CHANNEL PARTNER - T&C

THIS ONLINE CHANNEL PARTNER AGREEMENT (“Agreement”) is an electronic record in terms of Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000, is executed by and between:
Open Financial Technologies Private Limited, a company incorporated under the Companies Act, 2013 and having its corporate office address at 3rd Floor, Tower 2, RGA Techpark, Carmelaram, Sarjapur Main Road, Bangalore – 560035 (hereinafter referred to as “First Party” or “Open” which means and include, unless repugnant to the context or meaning thereof mean and include its liquidators, successors, receivers and assigns) of the ONE PART;
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AND

The legal entity registered as an a partner on the URL: https://partners.open.money/ (hereinafter referred to as "Second Party" or “Partner” which means and include, unless repugnant to the context or meaning thereof mean and include its affiliates, assigns, liquidators, successors and permitted assigns) of the OTHER PART.

Open and the Partner are hereinafter individually and collectively referred to as “Party” and “Parties” respectively, as the context may require.
WHEREAS
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement and for other good and valuable consideration, the sufficiency of which is acknowledged by the Parties, the Parties hereby agree as follows:
DEFINITIONS
Unless the context otherwise provides or requires, the following words and expressions used in this Agreement shall have the meaning as provided to them herein below:

“Agreement” means this Online Channel Partner Agreement, including the recitals, schedules, appendices, annexures and exhibits and any amendments thereto from time to time.

“Business Day” means a day (other than Sunday, national holidays and bank holidays in Bangalore, India) on which nationalized banks are generally open in Bangalore, India for the conduct of banking business and comprising of normal working hours.

“Confidential Information” shall mean all and any information:
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"Customers" shall mean any person or entity who are availing the products or services of the End User or Merchant

"Documentation" means any user documentation, guide, presentations on any media, provided by Open for administration and use of the Product Software.

"Effective Date" shall the mean the date on which the Partner registers on the Open Platform as a Partner.

"End User(s)" shall refer to any Merchant or sub-Merchant who has purchased and registered for the Product Software for the purpose of its own internal use

"Intellectual Property Rights" means all patents trademarks, permits, service marks, brands, trade names, trade secrets, proprietary information and knowledge, technology, computer programs, databases, copyrights, licenses, franchises, formulae, designs and includes any other Confidential Information.

"Merchant(s)" shall mean any business person or entity introduced or referred to Open by the Partner and such persons or entities who enter into agreements with Open for availing the Product Software and Open Services

."Person"means any individual, firm, company, governmental authority, joint venture, partnership, association or other entity (whether or not having separate legal personality).

"Product Software" shall refer to the software platform developed, owned and operated by Open hosted at www.open.money and includes the license code to register and activate certain premium features available on the said platform.

"Territory" means the territory of India.

"Transaction" shall mean a transaction successfully completed by the End User using the Product Software.

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TERM
This Agreement shall be valid and in full force from the Effective Date. The Agreement shall be valid, legally and binding on the Parties for an intial team of 1 (one) year and shall be renewed automatically for successive renewal terms of 1 (one) year each, unless otherwise expressly terminated by either Party in accordance with terms of this Agreement (“Term”).
SCOPE OF WORK
PARTNER SERVICES
FEES
(“License Fee”)
CONFIDENTIALITY
Both Parties shall keep confidential (and ensure that its officers, employees, agents, affiliates and professional and other advisers keep confidential) any Confidential Information. Both Parties shall not, and shall procure that none of their directors, officers, employees, agents, affiliates or professional advisers shall use Confidential Information for any purpose other than for the provision of the Partner Services and for performance under this Agreement. Any breach of this Clause by any person to whom Confidential Information was disclosed will be considered as breach of this Clause by the Party who disclosed the Confidential Information to the concerned person.

