SERVICE AGREEMENT
This service agreement (hereinafter referred to as "Agreement") is made and executed on
this ____________2022 (hereinafter referred to as "Effective Date") at Chennai;
Between
Mahindra and Mahindra limited, a company incorporated under the Indian Companies Act,
1913 and having its registered office at Gateway Building, Apollo Bunder, Mumbai - 400 001,
(hereinafter referred to as "M&M") (which expression, unless it be repugnant to the context
or meaning thereof shall be deemed to mean and include its successors, assigns, and
affiliates) of the One Part
AND
SYD Inc., a company incorporated under the laws of the Republic of Korea, having its
registered office at Dongsan B/D 3F, 7-21, Gangnam-daero 27-gil, Seocho-gu, Seoul, Korea
06752, hereinafter referred to as "Service Provider" (which expression unless it be
repugnant to the
context or meaning thereof shall be deemed to mean and include its legal heirs, permitted
assigns) of the Other Part.
(M&M and Service Provider are hereinafter individually referred to as a "Party" and
collectively as "Parties", as the case maybe.)
WHEREAS,
A. M&M is, inter alia, engaged in the business of manufacturing and/or selling cars, SUVs,
light commercial vehicles and other 3 & 4 wheeled transport vehicles, accessories and spare
parts thereof, through its automotive sector;
B. Service Provider is, inter alia, engaged in the business of engineering consulting and
design of vehicles and parts and accessories thereof;
C. M&M is in the process of doing NVH Simulations for a new product i.e. W610 (hereinafter
referred to as "Project");
[Link] Provider has approached M&M and has represented that they have necessary
experience, skills, expertise, capabilities and resources to support the Project by rendering
its NVH engineering services (hereinafter referred to as "Services") to M&M;
E. M&M has agreed to avail the Services of Service Provider, on a principal to principal basis
and in accordance with the terms and conditions of this Agreement as hereinafter
contained.
NOW, THIS AGREEMENT WITNESSETH, AND IT IS HEREBY AGREED, BY AND BETWEEN THE
PARTIES HERETO, AS FOLLOWS:
1. SCOPE OF AGREEMENT
1.1. M&M hereby engage Service Provider to render the Services on a non-exclusive basis
and Service Provider hereby undertakes to render the Services to M&M as agreed under this
Agreement.
1.2 Service Provider shall render the Services to M&M, as described in Annexure – A of this
Agreement. Service Provider shall also adhere to any specification or requirement as may be
provided by M&M, for the performance of the services as described at Annexure-A. Apart
from the description of Services, Annexure-A may also constitute such other terms and
conditions as the Parties may mutually agree.
1.3 Service Provider shall adhere to the timelines specified by M&M under this
Agreement. Service Provider shall be responsible for and shall not seek compensation from
M&M for any amounts incurred by way of additional fees due to errors or delays in adhering
to the timelines to the extent that such errors or delays are found to be the direct result of
Service Provider’s failure to perform its required obligations under this Agreement and
without prejudice to M&M’s and/or its Affiliates’ rights herein M&M shall be entitled to
terminate the Agreement and Service Provider shall be liable to refund the entire fees paid
by M&M and/or its Affiliates under the Agreement.
1.4 M&M and/or its Affiliates will not accept any deficient Services. In the event of any
actual or anticipated failure by Service Provider to perform any of the Services in strict
compliance with the standards specified in the Agreement or otherwise described in this
Agreement for any reason other than failure directly attributable to M&M’s acts or
omissions, M&M and/or its Affiliates shall be entitled, at its sole option, either (i) require
Service Provider to re-perform the deficient Services at Service Provider’s cost within the
timelines specified by M&M and/or its Affiliates in the Agreement or (ii) engage a third party
to undertake and complete such Services and all such costs incurred by M&M and/or its
Affiliates shall be borne by Service Provider.
2. FEES & PAYMENTS
2.1 In consideration of the Services rendered by Service Provider to the satisfaction of
M&M, M&M will pay the fees of USD 260,000.00 (Two Lakh Sixty thousand USD) on a
milestone basis specified in Annexure – A.1 and A.2.
