account information, information regarding business planning and business
operations, and administrative, financial or marketing activities, provided (a) the
Discloser treats such information as confidential and (b) such information is reasonably
considered confidential based upon the nature of the information. Neither Party will,
without the prior written consent of the other, disclose to any Third Parties any
Confidential Information which is received from the other Party for the purposes of
providing or receiving Services. Each Party agrees that any such Confidential Information
received by it from the other may be used by its (and its respective Affiliates’) personnel
only for the purposes of providing or receiving Services under this or any other contract
between the Parties. These restrictions will not apply to any information which: (i) is or
becomes generally available to the public other than as a result of a breach of an
obligation under this Section; (ii) is acquired from a third party without an obligation of
confidentiality; (iii) is or has been independently developed by the Recipient (or one of
its Affiliates) or was known to it or them prior to receipt; or (iv) is generally known or
easily ascertainable by non-parties of ordinary skill in computer or process design or
programming or MMTL’s field of business. |
| |
| |
(c) |
|
Neither Party will be liable to the other for inadvertent or accidental disclosure of
Confidential Information if the disclosure occurs notwithstanding the Party’s exercise of
the same level of protection and care that such Party customarily uses in safeguarding its
own confidential information. Confidential Information disclosed under this Agreement will
be subject to this Section 10 for two (2) years following the initial date of disclosure. |
| |
| |
(d) |
|
Notwithstanding Section 10(b) above, each Party will be entitled to disclose
Confidential Information of the other: (i) to its respective insurers or legal advisors,
auditors, and (ii) to a third party, to the extent that this is required by any court of
competent jurisdiction, by a governmental or regulatory authority, or where there is a
legal right, duty or requirement so to disclose, provided that in the case of this
Sub-section (d)(ii), where reasonably practicable (and without breaching any legal or
regulatory requirement) not less than 2 business days’ notice in writing is first given to
the other Party. Notwithstanding anything to the contrary, IBM may disclose Confidential
Information referred to in this Section to (1) IBM’s Affiliates or (2) a Third Party as may
be necessary for the delivery of the Services, subject to such Third Party agreeing, in
writing, to be bound by similar terms and conditions. |
| |
| |
(e) |
|
Notwithstanding Section 10(b) above, IBM may cite the performance of the Services to
its customers and prospective customers as an indication of IBM’s experience, unless the
Parties specifically agree otherwise in writing. |
|
|
|
| 11. |
|
Materials Ownership and License |
| |
(a) |
|
This Section specifies the ownership and license rights in Materials. Materials are
either Type I Materials or Type II Materials. |
| |
| |
(b) |
|
Type I Materials are software(s) for which the preexisting copyright is owned by MMTL.
MMTL provides a license to IBM in any pre-existing material owned by MMTL only for the
purpose of providing services to MMTL under this Agreement or any related SoWs. On
termination of this Agreement such license to any pre-existing material of MMTL shall also
terminate and IBM shall have no further right to use any pre-existing material of MMTL. All
other Materials are Type II Materials, including Derivative works of Type I Materials. |
| |
| |
(c) |
|
Type I Materials – Ownership: Type I Materials are owned by MMTL. IBM will
retain one copy of Type I Materials during the subsistence of this Agreement or as may be
required under Law. |
Page 8 of 19
| |
|
|
Type I Materials under the possession of IBM would be returned to MMTL or destroyed after
the expiry / termination of Agreement. |
| |
| |
(d) |
|
Intentionally Left Blank |
| |
| |
(e) |
|
Type II Materials – Ownership: Type II Materials are those created during the
provision of the Services or otherwise (such as those that preexist the Services) in which
IBM, its Affiliates or Third Parties have all right, title and interest (including
ownership of copyright). |
| |
| |
(f) |
|
Type II Materials – License Rights: IBM hereby grants to MMTL a nonexclusive,
worldwide, paid-up license to use, execute, reproduce, display, perform and distribute,
within MMTL Enterprise only, copies of Type II Materials, but only for: |
| |
(a) |
|
MMTL’s internal use; and
|
| |
| |
(b) |
|
for the purpose of MMTL’s receipt of the Services during the Term,
provided that such license will terminate upon the termination of this Agreement. |
| |
(g) |
|
Items Provided by MMTL: With respect to items provided by MMTL, MMTL’s
Affiliates, or MMTL’s Subcontractors, and not developed under this Agreement, such items
are owned by MMTL, MMTL’s Affiliates, or MMTL’s Subcontractors. MMTL hereby grant to IBM a
license to such items as follows: |
| |
(a) |
|
a nonexclusive, worldwide, paid-up license to use, execute, reproduce,