Upon termination of this Agreement, the Disclosing Party may by notice require the recipient Party to promptly return all Confidential Information (a) return all documents containing Confidential Information which have been provided by or on behalf of the Party demanding the return of Confidential Information; and (b) destroy any copies of such documents and any document containing or made from or with reference to the Confidential Information and take all reasonable steps to expunge all Confidential Information from any computer, word processor or other device containing Confidential Information.
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DATA, SYSTEM SECURITY AND COMPLIANCES
TERMINATION
  1. Open may terminate this Agreement immediately on the occurrence of any of the following events, in which case, the termination of this Agreement shall be without prejudice to any other remedy which may be available to the terminating Party under applicable laws:
    1. If the Partner is declared insolvent or bankrupt or is unable to pay its debts or makes a composition with its creditors;
    2. If the Partner is dissolved or wound up compulsorily or if an order made or an effective resolution is passed for the winding up of the Partner;
    3. In case the Partner breaches any representations, warranties or covenants provided by it under this Agreement (including the Annexures hereto); or
    4. In case the Partner engages in fraud or disparages or brings disrepute to Open or any of the products and services offered by Open.
  2. Either Party may terminate this Agreement for convenience (without assigning cause) by providing 1 (one) month’s prior written notice to the other Party.
  3. In the event this Agreement is terminated, the Partner covenants to hand possession of all assets, documentation, information and materials that was made available to it by Open on the effective date of termination of this Agreement and will not in any way represent itself as a partner to Open and the products and services offered by Open.
INTELLECTUAL PROPERTY
INDEMNIFICATION
LIMITATION OF LIABILITY
OPEN WILL NOT BE LIABLE UNDER ANY PROVISION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REPUTATIONS), WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS IN ADVANCE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST THE PARTNER. IN NO EVENT WILL OPEN BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY THE PARTNER. IN ADDITION, IN NO EVENT WHATSOEVER SHALL OPEN'S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY RECEIVED BY OPEN FROM THE PARTNER AS PRODUCT SOFTWARE IN THE 2 (TWO) MONTHS PRECEDING THE DATE ON WHICH SUCH A LIABILITY ACTUALLY AROSE.
NOTICES
ASSIGNMENT
Neither Party shall assign this Agreement or any of its rights and obligations hereunder, without the prior written consent of the other Party. Any attempted assignment without consent shall be null and void. Notwithstanding anything, Open shall have the right to assign in connection with a merger, acquisition, reincorporation, or transfer of its assets.
CORPORATE AUTHORITY/FURTHER ASSURANCES
Each Party represents that it has taken all necessary corporate action to authorize the execution and consummation of this Agreement and will furnish the other Party with satisfactory evidence of same upon request.
FORCE MAJEURE
DISPUTE RESOLUTION
All disputes arising out of or in relation to this Agreement, including any question regarding its existence, validity or termination, which cannot be amicably resolved by the Parties within 15 days of being brought to their attention, shall be settled by a single (mutually appointed) arbitrator and adjudicated in accordance with the Arbitration and Conciliation Act, 1996. The venue/seat of Arbitration shall be Bangalore and the language of arbitration shall be English. A dispute shall be deemed to have arisen when either Party notifies the other Party in writing to that effect.
GOVERNING LAW AND JURISDICTION
Subject to the provisions contained in Clause 16, this Agreement, the construction and enforcement of its terms shall be governed by the laws of India and shall be subject to the jurisdiction of courts in Bangalore. This Agreement is executed in English language which shall prevail over any translation thereof.

During the Term and for a period of sixty (60) months from the completion of the Term or earlier termination of the Agreement, the Second Party shall not directly or indirectly solicit, entice away or engage for itself or any third party any employees, agents, customers, merchants, vendors or consultants of Open.
NON-COMPETE & NON SOLICITATION
During the Term and for a period of sixty (60) months from the completion of the Term or earlier termination of the Agreement, the Second Party shall not directly or indirectly solicit, entice away or engage for itself or any third party any employees, agents, customers, merchants, vendors or consultants of Open.
SEVERABILITY
In the event any one or more of the provisions of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unaffected, and the invalid, illegal or unenforceable provision(s) shall be replaced by a mutually acceptable provision(s), which being valid, legal and enforceable, comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision(s).
INDEPENDENT CONTRACTORS
The Parties are independent contractors and no agency, joint venture, partnership or employer-employee relationship is created by virtue of this Agreement.
MODIFICATION, AMENDMENT, SUPPLEMENT OR WAIVER
Any modification, amendment, supplement to or waiver of this Agreement or any of its provisions shall be binding on the Parties hereto if it is made based on mutual agreement in writing.
ENTIRETY OF AGREEMENT
This Agreement together with all Recitals, Appendices, Annexures, Schedules and Addenda (as applicable) attached hereto constitute the entire agreement between the Parties and supersedes all previous agreements, promises, representations, understandings and negotiations, whether written or oral, between the Parties with respect to the subject matter hereof.
FURTHER ASSURANCES AND INTERPRETATION
As this is an electronic agreement, no signatures are required. By clicking ‘Sign Up’ on the Partner Portal or by placing Purchase Orders on the Partner Portal, the Partner agrees and undertakes to be bound by the terms and conditions set out under this Agreement.
ANNEXURE I
(PARTNER - STANDARD OPERATING PROCEDURE)
In connection with the promotion, marketing and/or sale of the Product Software, the Partner shall, at its own liability and cost: