MOU- AMC

This Memorandum of Understanding [the “MOU”] is entered into by and between Excellone Technologies having its principal place of business at Tom's Park, Kochi, India [hereinafter referred to as “Excellone” which term shall mean and include, unless repugnant to the context or meaning thereof, its successors and assigns] of the ONE PART, and XYZ Company having its Corporate Office at XXXX (hereinafter referred to as “CLIENT” which term shall mean and include, unless repugnant to the context or meaning thereof, its successors and assigns) of the OTHER PART.

The effective date of this MOU shall be the date corresponding to the signature last executed below [the “Effective Date”]. EXCELLONE and CLIENT are hereinafter collectively referred to as the Parties and each individually as a Party to this MOU.

WHEREAS, Excellone is a software development company specializing in web programming and offers its services to customers worldwide.

WHEREAS, CLIENT owns and operates or is in the process of setting up a website "www.YourCompany.com", which offers information about the company, its products, news, views and other services to its users.

WHEREAS, Excellone and CLIENT desire to enter into this MOU in order to establish an Annual Maintenance Contract for the above website; and

NOW, THEREFORE, in consideration of the mutual representations and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Excellone and CLIENT hereby agree as follows:

DEFINITIONS:

1.“Software Program” means custom software or web solution of the CLIENT.

2.“Site” means the corporate website of CLIENT.

3. “Property” means tangible, intangible, corporeal and incorporeal property of the parties.

1. THE MAINTENANCE PROGRAM

Excellone offers free maintenance for one month after completing the Software Program or hosting the site. Upon the Effective Date, Excellone shall promptly put into operation an annual maintenance program under the following conditions and specifications:

1.1 Content Updating Excellone shall undertake to update the content as decided by the CLIENT up to a maximum of Fifteen (15) times per annum for free of Charge. These changes need to be conveyed in writing well in advance to the contact person.

1.2 Website Redesign Excellone shall also provide a complete redesign service to the CLIENT as per this MOU in a year.

1.3 Uploading of Pages Excellone shall also upload all the pages in the event that a server is changed.

1.4 General Updating Excellone shall update the site with the latest developments about the company and its services.

2. THE MAINTENANCE FEE

During the term of this MOU, CLIENT will pay to Excellone an annual maintenance fee of US $----, or its equivalent in another currency, inclusive of all taxes towards maintaining and updating the site. Excellone shall invoice CLIENT on the first day following the Effective Date, and the same shall be payable within Thirty (30) days.

3. TERM AND TERMINATION

3.1 Term:

This MOU shall remain in force for a period of one (1) year from the Effective Date (the Term), and may be renewed for a further period of time by mutual MOU.

3.2 Termination for Convenience:

Either party may terminate this MOU at any time without specifying any reason giving Sixty [60] days written notice to the other party.

3.3 Termination for Cause.

This MOU may be terminated by either Party if (i) a receiver is appointed for either Party or its property, (ii) either party makes an assignment for the benefit of its creditors, (iii) any proceedings are commenced by, for or against either Party under any bankruptcy, insolvency or debtor's relief law for the purpose of seeking a reorganization of such Party's debts, and such proceeding is not dismissed within ninety (90) calendar days of its commencement, (iv) either Party is liquidated or dissolved; or (v) this MOU may also be terminated on any material breach of the MOU by any of the parties. The termination shall be effective immediately on 30 days the non-breaching Party issuing a notice to the breaching Party, unless the breaching Party has cured such breach during this thirty (30) day period.

4. EFFECT OF TERMINATION

In the event of this MOU being terminated by either party for any reason whatsoever any amounts paid, payable or receivable by any party shall be accounted for under normal business accounting practices. No party to this MOU shall be liable to pay to the other party any damages direct or indirect of any kind including but not limited to damages for loss of profit or reputation as a result of termination of this MOU for whatsoever reason. Termination of this MOU, does not affect a party's accrued rights and obligations at the date of termination.

5. WARRANTIES

Each Party represents and warrants to the other that the individual signing this MOU on its behalf has the full right, power and authority to bind the respective Party fully thereto.

6. DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY SET FORTH IN THIS MOU, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY AND ALL PRODUCTS, SERVICES, CONTENT, EQUIPMENT OR FACILITIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE.

EXCEPT AS EXPRESSLY SET FORTH IN THIS MOU, NEITHER PARTY GUARANTEES THAT THE OPERATION OF ITS INTERNET PORTAL(S), SITE(S), OR SERVER(S) OR THE PERFORMANCE OF ITS ON-LINE FUNCTIONS AND SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER MALIGNANT DATA PROCESSES. NEITHER PARTY GUARANTEES THAT DATA SUBMITTED OR HELD IN STORAGE ON OR THROUGH ITS SYSTEMS ASSOCIATED WITH THE INTERNET WILL BE SECURE FROM UNAUTHORIZED ACCESS.

7. INDEMNIFICATION

Excellone agrees to indemnify, defend, and hold harmless CLIENT and its successors, officers, directors, and employees from and against any and all actions, causes of action, claims, demands, costs, liabilities, expenses, judgments, proceedings and damages (including reasonable attorneys fees): (i) arising from Excellone's performance or lack of performance of its duties under this MOU; or (ii) arising from Excellone's breach of any warranty and/or representation.

