1. Definitions Unless the context otherwise requires:
“Charges” means the charges payable for Services rendered to end customer for which bookings are provided by HIPL during the Registration Period.
“Commencement Date” means a date from which registration of Service Provider is approved by the Company for provision of Services;
“Company” means Trukky Logistics services Pvt Ltd including its successors and assigns; “Customer” means TLSPL and end User of Services as the case may be;
“Customer Data” means data and information relating to the Customer’s business that is processed as part of the Services; “Intellectual Property Rights” means trademarks, service marks, trade names, domain names, get-up, logos, patents, inventions, registered and unregistered design rights, copyrights, database rights and all other similar rights in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations;
“Party” means Customer or Service Provider individually and “Parties” means collectively;
“Personal Data” means all data and other information constituting personal data which is processed by the Service Provider in connection with the Services from time to time;
“Services” means transportation, loading , unloading , Packaging
Wilful Default” means a breach by a Party of its obligations under this Registration where at the time the breach was committed that Party either knew, or was reckless to the fact, that its acts or omissions would constitute a breach.
2. Registration of the Service Provider will make it eligible to provide Services pursuant to this terms and conditions. The Service Provider shall provide or procure the provision of the Services to the Customer on as required and the Customer confirms to receive the same with the terms of TLSPL Policy.
The Service Provider shall use its reasonable endeavors to ensure that the Services are provided in accordance with any applicable laws affecting the provision of the Service. If the provision of Services require any regulatory registrations and/or licenses to be obtained, the Service Provider confirms that such registrations and/or licences will be taken/valid during the tenure of this registration as the case may be. The Service Provider shall use its reasonable endeavours to ensure that the Services are provided by a sufficient number of reasonably skilled and experienced individuals and in a timely manner. Timely service provision is the essence of the terms and conditions. In order for the Service Provider to comply with its obligations under this clause, the Customer shall use best endeavours to ensure that: (a) Customer provides all the requisite documents/papers/agreements required by the Service Provider in order to provide the Service; and (b) all relevant information reasonably requested by the Service Provider which is reasonably required for the provision of the Services is promptly provided thereto.
3. TLSPL shall pay Charges to the Service Provider as per the Payment Policy for the model of payment as selected by the Service Provider from time to time. A separate payment letter will be signed by both the parties from time to time to effect the payment of services provider by the Service Provider pursuant to this terms and conditions. The Charges shall be invoiced by the Service Provider at the end of each month in which the relevant Charges are incurred. Invoices shall be sent to the address of the Customer. All invoices/Loading slip submitted by the Service Provider in accordance with this terms and conditions shall be paid by TLSPL within 30 days of receipt.
4. Service Provider warrants that:
it is duly constituted, organised and validly existing under the laws of the country of its incorporation;
it has the legal right and full power and authority to execute and deliver, and to exercise its rights and perform its obligations under, this terms and conditions and all the documents which are to be executed by it as envisaged by this terms and conditions; and
nothing contained in this terms and conditions will result in a breach of any provision of its constitutional documents or result in a breach of any Agreement, licence or other instrument, order, judgment or decree of any court, governmental agency or regulatory body to which it is bound.
5. Mutual Obligations
The Service Provider shall and the Customer shall:
(i) provide on a timely basis such information, decisions and data as the Service Provider may reasonably require for the purposes of the provision of the Services or the Customer may reasonably require for the purposes of the receipt of the Services, as the case may be;
(ii) participate in discussions regarding the provision of the Services to the extent reasonably required by the other Party in order to facilitate decision making in relation to the Services;
(iii) in the case of the Customer, notify the Service Provider on a timely basis of any failures or deficiencies in the provision of the Services under this terms and conditions;
(iv) maintain reasonable security measures to protect the other’s systems, from third parties, and in particular from disruption by any “back door”, “time bomb”, “Trojan Horse”, “worm”, “drop dead device“, “virus” or other computer software routine intended or designed to (a) permit access or use of information technology systems by a third person other than as expressly authorised, or (b) disable, damage or erase or disrupt or impair the normal operation of any information technology systems; and
(v) not attempt to obtain access to, use or interfere with any information technology systems or data used or processed by the other except to the extent required to do so to receive (in the case of the Customer) or provide (in the case of the Service Provider) the Services, except to the extent expressly permitted to do so by this terms and conditions.
6. Either Party may terminate any (or all) of the Services, or any separable element of the Services, at any time upon giving 90 days’ notice in writing to the other Party.
Notwithstanding anything contained herein, the Customer may terminate this registration immediately:
(i) any (or all) of the Services, or any separable element of the Services at any time immediately by written notice to the Service Provider if it becomes illegal for the Service Provider to provide the same;
(ii) the Registration on notice to the Service Provider if there is a Change of Control in the Service Provider;
(iii) if any of the registrations and or licences of Service Provider required for provision of Services expire or become invalidated by whatever reason.
(iv) If Service Provider is retrained by a government/regulatory authority order to discontinue provision Services to majority of its Customers.