2.2 Service Provider shall submit to M&M the invoices for Services rendered on
completion of each milestone mentioned in Annexure – A. M&M will pay undisputed
invoices within thirty (30) business days from the date of receipt of Service Provider’s
invoice. If there is any discrepancy in the invoice submitted by Service Provider and M&M’s
assessment of the value of the Services provided by Service Provider, M&M will notify
Service Provider within fifteen (15) days from the date of receipt of such invoice and
withhold disputed invoice amounts until resolved by the Parties.
2.3 All payments made by M&M to Service Provider shall be inclusive of all taxes
applicable under law and subject to tax deduction at source/Goods and Service Tax, at
applicable rates, shall be paid extra by M&M.
3. OBLIGATIONS
3.1 Obligations of Service Provider are as follows:
3.1.1 Service Provider shall render Services as detailed in Annexure – A, and as per the
instructions of M&M.
3.1.2 Service Provider shall designate a project coordinator to coordinate with M&M for
all the Services.
3.1.3 Service Provider shall provide updates in respect of project activity for tasks
pending and completed, risk and issues involved.
3.1.4 Service Provider shall identify the issues, provide solutions, suggest changes to
the existing processes and propose modifications as may be required by M&M.
3.1.5 Service Provider shall prepare report for the Services rendered as agreed or as
may be desired by M&M
3.1.6 Service Provider agrees that M&M shall be entitled to conduct periodic audits to
assess the documentation and the Services from time to time.
3.1.7 Service Provider shall not at any time permit any of its obligations under this
Agreement to be performed or undertaken by any sub-contractor without the prior
written consent of M&M. However, in case such sub-contractor is allowed by M&M,
Service Provider shall not in any way be relieved from its responsibility for the
performance of the Services under this Agreement.
3.1.8 Service Provider shall carry out the Services in strict compliance with all relevant
laws and regulations applicable to the location where the Services are being rendered
and in accordance with the conditions of any permit, license or concession relating to
any part of the Services, whether held by Service Provider, M&M or any other concerned
party.
3.1.9 Service Provider shall be liable for any damages, losses, expenses caused to
M&M’s premises or any of M&M’s equipment/property therein or elsewhere, due to
negligence and/or misconduct of the Service Provider and/or its personnel and/or
representatives.
3.1.10 Service Provider shall perform the Services, in a professional manner and in
accordance with the highest industry standards.
3.1.11 Service Provider shall ensure the compliance and authenticity of all software
licenses being used at Service Provider office for rendering the Services and shall allow
M&M to audit this at any time at M&M discretion with advance intimation.
3.1.12 Service Provider will also ensure that all statutory compliance towards employees
deputed at its office are ensured and relevant documents are maintained by Service
Provider.
3.1.13 Service Provider warrants that it shall perform the Services and Deliverables in
accordance with this Agreement. Service Provider shall apply such time, attention,
resources, trained personnel and skill as may be reasonably necessary for the due and
proper performance of the Services.
3.2 Obligations of M&M are as follows:
M&M will provide necessary technical inputs, training, and knowledge to Service
Provider, to enable them to render Services, if it deems necessary.
4. REPORTS
Service Provider will provide brief progress reports of the Services on milestone basis
and a final report within 1 week of completion of the Services (the “Final Report”). M&M
will have sole ownership of all right, title, and interest in and to the brief reports and
Final Report or any other document which may be created during the performance of
this Agreement. During the term of this Agreement, representatives of Service Provider
will consult and/or meet with representatives of M&M each week to discuss progress
and results, as well as ongoing plans of the Services. All Reports, interim or final,
submitted by Service Provider under this Agreement shall be reviewed by M&M to
ascertain if they are meeting the requirement of services in accordance with this
Agreement.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 The Parties recognize and acknowledge that any intellectual property rights created or
developed during this Agreement shall exclusively be owned by M&M and may be licensed
or given for use in the Project, and commercially or otherwise thereafter.
5.2 M&M shall remain the sole and exclusive owner of all the rights, title, and interest, in
patents, copyrights, designs, trademarks, service marks (whether registered or not) and all
other forms of intellectual property rights in trade secret, know-how, ideas, drawings,
materials, documents or any other technical information (“M&M Background IP”) provided
or disclosed or shared by M&M under this Agreement, and that no rights or license in
relation to any of M&M’s Background IP is deemed to have been granted to you, other than
the right to use strictly for the purpose of Services under this Agreement. Any ideas, know-
how, and inventions made by M&M’s employees as a result of the Project work carried out
under this Agreement shall also be considered as M&M Background IP.
5.3 It is expressly understood that M&M would be using the benefits accruing out of this
Agreement towards any of its current and ongoing projects/products/service offering.
5.4 Service Provider agree, acknowledge and undertake to M&M that it shall:
5.4.1 Preserve and maintain the distinctiveness of M&M’s Background IP and shall not
contest or challenge validity of M&M’s Background IP or do any act at any time that may
in any way prejudice the same.
5.4.2 Not reproduce and/or use M&M’s Background IP for any other purpose than for
the purpose under this Agreement and acknowledge that the same is proprietary and
confidential to M&M;
5.4.3 Not, either directly or indirectly, disclose M&M’s Background IP to any person
other than its employees, who need to know the same, provided however that, they
shall ensure that such employees are restrained from disclosing or transmitting M&M’s
Background IP to any third party.
5.4.4 Forthwith discontinue use of M&M’s Background IP and return and/or destroy as
directed by M&M all designs, drawings, technical information furnished by M&M upon
termination or expiration of this Agreement.
5.5 All notes, document, reports and data of whatsoever description used/provided during
the performance of this Agreement (including the media upon which the aforesaid are
stored) shall remain the property of the M&M.
5.6 Any existing ideas, know how, trade secrets, copyrights and patents (whether registered
or not) which has been your property prior to the execution of this Agreement shall be
owned by Service Provider ("Service Provider Background IP"). M&M shall neither claim any
right, title or interest in nor use Service Provider Background IP, other than in accordance
with this Agreement.
5.7 In the event, any design, data, drawings, technical information and/or any other form of
intellectual property rights, that may be generated, developed or designed, by Service
Provider specifically for M&M, including any improvements or modifications made to M&M
Background IP or Service Provider Background IP ("Foreground IP"), at M&M’s instance for
valuable consideration and in terms of specifications provided by M&M pursuant to this
Agreement, M&M shall be the exclusive owner of all rights, title, interests in such
Foreground IP.
5.8 Service Provider shall not have or claim any rights, title or interest in the Foreground IP
relating to the Services rendered to M&M under this Agreement and they further undertake
to assign to M&M, all of its right, title, and interest, if any, obtained under any law, or will
cause the same to be so assigned by executing necessary documents.
5.9 To the extent that, Service Provider Background IP is incorporated in or referred in the
Foreground IP generated as a result of this Agreement, Service Provider hereby grant to
M&M a limited, non-exclusive, non-transferrable right to use the same as an integral part of
the Services rendered to M&M pursuant to this Agreement subject to provisions hereof.
5.10 Any drawings and technical documents required by either Party for the Services would
be provided by the other party and shall be treated as confidential information by the
receiving party.
6. Representations and Warranties
6.1 Service Provider represents and warrants that they are a private limited company
incorporated and organized and existing under the laws of Republic of Korea.
6.2 M&M represents and warrants that they are a public limited company formed and
existing under the laws of India.
6.3 Each Party represents and warrants that it is permitted under their organizational
documents, to enter into this Agreement and is not restrained, prevented or inhibited from
entering into this Agreement or from undertaking the obligations herein contained.
6.4 Each Party further represents and warrants that its respective signatory to this
Agreement is duly authorized to execute the same in a manner binding upon the Party and
that all corporate approvals and procedures necessary for vesting such authority in its
signatory have been duly obtained and complied with.