display, perform, distribute copies of, and modify (including creating Derivative
Works based on) such items, but only: |
| |
(1) |
|
for IBM’s internal use, |
| |
| |
(2) |
|
for the purposes of IBM providing the Services, and |
| |
| |
(3) |
|
during the Term; and |
| |
(h) |
|
The ownership and license rights granted in this Section are limited by and subject to
any patents and copyrights held by, and the terms of any license agreements with,
applicable vendor software providers (including IBM and its Affiliates). |
| |
| |
(i) |
|
To the extent all or any portion of the Materials may not, by operation of law, be
owned by the entity to which ownership is granted in this Section (the Owner), the other
hereby assigns, without further consideration, ownership in such Materials to such Owner. |
| |
| |
(j) |
|
The Parties grant only the licenses and rights specified in this Agreement. No other
licenses or rights (including licenses or rights under patents) are granted. |
| |
| |
(k) |
|
The Parties each agree to reproduce the copyright notice and any other legend of
ownership on the original and any copies made under the licenses granted in this Section. |
| |
| |
(l) |
|
Notwithstanding any other provision of this Agreement, IBM and its Affiliates will not
be prevented or restricted by this Agreement from using any technique, idea, concepts or
know-how relating to IBM’s or its Affiliates’ business activities. |
| |
(a) |
|
Defense by IBM: IBM will defend MMTL, MMTL’s Affiliates, and
their respective employees, officers, and directors against any claim by a Third Party: |
| |
(i) |
|
that an IBM Product used by IBM in conjunction with the Services under this
Agreement infringes such Third Party’s patent or copyright; |
| |
| |
(ii) |
|
for taxes (and interest or penalties assessed thereon) against MMTL that are
obligations of IBM pursuant to Section 4 of this Agreement. |
| |
| |
(iii) |
|
based on any representations, oral or written, made by IBM to MMTL
employees, including the Affected Employees, regarding the employment of the Affected
Employees with IBM under this Agreement, unless such representations were expressly
authorized in writing by MMTL. |
| |
(b) |
|
Defense by MMTL: MMTL will defend IBM, its Affiliates, and their respective
employees, officers, and directors against any claim by a Third Party: |
| |
(i) |
|
that MMTL’s Product(s) infringes such Third Party’s patent or copyright; |
Page 9 of 19
| |
(ii) |
|
that a contractual obligation not expressly assumed by IBM under Section 17
of this Agreement and listed in a Transaction Document was not performed; |
| |
| |
(iii) |
|
that is brought by a Services Recipient and is related, directly or
indirectly, to the Services; |
| |
| |
(iv) |
|
for taxes (and interest or penalties assessed thereon) against IBM that are
obligations of MMTL pursuant to Section 4 of this Agreement; |
| |
| |
(v) |
|
based on an environmental claim arising out of this Agreement or as a result
of the Services performed at the Facilities, except to the extent that IBM has caused
the environmental damage as a result of IBM’s breach of its obligations under this
Agreement; and |
| |
| |
(vi) |
|
based on any products or services provided by MMTL or MMTL’s Affiliates. |
| |
| |
(vii) |
|
made by MMTL to MMTL employees, including the Affected Employees, regarding
the employment of the Affected Employees with IBM under this Agreement, unless such
representations were expressly authorized in writing by IBM. |
| |
(c) |
|
Indemnity: If a Party is obligated to provide the defense in Sections 12(a)
or 12(b) above (the “Indemnifying Party”), subject to Section 12(g), the Indemnifying
Party agrees to pay to the other (the “Indemnified
Party”) all: |
| |
(i) |
|
damages that a court finally awards to such Third Party for such claim and
any reasonable attorneys’ fees and costs of investigation incurred by the Indemnified
Party in connection with defending such claim (“Defense Costs”); or |
| |
| |
(ii) |
|
the amount of any settlement agreed to by the Indemnifying Party and any Defense
Costs, |
| |
|
|
in each case, in proportion to the Indemnifying Party’s comparative fault in
causing such amounts. |
| |
(d) |
|
Patent and Copyright Claims: The Indemnifying Party will have no
obligation for patent or copyright claims pursuant to Sections
12(a) or 12(b) above to the
extent such claims are a result of: |
| |
(a) |
|
modifications of the Products, or the use of such Products in other than their
specified operating environment; |
| |
| |
(b) |
|
the Indemnified Party’s combination, operation, or use of Products with
products, data, or apparatus not provided by the Indemnifying Party; or |
| |
| |
(c) |
|
the Indemnified Party’s use of the Products in a country other than the
country set forth in this Agreement or a Transaction Document, |
| |
|
|
unless such modification, combination, operation or use was at the direction or request of,
or in accordance with the specifications provided by, the Indemnifying Party. |
| |
| |
(e) |
|
Intentionally left blank |
| |
| |
(f) |
|
Patent and Copyright Claims (Cont’d): If a patent or copyright infringement
claim is made or appears likely to be made, the Indemnified Party agrees to permit the
Indemnifying Party to use commercially reasonable efforts to obtain the right for the
