PuDo SERVICES AGREEMENT
This E-Commerce Services Agreement (hereinafter referred to as “Agreement”) is between;
CallNect International Limited, a Company incorporated under the provisions of the Companies and Allied Matters Act in force in Nigeria and having its registered office at 235, Lapal House, Igbosere, Lagos via its new brand called PuDo (Pick up and Drop off hereinafter referred to as “PuDo” which expression shall, unless repugnant to the context and meaning thereof, include its successors, liquidators and assigns), of One Part.
You, the details of which are given by you on the website on which this Agreement appears, a natural or juristic person competent to enter into valid and legally binding contract under applicable laws in the Federal Republic of Nigeria inter alia, a person of legally sound mind, not adjudicated bankrupt and equal to or more than 18 years of age on the Execution Date. If You are a juristic person then the person accepting this Agreement represents that such person is duly authorized by You to bind You to this Agreement and the designated electronic mail address is valid and subsisting and allotted by You to such person (hereinafter referred to as “Service Provider” which expression shall unless repugnant to the context and meaning thereof, include its heirs, legal representatives, successors, liquidators, receivers, administrators and permitted assigns), of Other Part;
This agreement is made on the day of your acceptance of this Agreement from your designated electronic mail address or in any other form of electronic record including, if applicable or provided, clicking on the check box or “I Agree” / “Accept” button or by any other means which construe your acceptance of this Agreement (“Execution Date”)
PuDo and Service Provider shall hereinafter be individually referred to as “Party” and collectively as “Parties”.
iii. Service Provider has approached PuDo to avail Service Provider Business for the purpose of PuDo’s Business and Service Provider has agreed to make available Service Provider Business to Customer;
vii.These recitals shall form part of the Agreement.
Now therefore, in consideration of the mutual promises and other consideration, the sufficiency of which is acknowledged, the Parties, intending to be legally bound, agree as follows:
“Affiliate” shall mean, with respect to each Party, any person or entity directly or indirectly through one or more intermediary Controlling, Controlled by, or under direct or indirect common Control with a Party.
“Brand” or “Brand Name” shall mean [PuDo] or such other successor or replacement brand name / trade mark / service mark as may be decided by the Service Provider upon a prior intimation to the Merchant.
“Confidential Information” means and includes any and all information which is confidential to a Party including any
(i) business information and business processes,
(ii) any samples, formulations, specifications, data relating to manufacturing and quality control processes and procedures,
(iii) advertising and marketing plans,
(iv) any past, current or proposed development projects or plans for future development work,
(v) technical, marketing, financial and commercial information whether relating to past or current or future,
(vi) the commercial and business affairs of a Party,
(vii) all customer related information including any rates and discounts and
(viii) and with respect to PuDo shall include the End Customer Database.
“End Customer” shall mean the retail customers to whom PuDo shall connect Service Provider through the Platform.
“End Customer Database” shall mean all data / information (as may be updated from time to time) about the persons/ entities including their names, addresses, contact details, queries, orders and other requests made available by such persons / entities on the Platform or otherwise captured by the Platform that shall further include the usage, behavior, trends and other statistical information / data relating to such persons/ entities, who
(i) access the Platform or otherwise get invitation to the Platform or correspond with the Platform,
(ii) place any order for Service Provider on the Platform, or
(iii) send any enquiry/ request with respect to the Platform, and shall include all analysis and records based on such aforementioned information, including the spending and other patterns of such persons/entitles and services. For the avoidance of doubt, any list, description or other grouping of consumers or customers or any derivative work from End Customer Database shall be deemed to be End Customer Database.
“Intellectual Property” includes ideas, concepts, creations, discoveries, inventions, improvements, know how, trade or business secrets; trademarks, service marks, domain names, designs, utility models, tools, devices, models, methods, patents, copyright (including all copyright in any designs and any moral rights), masks rights, design right, procedures, processes, systems, principles, algorithms, works of authorship, flowcharts, drawings, books, papers, models, sketches, formulas, teaching techniques, electronic codes, proprietary techniques, research projects, and other confidential and proprietary information, computer programming code, databases, software programs, data, documents, instruction manuals, records, memoranda, notes, user guides; in either printed or machine-readable form, whether or not copyrightable or patentable, or any written or verbal instructions or comments. The End Customer Database shall be considered to be the Intellectual Property of PuDo.
