1.1. Mutual Representations and Warranties: Each Party hereby represents and warrants to the other Party that (a) it has full power and authority to execute and deliver this Agreement and is not prohibited from entering into this Agreement; (b) the Signatories to this Agreement are duly authorised and are competent to execute this Agreement; (c) the execution of this Agreement has been duly authorized by the respective Parties and will be legally valid, binding and enforceable.
1.2. Representations and Warranties of the CUSTOMER: Apart from other representations and warranties as agreed elsewhere in this agreement, the CUSTOMER hereby represents and warrants to FPIX that (a) it has all approvals required under applicable laws to run and operate the School; (b) it will pay the Fees as agreed to be paid to FPIX as stated herein; (c) it will not do any act which would bring disrepute to FPIX or any goodwill attached thereto; (d) it shall not infringe, misappropriate or pass off any Intellectual Property Rights of FPIX as stated herein; (e) all of the statements, information and KYC details provided to FPIX are accurate, complete and free from any misrepresentations or material omissions.
1.3. Representations and Warranties of FPIX: FPIX hereby represents and warrants that it owns exclusively all rights in and to the OneLern® Solution, OneLern e-books and Component(s) and has the right to grant the License contemplated herein to the CUSTOMER, that will not infringe any third-party intellectual property rights.
2.1. “Intellectual Property Rights” shall mean and include (i) any and all ideas, concepts, creations, discoveries, inventions, improvements, know-how, trade/ business secrets, designs, models, methods, technology, procedures, processes, systems, works of authorship, flowcharts, drawings, books, catalogues, brochures, models, sketches and materials, worksheets, multimedia, advertisements, marketing and promotion materials, price lists, stationary, packaging, boxes, literature, displays and signs used in relation to one or more Component(s), all forms of e-content either in written, printed or machine-readable form, in each case whether or not registrable under any IPR laws and belonging to FPIX; (ii) trademarks, patents, trade names, internet domain names, rights in designs, copyright (including rights in computer software), database rights, rights in know-how and other intellectual property rights, all literary and copyright work developed and/ or owned by FPIX pertaining to one or more Component(s), in each case whether or not registered, and all rights or forms of protection thereto; (iii) rights to income, fees, royalties, damages, claims and payments now or hereafter due or payable with respect thereto; (iv) Confidential Information and trade secrets of FPIX made available to the CUSTOMER; (v) modifications of any sort to any or all the aforesaid by FPIX from time to time; and (vi) rights at law or in equity to sue for any past or future infringements of any of the foregoing.
2.2. Ownership and Goodwill: The CUSTOMER hereby expressly acknowledges that: (a) FPIX has all right, title and interest and is the absolute owner/ proprietor of the Intellectual Property Rights and Component(s) and has the right to amend, modify, replace or augment any of them, whether in full or in part, at its sole discretion and the License contemplated hereunder shall be extended and be applicable to such amendments and replacements thereto; and (b) there is substantial goodwill associated with the Intellectual Property Rights, OneLern Solution and Component(s) and that such goodwill belongs to and inures to the sole and exclusive benefit of FPIX alone.
2.3. Infringement: CUSTOMER shall promptly notify FPIX of any violations, infringements, imitations, simulations, unlawful use or misuse thereof, which come to its attention. If CUSTOMER is sued for alleged infringement of any of the Intellectual Property Rights, the CUSTOMER shall immediately give FPIX a written notice of all particulars thereof and FPIX shall have the right to defend such suit by its own counsel and at its own expense.
2.4. Restrictions: The CUSTOMER, by virtue of the License granted hereunder, shall not be entitled to undertake any of the restricted activities including (a) adopting any Intellectual Property Rights as part of its corporate/ trading name, including for obtaining any approvals/ permits as may be required under applicable laws or for any act or activity not expressly permitted under this Agreement; (b) granting any further license/ sub-license to the Intellectual Property and/ or Intellectual Property Rights of FPIX to any person anywhere in the world, except as expressly permitted under this Agreement; (c) doing anything that might endanger or jeopardize FPIX’s right and/ or ownership with respect to any Intellectual Property; and (d) copying, duplicating, modifying, printing, screenshot capturing, recording, cloning or reverse engineering, using and adopting, whatsoever, any Intellectual Property Rights in any manner not expressly authorised hereunder. This Clause shall survive the termination or expiration of this Agreement. The CUSTOMER shall compliance of this Clause by all the users of Component(s).
Any Confidential Information disclosed by FPIX to the CUSTOMER, shall be considered and treated as confidential in order to prevent their divulgence or unauthorized use and shall not be disclosed for matters outside the scope of this Agreement, without prior written permission of FPIX. The CUSTOMER agrees and undertakes not to (a) use the Confidential Information in a manner inconsistent with this Agreement; and (b) assign, license, sublicense, market or transfer the Confidential Information, directly or indirectly to any person, without obtaining the prior written consent of FPIX. The obligation to keep the Confidential Information confidential in accordance with this Agreement shall survive and subsist (notwithstanding the prior termination or expiry of this Agreement or service of any notice by any Party) and shall remain in full force as from the Effective Date in perpetuity. “Confidential Information” shall mean and refer to the terms of this Agreement, Intellectual Property Rights and all other privileged and confidential information exchanged by and between the Parties in connection therewith, unless specifically exempted.
