This Master Service Agreement (“Agreement”) is executed on this [•] day of [•], 2021(Effective Date)
CropIn Technology Solutions Private Limited, a company incorporated under the Companies Act 1956, with its Registered Office at #1021, 3rd Floor, 16th Main Road, BTM 1st Stage, Bangalore 560029, Karnataka, India represented by its authorized signatory (hereinafter referred to as “CropIn”) (which expression shall, unless repugnant to the meaning or context hereof, be deemed to mean and include its, successors and permitted assigns) of the First Part
[•], a company incorporated under the relevant laws of India, with its registered office at [•] (hereinafter referred to as “Customer”) (which expression shall, unless repugnant to the meaning or context hereof, be deemed to mean and include itssuccessors and permitted); of the Second Part.
CropIn and the Customer shall hereinafter collectively be referred to as “Parties” and individually as “Party”
- CropIn is engaged in design, development of various technology solutions helping the agriculture value chain players. It also has a crop identification, health and yield monitoring application for large area prediction. . CropIn has developed a platform and mobile application under the brand name ‘CropIn’ (“CropIn Platform”) through which the CropIn provides the services as more specifically detailed in the Work Order (“Services”) to its customers. A “Work Order” executed pursuant to these terms shall provide for the Services required to be provided to the Customer, the fee payable in consideration of the Services and other terms that are applicable to the provision of the Services.
- Customer is engaged in [•]and is desirous of availing the Services for real time monitoring and management of their farming initiative and CropIn agrees to provide the Services subject to the terms and conditions contained herein below.
NOW THEREFORE, in consideration of the mutual agreements, covenants, representations and warranties set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, the Parties hereby agree as follows:
- TERMS OF SERVICE
CropIn agrees to use commercially reasonable efforts to provide the Customer the Services as per the Service Level Agreement (‘SLAs’) agreed between the Parties, further detailed under Annexure A. As part of the registration process, the Customer shall be required to create an administrative user name and password for the Customer’s account on CropIn Platform in order to avail of the Services (“Customer Account”). CropIn will provide the Company with reasonable support services for technical support and during the installation process.
The Customer shall appoint a designated representative (“Customer Representative”) who shall be authorized to make binding decisions for the Customer regarding the obligations under this Agreement. Any instructions by the Customer Representative or terms agreed with the Customer Representative shall be deemed to be binding on the Customer. It is agreed between the Parties that all official communications from CropIn to the Customer shall be addressed to the Customer Representative. Furthermore, any and all decisions and directions issued by the Customer Representative will be treated as having the full knowledge and authority of the Customer and the Customer shall be bound to honor the same.
The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.
The Customer shall be responsible for maintaining the security of the Customer Account (including but not limited to administrative and user passwords) and files. Customer shall ensure that details of the Customer Account is not shared with any individual or entity that is not authorized to access the Customer Account in accordance with the terms of this Agreement. The Customer shall solely be liable for activities on the Customer Account whether such activities are with or without the Customer’s knowledge or consent.
CropIn provides the Customer with a limited, non-exclusive, non-transferable, non-sublicensable license to use the CropIn Platform for the purpose of availing the Services in the manner as detailed in the Work Order and in accordance with all laws and regulations applicable to the Customer.
The Customer shall use the Services and the data derived from the Services (“CropIn Data”) solely for its internal business purposes and unless otherwise agreed under the Work Order, the Customer shall not commercially exploit the CropIn Data or provide access to the CropIn Platform to any third party without the express written consent of CropIn.
The Customer shall not directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, CropIn Platform or any software, documentation or data related to the Services or CropIn Platform (collectively “Software”); (ii) modify, translate, or create derivative works based on the Software (except to the extent expressly permitted by CropIn or authorized within the Services); (iii) use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove any proprietary notices or labels on the Software; or (v) use the Software in a way that would result in development of software products that are directly or indirectly competitive with CropIn Platform.
CropIn shall use reasonable efforts, consistent with prevailing industry standards, to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the support services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the CropIn or by third-party providers, or because of other causes beyond the CropIn’s reasonable control. To the extent possible and reasonable, CropIn shall provide an advance written notice with respect to any scheduled service disruption. Process for bugs support, product enhancement and customisation are further detailed under Annexure B, any cost/Fee associated with such processes shall be detailed under the Work Order.