CLIENT agrees to indemnify, defend, and hold harmless EXCELLONE and its successors, officers, directors, and employees from and against any and all actions, causes of action, claims, demands, costs, liabilities, expenses, judgments, proceedings and damages (including reasonable attorneys fees): (i)arising from CLIENT's performance or lack of performance of its duties under this MOU; or (ii) arising from CLIENT's breach of any warranty and/or representation.

8. LIMITATION OF LIABILITY

EACH PARTY'S TOTAL LIABILITY UNDER THIS MOU IS LIMITED TO THE VALUE OF SERVICES RENDERED.

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY (INCLUDING STRICT LIABILITY) FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE OR FOR INTERRUPTED COMMUNICATIONS, INCURRED BY EITHER PARTY IN CONNECTION WITH THIS MOU, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. CONFIDENTIAL INFORMATION

9.1 Definition. “Confidential Information” shall include all information that either Party considers confidential. It shall include, but not be limited to, any and all methods, processes, strategies, equipment, plans, formulas, software, programs, sales and marketing information, technical and financial information, data, know-how, documentation and other information disclosed after the Effective Date, whether disclosed visually, orally, or in writing, and whether or not tangibly recorded, by one Party (“the Disclosing Party”) to the other Party (“the Receiving Party”).

9.2 Proprietary Nature. Except as otherwise provided in this MOU, each Party considers its Confidential Information to be proprietary. Except as otherwise provided in this MOU, all of the Disclosing Party's Confidential Information shall at all times, and throughout the world, remain the property of the Disclosing Party, exclusively, and all applicable IPRs in Disclosing Party's Confidential Information shall remain the property of the Disclosing Party, exclusively.

9.3 Confidential Information Upon Termination. Upon termination of this MOU, the Receiving Party shall return to the Disclosing Party all tangible materials and copies thereof and permanently delete from its computer systems or media the digital form or software or computer-readable files containing Confidential Information received from the Disclosing Party.

10. MISCELLANEOUS

10.1 Expenses. Each Party will bear all of its own expenses necessary to meet its duties and obligations under this MOU. Neither party can create or cause to create any charge against the other party as per this MOU.

10.2 Independent Contractors. The Parties act under this MOU solely as independent contractors of one another. No agency, partnership, joint venture or employment is created as a result of this MOU. Except as expressly provided by this MOU, no Party will be liable for or bound by any representations, acts or omissions whatsoever of the other.

10.3 Non-Transferability. Each Party agrees that it will not sell, transfer, assign, sublicense, pledge, lease, subcontract, rent or share any of its rights or duties under this MOU unless otherwise permitted by a specific provision of this MOU or pursuant to the prior written permission of the other Party.

10.4 Press Releases. Any press releases, or media releases, or other similar public announcements by either Party concerning this MOU or the business arrangement established by this MOU must be approved by both Parties prior to their release to any news outlet.

10.5 Force Majeure. No Party will be responsible for the breach of any obligation established in this MOU if such breach is caused, directly or indirectly, by war (declared or undeclared), insurrection, civil disturbance, orders, rules, regulations or decrees of any competent government authority, strikes, labour shortages, fire, flood, earthquake, storm, failure of Internet access service, power outage, or act of God.

10.6 Entire MOU. This MOU sets forth the entire understanding and supersedes all prior and contemporaneous MOUs between the Parties relating to the subject matter contained herein and merges prior and contemporaneous discussions between them. Neither Party shall be bound by any definition, condition, representation, warranty, covenant or provision other than as expressly stated in or contemplated by this MOU or as subsequently shall be set forth in writing and executed by an authorized representative of the Party to be bound.

10.7 Procedure for Modification. Any amendment to this MOU must be in writing and signed by an authorized representative of each Party.

10.8 Severability and Frustration of Purpose. All clauses and covenants contained in this MOU are severable. In the event that any clause or covenant of this MOU shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this MOU unenforceable or invalid as a whole.

10.9 Waiver. Any waiver by any Party of any default or breach of any clause or covenant of this MOU, whether such waiver be direct or implied, shall not be construed to be a continuing waiver, or a waiver of or consent to, any subsequent default or breach on the part of either Party of the same or of any other clause or covenant of this MOU.

10.10 Notices. All notifications between the Parties relating to this MOU must be made in writing. Such notifications may be made by registered postal service, express courier service, fax or e-mail. The Parties designate the following addresses for the purpose of receiving notices under this MOU.

Excellone Technologies
Attention:
Tel:
Fax:
Email:

Your Company
Attention:
Tel:
Fax:
Email:

In the event of any changes in the above information by a Party to this MOU, the other Party must be given written notice thereof at least five (5) working days in advance of the change of address.

10.11 Governing Law:- This MOU shall be governed by, and construed in accordance with the laws of the Union of India.

10.12 Settlement of Disputes:- All the disputes and differences arising between the parties hereto, including any dispute or difference in regard to the interpretation of any provision or term or the meaning thereof, or in regard to any claim of one party against the other or in regard to the rights and obligations of any party or parties hereto under this MOU or otherwise, howsoever, shall be referred to Arbitration. Arbitrator shall be appointed with mutual consent. The place of Arbitration shall be in Kochi, India.

10.13 Jurisdiction: The courts at Kochi, India shall have exclusive jurisdiction over all the issues with regard to implementation of this MOU.

10.14 Counterparts. This MOU may be executed in two (2) or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

IN WITNESS, the Parties have caused this MOU to be executed by their duly authorised representatives. ACKNOWLEDGED, AGREED TO, AND ACCEPTED BY: