Exclusivity and Lock-Out Agreement
This Agreement is executed on ____________ at ____________ by:
- ____________, ____________, of ____________ ("PARTY A");
- ____________, ____________, of ____________ ("PARTY B").
Each signatory is a "Party" and together they are the "Parties".
1. Background
1.1 A. ____________.
1.2 B. The Parties wish to record the terms governing ____________.
2. Definitions and Interpretation
2.1 "Applicable Law" means all statutes, rules, regulations, binding orders, permits and governmental requirements applicable to a Party, the subject matter or performance in India.
2.2 "Business Day" means a day other than Saturday, Sunday or public holiday at Place ____________.
2.3 "Confidential Information" means information protected under Clause ____________.
2.4 "Effective Date" means Date ____________.
2.5 "Force Majeure Event" means an event beyond reasonable control that could not reasonably be prevented and materially delays performance.
2.6 "Intellectual Property Rights" means copyright, patents, designs, trade marks, domain names, database rights, know-how and analogous rights worldwide.
2.7 "Losses" means documented losses, damages, liabilities, penalties, interest and reasonable external professional costs.
2.8 "Representatives" means directors, officers, employees, professional advisers and approved contractors who need to know.
2.9 "Schedule" means a schedule forming part of this document.
2.10 "Term" means the period specified in Clause ____________.
2.11 Headings do not affect interpretation. The singular includes the plural; a person includes an entity; writing includes legally valid electronic communication; "including" is without limitation; and references to law include amendments and subordinate legislation. If a due date is not a Business Day, it moves to the next Business Day.
3. Exclusive Negotiation
3.1 During Exclusivity Period ____________, the Restricted Party shall not solicit, encourage, furnish non-public information for, negotiate, approve or enter into a Competing Proposal concerning Transaction ____________.
3.2 The Restricted Party shall notify the Protected Party within ____________ Business Days of an unsolicited approach and cease existing competing discussions. Disclosure need not include information prohibited by law.
3.3 Nothing requires a director to breach a mandatory statutory or fiduciary duty. Any permitted exception shall be narrowly construed and supported by written legal advice.
4. Scope and Order of Precedence
4.1 The Parties shall perform the transaction and obligations described in Schedule 1. The order of precedence is: signed amendments; this document; Schedule 4; other Schedules; accepted orders or statements of work. A purchase order or standard form does not amend this document unless expressly signed as an amendment.
4.2 Each Party shall provide the approvals, personnel, information, access and cooperation allocated to it and shall promptly notify any matter likely to cause material delay, cost or non-compliance.
5. Governance Changes and Records
5.1 Contract managers ____________ shall meet every ____________. A change to scope, price, risk, timetable, data processing or acceptance requires a written Change Order describing impact and signed by authorized representatives. Operational correspondence alone does not amend this document.
5.2 Each Party shall keep complete records supporting performance and charges for ____________ years. Where Schedule 4 grants audit rights, audits shall occur during business hours on reasonable notice, protect third-party confidentiality and avoid unreasonable disruption.
6. Charges Taxes and Payment
6.1 Charges and milestones are in Schedule 2. Valid undisputed invoices are payable within ____________ days to Account ____________. Charges are exclusive/inclusive of GST as selected in Schedule 2. The payer may deduct tax required by law and shall provide the corresponding certificate.
6.2 An invoice dispute must be notified with reasons within ____________ days; undisputed portions remain payable. Late interest, if selected, accrues at ____________ percent per annum or the maximum lawful rate, whichever is lower. No expense is reimbursable without prior approval and evidence.
7. Compliance with Law
7.1 Each Party shall comply with Applicable Law relevant to its obligations, including corporate authority, permits, tax, anti-bribery, competition, sanctions/export controls, employment, consumer, environmental, accessibility, technology and data requirements. A Party shall not require or assist an unlawful act.
7.2 Each Party shall promptly notify a material regulatory notice affecting performance and reasonably cooperate in remediation. Statutory filings, stamping, notarization and registration allocated in Schedule 4 shall be completed by the responsible Party.
