Services Agreement

Definitions
1. “Agreement” shall mean this Services Agreement along with all its recitals, schedules and annexure, if any.
2. “Confidential Information” shall mean any trade secret or other information which is deemed confidential or commercially sensitive and which is not in the public domain and which (without limitation) relates to the proprietary information relating to the development, utility, operation, general or specific data, functionality, performance, cost, know-how, details of present and proposed businesses, formulas, ideas, strategies, techniques, policy, data related to employees, present or proposed vendors/customers, information regarding research and development, unpublished financial statements, budgets and other financial details, computer programming techniques, methodologies and related technical information, business or marketing plans, forecasts, licenses, prices or lists, quotes, bids, controls, operating procedures, organisation responsibilities, marketing matters and any policies or procedures, software programs and files, operating manuals, user manuals documentation, source code and any and all information pertaining to Design Cafe.
3. “Intellectual Property” shall mean collectively or individually, the following worldwide
  rights relating to intangible property, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired:
  - patents, patent disclosures, patent rights, know-how, including any and all continuations, continuations-in-part, divisions, reissues, re-examinations, utility, model and design patents or any extensions thereof;
  - rights associated with works of authorship, including without limitation, copyrights, copyright applications, copyright registrations;
  - rights in trademarks, trademark registrations, and applications therefore, trade names, service marks, service names, logos, or trade dress;
  - rights relating to the protection of trade secrets and Confidential Information; and
  - internet domain names, internet and world wide web URLS or addresses; and
  - all other intellectual or proprietary rights anywhere in the world including rights of privacy and publicity, whether or not requiring registration and whether or not such registration has been obtained.
4. “Party” shall refer to either Design Cafe or to the Design Partner as the context may suggest. Design Cafe and the Design Partner may collectively be referred to as Parties.
5. “Services” shall mean any and all such services offered by the Design Partner to Design Cafe including but not limited to those mentioned in Clause 4 of this Agreement.
6. “Qualified Leads” shall mean prospective clients of Design Cafe.
Roles and Responsibilities of the Design Partner
1. This Agreement shall govern the rendering of the Services by the Design Partner as per the requirements of Design Cafe.
2. The Design Partner shall diligently and in good faith, perform all the roles and responsibilities mentioned herein under this Agreement in addition to any and all the other roles and responsibilities as may be assigned or transferred to him/it by Design Cafe from time to time in relation to the Services.
3. The Design Partner shall attend regular training sessions scheduled/ arranged for by Design Cafe and shall keep up to date and adopt all Design Cafe processes and style of working. The Design Partner shall attend, undergo sessions and programs relating to the systems, processes and policies of Design Cafe for efficient and productive rendering of the Services. The Design Partner accepts and acknowledges that he shall attend all such training sessions and programs as conducted by Design Cafe from time to time.
4. The Design Partner hereby accepts and declares that he shall follow all the systems and processes of Design Cafe that are implemented or likely to be implemented by Design Cafe from time to time. The Design Partner shall follow any and all processes and procedures as may be instructed/ prescribed by Design Cafe.
5. If required, the Design Partner shall meet with the qualified leads of Design Cafe at any of the experience centres or any designated location and assist in making the proposal using Design Cafe’s allocated software for the purpose. Should the need arise, the Design Partner shall make revised presentations and proposals to ensure a wholesome experience leading to the closure of the sale and thereafter.
6. The Design Partner accepts and acknowledges that he/she/they will inform the lead/sales representatives of Design Cafe of all communications in entirety relating to customer signups and sales closures of qualified leads of Design Cafe. This is to ensure that a wholesome relationship, and above all, clarity is established and maintained across all stakeholders on any Design Cafe projects.
7. The Design Partner shall put in all reasonable efforts to ensure that the project is taken up to production within 45 (Forty five) days or such other prescribed timelines, communicated to the client(s) after sales closure and sign up with the Qualified Leads. In the event that the Design Partner indulges in causing repeated delays with respect to the above, Design Cafe shall be entitled to terminate the Agreement without providing any notice to the Design Partner.
8. The Design Partner shall strictly follow the manual encompassing all aspects of the design process, software and tools to be used, communication protocols and more (“Design Manual”), which shall be shared with the Design Partner by Design Cafe on signing this Agreement. The Design Manual has been designed to ensure a seamless experience for all parties through triedand-tested best practices.
