Diligent Wing Pvt Ltd Initiatives
GENERAL TERMS AND CONDITIONS
1.0 ACCEPTANCE OF TERMS
1.1 This Agreement including the Diligent Wing Pvt Ltd Initiatives Agreement and the Terms and Conditions herein shall become effective upon an authorised representative of the Committee executing the first Diligent Wing Pvt Ltd Initiatives Agreement for its participation in Diligent Wing Pvt Ltd Initiatives.
1.2 If the Committee continues to participate in the Diligent Wing Pvt Ltd Initiatives following any amendments and/ or modifications to the Terms and Conditions, the Committee: (a) agrees to be bound by the revised Terms and Conditions under this Agreement; (b) acknowledges and agrees that it has independently evaluated the desirability of participating in the Diligent Wing Pvt Ltd Initiatives and is not relying on any representation, guarantee or statement other than as expressly set forth in this Agreement; and (c) represents and warrants that it is lawfully able to enter into this Agreement and shall remain in compliance with the same. If this Agreement is being agreed to by a company or other entity, then the person agreeing to this Agreement on behalf of the Community represents and warrants that he or she is authorised and lawfully able to bind the Committee to this Agreement. If you do not agree with these Terms and Conditions (including any revised Terms and Conditions), your only recourse is to stop participating in the Diligent Wing Pvt Ltd Initiatives, after which the provisions of this Agreement shall apply in consequence of such termination.
2.0 RIGHTS OF ACCESS TO PROPERTY
2.1 The Committee grants to Diligent Wing Pvt Ltd and its authorised employees, agents, consultants, contractors and service providers, the rights of access to the Property at all reasonable times and/ or on daily basis during the Term of this Agreement to carry out deployment, installation, repairs, alterations, general maintenance, manual leaning and sanitizing of machine(s), refill of products, and any other services in connection with performance and improvements of Diligent Wing Pvt Ltd Initiatives and any other activities incidental or ancillary to its operations, as the case may be, provided that Diligent Wing Pvt Ltd notifies the Committee at least one(1) Business Day prior to the day of access to the Property.
2.2 The Parties agree to promptly come up with other appropriate arrangements if they anticipate that any repairs or maintenance works to be conducted under Clause 2.1 above may potentially impede normal traffic flow in and out of the Property or otherwise cause undue disturbance to the Users of the Property.
3.0 TERM AND TERMINATION
3.1 Unless terminated earlier in accordance with the Terms and Conditions, this Agreement shall begin on the Commencement Date specified in Diligent Wing Pvt Ltd Initiatives Agreement and shall subsist for the term set out in the same until the Expiry Date as specified thereof (“the Term”).
3.2 This Agreement shall be automatically renewed for one (1) additional term upon expiration of the initial Term (“Automatic Renewal Term”). Diligent Wing Pvt Ltd reserves all rights to revoke such Automatic Renewal by giving prior written notice to the Committee at least two (2) months prior to expiration of the Initial Term. Mutual consent of the Parties shall be obtained for any further renewal upon expiry of the Automatic Renewal Term.
3.3 In the event of renewal of this Agreement, Diligent Wing Pvt Ltd reserves all rights to amend, inter alia, the rate of Revenue Sharing and Monthly Rental, as the case may be, for the Renewal Term. The same Terms and Conditions shall be applicable to the Renewal Term save for terms modified in writing by the Parties in accordance with this Agreement.
3.4 The Committee must not be in default of any of its obligations under this Agreement at the time of exercising the Automatic Renewal and/ or at the commencement of the Automatic Renewal Term failing which Diligent Wing Pvt Ltd may revoke such Automatic Renewal and/ or terminate this Agreement in accordance with Clause 3.5 hereof.
3.5 Either Party may terminate this Agreement within the Term by giving the other Party thirty (30) days written notice.
3.6 Upon Diligent Wing Pvt Ltd giving prior written notice to the Committee to revoke the Automatic Renewal in accordance with Clause 3.2 above, Diligent Wing Pvt Ltd may arrange for prompt removal of, amongst others, machine(s), vehicle(s), material(s), equipment(s) and others from the Property, subject to the respective partners’ availability.
3.7 Upon expiration or termination of this Agreement in accordance with Clause 3.5 above, any provisions of the Agreement which are intended or reasonably expected to survive including but not limited to Non-Solicitation, Confidentiality and Termination, shall so survive such expiration or termination as the case may be.