“Intellectual Property Rights” means and includes
(i) all rights, title or interest under any statute or under common law or under customary usage including in any Intellectual Property or any similar right, anywhere in the world, whether negotiable or not and whether registerable or not,
(ii) any licenses, permissions and grants in Intellectual Property
(iii) applications for any of the foregoing and the right to apply for them in any part of the world and
(iv) all extensions and renewals thereto.
“Payment Facilitation Services” shall mean facilitating the receipt of Sale Price on the Platform either along with Platform Services or otherwise (for example cash on delivery services).
“Platform” shall mean the website or application with a second level domain name / uniform resource locator (URL) bearing the Brand Name with any top-level domain name whether presently available for registration or made available for registration at any future date.
“Platform Services” internet based electronic platform in the form of an intermediary to facilitate sale and purchase of goods and services through Platform.
“Service Fees” shall mean the fees for availing either whole or part of the Service Provider Business in accordance with the terms of this Agreement and/or Commercial Terms (the term as defined in the Agreement).
“Term” shall have the meaning as set out in Section 13.1 hereto.
“Territory” shall mean the entire world.
“Transaction Support Services” shall include services in relation to support the sale of the goods and services by PuDo to End Customer which shall include product listings, warehousing services, logistics management services, Payment Facilitation Services, customer support services and any other additional services that may be agreed between the parties.
In this Agreement, unless the context otherwise requires:
(i) Words importing persons or parties shall include natural person, entity, partnership firm, organization, operation, Company, HUF, voluntary association, LLP, joint venture, trust, limited organization, unlimited organization or any other organization having legal capacity;
(ii) Words importing the singular shall include the plural and vice versa, where the context so requires;
(iii) References to any law shall include such law as from time to time enacted, amended, supplemented or re-enacted;
(iv) Reference to one gender shall include a reference to the other genders;
(v) References to the words “include” or “including” shall be construed without limitation;
(vi) References to this Agreement or any other agreement, deed, instrument or document shall be construed as a reference to this Agreement, such other agreement, deed, instrument or document as the same may from time to time be amended, varied, supplemented or novated in accordance with the terms of this Agreement;
(vii) The headings and titles in this Agreement are indicative and shall not be deemed part thereof or be taken into consideration in the interpretation or construction of this Agreement;
(viii) The word ‘written’ shall include writing in electronic form and ‘signed’ shall include electronic signature or any other electronic communication which signifies the sender’s or originator’s intention to be bound by such electronic communication.
3.1 PuDo agrees and acknowledges that Service Provider is free to provide Service Provider Business and in the Territory in any manner and for any consideration as may be decided by PuDo in its sole and absolute discretion.
3.2 PuDo in its sole and absolute discretion may refuse to provide any one or more of the Service Provider Business including Platform, Platform Services, Payment Facilitation Services and/or Transaction Support Services for any reason whatsoever and especially if providing such Service Provider Business to the End Customer can be detrimental to the reputation, goodwill and competitiveness of PuDo or could cause any breach of any contractual commitments of the PuDo and cause PuDo to breach any applicable laws.
3.3 In the event of any conflict or inconsistency between the terms of this Agreement and the terms of any Commercial Terms thereto, the terms of this Agreement shall prevail to the extent of such conflict or inconsistency.
4.1 The End Customer Database shall be proprietary to PuDo. PuDo shall alone retain all rights including all Intellectual Property Rights in the End Customer Database and unless specifically agreed to in writing by PuDo, no rights in or to the End Customer Database are deemed to have been granted to the Service Provider. To the extent the Service Provider derives any rights in the End Customer Database by virtue of it undertaking the PuDo’s Business, the Service Provider shall hold such rights in trust for PuDo and the Service Provider shall do and must not exclusively assign such rights in the End Customer Database to a 3rd party.
4.2 The Service Provider further agrees that:
(a) all the End Customer Database shall be treated as Confidential Information of PuDo for the purposes of this Agreement; and
(b) Parties shall not use the End Customer Database other than networking services by availing the usage on the platform or required for law enforcement purposes and shall in no way sell, transfer or otherwise exploit the End Customer Database without the express written consent of the Customer.
5.1 Payments to be made by PuDo.
5.1.1 In consideration of the provision of Service Provider Business by the Service Provider, PuDo shall pay to the Service Provider 90% per service fees paid by a single customer.
5.1.2 Payment for service successfully rendered take 24 hours after the service has been confirmed by customer. Service rendered on weekend (between Friday to Sunday) will be paid for on the Monday after.
5.1.3 Parties agree that the details of terms memorialized by the Commercial Terms are dynamic in nature and will evolve or vary as the operating, promotional, marketing and business environment of PuDo or user behavior on the Platform changes and evolves and therefore the Commercial Terms will be adjusted or revised from time to time or sometime occasionally or frequently by the Parties as necessary or appropriate during the Term of the Agreement to accurately reflect the evolution of the aforesaid environment and conditions. Such revisions would be with the mutual consent of the Parties which consent can be oral, written or implied. For any oral consent, Service Provider may on reasonable basis confirm such oral consent within reasonable time from such consent and through written records including through electronic communications.
5.2 Payment Terms:
5.2.1 PuDo shall have the right to receive the Services Fees from the amounts due from the Customers under Payments Facilitation Services.
5.2.2 PuDo shall be entitled to make any deduction or withholding in accordance with applicable law and shall provide the necessary tax deduction certificates to the Service Provider.
Each Party shall be responsible for any and all taxes on its business, and taxes based on its net income or gross receipts. However, PuDo shall be entitled to additionally charge service tax or any other indirect or transaction taxes as applicable on one or more of the Service Provider Business and Service Fees.
6.1 PuDo shall reasonably maintain the Platform and Platform Services and shall on reasonable efforts basis provide Transaction Support Services and other services comprising Service Provider Business.
6.2 In order to process payments made by End Customers and to generally provide Payment Facilitation Services, PuDo shall reasonably maintain appropriate contracts with payment gateways and shall comply with the applicable laws.
6.3 PuDo shall ensure that it has or procures adequate technology as necessary to maintain the Platform and perform the Service Provider Business under this Agreement.
6.4 PuDo, as a part of Transaction Support Services, shall list the service providers on the Platform for the customers at the Sale Price provided or informed by the service provider. PuDo acknowledges that the Sale Price is dynamic and volatile and may vary at different times and points of sale and that PuDo reserves the right to change or modify the Sale Price of the service at any time before the same is bought by the End Customer on the Platform. The intimation of such revisions of the Sale Price could be oral or in writing. For any oral intimation, Service Provider may on reasonable basis confirm such oral intimation within reasonable time from such intimation and through written records including through electronic communications.
7.1 Service Provider shall not use the PuDo’s Business for any purpose other than PuDo’s Business and in relation to the services.
7.12 The services offered to be sold by Service Provider on the Platform and subsequent delivery of the same to the customer and Deliverables shall:
(a) exactly conform to the specifications and representations made by the Service Provider on the Platform;
(b) shall comply with all the applicable laws including that of the territory of the parties, the place from where Service Provider dispatches the Products and services to the final delivery of the End Customer;
(c) not infringe any third party’s Intellectual Property Rights whether in Nigeria or anywhere in the world; and
(d) not violate any international trade, import and export related laws including parallel imports.
7.13 Service Provider shall at no point represent or hold itself out as an agent or representative or an Affiliate of PuDo. The sale and purchase transaction between Service Provider and the End Customer shall be
a bi partite contract between them and PuDo is merely facilitating the transaction between Service Provider and End Customer as an intermediary and a conduit by making available Service Provider Business and Payment Facilitation Services to Service Provider and End Customer.
7.14 Service Provider shall provide such necessary assistance (at no additional direct cost to Service Provider) as may be required to facilitate PuDo to carry out its obligations under this Agreement.
7.15 Service Provider shall not make any representation or do any act which may be taken to indicate that it has any right, title or interest in or to the Brand Name.
7.16 Service Provider shall not do, cause or authorize to be done anything which will or may:
(i) impair, damage or be detrimental to the rights, reputation and goodwill associated with PuDo, its Affiliates, shareholders or directors and/or the Brand Name;
(ii) bring the Brand Name or the Platform into disrepute or any claim by third parties; or
(iii) may jeopardize or invalidate the Brand Name, Platform registration or any rights associated thereto;
7.17 Service Provider shall not use or register anywhere in the world, the Brand Name or any other trade mark, trade name or domain name, except as authorized under this Agreement, which, in PuDo’s reasonable opinion, is identical, improvement over, dilution of, combination involving or confusingly similar to, the Brand Name or, that constitutes any translation thereof into any language.
8.1 Intellectual Property Rights In Relation To Brand Name
8.1.1 Service Provider acknowledges PuDo’s absolute ownership of, interest in and rights to the Brand Name and the Platform.
8.1.2 Without limitation to the foregoing, Service Provider acknowledges and agrees that all goodwill in or associated with the Brand Name, including any goodwill generated or arising by or through PuDo’s activities pursuant to this Agreement shall accrue for the benefit of and shall belong exclusively to PuDo.
8.1.3 No right or interest in the Brand Name are granted or deemed to be granted by PuDo to the Service Provider.
8.2 Intellectual Property Rights In Relation To Service Provider Content and Service Provider Business
Service Provider shall retain sole ownership of all the intellectual properties, know how or other proprietary rights in the Service Provider Content and Service Provider Business and no right or interest is granted or shall be deemed to be granted by Service Provider to customer. To the extent Service Provider Content contains any proprietary content or information of the Merchant, the Merchant hereby grants a royalty - free and world-wide license to such content or information including a right to creative derivative product of such content or information.
9.1 Each Party may disclose to the other such Confidential Information as may be necessary to further the performance of this Agreement.
9.2 The receiving Party undertakes to the disclosing Party:
(i) to keep confidential the disclosing Party’s Confidential Information;
(ii) not to disclose the Confidential Information in whole or in part to any other person without the disclosing Party’s prior written consent, except to the receiving Party’s employees, agents and sub- contractors involved in the performance of this Agreement on a confidential and need to know basis and provided that employees, agents and sub-contractors are bound by written agreements of confidentiality which are at least as stringent as the provisions of this Agreement; and
(iii) to use the Confidential Information solely in connection with the performance of this Agreement.
9.3 The aforementioned confidentiality obligations shall not extend to Confidential Information which:
(i) has ceased to be confidential without default on the part of the receiving Party;
(ii) has been received from a third party who did not receive it in confidence;
(iii) the receiving Party is required by any court, government or other regulatory body to disclose, but only to the extent required by law, provided that the receiving Party gives the disclosing Party written notice as soon as practicable of such requirement and consult in good faith the disclosing party on the content and manner of any disclosure.
9.4 Upon request by the disclosing Party, the receiving Party must deliver to the disclosing Party all documents and other materials in any medium in its possession or control which contain or refer to the disclosing Party’s Confidential Information. If the documents or other materials are not capable of being returned, the receiving Party must destroy and certify the destruction of such documents and materials to the reasonable satisfaction of the Disclosing Party.
PuDo’s entire liability to Service Provider under this Agreement or under any applicable law or equity shall be limited solely to actual and proven direct damages sustained by the Service Provider as a result of the gross negligence or willful misconduct of PuDo and its employees and agents in the performance of their respective services and other obligations under this Agreement. In no event shall PuDo be liable, vicariously or otherwise, to the Service Provider and its Affiliates or any third party for any losses, damages, liabilities, costs (including reasonable legal costs) and expenses (including taxation) which are in the aggregate in excess of the amounts paid by the Customer to PuDo.