8. Confidentiality Publicity and Data
8.1 A recipient shall use Confidential Information only to perform this document, disclose it only to bound Representatives who need it, apply reasonable safeguards and remain responsible for misuse. Legal disclosure is permitted after advance notice where lawful and disclosure of only what is required.
8.2 No public announcement, use of name, logo or case study is permitted without prior written consent, except a required legal disclosure. Personal data shall be processed only for lawful specified purposes under Schedule 4 with appropriate security, retention, deletion, incident and processor controls.
9. Intellectual Property and Materials
9.1 Each Party retains Background IP owned or controlled before the Effective Date or developed independently. Ownership of Deliverables, developments, feedback, data and custom materials is allocated in Schedule 4. Any assignment operates on creation to the extent lawful and includes further-assurance obligations.
9.2 Each licence is limited to the purpose, territory, users, term and restrictions stated in Schedule 4. No implied rights arise. The supplying Party shall identify third-party and open-source materials and comply with their licence obligations.
10. Representations Warranties and Remedies
10.1 Each Party represents on the Effective Date that it exists validly, has authority, has obtained internal approvals and that signing does not knowingly violate a binding obligation. Each Party warrants that it will perform lawfully and with reasonable skill and care.
10.2 Additional warranties, warranty periods, exclusions and exclusive or cumulative remedies are in Schedule 4. A beneficiary shall notify a defect promptly and allow reasonable cure. Nothing excludes a representation that cannot lawfully be excluded or liability for fraud.
11. Indemnities
11.1 Each indemnity in Schedule 4 applies only to identified claims and Losses. The indemnified Party shall give prompt notice, permit the indemnifier to control defence with competent counsel, provide reasonable cooperation at the indemnifier's cost, mitigate Losses and not settle liability of the other Party without consent.
11.2 Failure to give prompt notice reduces liability only to the extent of proven prejudice. Indirect or first-party claims are covered only where Schedule 4 expressly says so.
12. Limitation of Liability
12.1 Subject to mandatory law and the carve-outs below, each Party's aggregate liability arising in Contract Year ____________ shall not exceed ____________ percent of Charges paid/payable in that Contract Year / INR ____________. Neither Party is liable for indirect or consequential loss or loss of profit, revenue, goodwill or anticipated savings except where expressly included in an indemnity.
12.2 The exclusions and cap do not apply to fraud, wilful misconduct, death or personal injury caused by negligence, breach of confidentiality, infringement or misappropriation of IP, data-protection liability, unpaid charges, or another carve-out expressly selected in Schedule 4, in each case only to the extent lawful.
13. Insurance
13.1 During the Term and for ____________ years afterward, each responsible Party shall maintain the insurance types and limits in Schedule 4 with reputable insurers and provide certificates on reasonable request. Insurance does not increase or reduce contractual liability.
14. Term Suspension and Termination
14.1 This document begins on Effective Date ____________ and continues until Expiry Date/Completion ____________, unless renewed or terminated. A Party may terminate for material breach not cured within ____________ days after detailed notice, repeated material breaches, insolvency, illegality or another event in Schedule 4.
14.2 Suspension must be proportionate and is permitted only for non-payment after notice, urgent security/safety risk or express Schedule 4 grounds. The suspending Party shall minimize impact and resume promptly after cure.
15. Consequences of Termination
15.1 Termination does not affect accrued rights. Each Party shall stop unauthorized use, return property and Confidential Information, pay undisputed accrued amounts, deliver completed and paid-for work, assist transition for Period ____________ at Rates ____________, and complete deletion or transfer required by Schedule 4.
15.2 Definitions, payment, confidentiality, IP, records/audit, indemnity, liability, dispute resolution and provisions intended by nature to survive shall continue.
16. Force Majeure
16.1 An affected Party shall notify the other within ____________ days, describe impact and expected duration, mitigate, invoke continuity plans and resume promptly. Lack of funds, avoidable labour shortage and a subcontractor failure that could reasonably be replaced are not Force Majeure Events.
16.2 Performance is excused only to the extent prevented. Accrued payment obligations remain due. If material prevention continues for ____________ days, the unaffected Party may terminate the affected scope without future-termination charge.
17. Notices
17.1 Formal notices shall be in writing, identify this document and be delivered by hand, recognized courier, registered post or email with delivery confirmation to Schedule 5. A notice is deemed received on delivery, or the next Business Day if received after ____________ hours.
18. Dispute Resolution Governing Law and Jurisdiction
18.1 Contract managers shall negotiate for ____________ Business Days, followed by executive negotiation for ____________ Business Days. Urgent interim or injunctive relief may be sought at any time.
18.2 Unresolved disputes shall be finally resolved under the Arbitration and Conciliation Act, 1996 by ____________ arbitrator(s). Seat and venue: ____________, India. Language: English. The award shall be reasoned and binding. Indian law governs, and courts at the seat have supervisory jurisdiction.
19. General Provisions
19.1 Neither Party may assign, transfer, novate or subcontract material obligations without prior written consent, not to be unreasonably withheld where Schedule 4 so states. Consent does not release the original obligor. Approved subcontractors remain under the appointing Party's responsibility.
19.2 The Parties are independent contractors. Nothing creates partnership, agency, employment, fiduciary duty or exclusivity unless expressly stated. Neither Party may bind the other.
19.3 This document and its schedules constitute the entire agreement and supersede prior statements on its subject, without excluding fraud. Amendments and waivers must be written and signed. Delay is not waiver. Invalid terms are modified or severed minimally; the remainder continues.
19.4 No third party has enforcement rights unless expressly named. Each Party bears its own negotiation and execution costs except as stated. Further assurances shall be executed at the requesting Party's reasonable cost. Counterparts and legally valid electronic signatures are permitted.
20. Execution and Signature Blocks
20.1 For Party/Role A: Legal name ____________; Authorized signatory ____________; Designation ____________; Signature ____________; Date ____________; Place ____________; Corporate seal if used ____________.
20.2 For Party/Role B: Legal name ____________; Authorized signatory ____________; Designation ____________; Signature ____________; Date ____________; Place ____________; Corporate seal if used ____________.
20.3 Additional Party if applicable: Legal name ____________; Authorized signatory ____________; Designation ____________; Signature ____________; Date ____________; Place ____________.
20.4 Witness 1: Name ____________; Address ____________; Occupation ____________; Signature ____________.
20.5 Witness 2: Name ____________; Address ____________; Occupation ____________; Signature ____________.
21. Schedule 1 Transaction Scope
21.1 Subject matter; detailed scope; exclusions; locations; dependencies; responsible Party; commencement and completion dates.
21.2 Completed details: ____________
22. Schedule 2 Commercial Terms
22.1 Consideration; price/fees; GST; invoicing; milestones; reimbursement; withholding; bank details; payment security.
22.2 Completed details: ____________
23. Schedule 3 Deliverables Completion and Records
23.1 Deliverables or transferred assets; acceptance tests; timetable; records; completion documents; transition assistance.
23.2 Completed details: ____________
24. Schedule 4 Rights Risk and Compliance Matrix
24.1 IP ownership/licences; confidential information; personal-data details; warranties; indemnities; liability cap and insurance.
24.2 Completed details: ____________
25. Schedule 5 Notices and Authorized Contacts
25.1 Party; physical address; email; attention; authorized operational contact; authorized change approver; escalation contact: ____________
IN WITNESS WHEREOF, the Parties have executed this agreement on the date first written above.
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WITNESSES:
1.
2.
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______________________________
FIRST PARTY / Bidder
______________________________
SECOND PARTY / Target / Seller
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Identified by me:
Advocate
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Drafted by me as per instructions of both the parties, read over and explained and after understanding the contents hereof they have signed this agreement.
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