CropIn may use third-party service providers, including application service providers and hosting service providers, for rendering any of the Services hereunder without seeking further consent from Customer, and CropIn will remain responsible for such services. CropIn will however, not be responsible for any third-party service providers engaged by the Customer or any third-party software that may be procured by the Customer, whether with or without CropIn’s prior consent and notwithstanding that the same may be integrated with the Services.
- REPRESENTATIONS AND DISCLAIMER
Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and execute, deliver and perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) that there is no current, pending, threatened actions or proceedings before any court, arbitrator, tribunal or governmental authority which might materially and adversely affect the business, assets or conditions or operations of the other Party (iv) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; iv) it shall comply with applicable union, state and local laws, ordinances, regulations and codes in performing its obligations hereunder, including the procurement of licences, permits and certificates and payment of taxes where required.
CropIn makes no warranty or representations that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND THE CROPIN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The Parties represent and warrant that their disclosure and delivery of any deliverable, information, documents, software and other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, without limitation, any copyright, trade secret or design rights.
In consideration of the Services performed by CropIn, the Customer shall pay CropIn such as has been agreed between the Parties under the relevant Work Order (“Fee”). Unless otherwise agreed to under the Work Order, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice unless otherwise specified in the relevant Work Order All Fee payable to CropIn under the Agreement shall be exclusive of applicable taxes and shall be payable in accordance with the terms agreed under the relevant Work Order. In case of delayed payments, CropIn will be entitled to apply interest at 2% (two percent) per month or the maximum permissible under law, whichever is higher All Service Fees payable to CropIn under the Agreement shall be exclusive of applicable taxes including withholding taxes, levies cesses and other charges applicable thereon, which shall be borne by Customer and payable in accordance with the terms agreed under the relevant Work Order.
- INDEMNIFICATION AND LIMITATION OF LIABILITY
The Customer shall promptly notify CropIn of any claim by a third party received by the Customer claiming that the use of the Services or the CropIn Platform by the Customer infringes the intellectual property rights of such third party. CropIn shall forthwith take over the defence of such claims. In the event the Services or CropIn Platform is found to be in infringement of such third party intellectual property rights, CropIn shall, at its sole discretion, (i) procure a licence from such third party in order to enable the Customer to continue using the Services and the CropIn Platform as per the terms of the Agreement; (ii) modify the Services or the CropIn Platform without substantially modifying the offering in a manner to make the Services and CropIn Platform non-infringing; or (iii) refund the Fee for the Services that have not been availed by the Customer on a pro-rata basis. The Customer acknowledges that this is the sole remedy available to the Customer under the Agreement. This indemnity does not apply to and CropIn will have no obligation to the Customer for any infringement or misappropriation claim that arises from (i) modifications to the Software by any entity or individual other than CropIn authorized entity; (ii) modifications to the Services based upon the specifications provided by the Customer; (iii) Customer’s use of the Software in a manner other than as agreed in the Work Order or the documentation accompanying the Service; (iv) use of the Software in conjunction with third party software or hardware other than as approved by CropIn; (v) where Customer continues an alleged infringing activity after being notified thereof or after being informed of the modifications that would have avoided the alleged infringement; or (vi) any combination of the foregoing. Customer shall defend and hold CropIn and its officers, directors, employees, agents, successors and assigns harmless from and against all third party claims, suits, actions, damages, settlements, losses, liabilities, costs (including reasonable attorney’s fee) and expenses to the extent they arise from any claim based on any of the factors in the foregoing sentence, and shall give CropIn all reasonable information and assistance regarding such claim.
The Customer shall indemnify and hold CropIn, its officers, directors, employees, successors and assigns harmless against all liabilities, losses, damages, actions, claims, suits, proceedings, costs and expenses (including reasonable attorney’s fee) that may arise as a consequence of (i) breach by the Customer of the covenants and representations made by the Customer under this Agreement; (ii) infringement of intellectual property rights; (iii) fraud, wilful misconduct and gross negligence.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR REMOTE DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF REPUTATION OR GOODWILL EVEN IF SUCH PARTY WAS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF CROPIN SHALL BE LIMITED TO THE FEE PAID OR PAYABLE BY THE CUSTOMER TO CROPIN UNDER THE RELEVANT WORK ORDER FOR A PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
- TERM AND TERMINATION
This Agreement will enter into force with effect from the date of execution of this Agreement and shall continue until terminated by the Parties. The Work Order accepted by the Parties shall specify the commencement date of the Services. In the event the Agreement is terminated and a Work Order is still active, such Work Order shall continue to be governed by the terms of this Agreement until its completion, expiry or termination. The terms of this Agreement and the Work Order will be renewed automatically for a further period equivalent to initial term or 1 year whichever is higher, unless (i) Customer sends a non-renewal notice in writing to the concerned POC of CropIn at least thirty (30) days prior to the approaching renewal. Provided further that the fees for the services will be subject to an escalation of minimum 10% of the original fees at the time of each renewal unless otherwise set out in the Work Order.
Either Party may terminate a Work Order for convenience upon a prior written notice of sixty (60) days.
Either Party may terminate a Work Order in the event the other Party commits a breach of the terms of the Agreement and such breach is not rectified within a period of thirty(30) days.
Either Party may immediately terminate this Agreement by giving written notice to other Party (i) if the other Party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, which petition is not dismissed within sixty (60) days of being brought; (ii) if other Party makes an assignment for the benefit of creditors; or (iii) if a receiver, trustee or similar agent is appointed with respect to any property or business.
Upon termination of Agreement or a Work Order for any reason: (a) the license granted to the Customer under this Agreement shall immediately be revoked; (b) all payments that are due and payable therefore by the Customer shall immediately become due and payable.as per the terms of the Agreement or a relevant Work Order; (c) each Party shall immediately cease all use of and shall return to the other Party within ten (10) business days all Confidential Information and materials of such other Party and all copies, portions and abstracts thereof, that are in its possession or under its control, other than any materials for which the Company has paid or agrees to pay and the CropIn has agreed to transfer to the Company such material in consideration for such payment.
Unless otherwise specified under a Work Order, in the event of termination of this Agreement or a Work Order for any reason other than for breach committed by CropIn, the Customer shall forthwith pay CropIn Fee payable by the Customer for the balance term of the relevant Work Order.
In connection with this Agreement, each Party may disclose, or the other Party may learn of or have access to, certain confidential proprietary information owned by the disclosing Party or its Affiliates or business partners. Confidential Information includes, but is not limited to, the CropIn Platform, any artifacts, tools, methods, data or information, oral or written, that relates to the disclosing Party or any of disclosing Party’s existing or contemplated business activities, technology, developments, software, methods and trade secrets. Confidential Information also includes the terms of this Agreement, services rendered or deliverables provided (collectively “Confidential Information”). For the purpose of this Agreement “Affiliate” shall mean (i) with respect to any Party other than a natural person, any other Person who holds or in which such Party holds 50% or more of the paid-up share capital, directly or indirectly, or is controlling, controlled by or under common control with such Party; (ii) in the case of any Party that is a natural person, any other Person who is a relative of such Party as per the provisions of the Companies Act, 2013. For the purposes of this definition, the term “control” (including with correlative meaning, the terms “controlled by” and “under common control” with) as applied to any Party, (i) means the (a) ownership or possession, directly or indirectly, of more than one half of the voting power of an enterprise, or (b) control of the composition of the board of directors in the case of a company or of the composition of the corresponding governing body in case of any other enterprise, or (c) a substantial interest in voting power and the power to direct, by statute or agreement, the financial and/or operating policies of the Person; and (ii) shall include the ownership or possession, directly or indirectly, of the power to direct or cause the direction of the management of that Person whether through ownership of voting securities or otherwise.
The Customer shall retain all rights to any Confidential Information or data submitted by it to the CropIn in the course of receiving the Services (“Customer Data”). CropIn understands the importance of data sensitivity- integrity and CropIn, under no circumstance, would be entitled to share the data with a third party except with the written consent of the Customer. CropIn only uses the Customer Data for analytics in-order to provide insights to the Customer. CropIn will use Customer Data, in order to maintain, enhance, or add to the functionality of the Service(s) and to personalize the experience for the Customer. Anonymized and aggregated information and analysis may be used by CropIn during and after the term of this Agreement and may be made public where desired by CropIn provided that such information does not incorporate any Customer Data and/or identify Customer in any manner. .
Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time it was disclosed, (ii) is or becomes publicly available or enters the public domain through no fault of the receiving Party, (iii) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto as evidenced by written records, (iv) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto as evidenced by written records, (v) is independently developed by the receiving Party without use of any Confidential Information as evidenced by written records; or (vi) is approved for release or disclosure by the Party disclosing such Confidential Information in writing without restriction.
During the term of its engagement and for all periods thereafter, the receiving Party shall maintain the Confidential Information in strict confidence and shall not disclose, publish or copy any part of the Confidential Information. The receiving Party shall use the Confidential Information solely for the purpose of this Agreement. The receiving Party shall not use Confidential Information, or any portion thereof, for the benefit of any third-party. The receiving Party shall take all necessary precautions in handling the Confidential Information and limit disclosures on a strict need-to-know basis. However, the receiving Party may disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that, if permissible, the receiving Party gives reasonable prior notice to the disclosing Party to contest such order or requirement, or obtain injunctive relief therefrom. Upon the termination or expiration of this Agreement, the receiving Party shall return to the disclosing Party or certify the destruction of all Confidential Information except such Confidential Information that the disclosing Party may expressly authorize the receiving Party to retain, in writing.
- INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges and agrees that all right, title and interest in the Software shall, at all times, vest with CropIn. Except to the extent of license granted under this Agreement, the Customer shall not have any rights to use the Software in any manner whatsoever. All suggestions, enhancement requests, feedback, recommendations, or other inputs provided by the Customer or any other Party relating to the Software or Services shall be owned by CropIn and the Customer hereby does and shall make assignments and take reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by CropIn. Customer agrees not to copy, rent, lease, sell, distribute based on the Services, in whole or in part, by any means, except as expressly as authorized in writing by CropIn.
CropIn acknowledges and agrees that all right, title and interest in the Customer Data shall, at all times, vest with the Customer. Except to the extent of licence granted under this Agreement, CropIn shall not have any rights to use the Customer Data in any manner whatsoever.
Unless otherwise expressly agreed to by CropIn, the Customer agrees not to, directly or indirectly solicit or induce or attempt to persuade any employee, independent contractor, vendor, supplier, outsourced third-party, director or other participant of CropIn to terminate an employment, contractual or other relationship with CropIn, or to enter into a relationship with such individuals or into any business organization in which such individuals may be directly or indirectly involved. The term “enter into a relationship” shall include, but not be limited to, acting as a paid or unpaid director, officer, agent, employee of, or consultant to, or acting or participating as owner, partner, manager, member, or shareholder. During the term of the Agreement and for a period of two (2) years immediately following termination / expiry of this Agreement, the Company further agrees not to (a) directly or indirectly contact any person or entity disclosed by CropIn for the purpose of taking advantage of a business opportunity without CropIn’s prior written approval; (b) otherwise circumvent a relationship with CropIn or establish a relationship with a party with whom CropIn already has a relationship or foreseeable relationship and with whom the Customer has never had a relationship; or (c) seek to establish any rights, including but not limited to intellectual property rights, anywhere in the world in conflict with CropIn’s pre-existing intellectual property or proprietary rights herein or hereinafter established.
- SAAS SERVICES TO PARTNERS
It is hereby acknowledged between the Parties that the partners of the Customer are also desirous of availing the Services for real time monitoring and management of their farming requirements (“Partner”). Accordingly, the Parties hereby agree that the Partners may avail the Services by executing a Work Order with CropIn. On execution of the Work Order, the Partner shall be governed by the terms of the said Work Order and the terms of this Agreement. Accordingly, references to the ‘Customer’ under this Agreement shall be deemed to mean the Partner availing the Services. The Partners shall independently be liable to CropIn for compliance with the terms of this Agreement and the relevant Work Order and CropIn shall not have any claims against the Customer for any default committed by the Partner. Similarly, CropIn shall independently be liable to the Partners for performance of Services in accordance with the terms of this Agreement and the relevant Work Order and the Customer shall not have any claims against CropIn for any breach committed by CropIn under its agreement with the Partner.