9. Any issues of non-conformity or any errors or other shortcomings in the rendering of the Services shall be notified to the Design Partner and the same shall be rectified within 7 days of being notified of the same. In the event that any defects or other faults in the results of the Services could not be rectified by the Design Partner, Design Cafe shall be entitled to make deductions of 1% of project cost from any sums owed or payable to the Design Partner.
10. In the event that the Services provided by the Design Partner do not meet the requirements specified by Design Cafe, the Design Partner shall be required to redo the same to the Design Cafe’s satisfaction.
11. The Design Partner hereby acknowledges, accepts and declares that he shall always represent himself as a designer of Design Cafe alone while handling lead, clients and other third parties working with/on any Design Cafe project, and shall not make any representation, suggestion, manifestation or engage in any activity directly or indirectly, which may likely suggest otherwise. The Design Partner is also hereby prohibited to represent, introduce, manifest or suggest himself or do anything which has the possibility to represent, introduce, manifest or suggest him to be working in his personal capacity. Any failure to adhere to these conditions shall attract legal consequences by Design Cafe against the Design Partner.
12. The Design Partner to strictly follow the communications protocol mentioned in the Design Manual while working on any Design Cafe project. This communication protocol – comprising of, and not limited to communication process flow with Design Cafe and their clients, emails, texts and tools to be used, should be adhered to for all Design Cafe projects. Confusion and Page 4 of 13 errors arising out of non-adherence to this communication protocol and the Design Cafe manual in general, shall attract penalty and even face termination as deemed fit by Design Cafe.
13. Under no circumstances shall the Design Partner use any other method or means whatsoever, to establish any kind of communication with any clients of the Design Cafe, whether past, existing or proposed, that is or is likely to be contrary to the terms and conditions of this Agreement. Any default of the same shall be considered material breach of this Agreement and shall entitle Design Cafe to take appropriate legal action against the Design Partner for any and all losses that Design Cafe may have incurred as a result of such default by the Design Partner.
14. The Design Partner shall, at all times and under all circumstances, adhere to the standards of client communication as may be determined from time to time by Design Cafe, including but not limited to the terms of style and timelines of communication set forth by Design Cafe.
15. The Design Partner shall be required to render the Services in a professional and timely manner adhering to any deadlines or milestones set by the Design Cafe.
16. The Design Partner understands and acknowledges that apart from the software tools provided by Design Cafe, the Design Partner shall source its own hardware and software including but not limited to computers, laptops, sketch ups etc. The Design Partner hereby warrants that any and all software used by the Design Partner are authentic and licensed and that use of the same does not violate intellectual property rights of any third party. Any such violation shall be considered violation of Design Partner alone and Design Cafe shall not be a party to any suit/ action that may be brought about. The Design Partner shall indemnify Design Cafe of any and all losses that Design Cafe may incur as a result of such violation by the Design Partner.
17. The Design Partner shall diligently accompany the clients for all soft furnishings, hardware, lights, decor of the home as may be required. The Design Partner shall also make site visits as may be required and authorized by Design Cafe and carry necessary actions to diligently discharge his duties mentioned hereunder this Agreement.
18. The Design Partner shall handover to the client the project within the specified timelines. The Design Partner understands, agrees and acknowledges that Design Cafe is a reputed company and that any unreasonable, unpermitted delay in handing over the project to the client can cause irreparable damage to Design Cafe’s reputation. In the event that the Design Partner recognises any delay, the Design Partner shall keep Design Cafe informed of such delay, provide reasons for the same and inform the client of the same. The Design Partner shall keep Design Cafe indemnified of any and all losses that Design Cafe may incur as a result of any such unauthorised delay.
Roles and Responsibilities of Design Cafe
1. Design Cafe shall generate Qualified Leads and handover the same to the Design Partner, who shall represent himself as the designer of Design Cafe.
2. Design Cafe shall provide designated experience centre where the Design Partner can conduct meetings with Qualified Leads in relation to the business covered under this Agreement.
3. Design Cafe shall showcase all products and selection of colours that the Design Partner may adopt in his Services. Design Cafe shall provide Design Partner the access to Design Cafe’s Page 5 of 13 standard designs and modular blocks of furniture (“SKU”) and software that the Design Partner shall use to prepare lead presentations and costings.
4. Both Parties understand and acknowledge that project management and execution of the project shall be handled by Design Cafe and it shall have the final and binding authority with respect to any decision regarding the same.
5. Design Cafe shall provide 3D views of designs provided by the Design Partner according to the project timeline and milestones as agreed during the client sign up and sales closure.
Third Parties
1. The Design Partner shall not, while rendering the Services, hire or appoint a third party to assist in the rendering of the Services or to perform certain portions of the Services unless the same has been authorised by Design Cafe.
2. The Design Partner shall be responsible for any and all acts and omissions of any third party appointed by it.
3. The Design Partner shall further be responsible in adhering with all applicable laws with regard to the appointment or hiring of any third party including but not limited to any labour and tax laws.
4. The Design Partner shall further be required to impose appropriate obligations on any third party appointed or hired by it to ensure strict compliance with the terms of the scope of work.
Fees and Payment Terms
1. The Design Partner will be compensated for the services rendered by the Designer as detailed in the section 2 of this agreement under “Roles and Responsibilities of the Design Partner”, on a revenue share basis. The % of revenue share will be intimated to the Design Partner through the annexed “Fees and Bonuses” document.

Payment Milestones
The Design Partner hereby accepts, acknowledges and agrees that the fees payable to them shall be paid in different tranches as described in the payment milestones below:

Tranche	Payout to Design Partner (% of total fee)	Project Stages	Payment Criteria and Conditions
1st Tranche	6% of 20% of project cost	First cut presentation to the client	Payment of 5% (on signup) + 15% (design finalization) of the total order value of the project paid by Client to Design Cafe.
2nd Tranche	6% of 35% of project cost	First cut presentation to the client	Payment of 5% (on signup) + 15% (design finalization) of the total order value of the project paid by Client to Design Cafe.
3rd Tranche	6% of 45% of project cost	Production is ready for despatch and installation	Payment of 5% (on signup) + 15% (design finalization) + 35% (ready for production) of the total order value of the project paid by Client to Design Cafe
Bonus	Incentives and bonuses as calculated as per the Annex-A of this agreement/td>	Feedback and ratings submitted by client	Any additional amount that has been earned by the designer based on various performance criteria and their respective incentives as detailed under “Fees and Bonuses” annexed to this agreement –will be paid out as a separate and final payment

The Design Partner acknowledges and agrees that Design Cafe shall make the payments to the Design Partner within ten working days from the receipt of relevant payments from the client.
All applicable taxes shall be borne by such Party on whom the obligation to pay the same has been placed upon. In case of any ambiguity with regard to the same, the parties shall pay such taxes equally.
The Design Cafe shall be entitled to deduct a sum of Rs.1000 for every continued day of delay in completing the required Services, unless the same has been permitted by Design Cafe.
No payment whatsoever, of any kind and for any purposes, shall be made directly or indirectly in the name of the Design Partner or any of its affiliates. If any kind of payment, of whatsoever amount and for whatsoever purpose, is made with the effect of being made in favour of the Design Partner or any of its affiliates, then the Design Partner shall communicate the same to Design Cafe immediately without any delay, so that appropriate remedial measures can be taken by the Design Cafe to safeguard its interests. Design Cafe shall possess all the rights to take any legal action against the Design Partner in the event of failing to do abide by this condition.
Design Partner to ensure that the clients are making timely payments according to the deliverable milestones made by the Design Partner and respective payments to be collected thereafter. Invoicing and payment collection processes will be provided for by Design Cafe.

Term and Termination
1. This Agreement shall continue on in full force and effect for such period during which Design Cafe continues to avail the Services of the Design Partner unless terminated earlier by either Party.
2. Either Party may terminate this Agreement by providing an advance, written notice of 30 days of its intention to terminate the Agreement. However, to protect the reputation of Design Cafe and in effect, reputation of the Design Partner, Design Partner is hereby barred from terminating the Agreement midway, without completing the projects assigned to him/her/them hereunder and shall be entitled to terminate this Agreement upon providing
  notice of 30 days, only upon completion of the projects assigned to him.
3. In the event of any material breach of this Agreement, Design Cafe may terminate this Agreement with immediate effect, without providing any notice to the Design Partner. Design Page 8 of 13 Cafe shall be liable to make only such pending payments to the Design Partner where the Services have been completed by the Design Partner.
4. For the purposes of this Agreement, a material breach of the terms shall mean and include:
  1. Multiple violations of the terms of this Agreement
  2. Non-compliance or non-performance on the part of the Design Partner
  3. Breach of any confidentiality obligations
  4. Repeated discrepancies in the following the Design Cafe Design Manual
  5. Repeated discrepancies in the invoice
  6. Any unwarranted delays in completing the Services
5. Either Party may also terminate the Agreement in the event that the other Party is declared insolvent or bankrupt or has gone into liquidation or is being wound up or has entered into agreements with its creditors or any situation similar thereto.
6. Design Cafe shall be required to pay to the Design Partner any and all outstanding amounts within 60 days from the termination of this Agreement.
7. On the termination of this Agreement, the Parties shall return to one another any and all information or material belonging to the other Party or otherwise received from the other Party. In case of any information being stored electronically, the same shall be removed from all of the databases and servers of the Party storing the information.
Confidential Information
1. The Design Partner hereby agrees to treat all information received from the Design Cafe as confidential with the same degree of care employed by it over its own Confidential Information.
2. The Design Partner further agrees to refrain from making use of or disclosing any of the Confidential Information disclosed to it for its personal benefit or for the benefit of any third party.
3. The Design Partner shall ensure that any third party appointed or hired by it enters into a confidentiality agreement with provisions as stringent as those contained herein.
4. In the event that the Design Partner identifies or becomes aware of any breach or unauthorised use of any Confidential Information belonging to the Design Cafe, it shall inform the Design Cafe of the same at the earliest.
5. However, neither Party shall be liable for any breach of confidentiality if:
  1. Such information was already existing in the public domain
  2. The Party can prove such information was known to it prior to the execution of this Agreement
  3. The information was made public due to no fault of the Parties
  4. If such disclosure was made in compliance with any applicable law or on the direction or order received from any governmental authority or court having jurisdiction.
6. Unless specifically agreed otherwise the information exchanged between the Parties in the course of the execution of the Agreement as well as all documents and electronic media on which such information was transmitted, shall remain the exclusive property of the Party disclosing such information.
Intellectual Property
1. The Parties hereto agree and accept that any and all Intellectual Property developed, discovered or improved upon while rendering the Services by the Design Partner shall belong to and be the absolute property of Design Cafe.
2. The Parties further agree and accept that any and all Intellectual Property present anywhere in or over the results of the Services shall be Design Cafe’s sole property.
3. The Design Partner hereby relinquishes any and all rights held by it over any Intellectual Property developed, discovered or improved upon while rendering the Services and further assigns all rights held by it in favour of Design Cafe.
4. The Design Partner shall further be required to ensure that any and all third parties appointed by it for the rendering of the Services assigns or transfers in favour of Design Cafe any and all rights held by it over any and all Intellectual Property developed, discovered or improved upon by it while rendering the Services.
5. The Design Partner shall assist Design Cafe in all manners with regard to the filing and protection of any Intellectual Property developed, discovered or improved upon under this Agreement.
6. The Design Partner shall be required to ensure that it has all necessary rights, title and consents prior to using any third party Intellectual Property in the course of rendering the Services.
7. Any Intellectual Property developed or discovered using the material, resources or information provided by Design Cafe shall be that belonging solely to Design Cafe.
8. The Design Partner hereby agrees and accepts that neither shall it or any of its employees, subsidiaries, agents, subcontractors and such other persons involved in the rendering of the Services apply for or attempt to apply for any Intellectual Property discovered, developed or improved upon under this Agreement regardless of whether the same has been applied for or not.
9. Any rights not expressly granted under this Agreement shall not be construed to have been granted.
Indemnity and Liability
1. The Design Partner shall indemnify and defend the Design Cafe against any and all loss, damage, claims, actions or suits arising due to the acts or omissions of the Design Partner or that of any of its subsidiaries, service providers, agents, employees, directors, associates or representatives.
2. In the event that the Design Partner infringes or violates any third party intellectual property and proprietary rights, the resulting loss, damages, claims, suits shall be indemnified or defended against by the Design Partner.
3. Under no circumstances shall Design Cafe be liable for any loss of actual or anticipated revenues, profits, goodwill, opportunity or business or for any consequential, special, incidental, exemplary, punitive or other indirect losses or damages, whether arising out of or related to this Agreement including those in contract, tort (including negligence) even if such loss was foreseeable or if the Design Cafe have been advised of the possibility of such damages or loss.
REPRESENTATIONS AND WARRANTIES
1. Both parties hereto represent and warrant with one another that it has all necessary rights, authority and approvals required to enter into and execute this agreement and that nothing contained herein shall violate the terms or provisions of any other agreement nor is there any other agreement that impedes either party from performing its obligations under this agreement.
2. The design partner hereby represents and warrants that it has all requisite skills as is required to perform the services to design cafe’s satisfaction.
3. The design partner further represents that it is under no obligation or restriction and neither shall it assume the same at any time during the course of this agreement
4. The design partner further represents and warrants that it shall comply with the requirements specified by design cafe and that the results of the services shall be accurate, error free and as per the requirements of design cafe.
5. The design partner further warrants that it shall perform the services in a professional and workmanlike manner and that it shall ensure that its employees, representatives, subsidiaries and subcontractors have the requisite skill and experience to render the services.
6. The design partner represents and warrants that each of its employees, agents, subsidiaries and subcontractors have signed or will sign, prior to the commencement of this agreement, a valid and binding agreement assigning all rights in and relating to the results of the services in favour of design cafe.
Force Majeure
1. Neither Party shall be responsible for any non-compliance or non-performance of their respective obligations under this Agreement if such non-compliance or non-performance was a direct result of the occurrence of a Force Majeure event.
2. For the purposes of this Agreement, a Force Majeure event shall mean any event beyond the control of the Parties preventing the Parties from performing their obligations under this Agreement, including but not limited to any Act of God, flood, fire, electrical spikes or surges, war or riot
Non-Compete and Non-Solicitation
1. The Design Partner hereto accepts and agrees that they shall have access to confidential or otherwise sensitive information pertaining to Design Cafe. The Design Partner further agrees that it shall not, during the course of this Agreement and for a period of 2 years thereafter, make use of such information disclosed to it for it benefit, either directly or indirectly.
2. The Design Partner further accepts and agrees that it shall not, during the course of this Agreement and for a period of 2 years thereafter, solicit any of the business or clients of Design Cafe. Neither shall it initiate employment discussions with or solicit any of Design Cafe employees.
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Relationship of the Parties
1. Nothing contained herein shall be construed as creating any relation of principal-agent, employee-employer between the Parties. Each Party shall be solely responsible for all matters relating to its employees, agents, subsidiaries and subcontractors including any tax or labour requirements.
2. In no event shall either Party hold itself to be a partner, agent, representative or associate of the other Party. The Parties further agree not to make any false or misleading claims or representations regarding the other Party or with regard to the relation between the Parties. In the event of violation of this clause, serious legal action may be imposed on the defaulting party.
Variation and Severability
1. No variation to this Agreement shall be valid or binding unless it is recorded in writing and signed by or on behalf of all the Parties. 15.2 If any provision of the Agreement is held to be illegal, invalid, or unenforceable under any present or future law, and if the rights or obligations of the Parties under the Agreement shall not be materially and adversely affected thereby, (a) such provision shall be fully severable; and (b) the Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof.
Waiver
1. Any leniency or delay by Design Cafe in taking any action against the design partner in any of the matters amounting to breach or violation of any of the terms shall not be considered or interpreted as a waiver of design Cafe’s right to take action or demand contractual damages at a later stage.
Notice
Any notice provided to be given in connection with this Agreement shall be in writing and delivered by hand or sent by registered mail or e-mail. Notices hereunder shall be delivered or sent at the addresses specified by the Parties.If to Design Cafe:
No. 41 Medsoft Building, Tata Silk Farm, Kanakpura Main Road, Basavanagudi Bangalore-560004.
If to the Design Partner:
_______________________
Assignment
Neither Party may assign any of its rights or obligations under this agreement to any other person or entity unless after obtaining the written consent of the other Party.
Entire agreement
This agreement constitutes the entire understanding and agreement between the Parties and shall supersede any and all prior understanding and agreements between the Parties.
Governing law and jurisdiction
1. This agreement constitutes the entire understanding and agreement between the Parties and shall supersede any and all prior understanding and agreements between the Parties.
2. This Agreement shall be governed and construed in accordance with the laws of India.
3. The courts of Bangalore shall have exclusive jurisdiction over any and all claims or disputes arising out of the terms of this Agreement.

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