Indemnified Party to continue to use the relevant Product or to modify or replace it with
one that is at least functionally equivalent, provided, however, that use of such Product
may be discontinued if the Product cannot be modified or replaced, and the Indemnified
Party and the Indemnifying Party will cooperate with each other to achieve a reasonable
alternative arrangement for providing the affected Services with appropriate adjustment to
the Services, performance metrics and charges. |
| |
| |
(g) |
|
Indemnification Procedures: The Indemnifying Party’s obligations
under this Section are subject to the Indemnified Party following the procedures set forth
in this Section 12(g). |
| |
(i) |
|
The Indemnified Party will promptly notify the Indemnifying Party in writing
of a claim covered by this Section 12. |
| |
| |
(ii) |
|
The Indemnifying Party will be entitled to take sole control of the defense
and investigation of the claim (“Defense”) at its own expense, and to use attorneys
of its choice, by providing prompt written notice to the Indemnified Party. The
Indemnifying Party will not be liable to the Indemnified Party for any Defense Costs
incurred after such notice, except for Defense Costs incurred at the Indemnifying
Party’s request. |
Page 10 of 19
| |
(iii) |
|
The Indemnified Party will cooperate in all reasonable respects with the
Indemnifying Party and its attorneys in the Defense of such claim, and may reasonably
participate at its own expense, through its attorneys or otherwise, in such Defense. |
| |
| |
(iv) |
|
If the Indemnifying Party does not take sole control of the Defense of a
claim as provided in this Section 12(g): |
| |
(a) |
|
the Indemnifying Party may participate in such Defense, at
its sole cost and expense; |
| |
| |
(b) |
|
the Indemnified Party will have the right to defend the
claim in such manner as it may deem appropriate; and |
| |
| |
(c) |
|
the Indemnifying Party will pay the Indemnified Party’s
Defense Costs. |
| |
(v) |
|
All settlements of claims subject to indemnification under this Section will: |
| |
(a) |
|
be entered into only with the consent of the Indemnified
Party, which consent will not be unreasonably withheld; and |
| |
| |
(b) |
|
include an appropriate confidentiality agreement
prohibiting disclosure of the terms of such settlement. |
| |
(vi) |
|
The Indemnifying Party will be subrogated to the rights and defenses of the
Indemnified Party to the extent of, and with respect to, the Indemnifying Party’s
obligation to indemnify the Indemnified Party under this Section 12. |
| |
(a) |
|
MMTL is responsible for promptly obtaining and providing to IBM all Required
Consents necessary for IBM to provide the Services described in this Agreement and any
Transaction Documents. |
| |
| |
(b) |
|
MMTL will indemnify, defend and hold IBM, its Affiliates, harmless from and against
any and all claims, losses, liabilities and damages (including reasonable attorneys’ fees
and costs) arising from or in connection with any claims (including patent and copyright
infringement) made against IBM, alleged to have occurred as a result of MMTL’s failure to
provide any Required Consents to IBM. |
| |
| |
(c) |
|
IBM will be relieved of the performance of its obligations affected by MMTL’s
failure to promptly provide any Required Consents to IBM, to the extent of such failure
affecting the performance of its obligations. |
| |
(a) |
|
With respect to the software used by IBM to provide the Services: |
| |
(i) |
|
MMTL represent and warrant that, during the term of this Agreement, MMTL
have the right to access and use such software in the manner in which MMTL were using
such software as of the Transaction Effective Date. |
| |
| |
(ii) |
|
MMTL hereby grant to IBM, for IBM’s provision of the Services, the same
rights to use such software that MMTL have with respect to such software, subject to
Section 13 of this Agreement. |
| |
(a) |
|
IBM will provide Services to Services Recipients, subject to the terms of this
Section. |
| |
| |
(b) |
|
MMTL represent and warrant that MMTL will have a written agreement with the Services
Recipients prior to IBM’s provision of Services to such Services Recipients that provides,
for the benefit of IBM, that: |
| |
(i) |
|
the Services Recipients will not make any claim or be a party to any
action or lawsuit, directly or indirectly, against IBM or its Affiliates or their
employees, officers, or directors arising out of or in connection with this
Agreement; and |
| |
| |
(ii) |
|
the Services Recipients will direct all communications regarding this
Agreement through and to MMTL, and not through or to IBM. |
| |
(c) |
|
MMTL is fully responsible for the performance of its obligations under this
Agreement with respect to the Services provided to such Services Recipients. |
Page 11 of 19
| |
(d) |
|
Nothing in this Section relieves MMTL of its obligations or expands IBM’s
obligations under this Agreement. |
16. Warranty for IBM Services
| |
(a) |
|
Authorization and Enforceability: Each Party represents and warrants that: |
| |
(i) |
|
it has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement; |
| |
| |
(ii) |
|
its signing of and agreement to this Agreement has been duly authorized
by all requisite corporate actions; |