- GENERAL PROVISIONS
For all purposes hereof and in the performance of its obligations under this Agreement, CropIn is and shall remain an independent contractor and nothing in this Agreement shall be deemed or construed to create an employer/employee, joint venture or partnership relationship between CropIn and the Customer. Neither Party shall have any authority to insure any obligations on behalf of the other Party or to make any promise, representation or contract of any nature on behalf of the other Party. It is also confirmed that no relationship akin to agency is created between CropIn and the Company.
The Customer recognizes that CropIn’s employees providing Services to the Customer under this Agreement may perform similar services from time to time for other individuals and entities, some of whom might be in direct competition with the Customer and this Agreement shall not in any manner prevent CropIn from using such employees for the performance of such similar services for such other individuals or entities, or prevent CropIn from entering into similar relationships with such individuals / entities. Provided however, that the Confidential Information (as defined herein below) of the Customer shall be kept confidential at all times.
All notices required shall be in writing and shall be effective on the date of mailing to the Parties sent via electronic mail or any mutually agreed upon international courier agency, addressed to the designated representatives of the Parties. Either Party may change its notice method by giving the other Party written notice in the manner set forth above.
Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provisions(s) held to be invalid or unenforceable.
The waiver of a breach of this Agreement or the failure of a Party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.
Neither Party shall be responsible for any failure to perform, or delay in performing any of its obligations under this Agreement, where and to the extent that such a failure or delay results from causes outside the control of such Party except in respect of payment obligations hereunder. Such causes shall include, without limitation, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, pandemics, freight embargoes, strikes, civil commotion, or the like (“Force Majeure Event”). Each Party will use reasonable efforts to mitigate the effect of a Force Majeure event.
Section headings in this Agreement are merely for the convenience of the Parties and should not be construed as having any special meaning or importance.
This Agreement shall be deemed executed in Bangalore and shall be governed by the laws of India. For purposes of enforcement of arbitration awards, equitable relief, or if for any other reason litigation is permissible under this agreement, each Party hereby irrevocably agrees to the personal jurisdiction and venue of the courts at Bangalore.
The Customer hereby grants a licence in perpetuity, unless specifically revoked, to CropIn to use their trade name, trade mark and logo for publishing the same on CropIn’s website to show the Customer as a client of CropIn and to provide a general description of the services provided to the Customer without being in violation of any confidentiality obligations.
All provisions of this Agreement which by their terms or nature are intended to survive expiration or termination of this Agreement shall survive indefinitely.
This Agreement supersedes all prior oral or written representations, communications, or agreements between the Parties, and, together with the Work Orders, hereto, constitutes the final and entire understanding of the Parties regarding the subject matter of this Agreement. Neither Party has relied on any such prior oral or written representations, communications, or agreements.
The Parties do not intend to create in any other individual or entity the status of a third-party beneficiary, and this Agreement shall not be construed so as to create such status. The rights, duties and obligations contained in this Agreement shall operate only between the Parties to this Agreement and shall inure solely to the benefit of the Parties to this Agreement. The provisions of this Agreement are intended only to assist the Parties in determining and performing their obligations under this Agreement. The Parties to this Agreement intend and expressly agree that only Parties signatory to this Agreement shall have any legal or equitable right to seek to enforce this Agreement, to seek any remedy arising out of a Party’s performance or failure to perform any term or condition of this Agreement or to bring an action for the breach of this Agreement.
Audit and inspection: Except as required by law, CropIn reserves the right to monitor and audit usage of the Services by Customer to determine if the use is within service usage limitations.
In the event that the Parties are unable to amicably resolve a dispute within a period of thirty (30) days from the date on which the dispute arose, the said dispute will be referred to arbitration by a sole arbitrator mutually appointed by the Parties in accordance with the Arbitration and Conciliation Act, 1996 and the amendments thereto. The award passed by such sole arbitrator will be valid and binding on both Parties. The Parties shall bear their own costs for the proceedings, although the sole arbitrator may, in his/her sole discretion, direct either Party to bear the entire cost of the proceedings. The arbitration shall be conducted in English, and the seat of arbitration shall be Bangalore.
This Agreement may be amended / modified with the mutual consent of both Parties, by executing a fresh agreement containing such amendments / modifications, or by one Party communicating the need for an amendment / modification in writing, and the other Party accepting the said proposal and communicating its consent to the same in writing.