4.0 AMENDMENTS AND MODIFICATIONS OF TERMS
4.1 Diligent Wing Pvt Ltd may modify, amend and/ or make changes to the Terms and Conditions including the Specific Terms and Conditions prescribed in the Diligent Wing Pvt Ltd Initiatives Agreement, from time to time, and in its sole discretion by posting any such changes online via https://Diligent Wing Pvt Ltd.com/Diligent-community-service-terms/ (“Website”) or by sending e-mail(s) to the e-mail address provided by the Committee to Diligent Wing Pvt Ltd in the Diligent Wing Pvt Ltd Initiatives Agreement. The revised Terms and Conditions shall become effective as of the date it is uploaded to the Website and/ or the date it is sent to the Committee via e-mail(s).
4.2 The Committee’s continuous participation in Diligent Wing Pvt Ltd Initiatives shall be automatically deemed as the Committee’s acknowledgement and agreement to the revised Terms and Conditions and/ or Specific Terms and Conditions.
5.0 INTELLECTUAL PROPERTY RIGHTS
5.1 The Committee acknowledges and agrees that any and all intellectual property rights which subsist in or arise in connection with Diligent Wing Pvt Ltd Initiatives pursuant to any Diligent Wing Pvt Ltd Initiatives Agreement between the Parties or otherwise in accordance with this Agreement, belong exclusively to Diligent Wing Pvt Ltd, its affiliates and licensors, vendors and/or its partners, or their respective licensors, as the case may be.
5.2 The Committee agrees that Diligent Wing Pvt Ltd may, during the Term of this Agreement and after its termination or expiry, include the names of the Property and/or the Committee (including any trade name, trademark, service mark and logo) and the initiatives participated by the Committee on Diligent Wing Pvt Ltd’s customer list and in its marketing materials, website and sales presentations solely for its business development and marketing purposes only.
6.0 REPRESENTATIONS AND WARRANTIES
6.1 The Committee represents and warrants:
7.0 DISCLAIMER OF WARRANTIES
7.1 The Diligent RMS Initiatives are provided by Diligent Wing Pvt Ltd and its affiliate, licensors, providers, and/ or vendors on an “as is” and “as available” basis, without any warranty, representation or guarantee of any kind, whether express, implied, statutory or otherwise, including without limitation, any warranties of merchantability, fitness for a particular use or purpose, non-infringement, title, compatibility, security, accessibility and accuracy. Diligent Wing Pvt Ltd does not warrant, endorse, guarantee or assume responsibility for, inter alia, any machine(s) and vehicle(s) deployed and installed at the Property by selected vendor under this Agreement including without limitation, any material, information, product or service advertised or offered. Without limiting any of the foregoing and to the fullest extent permitted by law, Diligent Wing Pvt Ltd and its affiliates or licensors shall have no obligation, liability and/or responsibility in connection with the deployment, installation, operation and maintenance including inter alia, any claims, damages, losses, expenses, costs or liabilities whatsoever resulting from or arising directly or indirectly from the use of such machine(s), vehicles and/or consumption of the food and beverages at the Property under this Agreement.
7.2 The Committee acknowledges that Diligent Wing Pvt Ltd merely acts as an intermediary between the Committee and the respective partners hence shall not be responsible/ liable for any consequences and effects caused on the Diligent Wing Pvt Ltd Initiatives arising from commercial decisions made solely by the partners.
8.0 LIMITATION OF LIABILITY
8.1 In no event shall Diligent Wing Pvt Ltd, its affiliates, licensors and/ or third party service providers be liable under any legal or equitable theory, including breach of contract, tort (including negligence, product liability and strict liability), misrepresentation, restitution or otherwise, to the Committee for any special, indirect, incidental, exemplary, punitive or consequential loss or damages, including without limitation: (i) any loss of business or profits, (ii) loss or depletion of goodwill or reputation (iii) loss of use or corruption of data (being data lost or corrupted in the course of transmission via the Committee’s systems or over the internet through no fault of Diligent Wing Pvt Ltd), (iv) costs of procuring any substitute goods or services and/or (v) any business or operational disruption or work stoppage experienced at the property, arising out of or in connection with this Agreement, any Diligent Wing Pvt Ltd Initiatives Agreement and/ or forms, regardless of whether Diligent Wing Pvt Ltd has been apprised or advised of the possibility of any of the foregoing. Under no circumstances and to the greatest extent permitted by law shall Diligent Wing Pvt Ltd and its affiliates or licensors be liable to the Committee or any third party for an amount greater than the amount paid to the Committee under this Agreement in the six (6) months preceding any claim arising out of or in connection with this Agreement to which such liability may arise. The foregoing limitation of liability (i) will not in any way limit the Committee’s payment obligations, if any, under this Agreement, Diligent Wing Pvt Ltd Initiatives Agreement or any forms, (ii) is cumulative and not per incident; and (iii) shall apply even if any remedy in this Agreement fails its essential purpose or regardless of the theory or basis of liability (including breach of contract or tort).
9.0 LIABILITY FOR REVENUE
9.1 In the event that there is a revenue-sharing arrangement between the Parties, which is documented in the Diligent Wing Pvt Ltd Initiatives Agreement, the Committee acknowledges and agrees that Diligent Wing Pvt Ltd acts only as an intermediary between the Committee and the applicable partners with respect to the Diligent Wing Pvt Ltd Initiatives carried out at the Property. Diligent Wing Pvt Ltd is not an agent for any partner and does not claim or offer any branding or advertising services under this Agreement.
9.2 Diligent Wing Pvt Ltd shall only be responsible to the Committee for any revenue-sharing payments received without restrictions from the applicable partners which constitute immediately-available funds to Diligent Wing Pvt Ltd. The Committee further acknowledges and agrees that:
9.3 Diligent Wing Pvt Ltd and its affiliates shall have no liability or obligation to the Committee for any payments due under any Diligent Wing Pvt Ltd Initiatives Agreement or otherwise under this Agreement that remain unpaid by any partner with respect to the particular initiatives at the Property;
9.4 the Committee will only assert any claims directly against the relevant partner specified in the Diligent Wing Pvt Ltd Initiatives Agreement for any unpaid sums, provided that Diligent Wing Pvt Ltd has made all reasonable efforts to collect any such unpaid sum; and
9.5 the Committee shall hold any of Diligent Wing Pvt Ltd Indemnitees harmless and indemnify them from any claims or liability related to such unpaid amounts.
9.6 The Parties acknowledge that Diligent Wing Pvt Ltd shall make commercially reasonable efforts to bill, collect and clear payments from partners on a timely basis for initiatives participated by the Committee. Diligent Wing Pvt Ltd reserves the absolute rights to withhold any payments due to the Committee due to, amongst others, that the Committee violates any provisions of this Agreement.
9.7 The Committee acknowledges and agrees that Diligent Wing Pvt Ltd has entered into this Agreement in reliance upon the limitation of revenue liability contained in this Clause 9, which forms an essential basis of the Agreement between the Parties.
10.0 RELATIONSHIP
10.1 The Parties to this Agreement are independent contractors and nothing in any Diligent Wing Pvt Ltd Initiatives Agreement or these Terms and Conditions shall create, or be deemed to create a partnership, joint venture or relationship of principal and agent between Diligent Wing Pvt Ltd and the Committee.
11.0 INDEMNITY
11.1 The Committee agrees to indemnify, defend, and hold harmless the Diligent Wing Pvt Ltd Indemnitees and any applicable third-party service providers including, but not limited to, the partners, for and from any claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of:
11.2 any acts or omissions, or breach of this Agreement by the Committee (including any representations and warranties set forth above in Clause 6);
11.3 any content or subject matter of materials and/ or productions; and/ or
11.4 any violation of any applicable laws, rules, regulations, industry guidelines or policies with respect to the initiatives carried out at the Property.
12.0 NON-EXCLUSITIVITY
12.1 This Agreement including any associated Diligent Wing Pvt Ltd Initiatives Agreement or other forms is non-exclusive and shall not prevent Diligent Wing Pvt Ltd from entering into similar agreements with third parties, including other partners within the same geographic location as the Property to implement the Diligent Wing Pvt Ltd Initiatives.
13.0 NON-SOLICITATION
13.1 The Committee agrees not to contact or communicate with any Diligent Wing Pvt Ltd’s partner of any initiative participated without first obtaining the express written consent of Diligent Wing Pvt Ltd.
14.0 CONFIDENTIALITY
14.1 The Committee acknowledges that it may receive during the course of this Agreement, whether directly or indirectly, information, material and data from Diligent Wing Pvt Ltd and/or Diligent Wing Pvt Ltd’s partners, that relates to the Diligent Wing Pvt Ltd Initiatives and/or otherwise any other information reasonably intended to be kept in confidentially, whether any of the foregoing is marked as “Confidential” or not (“Confidential Information”). The Committee agrees:
14.2 not to disclose, use, transmit, inform or otherwise make available to any entity, person or body of the Confidential Information, except to the extent necessary to performing its obligations under this Agreement;
14.3 to restrict access to the Confidential Information to employees, officers, advisors, agents and other representatives who have demonstrated a specific need to have access to any Confidential Information to carry out its obligations under this Agreement;
14.4 protect such Confidential Information from unauthorised use and disclosure to the same extent that it protects its own Confidential Information, but in any event, using no less than a reasonable degree of care; and
14.5 shall forthwith report to or notify Diligent Wing Pvt Ltd of any actual or suspected breach of this Clause 14 and shall take all reasonable steps to promptly cease, prevent, control and/or remedy such breaches.
14.6 The confidentiality obligations in this Clause 14 shall not apply to any information, material or data which:
14.7 at the time of disclosure, is or becomes generally available to the public;
14.8 was disclosed to the Committee on a non-confidential basis from a third party without violation of any contractual or legal obligation by such third party to Diligent Wing Pvt Ltd;
14.9 was independently-developed by the Committee without use, access or knowledge of the Diligent Wing Pvt Ltd’s Confidential Information;
14.10 received by the Committee from Diligent Wing Pvt Ltd that has been approved for disclosure; and/ or
14.11 is required to be disclosed by any applicable law or regulation.
15.0 ENTIRETY
15.1 This Agreement, including these Terms and Conditions, the Diligent Wing Pvt Ltd Initiatives Agreement and all associated forms, constitute the entire agreement of the Parties and supersedes any and all prior oral or written agreements or understandings between the Parties with respect to the Diligent Wing Pvt Ltd Initiatives.
16.0 NOTICE
16.1 Any notice given by one Party to the other under this Agreement will be sufficiently served or made if sent by email, post or facsimile transmission to the address set out in the relevant Diligent Wing Pvt Ltd Initiatives Agreement. The Committee shall be deemed to have received such notice of any updates made to these Terms and Conditions within two (2) Business Days of the notice being sent by e-mail or made available on our Website.
17.0 NON-WAIVER
17.1 Only a written waiver of any breach, right or remedy is effective if it is duly signed by the Parties. Any failure or delay of a Party to exercise or enforce (including any partial exercise or enforcement of) any provision contained herein and/or any other indulgence given by that Party shall not be deemed as a waiver by that Party of its right, power, authority, discretion, remedy or right of action against the other Party in respect of any breach by the other Party of its obligations hereunder.
18.0 BINDING EFFECTS
18.1 This Agreement shall be binding upon the permitted assigns and successors-in-title of the Parties hereto. It is further provided that this Agreement shall not be discharged or in any way affected by any change in the composition or identity of the Parties hereto by amalgamation, reconstruction or otherwise.
19.0 SEVERABILITY
19.1 In the event any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect.
20.0 NON-ASSIGNMENT
20.1 The Committee shall not assign any rights, interest, remedies and obligations herein without the prior written consent of Diligent Wing Pvt Ltd, whose consent may be withheld at its sole and absolute discretion. Diligent Wing Pvt Ltd, shall be entitled to assign, novate or transfer this Agreement or any of its right and remedies hereunder to any Affiliate without the consent of the Customer PROVIDED ALWAYS that Diligent Wing Pvt Ltd shall provide the Committee with a written notice of such assignment, novation or transfer. Nothing contained herein shall be deemed to confer any rights upon or be enforceable by any person other than the Parties hereto.
21.0 GOVERNING LAW AND DISPUTE RESOLUTION
21.1 This Agreement shall be governed by and construed in accordance with the laws of india, and the Parties agree to submit to the exclusive jurisdiction of the courts of india.
22.0 TIME IS OF THE ESSENCE
22.1 The Parties acknowledge and agree that time is of the essence in the performance of this Agreement. Any dates, deadlines and/ or time frames specified herein must be strictly adhered to failing which may result to non-breaching party pursuing legal remedies and/ or terminating this Agreement.