Each Party, at its expense, shall defend and hold harmless the other Party from and against any and all claims, causes of action, suits, damages, costs, expenses, losses or liabilities, including reasonable attorneys' fees arising out of any third-party actions and claims, misrepresentation or breach of any terms herein by one Party or its staff/ personnel for which the other Party becomes liable. FPIX shall not be liable for any loss of profits, loss of use, incidental, consequential, indirect or special damages arising out of or in connection with this Agreement, whether or not it had advance notice of the possibility of such damages. The maximum liability of FPIX, under this Agreement shall be limited to the extent of consideration received during the preceding three months prior to the date the cause of action arose.
Upon termination, all rights and obligations of a Party under this Agreement shall automatically and immediately cease subject however that FPIX shall be entitled to payment of Fees for the services performed and for all pre-approved costs and expenses paid or incurred by it, if any, as well as the compensation, if any, for the unexpired Term, prior to the effective date of termination. Receipt and realization of the foregoing payments by FPIX shall constitute full settlement of any and all claims of FPIX of every description against the CUSTOMER under this Agreement. Further, the CUSTOMER will cease and desist from any and all uses of Intellectual Property Rights, OneLern e-books and Component(s) in any way whatsoever.
6.1. No Assignment: This Agreement is personal to the CUSTOMER and the CUSTOMER shall not assign any of its rights or obligations here under to any Person, including its affiliated schools or entities, without the express written consent of FPIX. FPIX may assign, charge or delegate any of its rights under this Agreement to any person without the requirement for any approval by the CUSTOMER and the person to whom such rights are assigned, charged or delegated shall be entitled to the full benefit of the right(s) of FPIX under this Agreement.
6.2. Force Majeure: Neither Party shall be liable to the other Party for the non-performance of its obligations here under due to an event of “force majeure”, which term shall include, without limitation, fire, flood, epidemic, earthquake, explosion, labour dispute or strike or unrest, act of God or public enemy, satellite or equipment failure (not primarily due to wilful, knowing or negligent acts by a Party), riot or civil disturbance, war (declared or undeclared), order of any court of jurisdiction, or other cause not reasonably within the control of the non-performing party. If an event of force majeure continues for a period in excess of ninety (90) days, either Party may elect to terminate this Agreement.
6.3. Disclaimer Of Warranties: The Trademarks, OneLern® Solution, OneLern Platform, Components and Related Materials are licensed by FPIX to Parties on an "AS IS" basis and all representations and warranties, express or implied, including fitness for a particular purpose and non-infringement, are hereby expressly disclaimed.
6.4. Entire Agreement: Upon execution by both Parties, this Agreement shall constitute a binding commitment of the Parties and contains the entire understanding between the Parties in relation to its subject matter and supersedes all prior arrangement, understanding, simultaneous representations, discussions, negotiations, written or oral agreements between the Parties relating hereto thereto. All Annexures, Appendices and other confirmations/ communications effected pursuant to this Agreement shall be considered a part and parcel of this Agreement. This Agreement may be amended or modified only by a written instrument executed by both the Parties. Both Parties agree that this Agreement, are binding on and shall apply for the benefit of the Parties and their representatives, successors in title and permitted assigns.
6.5. Survival: Termination of this Agreement shall not affect those provisions hereof that by their nature are intended to survive such termination.
6.6. Waiver: No waiver of any term, provision or condition of this Agreement whether by conduct or otherwise in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such term, provision or condition or of any other term, provision or condition of this Agreement, unless specifically provided in writing. Further, waiver of any breach of this Agreement by the CUSTOMER shall not be deemed a waiver of any continuing of recurring breach, unless so specifically stated and agreed in writing.
6.7. Notices: Unless otherwise provided herein, all notices or other communications to be given shall be made in writing signed by the Party giving it and to the other Party at the address shown below or at such other address or addresses as either Party shall designate to the other in writing. Notices may be sent either by way of acknowledged post, hand delivery, or by email having delivery report to the correct email address of FPIX.
6.8. Relationship: The Parties acknowledge and agree that they are dealing with each other here under as independent parties. Nothing contained in the Agreement shall be interpreted as constituting either Party as the joint-venturer or partner of the other Party or as conferring upon either Party the power of authority to bind the other Party in any transaction with third parties. Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership between the Parties nor, shall it constitute, or be deemed to constitute, any Party the agent of any other Party for any purpose.
6.9. Severability/ Enforcement: In the event any provision of this Agreement shall be held invalid or unenforceable, the same shall not invalidate or otherwise affect in any respect any other term or terms of this Agreement, which term or terms shall remain in full-force and effect and such invalid provision shall be deemed to have been deleted from this Agreement. Unless otherwise agreed, no delay, act or omission by either Party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy. Consent by a Party, where required, will not prejudice its future right to withhold similar consent.
Reference to specific provisions of MITC as a one liner in each Agreement
Enabling provision for additional orders and amendments to Agreement
Annexure serial numbering – Additional order
