TERM SHEET TERMS AND CONDITIONS

Last Updated on 27.05.2016

Yellow Bulbs Solutions Private Limited is a private company duly incorporated under the Indian laws, and having its registered office at Flat No. 1A Aishwarya Apartment 1st Floor, 18 Ballygunge Place, Kolkata – 700019 (hereinafter referred to as "Company" or "YellowBulbs").

The Company owns and manages the platform "yellowbulbs.com" which is a web based marketing marketplace platform (“Platform”) which connects the customers to Persons providing marketing services and/or solutions, both of whom shall be registered users on the Platform.

The customer ("Marketer") and the service provider ("Solution Partner") have mutually agreed to the commercial terms and conditions of the engagement of the Solution Partner by the Marketer ("Commercial Terms") in a term sheet/by choosing the relevant brand box (being the description of the Services and Deliverables to be delivered by the Solution Partner to the Marketer) containing the Commercial Terms ("Term Sheet", such Term Sheet to include any amendments and modifications carried out from time to time). The Marketer and the Solution Partner agree and acknowledge that their acceptance of the Commercial Terms set out in the Term Sheet is subject to and conditional upon their acceptance of these terms and conditions ("Terms and Conditions") and accordingly these Terms and Conditions shall be deemed to be incorporated in the Term Sheet by this reference and shall form a part of the Term Sheet thereof. It is further expressly agreed between the Marketer and the Solution Partner that the Term Sheet and these Terms and Conditions shall at all times be read and construed together.

The Term Sheet along with these Terms and Conditions constitute a binding legal agreement between the Marketer, the Solution Partner and the Company. Upon acceptance of these Terms and Conditions by the Marketer and the Solution Partner, the Company shall have been deemed to have provided its assent to these Terms and Conditions, without any further act or deed.

For the purpose of these Terms and Conditions, the Marketer and the Solution Partner shall be individually referred to as "Key Party" and collectively referred to as "Key Parties".

For the purpose of these Terms and Conditions, the Marketer, the Solution Partner and the Company shall be individually referred to as "Party" and collectively referred to as "Parties".

NOW THESE TERMS AND CONDITIONS WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:

1.DEFINITIONS AND INTERPRETATIONS

2.ENGAGEMENT OF SERVICES

3.CONSIDERATION:

  • 3.1.Project Fee
    • 3.1.1. In full consideration for the Solution Partner’s performance of the Services, the Marketer has agreed to pay the Project Fee in accordance with the timelines set out in this Term Sheet of the Customised solution provided for the Brief posted.
    • 3.1.2. In full consideration for the Company providing the Solution Partner with the access to the Marketer through the Platform, the Solution Partner has agreed to pay the Company, the Business Identification Fee. The Solution Partner hereby expressly authorizes the Company to withdraw its Business Identification Fee from the Project Fee prior to any disbursement to the Solution Partner.
    • 3.1.3. The Project Fee shall be inclusive of all costs and expense incurred in the course of provision of Services and/or Deliverables and all applicable taxes, including but not limited to service tax but excluding any income tax.
    • 3.1.4. The Marketer agrees and acknowledges that any additional costs which may be incurred towards payment of the Project Fee to the Designated Account pursuant to the residential status of the Marketer shall be borne shall be borne solely by the Marketer in addition to and without prejudice to the Project Fee.
    • 3.1.5. The Solution Partner agrees and acknowledges that any additional costs which may be incurred towards disbursement of the Project Fee to the Solution Partner from the Designated Account and the Solution Partner hereby explicitly authorizes the Company to deduct such additional costs from the Project Fee prior to the disbursement of the Project Fee.
    • 3.1.6. In case of the ready – to – order Brand Box uploaded by the Solution Partner for sales on the website, the Solution Partner agrees to pay the Company, the Business Identification Fee. The Solution Partner hereby expressly authorizes the Company to withdraw its Business Identification Fee of 10% of the value of Brand Box published on the site, from the Net Project Fee/Brand Box Value received in advance, prior to any disbursement to the Solution Partner.
  • 3.2.Mechanism of Disbursement of the Project Fee
    • 3.2.1. The Marketer agrees and undertakes to pay the Project Fee in accordance with the Payment Schedule.
    • 3.2.2. The Project Fee shall be payable to the Designated Account controlled solely by the Company, who has in order to provide comfort to the Marketer and security of the payments to be made by the Marketer for the Services, agreed to be responsible for the disbursement of the Project Fee in accordance with the terms of the Term Sheet.
    • 3.2.3. The Company hereby agrees to disburse the Project Fee held for the Marketer in the Designated Account by way of disbursement of the Project Fee to the Solution Partner, after deduction of the Business Identification Fee (which Business Identification Fee shall be payable to the Company), but such each disbursement being subject to:
      • i. Confirmation from the Solution Partner that the conditions as set out in the Term Sheet for disbursement of the relevant tranche of the Project Fee have been fully satisfied by initiating the Job Completion Certificate (JCC) request.
      • ii. a proforma invoice/invoice being raised by the Solution Partner for the relevant payment of the Project Fee (whether payable in whole or in part) in accordance with the Payment Schedule (100% advance/part advance / or any ratio)
      • iii. confirmation from the Marketer that the conditions as set out in the Term Sheet for disbursement of the relevant tranche of the Project Fee have been fully satisfied by the Solution Partner by way of the procedure for such confirmation provided for on the Platform (“Job Completion Certificate”); and
      • iv. the Solution Partner acknowledges that no Project Fee shall be disbursed without first the deduction and payment of the Business Identification Fee to the Company upon any invoice for such Business Identification Fee being raised by the Company.
    • 3.2.4. The Solution Partner shall raise its invoice (which may be transmitted as scanned versions through the Platform) in accordance with the Payment Schedule containing adequate details to identify the Services and/or the Deliverables against which such invoice is being raised.
    • 3.2.5. The Project Fee shall be calculated, priced and billed in INR and shall be subject to adjustment for fluctuations in currency exchange rates, as may be determined by the Company in accordance with Applicable Laws (if applicable). All charges, including but not limited to payment gateway charges, conversion charges and fluctuations in fixed currency rates (as of the date of receipt of the Project Fee as against the date of disbursement of the Project Fee) imposed by the Company’s banker shall be borne entirely by the Solution Partner.
    • 3.2.6. Unless the Marketer has raised a dispute or objection which is communicated to the Company through the Platform within five (5) Business Days of fulfillment of the actions set out in Clause 3.2.3(i) and Clause 3.2.3(ii) by the Solution Partner, the Marketer hereby explicitly authorizes the Company to deem that the Marketer has fulfilled its obligation set out in Clause 3.2.3(iii) and the Company shall be automatically entitled to disburse the Project Fee in accordance with Clause 3.2.3.
    • 3.2.7. In the event that the Marketer raises a dispute or objection, which is received by the Company, the Company shall hold the payments received from the Marketer in the Designated Account for the relevant invoice until such time that the dispute is resolved between the Marketer and the Solution Partner.
    • 3.2.8. The Key Parties explicitly agree and acknowledge that the Company shall have no liability or obligation in any manner whatsoever to facilitate the resolution of the dispute between the Key Parties.
    • 3.2.9. Upon resolution of the dispute, if any, between the Key Parties and an intimation being received by the Company, the Company shall then disburse the Project Fee in accordance with the terms of the settlement arrived at between the Key Parties pursuant to the resolution of the dispute.
    • 3.2.10. The Key Parties explicitly agree that any revision to the Project Fee based on the resolution of the dispute between them shall automatically result in a proportionate change to the Business Identification Fee.
    • 3.2.11. In the event of any delay in payments of all or part of the Project Fee by the Marketer, the Solution Partner shall not be liable to render any further Services and/or Deliverables to the Marketer and accordingly the Delivery Schedule shall stand proportionately extended without any further act or deed by any Party.

4.COVENANTS OF THE KEY PARTIES

  • 4.1.The Marketer shall, as and when requested by the Solution Partner, provide all information, and details as may be necessary for the timely and efficient performance of the Services by the Solution Partner.
  • 4.2. The Marketer shall make timely payments of Project Fee in accordance with the Payment Schedule and the Solution Partner shall provide the Deliverables in accordance with the Delivery Schedule.
  • 4.3. The Solution Partner shall ensure that it has the requisite skill, expertise, facilities and capabilities to render the Services and successful provision of Deliverables in accordance with the terms of the Term Sheet.
  • 4.4. It acknowledges that all right, title and interest (including any Intellectual Property rights) in and to any information, details and content provided by the Marketer to the Solution Partner to enable the Solution Partner to provide the Services and the Deliverables is and shall always belong to the Marketer and the Solution Partner shall protect such right of the Marketer from any infringement, to the extent reasonably possible.
  • 4.5. The Solution Partner shall not and shall ensure that no intellectual property rights of any third party is infringed or threatened to be infringed directly or indirectly by the performance of the Services and delivery of the Deliverables by the Solution Partner.
  • 4.6. The Key Parties shall not do any such act which shall be deemed to be an attempt by the Key Parties to initiate, engage in and/or facilitate any communications in any manner whatsoever outside the Platform for a period of 18 Eighteen months from the date of acceptance of the Term Sheet.
  • 4.7. The Key Parties shall at all times be in compliance with Applicable Laws and perform their respective obligations only in compliance with Applicable Laws and the terms of this Term Sheet.