| |
| |
(iii) |
|
it has signed and agreed to this Agreement; and |
| |
| |
(iv) |
|
this Agreement is a valid and binding obligation, enforceable against it
in accordance with its terms (assuming the due authorization, execution, and
delivery by the other). |
| |
(b) |
|
Compliance with Laws and Obligations: |
| |
(i) |
|
IBM warrants that it complies with the IBM Regulatory Requirements to the
extent that such Regulatory Requirements relate to the performance of its
obligations under this Agreement. |
| |
| |
(ii) |
|
MMTL warrants that MMTL and MMTL’s Business Processes comply with MMTL’s
Regulatory Requirements to the extent that such Regulatory Requirements relate to
the performance or utilization of the Services, and will identify and make
interpretations of all of MMTL’s Regulatory Requirements applicable to the
performance or utilization of the Services. |
| |
| |
(iii) |
|
Any modifications to the Services as a result of MMTL’s Regulatory
Requirements will be considered a New Service. |
| |
(c) |
|
Disclaimer of Warranty for EMU: |
| |
(i) |
|
IBM is not providing any Economic Monetary Union (EMU) or Euro
denomination services under this Agreement. |
| |
| |
(ii) |
|
Under this Agreement, IBM is not responsible for: |
| |
(a) |
|
MMTL’s or MMTL’s Affiliates’ Products;
|
| |
| |
(b) |
|
a Third Party’s products; or |
| |
| |
(c) |
|
IBM Corp and IBM Products not provided and selected by IBM
under this Agreement, |
| |
| |
((a), (b), and (c) collectively, “Other Products”) to correctly process or
properly exchange data in the EMU or Euro denomination. |
| |
(iii) |
|
MMTL acknowledges that MMTL is responsible for assessing MMTL’s current
systems and taking appropriate action to migrate to EMU-ready or Euro-ready
systems. |
| |
(i) |
|
IBM warrants that services shall materially confirm to the SLA’s as agreed in
the SOW. |
| |
|
EXCEPT AS PROVIDED IN THIS SECTION 16, THERE ARE NO EXPRESS WARRANTIES, REPRESENTATIONS,
UNDERTAKINGS, OR CONDITIONS (STATUTORY OR OTHERWISE) BY IBM, AND THERE ARE NO IMPLIED
WARRANTIES, REPRESENTATIONS, UNDERTAKINGS, OR CONDITIONS (STATUTORY OR OTHERWISE) BY IBM,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN
THIS AGREEMENT. |
|
|
|
| 17. |
|
Limitation of Liability |
| |
(a) |
|
Each Party’s and its respective Affiliates’, employees’, officers’, and directors’
entire liability under this Agreement, and their exclusive remedies, are set forth in
this Section and Section 12 of this Agreement. |
| |
| |
(b) |
|
Each Party’s and its respective Affiliates’, employees’, officers’ and directors’
entire liability for actual, direct damages under this Agreement, regardless of the basis
on which IBM or MMTL are entitled to claim damages (including breach, negligence,
misrepresentation, or other contract or tort claim), will be limited in the aggregate for
all claims and causes of actions to an amount equal to the greater of US $100,000 or the
amount actually paid by MMTL to IBM for |
Page 12 of 19
| |
|
|
the Services provided under this Agreement during the six months prior to the occurrence
of the first claim or cause of action. |
| |
| |
(c) |
|
In no event will either Party or its respective Affiliates, employees, officers, and
directors have any liability under this Agreement, regardless of the basis on which IBM
or MMTL are entitled to claim damages (including breach, negligence, misrepresentation,
or other contract or tort claim), for any special, incidental, punitive, indirect,
economic or consequential damages, or any loss of profit, loss of revenue, loss of data,
loss of anticipated savings, or damage to reputation, even if foreseeable or even if MMTL
or IBM has been advised of the possibility of such damages; provided that this Section
17(c) does not apply to MMTL’s failure to pay any amounts owing to IBM under this
Agreement. |
| |
| |
(d) |
|
The limitation of liability in Sections 17(b) and 17(c) above do not apply to: |
| |
(i) |
|
MMTL’s failure to pay any amounts owing to IBM under this Agreement
(including amounts owing for Services rendered or services that would have been
rendered but for MMTL’s breach of this Agreement); |
| |
| |
(ii) |
|
any damages for bodily injury (including death) and damage to real
property and tangible personal property for which a Party is legally liable; |
| |
| |
(iii) |
|
Each Party’s obligation to indemnify the other under this Agreement; and |
| |
| |
(iv) |
|
any damages associated with MMTL’s/IBM infringement or violation of the
intellectual property rights of IBM/MMTL or its Affiliates. |
| |
| |
(v) |
|
Defense Costs and amounts payable to Third Parties pursuant to MMTL’s or
IBM’s obligation to indemnify the other under this Agreement, as provided in
Section 12 (a) (iii) and Section 12 (b) (vii). |
| |
(e) |
|
In no event will IBM/MMTL or its Affiliates, employees, officers, and directors have
any liability under this Agreement, regardless of the basis on which MMTL/IBM is entitled
to claim damages (including breach, negligence, misrepresentation, or other contract or
tort claim), for claims made against MMTL/IBM by Third Parties or MMTL/IBM’s Affiliates,
except for (i) claims for bodily injury (including death) and damage to real property and
tangible personal property for which IBM/MMTL is liable, and (ii) claims in respect of