11.1 This Agreement shall commence on the Effective Date and shall be valid until termination. (“Term”).
11.2 Either party shall have the right to terminate this Agreement and all then existing Commercial Terms by issuing a seven-day prior notice of termination in writing without any additional obligations or liabilities to each other.
11.3 Either party shall have a right to terminate this Agreement or any Commercial Terms thereto upon any material breach of this Agreement by the other Party provided that where in the reasonable opinion of the non - breaching Party, such breach is capable of cure, the non-breaching Party shall not terminate this Agreement / any Commercial Terms thereto without providing the breaching Party a cure period of [thirty (30) days] to cure such breach and provide the non-breaching Party with necessary documents satisfactorily evidencing cure of such breach.
11.4 PuDo shall have the right to terminate this Agreement upon occurrence of any insolvency event in relation to Service Provider. It is clarified that an insolvency event in relation to Merchant shall be deemed to have occurred upon occurrence of any of the following:
(i) Service Provider has ceased to carry on or threatens to cease the Business; or
(ii) Service Provider has passed an effective resolution or a binding order has been made for its winding up except under a scheme of amalgamation; or
(iii) Service Provider has become insolvent or has entered into liquidation (unless such liquidation is for the purposes of a fully solvent reorganization); or
(iv) Service Provider has entered into, or taken steps to enter into, administration, administrative receivership, receivership, a voluntary arrangement, a scheme of arrangement with creditors, any analogous or similar procedure in any jurisdiction or any other form of procedure relating to insolvency, reorganization or dissolution in any jurisdiction, or a petition is presented or other step is taken by any person with a view to any of those things.
12.1 Upon expiry or termination of this Agreement all Confidential Information and any other materials which may have been provided by one Party to the other shall be forthwith returned and the returning Party shall certify such return and all copies thereof or any other material or information which cannot be returned, shall be destroyed completely;
12.2 Termination of this Agreement shall not relieve any Party of any of its obligations or liabilities and affect the rights and remedies of a Party, which have accrued prior to the date of termination.
12.3 The provisions of this Agreement contained in Sections 9 (Intellectual Property), 10 (Confidentiality), 11 (Indemnification), 12 (Representations and Warranties), 14 (Consequences of Termination), 15 (Governing Law) and 16 (Dispute Resolution), 17.2 (Notices) shall survive the expiry or early termination of this Agreement.
12.4 Termination of this Agreement shall not affect any obligations or duties of the Service Provider towards the End Customer which obligations or duties accrued before the termination of this Agreement.
13.1 This Agreement shall be governed by the laws of the Federal Republic of Nigeria without giving effect to its principles of conflict of laws. Subject to the provisions of Section 14 (Dispute Resolution); the courts in Nigeria shall have the exclusive jurisdiction in respect of any matter or dispute under or connected with this Agreement, each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on the Merchant anywhere in the world, whether within or without the jurisdiction of any such court including on the designated electronic mail address.
13.2 You and Company shall not accept this Agreement and use the Platform if You and Company does not wish to submit to the aforesaid applicable laws and jurisdiction.
14.1 Any dispute which arises between the Parties shall be attempted to be resolved by good faith discussions between the Parties.
14.2 Where the Parties are unable to resolve such disputes by good faith discussions within a period of 7 business days from the date of a written notice by either Party notifying existence of such dispute, either Party shall be free to refer the dispute to arbitration in accordance with this Section. This Agreement and the rights and obligations of the Parties shall remain in full force and effect pending the award in such arbitration proceeding.
14.3 The arbitration shall be governed by the Arbitration and Conciliation Act for the time being in force in force in Nigeria and/or any statutory modification or re-enactment thereof.
14.4 The place and seat of arbitration shall be Mumbai and the language of the arbitration shall be English.
14.5 The arbitration shall be conducted by at least 2 arbitrators. Each Party shall appoint one arbitrator each and the two appointed arbitrators shall appoint a presiding arbitrator. In case the Parties fail to appoint their respective arbitrators within seven days from the submission of dispute for settlement through arbitration in accordance with Section 16.2 above, or the two appointed arbitrators fail to appoint the presiding arbitrator with seven days from the date of appointment of the later of the first two arbitrators, a sole arbitrator shall be appointed in accordance with the Arbitration and Conciliation Act in Nigeria by the appropriate court of law.
14.6 The award rendered shall be in writing and shall set out the facts of the dispute and the reasons for the arbitrator’s decision. The award shall apportion the costs of the arbitration as the arbitrator deems fair.
14.7 Notwithstanding anything contained in this Agreement, both Parties agree and acknowledges that the covenants and obligations with respect to the matters covered by this Agreement and set forth herein relate to special, unique and extraordinary matters, and that a violation of any of the terms of such covenants and obligations will cause irreparable loss and injury to the aggrieved Party. Therefore, notwithstanding the provisions of this Agreement, either Party shall be entitled to approach any appropriate forums for obtaining an injunction, restraining order or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate.
15.1 Independent contractors
The relationship between Parties is on principal-to-principal basis. Nothing in this Agreement shall be deemed to constitute either Party a partner, joint venture agent or legal representative of the other Party, or to create any fiduciary, employer-employee relationship between the Parties.
15.2 Notices and Correspondences
Notices: Any notice, consent or waiver (including notice for Arbitration) required or permitted hereunder shall be effective only if it is in writing and shall be deemed received by the Party to which it is sent (i) upon delivery when delivered by hand, 7 days after being sent, if sent with all sending expenses prepaid, by an express courier with a reliable system for tracking delivery, (iii) when transmitted, if sent by confirmed facsimile, or (iv) 14 days (if Service Provider is in Nigeria) or 21 days (if Service Provider is outside of Nigeria) after the date sent, if sent by certified or registered mail, postage prepaid, return receipt requested, addressed as follows:
If to PuDo:
If to the Service Provider:
When the Service Provider uses the Platform or send emails or other data, information or communication to Service Provider, PuDo agrees and understands that Service Provider is communicating with PuDo through electronic records and PuDo consents to receive communications via electronic records from Service Provider periodically and as and when required. PuDo will communicate with Service Provider by email at the designated electronic mail address provided by the Service’s at the time of registration.
15.3 Assignment and Sub-Contracting
Service Provider shall not assign any of its rights, obligations or responsibilities under this Agreement without the prior written consent of PuDo and in absence of such consent any such assignment shall be null and void. All terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and authorized assignees.
15.4 Press Releases / Public Statement:
Unless required by law, PuDo will not make any public announcement or issue any press release concerning the transactions contemplated by this Agreement without the prior consent of the Service Provider.
15.5 Amendment and evolution of Commercial Terms on periodic basis
PuDo may amend this Agreement, Commercial Terms and Platform Policies at any time by posting a revised version on the Platform. All updates and amendments may be notified to Service Provider on designated electronic mail address. Service Provider is advised to regularly check for any amendments or updates to the terms and conditions contained in this Agreement, Commercial Terms and Platform Policies. Service Providers using Platform, Platform Services or PuDo’s Business after PuDo’s amendment to this Agreement, Commercial Terms and Platform Policies shall be deemed to be Service Provider’s unconditional and absolute acceptance of such amendments (effective from the date such amendments were made by PuDo). If Service Provider does not agree to the change or amendments, Service Provider can cease using PuDo’s Business (except for those services which have been paid for by the End Customers) and may terminate this Agreement as provided in Section 13.2.
It is the intent of the Parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such provision shall be modified to the extent necessary to render it, as modified, valid and enforceable under applicable laws and such invalidity or unenforceability shall not affect the other provisions of this Agreement.
Except as expressly provided in this Agreement, no waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving such provision. No failure or delay by a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by a Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any preceding or subsequent breach of that or any other provision hereof.
15.8 Counsel and management participation
You and PuDo acknowledge and confirm that you attorneys and management representatives have read, reviewed and approved this Agreement and that You and PuDo have had the benefit of its independent legal counsel’s advice with respect to the terms and provisions hereof and its rights and obligations.