7. Either Party may terminate this Registration immediately by written notice to the other Party if that other Party becomes unable to pay its debts, enters into liquidation (except for the purposes of a solvent amalgamation or reconstruction), makes an arrangement with its creditors, becomes subject to an administration order or a receiver or administrative receiver is appointed over all or any of its assets or takes or suffers to be taken any similar action in consequence of a debt, ceases or threatens to cease trading or is dissolved, or any procedure equivalent to any of the preceding matters occurs in any other jurisdiction with respect to that other Party.
8. A Party may terminate this registration immediately by written notice to the other Party if that other Party commits a material breach of its obligations under this terms and conditions and (where the breach is capable of being remedied) that breach has not been remedied within 30 days after receipt of notice giving full particulars of the breach and requiring the other Party to remedy it.
9. Survival of Rights on Termination or Expiry
Termination or expiry of this registration shall not affect any rights or obligations which may have accrued prior to termination or expiry. The obligations of each Party set out in any Clause intended to survive such termination or expiry, including this Clause and Clauses 12, 13, 16 and 18, shall continue in full force and effect notwithstanding termination or expiry of this registration.
10. Any liability but not limited to damages, fines, levies resulting from provision and delivery of Service(s) will be entirely on the Service Provider. Service Provider undertakes that it will indemnify the Customer and the end User in case of such amounts towards such liability, penalty or any other levy which is levied on the Customer and or end Customer.
The limits on liability set out in this Clause shall not apply in respect of:
(i) any liability for death or personal injury resulting from a Service Provider’s negligence;
(ii) any liability for fraud or fraudulent misrepresentation or Wilful Default; or
(iii) any other liability to the extent which it cannot be lawfully excluded.
11. The Service Provider hereby agrees to indemnify and hold harmless and keep indemnified Customer and their directors, officers, employees and authorized representatives on demand in respect of any Chargebacks, actions, claims, costs, damages, demands, expenses, losses, penalties, fines, assessments and injuries made against, suffered or incurred by any of them, including reasonable attorney’s fees, arising directly or indirectly from or in connection with:
(i) any act, commission or omission, negligence, fraud, forgery, dishonesty, money laundering, misconduct or violation of any of the terms and conditions and covenants of this terms and conditions;
(ii) the breach of terms and conditions or duty by the Service Provider (or any of the Service Provider’s officers, employee or agent) to the Customer and or end Customer;
(iii) the misuse and mishandling of the vehicles/tempo/trucks/bikes including unauthorized access, shifting, hacking, cracking etc pursuant to which there is a damage;
(iv) any claim from any statutory authority or end User in connection with Service Provider’s provision of and/or any deficiency of Services and Goods availed by end Customer pursuant to the terms and conditions; and
(v) violation of applicable law in performing its obligations under this terms and conditions.
12. The Parties shall attempt to resolve any dispute in relation to any aspect of, or failure to agree any matter arising in relation to, this terms and conditions or any document agreed or contemplated as being agreed pursuant to this terms and conditions (a “Dispute”) informally through discussion by the following individuals:
(i) the Customer’s Relationship Manager and the Service Provider’s Relationship Manager and if they cannot resolve the Dispute within five Business Days of the Dispute being raised; then
(ii) the Dispute may be referred by either Party to the directors of the Customer and the directors of the Service Provider and if, within five Business Days of the Dispute having been referred to them no Agreement has been reached, the dispute resolution process set out in this Clause 8 shall be deemed to have been exhausted in respect of the Dispute, and each Party shall be free to pursue the rights granted to it by this terms and conditions in respect of such Dispute in accordance with the provisions of Clause 14.
13. Service Provider agrees that if HIPL, in the performance of its obligations under this terms and conditions, makes available to the Service Provider any Intellectual Property Rights owned or licensed by the HIPL:
(i) those Intellectual Property Rights will remain the sole property of the HPIL or their licensors (as appropriate); and
(ii) the Service Provider or their licensors (as appropriate) owning such Intellectual Property Rights or materials, shall own all Intellectual Property Rights subsisting in any and all adaptations of, modifications and enhancements to and works derived from such materials or Intellectual Property Rights,
all such Intellectual Property Rights being the “TLSPL’s Intellectual Property”. The Customer shall be licensed to use the Service Provider’s Intellectual Property solely for, and only to the extent necessary for, the receipt of the Services.
The Intellectual Property Rights in the Customer Data shall at all times remain the sole property of, or vest in, the Customer. The Customer shall grant a licence to the Service Provider to use the Customer Data solely for, and only to the extent necessary for, the provision of the Services.
14. Each Party shall ensure that it has secured such consents, registrations and notifications as may be required to enable the process Personal Data to the extent required to provide the Services.
15. Each of the Party shall treat as strictly confidential and not disclose or use any information received or obtained in connection with this terms and conditions (or any Agreement entered into pursuant to this terms and conditions)
Exceptions
The provisions of Clause above shall not prohibit disclosure or use if and to the extent:
(i) disclosure is necessary for the provision or receipt of the Services;
(ii) required by law or for the purpose of any judicial proceedings arising out of this terms and conditions or any other Agreement entered into under or pursuant to this terms and conditions or the disclosure is made to a relevant tax authority in relation to the tax affairs of the disclosing Party;
(iii) required by the rules of any relevant stock exchange or any other competent regulatory authority;
(iv) required to vest the full benefit of this terms and conditions in any Party;
(v) made to or used by the professional advisers of each Party on terms that such professional advisers undertake to comply with the provisions of Clause above in respect of such information as if they were a party to this terms and conditions;
(vi) it becomes publicly available (other than as a result of a breach of an obligation of confidentiality);
(vii) the other Party has given prior written approval to the disclosure;
(viii) the information is obtained free of any restrictions on use or obligations of confidentiality from a third party which is itself free of any restrictions on use or obligations of confidentiality with respect to that information;
(ix) the information is already in the possession of that Party and is not subject to an obligation of confidentiality or a restriction on use; or
(x) the information is independently developed,
provided that except where prohibited by any applicable law or regulation or in circumstances where a Party wishes to disclose information to its counsel or other legal advisers in contemplation of proceedings being brought in relation to or arising out of this terms and conditions, prior to disclosure of any information pursuant to Clauses 17(ii), 17(iii) and 17(iv), the Party concerned shall promptly notify the other Party of such requirement with a view to providing the other Party with the opportunity to contest such disclosure or otherwise to agree the timing and content of such disclosure.
16. No Party shall be liable to any other for any failure to fulfil its duties hereunder if and to the extent that such failure results from any circumstances beyond the reasonable control of that party, which shall include (without prejudice to the generality of the foregoing) any Act of God, any act of war or civil or public disorder or any industrial action (other than industrial action by employees of either Party) (a “Force Majeure Event”) provided that the Party unable to fulfil its duties pursuant to this Clause (the “Affected Party”) shall:
give written notice to each other Party as soon as reasonably practicable upon becoming aware of the Force Majeure Event, such notice to contain the following information:
(i) the Force Majeure Event that has occurred;
(ii) the date from which the Force Majeure Event has prevented or hindered the Affected Party in the performance of its duties hereunder;
(iii) the duties hereunder so affected;
(iv) its best estimate of the date upon which it shall be able to resume performance of the affected duties hereunder; and at all times use all reasonable endeavours to mitigate the consequences of the Force Majeure Event,
and the relief from liability provided under this Clause shall last for the duration of the Force Majeure Event only.
17. The Service Provider shall not, without the prior written consent of the Customer (not to be unreasonably withheld), have the right to sub-contract any of its rights and obligations under this terms and conditions.
Subject always to this Clause, the Service Provider shall remain responsible for, and for the provision of, all Services, obligations and functions performed by any sub-contractor to the same extent as if such Services, obligations and functions were performed by the Service Provider’s employees, and shall be responsible for all acts and omissions of any sub-contractor.
18. Each Party to this terms and conditions confirms it has received independent legal advice relating to all the matters provided for in this terms and conditions, having considered the terms of such Clauses as a whole, that the provisions of such Clauses are fair and reasonable. Each Party acknowledges that it has not been induced to enter into this registration by any representation, warranty or undertaking not expressly incorporated into it.
19. This registration shall be binding on and inure to the benefit of the Parties and their successors and permitted assigns. The Parties may not assign or novate all or any part of their rights or obligations under this terms and conditions nor any benefit arising under or out of this terms and conditions without the prior written consent of the other Party (not to be unreasonably withheld or delayed).
20. No failure of either Party to exercise, and no delay by it in exercising, any right, power or remedy in connection with this terms and conditions (each a “Right”) shall operate as a waiver of that Right, nor shall any single or partial exercise of any Right preclude any other or further exercise of that Right or the exercise of any other Right.
21. If any provision in this terms and conditions shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties.
22. This registration does not set up or create an employer/employee relationship, a partnership of any kind, an association or trust between the Parties, each Party being individually responsible only for its obligations as set out in this terms and conditions and, in addition, the Parties agree that their relationship is one of independent contractors. Save to the extent to which a Party is specifically authorised in writing in advance by the other Party, neither Party is authorised or empowered to act as agent for the other for any purpose and neither Party must on behalf of the other enter into any contract, warranty or representation as to any matter. Neither Party shall be bound by the acts or conduct of the other, save for acts or conduct which the first Party specifically authorises in writing in advance.
23. This terms and conditions shall be governed by, and construed in accordance with, the laws of India. The courts in Ahmedabad shall have exclusive jurisdiction.
In the absence of any settlement of Disputes arising out of or in connection with this terms and conditions or its performance may be submitted to arbitration at the request of either of the Parties upon written notice to that effect to the other Party, and such arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996, as amended from time to time, by a panel of three (3) arbitrators. The disputing Parties shall each appoint one (1) arbitrator and the two (2) arbitrators so appointed shall appoint the third arbitrator.
The language of the arbitration shall be English. The seat and place of the arbitration shall be Ahmedabad. The Parties agree that the award of the arbitrators shall be final and binding upon the Parties. Notwithstanding the power of the arbitrators to grant interim relief, the disputing Parties shall have the power to seek appropriate interim relief from the courts of Ahmedabad.