which IBM/MMTL has an obligation to indemnify MMTL/IBM pursuant to this Agreement. |
| |
| |
(f) |
|
In no event will IBM/MMTL, its Affiliates, or their respective employees, officers,
and directors have any liability for any damages to the extent caused by MMTL/IBM,
MMTL/IBM’s Affiliates’, or their respective employees’, officers’, or directors’ failure
to perform MMTL/IBM’s obligations under this Agreement, nor will MMTL/IBM, MMTL/IBM’s
Affiliates, or their respective employees, officers, and directors have any liability for
any damages if to the extent caused by IBM/MMTL’s, its Affiliates’, or their respective
employees’, officers’, or directors’ failure to perform IBM/MMTL’s obligations under this
Agreement. |
| |
(i) |
|
The Parties are each responsible for complying with their respective
obligations under the applicable data protection laws governing MMTL’s Data. |
| |
| |
(ii) |
|
MMTL remain solely responsible for determining the purposes and means of
IBM’s processing of MMTL’s Data under this Agreement, including that such
processing will not place IBM in breach of the applicable data protection laws. |
| |
| |
(iii) |
|
Data protection laws are MMTL’s Regulatory Requirements with respect to
MMTL’s Data, except and only to the extent such data protection laws regulate IBM’s
processing of MMTL’s Data in IBM’s performance of the Services. The Parties each
acknowledge that it is not investigating the steps the other is taking to comply
with applicable data protection laws. Nothing in this Agreement prevents IBM or
MMTL from taking the steps it deems necessary to comply with applicable data
protection laws. |
Page 13 of 19
| |
(i) |
|
By executing this Agreement, MMTL appoint IBM as a data processor of
MMTL’s Data. As a processor of MMTL’s Data, IBM will process MMTL’s Data as
specified in a Transaction Document. MMTL agree that IBM may perform such
processing as IBM reasonably considers necessary or appropriate to perform the
Services. Upon expiration or termination of this Agreement, MMTL will give the data
protection authority prompt notice of the termination of the appointment of IBM as
MMTL’s data processor. |
| |
(c) |
|
Transborder Data Flows |
| |
(i) |
|
IBM will not transfer any of MMTL’s Data across a country border unless
IBM reasonably considers such transfer appropriate or useful for IBM’s performance
of the Services or obtains MMTL’s prior written consent, or as is expressly
provided in the MSA |
| |
| |
(ii) |
|
MMTL are solely responsible for determining that any transfer by IBM or
MMTL of MMTL’s Data across a country border under this Agreement complies with the
applicable data protection laws. |
| |
| |
(iii) |
|
MMTL shall obtain all necessary consents and regulatory approvals
required for any transfers of MMTL’s Data across country borders. |
| |
(i) |
|
If, under the applicable law, MMTL is required to provide information to
an individual regarding MMTL’s Data, IBM will reasonably cooperate with MMTL in
providing such information. MMTL will reimburse IBM for its reasonable charges for
such assistance. |
| |
| |
(ii) |
|
Upon IBM’s or MMTL’s reasonable written request, MMTL or IBM will
provide the other with such information that it has regarding MMTL’s Data and its
processing that is necessary to enable the requester to comply with its obligations
under this Section and the applicable data protection laws. |
| |
| |
(iii) |
|
On prior notice, MMTL shall have access to IBM or its affiliate
facilities providing services under this agreement, during normal business hours
for the purpose of business reviews and meetings only. MMTL agree to allow IBM to
store MMTL’s contact information, such as names, phone numbers, and e-mail
addresses, in any country where IBM does business and to use such information
internally and to communicate with MMTL for the purposes of MMTL’s and IBM’s
business relationship only. |
| |
(a) |
|
The following procedure will be followed if resolution is required to a conflict
arising during performance of a Service: |
| |
(i) |
|
When a conflict arises between MMTL and IBM, the project team member(s)
will first strive to work out the problem internally. |
| |
(a) |
|
Level 1: If the project team cannot resolve the conflict
within two (2) working days, MMTL’s Project Manager and IBM’s Project
Manager will meet to resolve the issue. |
| |
| |
(b) |
|
Level 2: If the conflict is not resolved within three (3)
working days after being escalated to Xxxxx 0, XXXX’s assigned executive
sponsor will meet with the IBM project executive to resolve the issue. |
| |
(ii) |
|
If the conflict is resolved by either Level 1 or Level 2 intervention,
the resolution will be addressed in accordance with the Project Change Control
Procedure set out in Section 5 of this Agreement. |
| |
| |
(iii) |
|
During any conflict resolution, IBM agrees to provide Services relating
to items not in dispute, to the extent practicable pending resolution of the
conflict. MMTL agree to pay invoices for such services not in dispute in accordance
with the Transaction Document |
| |
|
|
If the conflict remains unresolved after Level 2 intervention, then either Party may
terminate the Service under the terms of this Agreement. If the conflict is addressed by