5.REPRESENTATIONS AND WARRANTIES

  • 5.1. Each Party represents and warrants that:
    • 5.1.1. It has the authority to enter into this Term Sheet and to perform its obligations under the Term Sheet and these Terms and Conditions; and
    • 5.1.2. It is has no contractual, statutory or other restrictions or obligations which are inconsistent with or which will interfere or conflict with the performance of respective obligations under this Term Sheet.
  • 5.2. The Marketer further represents and warrants that:
    • 5.2.1. It has all the Approvals which are required to be obtained or made for the purpose of carrying on its business and operations in relation to which Services and Deliverables have been required by the Marketer through the Platform;
    • 5.2.2. It has not infringed the intellectual property rights of any third party directly or indirectly with respect to the information, content and details provided by it to enable the Solution Partner to perform the Services and deliver of the Deliverables by the Solution Partner; and
    • 5.2.3.All details provided by them in the Term Sheet are true and correct and are not misleading including their residential status.
  • 5.3. The Solution Partner further represents and warrants that:
    • 5.3.1. It has adequate skill, expertise and resources to fulfil its obligations under the Term Sheet;
    • 5.3.2. It also undertakes that it is compliant with all statuary/regulatory conditions on its part required for the purpose of performing the Services in accordance with the Term Sheet; and
    • 5.3.3. It shall ensure that the Deliverables do not contain any matter that is or could be considered libelous, obscene, defamatory, in breach of any third party rights of privacy or otherwise unlawful.
    • 5.3.4. All details provided by them in the Term Sheet are true and correct and are not misleading including their residential status.

6.INTELLECTUAL PROPERTY

  • 6.1.Work for Hire: Any Deliverable, work product, idea, prototype, design, (whether or not patentable, copyrightable or subject to other legal protection), made, developed, conceived of or reduced to practice by the Solution Partner in the course of or resulting from the performance of Services hereunder (“Work Product”) shall be deemed to be a ‘work for hire’ and all rights, title and interest in and all Work Product shall vest with the Marketer.
  • 6.2. Assignment: In pursuance to that which is stated in Clause 6.1 above, the Solution Partner hereby irrevocably and unconditionally assigns to the Marketer the full title guarantee, free from all third party rights, all right, title and interest in and to such Work Product, including all Intellectual Property rights in such Work Product without any further act or deed in consideration for the Project Fee.

7.TERM

  • 7.1. This Term Sheet shall come into force on the last date of acceptance by the Key Parties ("Effective Date") and shall remain in full force and effect until the earlier of (a) full disbursement of the Project Fee to the Company and the Solution Partner and (b) occurrence of any or all of the circumstances set out in Clause 7.2 below ("Term")
  • 7.2.Circumstances of Automatic Termination of this Term Sheet:
    • 7.2.1. The Solution Partner shall be entitled to terminate this Term Sheet in the event that all or any of the Project Fee is payable in advance pursuant to the terms of the Term Sheet but such advance is not realized in the Designated Account within 7 days of the Effective Date; and/or
    • 7.2.2. The Marketer shall be entitled to terminate this Term Sheet in the event of a failure by the Solution Partner to commence providing of Services in the manner as agreed to in the Term Sheet.

8.INDEMNITY

  • 8.1. Each Key Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Key Party (“Indemnified Parties”) from and against all Losses to the maximum extent permitted by Applicable Law which may arise directly or indirectly or result from (i) infringement of intellectual property rights of any other Person, (ii) breach of any terms, conditions, representations and warranties contained in this Term Sheet.
  • 8.2. The Key Parties shall severally indemnify, defend and hold harmless the Company from and against all Losses to the maximum extent permitted by Applicable Law which may arise directly or indirectly or result from (a) infringement of any Intellectual Property rights, (b) breach of any terms and conditions contained in this Term Sheet and (c) fraud, negligence and misconduct of any Key Party, (d) breach of Applicable Law, (e) dissemination of any scandalous, libelous or defamatory content through the Platform and (f) using the Platform for any purpose other than the purposes authorized by the Company. Such indemnity obligation of the Key Parties under this Clause 8.2 shall be without any limitations whatsoever and shall survive the termination of this Term Sheet.
  • 8.3. The indemnification rights of the Indemnified Party and/or the Company shall be without prejudice to other rights and remedies that the Indemnified Party and/or the Company may have at law or in equity including without limitation to seek specific performance, rescission, restitution or other injunctive relief, none of which rights or remedies shall be affected or diminished thereby.
  • 8.4. The Key Parties explicitly agree and undertake that in no event shall the Company be liable to any Person, monetarily or otherwise, except to the extent of performance of its limited obligations under this Term Sheet and further in no circumstance shall the liability of the Company exceed the Business Identification Fee received by the Company until the date of cause of action pursuant to this Term Sheet.

9.MISCELLANEOUS

  • 9.1. Confidentiality: The Parties shall keep confidential the Confidential Information and not disclose to any third party save and except on a ‘need-to-know’ basis. The Parties further undertake not to use any such Confidential Information, other than for purposes related to this Term Sheet and/or protecting their respective interests under this Term Sheet without the prior written consent of the Company. The provisions of this Clause shall not apply to Confidential Information which:
    • 9.1.1. is or becomes part of the public domain without breach of this Term Sheet by a Party; and/or
    • 9.1.2. is lawfully in the possession of a Party and subject to an existing agreement between the Parties; and/or
    • 9.1.3. is received from a third party who lawfully acquired such information without restriction, and without a breach of this Term Sheet by a Party.
  • 9.2. Governing Law and Jurisdiction: This Term Sheet shall be governed by and construed in accordance with the laws of India and shall be subject to the exclusive jurisdiction of courts of Noida.
  • 9.3. Entire Agreement: This Term Sheet, including these Terms and Conditions constitutes the complete, final and exclusive agreement between the Parties with respect to the subject matter hereof.
  • 9.4. Severability: In the event any provision of this Term Sheet is deemed or rendered invalid, illegal or unenforceable by virtue of Applicable Law, judicial/ quasi- judicial/ administrative order or any other instrument having the force of law, the same shall be ineffective solely to the extent of the affected provision without affecting the validity of the rest of the Term Sheet.
  • 9.5. Amendment: No modification, amendment or waiver of any of the provisions of this Term Sheet shall be effective unless made through the Platform specifically referring to this Term Sheet and duly accepted by each of the Parties.
  • 9.6. Assignment: The Key Parties shall be not entitled to assign any of its rights and obligations under this Term Sheet to any party whatsoever.
  • 9.7. Notices: Any notice, request, demand, statement, authorisation, approval or consent required or permitted to be given hereunder shall be made in accordance with the notice details specified in the Term Sheet.
  • 9.8. No Third Party Beneficiaries: This Term Sheet is solely for the benefit of the Parties and no provision of this Term Sheet shall be deemed to confer upon any other Persons any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to this Term Sheet.
  • 9.9. Specific Performance: The Parties shall be entitled to seek specific performance of this Term Sheet, in addition to any other legal rights and remedies, without the necessity of demonstrating the inadequacy of monetary damages.
  • 9.10. Business Restructuring: At any time, during the Term, in the event the Company proposes to sell its business or assets or shareholding to any third-party, the Key Parties hereby expressly consent to the assignment and novation of this Term Sheet in favour of the third party without any further act or deed by any Party.
  • 9.11. Survival: The provisions contained in this Term Sheet, which should reasonably be regarded as surviving the termination of the Term Sheet, shall continue in force after termination of this Term Sheet.

If the Key Parties agree to the terms of this Term Sheet, click on the ‘I Accept’ check box beneath this Term Sheet and by such action or by accessing or otherwise using the Services, the Key Parties acknowledge that the Key Parties have read and understood the terms of this Term Sheet and agree to be bound by all of the terms and conditions contained herein. If any of the Key Parties are entering into this Term Sheet on behalf of a company or other legal entity, such Key Party represents that it has the authority to bind such entity and its affiliates to this Term Sheet.