6.5 Service Provider warrant that they shall recruit/employ its own employees for the
purpose of carrying out its obligations under this Agreement and such persons shall not be
deemed to be the employees of M&M for any purpose whatsoever, either during the term
of this Agreement or thereafter. Service Provider shall hold M&M harmless against any
claims made by any such employee against M&M.
6.6 Service Provider further warrant that they will use and shall cause all such employees
recruited/employed by it, to use a high standard of care, skill and diligence in the
performance of its obligations under this Agreement.
6.7 Service Provider will ensure that all documentation, material or information for the
Services rendered to M&M and/or any other form of intellectual property rights relating
thereto under this Agreement:
6.7.1 Shall be complete, accurate, and sufficient to meet M&M’s requirements.
6.7.2 Is an original work and that it does not infringe any intellectual property rights of
any third party;
6.7.3 Are free and clear from and against all kinds of liens, charges or encumbrances and
are not subject to any litigation or opposition or any other claim from any person/entity.
7. Data Protection and Data Privacy
Service Provider undertakes to not to share or misuse the data related to M&M’s
employees, directors and officers (“Representatives”). Failure by Service Provider to comply
with the above undertaking shall be construed to be a breach of the Agreement.
8. Non-Disclosure
8.1 It is understood by Service Provider that M&M will be sharing valuable technical,
business and financial information which M&M intends to keep confidential in order to
enhance its value and opportunities for future commercial success; and following terms and
conditions apply to the use of the confidential information shared by M&M.
8.2 The term “Confidential Information” shall mean and include any and all information,
documents, data and materials whether written, oral and which is provided or otherwise, by
the M&M to Service Provider, its affiliates or its representatives, or its partners or any other
transaction relating to M&M, concerning the business, operations, finances, assets and
plans of M&M or any investment or merger or acquisition proposed or contemplated by
M&M includes, without limitation, business or technical information relating to existing and
new businesses or a proposed transaction, technology, know-how, patents, agreements
with business partners, market and company-specific data, graphs, drawings, past, current,
and planned research and development, current and planned manufacturing, marketing
and/or distribution methods and processes, customer lists, price lists and other end-user
pricing related information, settlement rates, manufacturing charges, market studies,
computer software and programs, database technologies, systems, structures and
architectures, plant plans, business plans, financial projections and budgets, manufacturing
and sales details, capital spending budgets and plans, current or prospective financing
sources irrespective of the form of the communication. The terms and existence of this
Agreement, the fact that Confidential Information has been made available hereunder, shall
also be considered Confidential Information that is subject to the provisions of this
Agreement.
8.3 Service Provider agrees that Confidential Information shall be used only for rendering
the Services. Service Provider shall keep Confidential Information confidential, protect it
from unauthorized use, reproduction, access and damage or destruction and employ the
same degree of care as it would employ to protect its own confidential information.
8.4 Service Provider shall limit disclosure of Confidential Information only to its
representatives who necessarily require access to render the Services, provided that (a)
Service Provider first require each of them to agree in writing, either as a condition of their
service to Service Provider or in order to obtain Confidential Information, to be bound by
terms and conditions substantially similar to those terms and conditions applicable to
Service Provider under this Agreement, and (b) Service Provider shall maintain a record of
Confidential Information disclosed to its representatives and such record shall contain the
name, designation of the representatives and details of Confidential Information disclosed,
which shall be made available to M&M upon request. Notwithstanding this clause, Service
Provider shall, under all circumstances, continue to be liable for all actions of its
representatives.
8.5 If Service Provider is legally compelled by government or judicial process to disclose any
Confidential Information, Service Provider will provide prior written notice thereof to M&M
before making any disclosures, to enable M&M to seek protective order or other
appropriate remedy to minimize disclosure and Service Provider shall disclose only such
portion of Confidential Information absolutely necessary in the opinion of its legal counsel
to comply with the process.
8.6 All Confidential Information is provided by M&M "as is", without any warranty, express,
implied or otherwise, regarding its accuracy and in no event shall M&M be liable to Service
Provider for disclosure of Confidential Information under this Agreement.
8.7 Upon the first written request of M&M at any time during the term or immediately
upon expiry or earlier termination of the Agreement, Service Provider shall return all
Confidential Information to M&M, by registered mail/courier of international repute, and/or
destroy such Confidential Information as per the directions and instructions of M&M and
provide written certification to M&M. Service Provider may, however, retain one copy or
description of such Confidential Information in its legal archives solely for legal compliance
purposes, under strict obligations of confidentiality as stated in this Agreement.
All obligations contained in the Agreement shall however survive the expiry or early
termination of this Agreement and the Parties shall remain bound by the same at all times.
9. INDEMNITY
Without prejudice to any other right or legal remedy available to M&M under the applicable
law or under equity, Service Provider shall defend, indemnify and hold M&M, its affiliates
and/or their respective representatives and assigns ("M&M Indemnified Parties") harmless
against all notices, claims, demands, action, suits or proceedings, costs, fees, taxes and
expenses (including reasonable attorney's fees), judgments incurred, claimed or sustained
by M&M Indemnified Parties arising from or relating to, without limitation (a) breach of
confidentiality obligations; (b) loss or damage caused to M&M's property (c) willful
negligence, misconduct and misrepresentation (d) breach of representation, warranties and
obligations under this Agreement (e) (i) any inaccuracy in or failure of Service Provider to
comply with its obligations, undertakings and/or covenants hereunder or any breach of any
applicable law and representations and warranties, covenants and undertaking made by
Service Provider under this Agreement; (ii) any alleged or material breach by Service
Provider of any of the terms of this Agreement including its representations, warranties or
undertaking or obligations hereunder and (f) any third party claims for infringement of IPR
of such third party.
The rights of the indemnified parties to be indemnified pursuant to this Clause 7, shall
survive the term and termination of this Agreement.
10. TERM
This Agreement shall commence from the Effective Date and shall be valid for a period of 1
(one) year. The Parties may renew this Agreement upon mutually agreed terms and
conditions in writing. Either Party may terminate this Agreement by providing 30 (thirty)
days prior written notice to the other Party.
11. TERMINATION
11.1 M&M shall be entitled to terminate this Agreement in the following circumstances:
11.1.1 without cause at any time by giving thirty (30) days' prior written notice.
11.1.2 immediately in the event of breach by Service Provider that is not cured within
thirty (30) days from the date of written notice by M&M.
11.1.3 immediately, if Service Provider becomes insolvent or files for bankruptcy.
11.1.4 Immediately, in the event of change of control of Service Provider, unless M&M
decides otherwise, in which case, the acquiring entity undertakes in writing to assume all
liabilities and responsibilities of Service Provider under this Agreement.
11.2 If this Agreement is terminated by M&M:
11.2.1 All payments for the Services successfully completed to the satisfaction of M&M,
shall be paid by M&M only if M&M can use the same.
11.2.2 Service Provider shall be liable to reimburse the entire costs and expenses
incurred by M&M to retain any third party Service Provider for completion of the
Services.
11.2.3 Should M&M retain a third party Service Provider for completion of the Services,
then Service Provider shall provide transition services to such third party Service
Provider within the timelines specified by M&M without any additional costs thereon.
11.2.4 Service Provider shall forthwith return/deliver up all the documents and
Confidential Information in its possession to M&M within five (5) days from the date of
termination or otherwise dispose of the same in accordance with the directions and
instructions of M&M and shall thereafter refrain from using or disclosing any such
Confidential Information to any Person for any purpose whatsoever;
11.2.5 Service Provider shall cease to use and not make any use whatsoever of the
Confidential Information and IPR disclosed or communicated to it by M&M hereunder in
connection with this Agreement;
11.2.6 Not retain any copies or extracts in any form whatsoever of any documents or
drawings of the Confidential Information or of whatsoever nature & nor shall it make
any use thereof;
12 NOTICE
12.1 Any notice given under this Agreement shall be in writing and signed by or on behalf of
the Party giving it and may be served by delivering it personally or sending it by pre-paid
recorded delivery or registered post or email to the address and for the attention of the
relevant Party. Any change in address shall be notified by a Party to the other Party.
12.2 Any such notices be deemed to have been received;
- if delivered personally at the time of delivery;
- in the case of registered airmail, pre-paid recorded delivery or registered post-upon
receipt;
- in the case of email, when read receipt is received by sender.
The addresses and email of Parties for the purpose of any written notice is as follows:
Mahindra and Mahindra limited
Address: Mahindra Research Valley, Mahindra World City, Chengalpattu, Chennai,
Tamilnadu-603204
Attention: Sarma Akella
Email: [Link]@[Link]
SERVICE PROVIDER
Address: Dongsan B/D 3F, 7-21, Gangnam-daero 27-gil, Seocho-gu, Seoul, Korea
06752
Attention: Mr. Hankil Kim
Email: hkkim@[Link]
13. Arbitration:
13.1 If the Parties are not able to arrive at a settlement on some or all of the issues
relating to the Dispute raised within a period of three weeks from the date of the notice, (or
within such further time as both Parties agree in writing), the conciliation process will be
taken as having failed and such Dispute shall be referred to and finally resolved by
arbitration in accordance with the Arbitration Rules of the Mumbai Centre for International
Arbitration (“MCIA Rules”), which rules are deemed to be incorporated by reference in this
clause.
The seat of the arbitration shall be Mumbai.
The Tribunal shall consist of three arbitrators.
The language of the arbitration shall be English.
The law governing this arbitration agreement shall be of India.
The law governing the Agreement shall be of India.
13.2 This Agreement and the Parties rights and obligations hereunder shall be governed by
and interpreted in accordance with the laws of India and courts at Mumbai shall have
exclusive jurisdiction.
14. GENERAL PROVISIONS
14.1 The relationship between M&M and Service Provider is that of an independent
contractor.
14.2 A Party will be excused from performing its obligations under this Agreement to the
extent its performance is delayed or prevented by a circumstances beyond reasonable
control of a Party, including but not limited to, change in government policy, government
restrictions like lockdown fire, flood, epidemic, pandemic, act of God, war and riot
(hereinafter referred to as "Force Majeure Event") provided that the affected Party
promptly notifies the other of the occurrence of Force Majeure Event. Notwithstanding
anything contained in this Agreement, Service Provider shall in no event be excused from
those obligations not directly affected by a Force Majeure Event, and if the Force Majeure
Event is caused by Service Provider's failure to comply with any of its obligations under this
Agreement or by Service Provider's negligence or omission, there shall be no relief from any
of its obligations under this Agreement.
14.3 Service Provider shall not assign this Agreement to any person, without prior written
consent of M&M and/or its Affiliates. Service Provider agrees that M&M may assign the
agreement to its affiliates without prior consent or intimation of Service Provider.
14.4 No waiver by a Party of any provisions of this Agreement shall operate or be construed
as a waiver of any subsequent breach of such provision or any other provision hereof by
such Party.
14.5 The invalidity or unenforceability of any provision of this Agreement shall not in any
way affect, impair or render unenforceable this Agreement or any other provision contained
herein, which shall remain in full force and effect.
14.6 No amendment to this Agreement shall be valid unless agreed in writing and executed
by the Parties.
14.7 This Agreement represents the entire agreement between the Parties and supersedes
all prior negotiations, understandings and agreements, written or oral, relating to the
subject matter herein.
14.8 The engagement of the Service Provider under this Agreement is non-exclusive and
does not limit M&M from engaging other persons to provide similar Services. Further, this
Agreement shall not limit the Service Provider from providing similar Services to other
persons, provided that any of the obligations as mentioned herein are not breached by
Service Provider.
IN WITNESS WHEREOF, the Parties have through their duly authorized representatives
executed this Agreement the day and the year first hereinabove written.
Signed and Delivered by )
Mahindra & Mahindra Limited ) Mr. Velusamy R,
President,
Mahindra & Mahindra Ltd.
in the presence of ) Dr. Akella Sarma SR,
Chief Engineer – EAVD,
Mahindra & Mahindra Ltd.
Signed and Delivered by )
SVD Inc ) Mr. Hankil Kim,
President, SVD Inc.