termination, MMTL agree to pay IBM for all Services IBM provides. |
Page 14 of 19
| |
(a) |
|
Term: The term of this Agreement (“Term”) will commence as of the Agreement
Effective Date and will continue for a period of five (5) years or the last expiration of any
Transaction Document in effect as of the date of expiration of such period, whichever is the
later, unless earlier terminated in accordance with the provisions of this Agreement. The
Parties may agree to extend the Term of this Agreement by exchanging a letter duly signed by
authorised representatives of both Parties. Each Transaction Document shall set forth the
applicable term for that Transaction Document. |
| |
| |
(b) |
|
Survival: Any term of this Agreement which by its nature extends beyond the Term or
expiry of this Agreement will remain in effect until fulfilled, and will apply to both
Parties’ respective successors and assignees. |
| |
| |
(c) |
|
Termination for Convenience: |
| |
(i) |
|
Both IBM and MMTL may elect to terminate the Agreement or any applicable SoW
by providing 6 months notice period to the other party. The effective date of
termination for convenience must not be earlier than 2 years from the Transaction
Effective Date |
| |
(d) |
|
Termination for Cause: |
| |
(i) |
|
Either Party (the “Nonbreaching Party”) may elect to terminate a Transaction
Document for material breach by the other Party (the “Breaching Party”) by following
the process set forth in this Section. |
| |
| |
(ii) |
|
The Nonbreaching Party will provide the Breaching Party with written notice
of such material breach within 60 days after the material breach, describing in detail
the specific nature and dates of the material breach, and will, if the material breach
is capable of being cured, provide the Breaching Party with the opportunity to cure
the material breach within the following periods: |
| |
(a) |
|
in the event of a failure to pay any amount due on the payable
date specified in a Transaction Document, 10 days after receipt of such written
notice; and |
| |
| |
(b) |
|
in the event of any other material breach, 45 days after receipt of such
written notice. |
| |
(iii) |
|
If the material breach is not cured during the applicable cure period set
forth above, the Nonbreaching Party may terminate the effected Transaction Document
for material breach by providing the Breaching Party with written notice within 60
days after the expiration of the cure period specified above, declaring termination
of the Transaction Document for material breach under this Section, effective on the
date stated in such notice. Such effective date will be no later than 120 days after
the Breaching Party’s receipt of such notice of termination for material breach. |
| |
(e) |
|
Temporary Extension of Services: |
| |
(i) |
|
If MMTL is unable to complete the transition of Services as of the
expiration or termination of a Transaction Document, MMTL may elect once to extend
the Transaction Document at the then-current prices, resource levels, charging
methodology, and other applicable terms for up to six months beyond the then
effective date of the expiration or termination of the Transaction Document (a
Temporary Extension of Services) by notifying IBM in writing of such election at
least 90 days prior to such effective date. MMTL will pay IBM for: |
| |
(a) |
|
the charges otherwise due and owing under this Agreement; and |
| |
|
|
The Transaction Document will terminate as of midnight (according to the time zone
stated for the expiration date) on the last day of such Temporary Extension of
Services. |
| |
(ii) |
|
If IBM terminates a Transaction Document for MMTL’s material breach, MMTL
will not have the right to elect a Temporary Extension of Services. |
| |
| |
(iii) |
|
There will be no adjustment to the Termination Charges as a result of a
Temporary Extension of Services. |
Page 15 of 19
| |
(i) |
|
If MMTL desires IBM’s assistance in transferring Services back to MMTL, MMTL
Affiliates, or a Third Party upon termination or expiration of a Transaction Document
(“Transfer Assistance”), upon MMTL’s reasonable written request, IBM will provide
such Transfer Assistance to MMTL: |
| |
(a) |
|
to the extent IBM can perform such requested Transfer
Assistance using its then-existing resources dedicated solely to providing
the Services under the Transaction Document, until expiration or termination
of the Transaction Document; and |
| |
| |
(b) |
|
to the extent IBM reasonably agrees to perform the
requested Transfer Assistance, for the period of time requested by MMTL,
which period will end no later than six months after the effective date of
the expiration or termination of the Transaction Document (the “Transfer
Assistance Period”). |
| |
(ii) |
|
If IBM’s Transfer Assistance will require the use of different or additional
services or resources beyond that which IBM is then using to provide the Services in
accordance with the agreed baselines and performance metrics, such request for
Transfer Assistance will be considered a New Service and performed for an additional
charge. |
| |
| |
(iii) |
|
During the Transfer Assistance Period, IBM will provide MMTL, MMTL’s
Affiliates, and their Third Parties, as necessary, with reasonable access to the
Machines and Software, provided: |
| |
(a) |
|
any such access does not interfere with IBM’s ability to
provide the Services or Transfer Assistance; and |
| |
| |
(b) |
|
such Third Parties and MMTL’s Affiliates comply with IBM’s
security and confidentiality requirements, including execution of a
confidentiality agreement reasonably acceptable to IBM. |
| |
(iv) |
|
MMTL will allow IBM to use the Facilities to enable IBM to effect an orderly
transition of resources, for up to 60 days after the later of: |
| |
(a) |
|
the expiration or termination of the Transaction Document;
or |
| |
| |
(b) |
|
the last day of the Transfer Assistance Period. |
| |
(v) |
|
If IBM terminates a Transaction Document for cause, IBM may
provide MMTL with Transfer Assistance only if MMTL pay for such Transfer Assistance in advance. |
| |
| |
(vi) |
|
The applicable provisions of this Agreement will remain in full force and
effect during the Transfer Assistance Period. |
| |
(g) |
|
Other Rights Upon Expiration or Termination:
IBM will provide the additional assistance set forth in Section 20(i) below upon expiration or
termination of a Transaction Document (other than where IBM terminates the Transaction
Document for MMTL’s material breach). |
| |
| |
(h) |
|
Contracts: |
| |
(i) |
|
IBM will provide MMTL with contracts transfer assistance as set forth in
this Section, subject to: |
| |
(a) |
|
MMTL’s written request;
|
| |
| |
(b) |
|
IBM’s right to transfer such contract; |
| |
| |
(c) |
|
the release of IBM from all contractual responsibility and
liability under such contract; and |
| |
| |
(d) |
|
MMTL’s assumption of all contractual responsibility
and liability under such contract, including payment of any transfer
fees, license fees, or other charges. |
| |
(ii) |
|
Contracts for Generally Available Software: |
| |
| |
|
|
For generally available software (including IBM Corp Products) which on the date
of expiration or termination of the Transaction Document IBM is using: |
| |
(a) |
|
solely to provide the Services to MMTL, IBM will assign
its license, if any, to such software to MMTL or MMTL’s designee upon MMTL’s
reimbursement to IBM of any initial, one-time license or purchase charges in
an amount equal to the remaining unamortized value, if any, for the
software, depreciated over a five year life; and |
Page 16 of 19
| |
(b) |
|
to provide Services to MMTL and other customers in a
shared environment, IBM will provide reasonable assistance to MMTL in
obtaining licenses for such software. |
| |
(iii) |
|
Services Contracts: For any Third Party services, which on
the date of expiration or termination of the Transaction Document IBM is using solely
to perform the Services (such as machine maintenance, disaster recovery, or other
Third Party services), IBM will assign the contracts, if any, for such Third Party
services to MMTL or MMTL’s designee. |
| 21. |
|
General Principles of IBM and MMTL’s Relationship |
| |
(a) |
|
Neither party grants the other the right to use its (or any of its Affiliates’)
trademarks, trade names, or other designations in any promotion or publication without
prior written consent. |
| |
| |
(b) |
|
Each party is free to enter into similar agreements with others. IBM personnel
providing Services to MMTL under this Agreement may perform similar services for others
and this Agreement will not prevent IBM from using the personnel and equipment provided
to MMTL under this Agreement for such purposes. However, the personnel providing direct
support for MMTL customers (IBM Agents, Team Leaders and Managers) can not be deployed to
MMTL’s direct competitor ( travel portals operating in India) account for a period of 9
months from the day they are taken off from MMTL process. Such restriction shall not
apply on IBM in case such personnel are used for providing services to or transferred
within the Enterprise, to MMTL’s Affiliates or to XxxxXxXxxx.xxx Inc. Each party grants
the other only the licenses and rights specified herein. No other licenses or rights
(including licenses or rights under patents) are granted. |
| |
| |
(c) |
|
Each party may communicate with the other by electronic means and such communication
is acceptable as a signed writing. An identification code (called a “user ID”) contained
in an electronic document is sufficient to verify the sender’s identity and the
document’s authenticity. |
| |
| |
(d) |
|
Each party will allow the other reasonable opportunity to comply before it claims
that the other has not met its obligations. |
| |
| |
(e) |
|
Neither party may assign this Agreement, in whole nor in part, without the prior
written consent of the other, such consent not to be unreasonably withheld. Any attempt
to do so is void. The assignment of this Agreement, in whole or in part, within the
Enterprise of which either party is a part or to an Affiliate or successor organization
by merger or acquisition does not require the consent of the other. |
| |
| |
(f) |
|
MMTL agree not to resell any Service without IBM’s prior written consent. Any
attempt to do so is void. |
| |
| |
(g) |
|
MMTL agree that this Agreement will not create any right or cause of action for any
third party, nor will IBM be responsible for any third party claims against MMTL except
as described in Section 12 above or as permitted by Section 17 above regarding liability
for bodily injury (including death) or damage to real or tangible personal property for
which IBM is legally liable. |
| |
| |
(h) |
|
MMTL agree that MMTL is responsible for the results obtained from the use of the
Services. |
| |
| |
(i) |
|
MMTL agree to provide IBM with sufficient, free, and safe access to
MMTL’s facilities and systems for IBM to fulfill its obligations. |
| |
| |
(j) |
|
MMTL agree to comply with all applicable export and import laws and regulations. |
| |
(a) |
|
Neither Party will be liable for any default or delay in the performance of their
respective obligations, to the extent that such default or delay: |
| |
(i) |
|
is caused, directly or indirectly, by an event beyond the reasonable
control of IBM or MMTL, whichever is the entity unable to perform (the
Nonperforming Party), such as (without limitation) fire, flood, earthquake,
elements of nature, acts of war, terrorism, riots, civil disorders, rebellions
or revolutions, strikes, lockouts or labor difficulties; and |
Page 17 of 19
| |
(ii) |
|
could not have been prevented by commercially reasonable
precautions, alternative sources, workaround plans, or other means, |
| |
|
|
(collectively a “Force Majeure Event”). |
| |
| |
(b) |
|
The Nonperforming Party will be excused from any further performance of its
obligations affected by such Force Majeure Event for as long as such Force Majeure Event
continues and the Nonperforming Party continues to use commercially reasonable efforts to
recommence performance. The Nonperforming Party will immediately notify the other under
this Agreement by telephone (to be confirmed in writing within five days of the inception
of such default or delay) and describe at a reasonable level of detail the circumstances
causing such Force Majeure Event. If a Force Majeure Event substantially prevents,
hinders, or delays IBM’s performance of the Services necessary for the operation of
functions which are critical to the operation of MMTL’s business, if any, for more than 30
consecutive days, then MMTL may either: |
| |
(i) |
|
procure such Services from an alternate provider until IBM is able to
provide the Services. Subject to Section 22(c) below, IBM will reimburse MMTL for
any reasonable payments to such alternate provider for such Services, for the
lesser of 180 days or the remainder of the Term; or |
| |
| |
(ii) |
|
terminate the affected Services by providing IBM with a written notice
of termination and paying IBM for any unrecovered start-up costs, anticipated
profit prorated to the date of termination, and any reasonable out-of-pocket
expenses associated with ramp-down costs. |
| |
(c) |
|
During the Force Majeure Event, MMTL will continue to pay IBM’s charges for the
Services. |
| |
| |
(d) |
|
IBM obligation to provide the disaster recovery services , shall be to an extent set
forth in Transaction Document |
|
|
|
| 23. |
|
Geographic Scope and Governing Law |
| |
(a) |
|
This Agreement and the transactions contemplated by this Agreement are governed by
the law in force in India. Nothing in this Agreement affects any statutory rights that
cannot be waived or limited by contract under applicable law. |
| |
| |
(b) |
|
Any proceeding regarding the rights, duties, and obligations arising under, or
relating in any manner to, the subject matter of this Agreement will be brought in New
Delhi, India. The Parties waive any objections to such jurisdiction, including venue and
inconvenient forum. |
|
|
|
| 24. |
|
Severability and Waiver |
| |
|
In the event that any provision of this Agreement is held to be invalid or unenforceable, the
remaining provisions of the Agreement remain in full force and effect. Nothing in this
Agreement affects any statutory rights of consumers that cannot be waived or limited by
contract. The exercise or waiver, in whole or in part, of any right, remedy, or duty provided
for in this Agreement will not constitute the waiver of any prior, concurrent or subsequent
right, remedy, or duty within this Agreement. |
| |
|
This Agreement and its applicable Transaction Documents are the complete agreement between the
Parties, and replace any prior oral or written communications, regarding the acquisition of
Services. |
Page 18 of 19
By signing below, both of Parties agree to the terms of this Agreement without modification.
Once signed, 1) any reproduction of this Agreement or Transaction Document made by reliable
means (for example, photocopy or facsimile) is considered an original and 2) all Services
ordered under this Agreement are subject to the terms of this Agreement.
Agreement Effective Date: 0000 hours IST on 5th of March, 2008
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Agreed to: |
|
|
|
Agreed to: |
| Make My Trip India Private Limited |
|
|
|
IBM Xxxxx Business Process Services Private Limited |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By
|
|
/s/ Xxxxxx Xxxxx |
|
|
|
By |
|
/s/ Xxxx Xxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Authorized Signature |
|
|
|
Authorized Signature |
| Name (type or print): XXXXXX XXXXX |
|
|
|
Name (type or print): XXXX XXXXX |
| Date: 5/03/2008 |
|
|
|
Date: 5th March, 2008 |
After signing, please return a copy of this Agreement to the “IBM address” shown
above.
Page 19 of 19
