TERMS AND CONDITIONS OF SERVICE
This memorandum of understanding (“MOU”) between Perspectful Advisory Services Private Limited, an online marketplace for kids’ activities and a company registered under the Companies Act, 2013 having its registered office at Suite 909, 9th Floor, Vishwadeep Building, District Center, New Delhi - 110058 with CIN : U74140DL2013PTC248145 ( (hereinafter referred to as “KleverKid”);
The Kids’ Services provider hereinafter referred to as the “Partner”).
KleverKid and the Partner are hereinafter jointly referred to as the “Parties” and each, individually, a “Party”, as the context may so require.
Subject to the provisions of this MOU, the Partner hereby engages KleverKid, and KleverKid accepts such engagement, to provide the following services (collectively the “Services”):
(a) KleverKid will display the name and the program details of the Partner, as agreed between theParties, on KleverKid’s website and mobile application (the “Platform”) Platform or through other means decided by KleverKid from time to time for the users (“Users”) either looking for the information or booking (the “Booking”) the service through KleverKid;
(b) KleverKid shall collect the payments against successful bookings from the Users (“Booking”);
(c) The Partner undertakes that, during the Term, it shall:
(i) ensure that it adheres to and complies with service delivery schedules and timelines that has been agreed with the user or represented on the KleverKid Platform;
(ii) use / display, in accordance with KleverKid’s instructions, all the collaterals and other materials supplied by KleverKid in relation to all bookings provided by KleverKid; and
(iii) not use the labels, trademarks, branding or any other collaterals of any person or entity for bookings made by KleverKid in terms of this MOU.
- In consideration of KleverKid providing the Services, the Partner shall pay KleverKid theservice fees (the “Service Fees”) as per the confirmation sent by the Partner:
- Settlement of the Bookings made shall occur as per the settlement schedule (the “Settlement Period”). KleverKid shall raise invoices for the Service Fees for the applicable Settlement Period, and the applicable Service Fees shall be deducted from the total Booking amount. The balance amount shall be remitted by KleverKid to the Partner at the end of the Settlement Period.
- KleverKid will provide the Partner weekly consolidated reports of Bookings made and other details for the Settlement Period. All reports and invoices shall be sent on a monthly basis by KleverKid to the Partner by electronic mail to the email address provided by the Partner.
- In case of cancellation after payment, KleverKid shall be entitled to charge the convenience and facilitation charges from the user. The Partner shall adhere to the refund policy as stated in the Schedule.
- KleverKid shall be entitled to make all the statutory deductions as applicable from the Bookings:
- Service Fees for the applicable Settlement Period, including Service Fees for any Valueadded services;
- service tax on the applicable invoice;
- This MOU shall come into effect on the date of acceptance by the Partner, and shall, unless otherwise be terminated inaccordance with the provisions hereof, be valid and binding on the Parties, unless otherwise terminated inaccordance with this MOU (the “Term”). Neither Party shall be entitled to terminate this MOU during thefirst 6 (six) months of the Term, except for breach in accordance with Clause 8 hereof.
- The Partner shall be solely responsible for reviewing information on the Platform and shall ensure that allinformation published / stated / advertised are up to date in compliance with all applicable law. KleverKidwill not be liable or responsible in any way for any change in program by the Partner.
- In the event of any change to the pricing/fee, schedule or features, the Partner shall inform KleverKid of suchchange forthwith. It is however clarified that any changes in the fee, schedule or features shall not affecttransactions already completed and the Partner shall honour the terms of such Transactions in accordance withthe terms governing such Transaction.
- The Partner represents and warrants that:
- It is the sole author of, owns or otherwise controls all content provided to KleverKid, or has been grantedthe right to use such content / information from the rights holder and does not violate or infringe the rights of any third party or applicable laws;
- All information provided by the Partner to KleverKid, including all information contained in the Partner’s listing on KleverKid website or platform, service offerings, inclusions and exclusions is and shall at all times be true, accurate and correct and not misleading in any respect; and
- It shall be solely liable for the quality of all its services, including timing, duration, batch size, and schedule, and shall at all times be in compliance with applicable laws.
- KleverKid shall have the right to include offers / coupons / free products / gifts / items at no extra cost to theUser, in the event a User is dissatisfied for reasons attributable solely to KleverKid; the cost of such offerscoupons / free products / gifts / items shall be borne by KleverKid.
- Subject to the terms and conditions of this MOU, each Party hereby grants to the other Party a non-exclusive,non-transferable, worldwide, royalty free right to use, copy, publish and display the other Party’s trademarks,logos, name, and related information solely in connection with the promotion and marketing of thecollaboration between KleverKid and the Partners and related purposes, including for publishing on the Platform.
- KleverKid represents and warrants that it shall provide the Services in a professional and timely manner andin accordance with applicable laws.
- The partner by signing this MOU represents and warrants that he/she/they have all necessary licenses andregistration to carry on the activities mentioned on the KK website. KK shall not be responsible for anyconsequences arising out of this.
- This MOU may be terminated at any time by either Party by providing sixty (60) days’ prior written notice,provided however that a Party may terminate this MOU forthwith for material breach by the other Party ifsuch breach is not cured within 7 (seven) days from receipt of notice of such breach.
- Upon the expiry or earlier termination of this MOU, KleverKid shall cease the performance of its obligationsunder this MOU. It is, however, clarified following termination of this MOU, the Partner and KleverKid shallcontinue to provide services to the Users relating to Bookings made with KleverKid, and KleverKid shall beentitled to receive payments for Bookings in accordance with this MOU.
- Each Party agrees that during the course of this MOU, information that is confidential and of substantial value to the other Party may be disclosed to the other Party. Such information may include, but is not limited to, unpublished software code, technical processes, product designs, financial information, business plans, or material related to advertising or marketing. All such information shall be confidential and shall be kept confidential by both Parties throughout the Term and for a period of 2 (two) years thereafter.
- Each Party owns all right, title and interest in their respective trade names, service marks, inventions, copyrights, trade secrets, patents, and other intellectual property (“Intellectual Property”). This MOU does not constitute a license or a right to use to a Party’s Intellectual Property other than expressly set out in this MOU.
- The Partner agrees to defend, indemnify and hold harmless KleverKid, its affiliates and its and their respective officers, directors, employees and agents from and against all actions, third party civil and criminal claims, liabilities, losses, damages and expenses, including but not limited to reasonable attorney’s fees, arising out of or relating to the Bookings, services or offers supplied by the Partner, or arising out of or relating to any content provided by the Partner.
- KleverKid disclaims any and all liability for direct, indirect, incidental, special, consequential, punitive or other similar damages that may arise due to any deficiency in the Bookings attributable to the Partner, malfunction or error on KleverKid including but not limited to, technical errors, delays, omissions, inaccuracies in the content provided.
- The Partner acknowledges that all services offered by KleverKid on the KleverKid Platform and in accordance with the terms of this MOU are non-exclusive in nature.
- This MOU, including the recitals, annexures and schedules, constitutes the entire agreement between the Parties with regard to the subject matter hereof and shall supersede all prior oral or written understandings or agreements between the Parties.
- No failure or delay by any Party in exercising any right, power or remedy under this MOU or provided by law shall operate as a waiver thereof or affect that right, power or remedy. No waiver by any Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
- This MOU shall be governed by and construed in accordance with the laws of India. Any dispute arising out of or in connection with this MOU, which the Parties are unable to settle within 30 (thirty), shall be referred to arbitration by a sole arbitrator appointed mutually by both Parties. The Arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force. Subject to the foregoing, the courts at New Delhi shall have exclusive jurisdiction.
- If any provision of this MOU is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the MOU which can be given effect without the invalid provision shall continue in full force and effect and shall in no way be impaired or invalidated.
- All notices shall be sent by registered post acknowledgment due, contemporaneous courier and email to the addresses of the Parties set out hereinabove.
- The Partner represents and warrants to Kleverkid that any information or materials that Partner provides or uploads in connection with Kleverkid listing will (a) be true and complete, (b) not contain any material which violates Kleverkid’s content guidelines or which is otherwise unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any intellectual property rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability and (c) comply with all applicable laws and regulations in its performance of the Terms (including all applicable privacy / data protection laws and regulations and laws related to Promotions). Kleverkid reserves the right to reject or remove any information at its sole discretion.
- Anyone agreeing to the Terms on behalf of Partner represents and warrants that it has full legal power andauthority to enter into these Terms, perform its obligations hereunder, and authorize the fee payments set forthearlier.
- Client further represents and warrants to Kleverkid that Client will not, and will not authorize or induce anyother party, to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions,clicks or other actions; (b) use any automated means or form of scraping or data extraction to access, query orotherwise collect Kleverkid content and reviews from the Site, except as expressly permitted by Kleverkid or(c) use any Kleverkid trademarks in any manner without Kleverkid’s prior written consent. All rights notexpressly granted to Client hereunder are reserved by Kleverkid.
- This document is an electronic record in terms of the Information Technology Act, 2000, and rules there under, as applicable, and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record does not require any physical or digital signatures. Filling the details herein and sending it to KleverKid; or any communicating the acceptance of the terms to KleverKid shall be considered as both the Parties entering into the MOU.