Exhibit 10.32
[GRAPHIC]
GANGA
This Agreement made at Mumbai this 25th day September of 1997 between Software
Technology Park Pvt. Ltd., an existing company within the meaning of the
Companies Xxx, 0000, having its registered office at X-0, Xxxxxxxxxx Xxxx, XXXX,
Xxxxxxx, Pune 412 114 (herein after referred to as "The Owners") which
expression shall be deemed to include its successors and assigns of the ONE PART
and Kanbay Software (I) Pvt. Ltd. an existing company within the meaning of the
Companies Xxx, 0000, having its registered office at 000, Xxxxxx, Xxxxx Xxxxxx,
Xxxxx Xxxx (Xxxx), Xxxxxx 400 054 hereinafter referred to as "The Users") which
expression shall be deemed to include its successor and assigns of the OTHER
PART.
WHEREAS the Owners have in accordance with the permission by the Government of
India established a Technology Park for software export through dedicated
Satellite Earth Station out of its facilities at its 100% export oriented unit
established at X-0, Xxxxxxxxxx Xxxx, XXXX, Xxxxxxx, Xxxx 000000.
WHEREAS the Owners have been operating an Earth Station leased by it from Videsh
Xxxxxxx Xxxxx Limited (VSNL) in terms of agreement dated 6th September 1989 with
the said VSNL at the aforesaid premises at MIDC, Talwade, Pune 412 114 on or
after 1st April, 1994.
/s/ Authorized Party
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[GRAPHIC]
WHEREAS the owners have been allowing certain parties including the parties
hereto of the other part to use the Earth Station leased by it from VSNL as per
the agreement entered into by it with VSNL.
AND WHEREAS, the Owners have installed 64 KBPS Data Communication Satellite Link
/ s together with the requisite equipments, furniture, articles and things as
per Schedule I hereto annexed for using the said equipment together with the
requisite equipments, furniture, articles and things, as per Schedule I hereto
annexed for running the said equipment (hereinafter referred to as the
"Facilities").
AND WHEREAS the Owners have entered into an Agreement with VSNL on 19th day of
January 1993 for using the aforesaid satellite link for other users on the
condition that the owners shall continue to be liable to VSNL for all charges
and other obligations contained in the aforesaid agreement and that the owners
shall not transfer the ownership and other rights in the various facilities
installed and used by the owners at the aforesaid factory premises without the
written consent of VSNL and other authorities.
AND WHEREAS The Users had approached the Owners to allow the Users to use the
said Facilities for the purpose of development and support of software only for
a period of three years for service charges specified in Schedule II commencing
from 24th July 1995 which could be renewed for a further period of five years
purely on temporary basis to which the Owners have agreed on the following terms
and conditions mutually agreed by and between the parties hereto :
/s/ Authorized Party
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NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES
HERETO AS FOLLOWS:
1. The Users have agreed with the Owners for the use of the requisite
equipments, furniture, articles and things, as per Schedule I hereto
annexed (herein after referred to as the "Facilities") installed at
X-0, Xxxxxxxxxx Xxxx, XXXX, Xxxxxxx, Pune 412 114 so that the Users
together with other permitted parties would have access to use, the
said Facilities for a limited period of Three plus Five years
commencing from 24th July 1995 and expiring on 31st July 2003 for the
purposes of and to facilitate the carrying on the business of the
users.
2. The Users had deposited with the Owners a sum of Rs.240,000/- (Rupees
Two Lakh Forty Thousand Only) as security for the due fulfilment of the
terms and conditions of the Agreement and also to ensure good conduct,
proper management and regular payment of dues. The said amount will
remain with the Owners free of any interest till the expiration of the
period of this Agreement or termination thereof on account of any
breach of the terms and conditions thereof by the Users.
3. The parties hereto have been negotiating the terms and conditions
governing this arrangement though no formal agreement was drawn up and
since almost two years have elapsed, it is hereby agreed that all
payments made for and upto 30th September 1997 shall be deemed to have
been made towards User Charges upto that date and all such payments
will be deemed to have been made in full and final settlement of those
dues and no further charges shall be demanded by the Owners. It is
further agreed that the new rate of charges will become effective from
1st October, 1997.
4. The Users hereby further agree and undertake to regularly and
punctually pay to the Owners every month an amount as determined as per
Schedule II, which is at the rate of Rs. 120.00 per hour commencing
with effect from 1st October 1997, for using the Facilities
(hereinafter referred to as the "stipulated amount") owned by the
Owners. The entire output from the operation of the Facilities shall
belong to and shall be to the account of the Users only.
5. The Users agree to pay all dues within 7 days of demand by the Owners.
The time of payment of dues as aforesaid shall be deemed to be the
essence of the contract. The facilities shall be made available round
the clock at all times for the Users by the Owners and the charges for
the aforesaid use shall be payable irrespective of actual use by the
Users.
6. The Users shall obtain and maintain at their own expenses all licences
or authorisations such as excise, octroi, sales tax and others, which
are required to be obtained by the Users in respect of the said
Facilities and all such licences will show the name of the Users only
as Users. Any default of the terms and conditions mentioned in such
licences or authorisations shall be to the account of the Users only
and the Owners shall not be responsible thereto.
/s/ Authorized Party
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7. The owners have agreed to provide various other utility services viz.:
a) Power
b) Water
c) Security
d) Catering / Canteen facilities
e) Garden maintenance
f) Electrical maintenance
g) Plumbing Maintenance
h) Car parking facilities
i) Air conditioning
j) Carpeting:
k) Telephones
l) Fax
m) Photocopying facilities
n) Playground
The Users shall pay for availing of the aforesaid and other agreed
services on actuals on demand been made by the owners in addition to
the stipulated amount as mentioned in para 3 of this Agreement.
8. The Users hereby agree and clearly understand that the ownership and
control of the said Facilities has and always remain with the Owners.
The allowing of the use of the equipments, furniture, articles and
things belonging to the Owner is a part of this Agreement and of the
buildings along therewith is incidental thereto being inseparable
therefrom.
9. The Users shall have no right to assign the benefit of this Agreement
without the prior written consent of the Owners. Any consent granted by
the Owners to any assignment of the Agreement shall not be deemed a
waiver in any subsequent case of this Agreement contained against
assignment and shall not absolve the Users in respect of any liability
under this Agreement.
10. The Owners shall be entitled to visit the said Facilities at all times
to view the conduct of the business including equipments, furniture,
articles and things therein without any obstruction or objection from
the Users or their employees.
11. This Agreement shall not mean or shall not be construed to mean that
the Owners have parted with the Facilities or any part or portion
thereof nor that the Owners have created any right of tenancy or
subtenancy or other right or interest in respect of the said Facilities
nor shall the Users claim any such right or take shelter under the
provisions of say Rent Control Act or any other law for the time being
in force. This Agreement Is in promotion of the business interest of
both sides and in furtherance thereof.
12. The Users undertake to carry on the said business at their entire risk
and responsibility. The Users shall conduct the said business in
accordance with the rules and regulations of the Government, local
authority, Municipality, Police or
/s/ Authorized Party
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any other authority for the time being in force applicable to the
running of the said business as also in accordance with the terms and
conditions of this Agreement. In the event of any default or breaches
on the part of the Users of the provisions thereof they shall be
solely responsible for any claim, demand, costs, charges, penalty and
punishment in respect thereof. And the Users shall indemnify and keep
the Owners in respect thereof provided however that the Owners alone
shall be responsible for payment and discharge of all liabilities
accrued and incurred by the Owners prior to herebefore and the Owners
agree that they shall continue to remain liable for payment of such
liabilities.
13. The Users shall not pledge the credit of the Owners.
14. The Users shall not at any time during the continuance of this
Agreement do any act, deed or thing whereby the said Facilities or any
part thereof shall become encumbered or the rights of the Owners in
respect thereof jeopardized nor shall the Users represent to any third
party including the bankers of the Users or financial bodies or any
other authorities concerned that the Users are the Owners of the said
premises in which the Users have been permitted to carry on the said
business nor shall the Users create any lien or charge whether in
favour of any bank or private party or parties or persons in respect of
any goods lying in the said Facilities and belonging to the Owners nor
shall the Users allow any attachment being levies either on the said
Facilities or equipments, furniture and other articles belonging to the
Owners and lying and being in the said Facilities.
15. The Users undertake not to make any structural or other changes or
additions or alteration to the Facilities except with the previous
permission in writing from the Owners, which shall not be unreasonably
withheld by the Owners.
16. The Users shall take good care of the Facilities and other equipments,
furniture, articles and things as contained in the Schedule I hereto
annexed and belonging to the Owners subject to reasonable wear and
tear. The Users shall leave all such equipments, furniture, articles
and things of the Owners in good repair order and condition on the
expiry of the period of this Agreement or its earlier termination on
breach of any terms and conditions of the Agreement, reasonable wear
and tear excepted.
17. The Users undertakes to quietly and peacefully vacate the said
Facilities belonging to the Owners on completion of the period of the
Agreement or its earlier termination, as the case may be, without
raising any objection of any nature whatsoever.
18. In the event of the Agreement coming to an end by efflux of time
provided the Users have not committed any breach of the terms of the
Agreement and provided the Users have paid all amounts due to the
Owners in accordance with the terms and conditions hereof, the Owners
shall refund to the Users the said amount deposited under clause 2.
hereinabove without interest, on the
/s/ Authorized Party
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Users handing over possession of the said facilities including
equipments, furniture, articles and things lying in the said Facilities
& belonging to the Owners as herein above.
19. Without prejudice to the other rights and remedies of the Owners under
this Agreement or in law and in case of breach of the terms of this
Agreement by the Users, the Owners shall give 60 days notice in writing
to the Users, to set right and make good the said breach or breaches by
the Users and if despite such notices, the Users persists with the
breach or breaches or do not set right the said breach or breaches, the
Owners may at its option put an end to this Agreement by either giving
notice in writing in 60 days to the Users terminating this Agreement or
the Owners may set the breach or breaches right in any way that may be
possible within their capacity or means at the risk, costs, charges,
expenses and damages of the Users and the Owners shall have the right
to recover the same from the Users at the cost of the Users and be
indemnified by the Users there against.
20. Wherever in this Agreement the consent of the parties is required, such
consents or approval shall not be unreasonably withheld.
21. If the Users desire to terminate this Agreement in the event of there
being a breach before the expiry of the period of this Agreement, then
the Users shall give to the Owners three months notice in writing of
their intention to give back the facilities of the Owners. At the end
of the expiry of the said three-calendar months period, the Users shall
returned the facilities of the Owner. The Owners will after a further
period of 15 days from the date thereof refund to the Users the balance
deposit without interest subject to deduction for amounts due and
payable by the Users to the Owners or such person or persons in
connection with this Agreement. After the expiry of the period as
specified in Schedule II to this agreement, this agreement may be
renewed / extended for such further period and on such terms and
conditions as may be mutually agreed.
22. The failure of either party to insist upon a strict performance of any
of the terms and conditions of this Agreement or to exercise any
option, right or remedy herein contained, shall not be construed as a
waiver or as a relinquishment for the future of such term, provision,
option, right or remedy but the same shall continue and remain in full
force and effect. No waiver by either party of any term of provision
hereof shall be deemed to have been made unless expressed in writing
and signed by such party. In the event of consent by either party to an
assignment of this Agreement, no further assignments shall be made
without the express consent in writing of such party, unless such
assignment may otherwise by made without consent pursuant to the terms
of this Agreement.
23. Save as herein provided if at any time any dispute or differences shall
arise between the parties hereto and / or any persons or person
claiming through or under then respectively whether in connection with
any of the terms and provisions of this Agreement and / or as regards
the respective rights and
/s/ Authorized Party
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obligations of the parties hereto and all other matters arising out of
or relating to or touching this Agreement such disputes and differences
shall be referred to the arbitration of two Arbitrators one to be
appointed by each of the parties and the provisions of The Arbitration
and Conciliation Act, 1996, and any statutory modification or
re-enactment thereof shall in that case apply to such arbitration and
the arbitrator or arbitrators or the Umpire that may be appointed under
the provisions of the said Act shall have summary powers. Courts at
Mumbai alone will have jurisdiction to entertain and try and disputes
between the parties.
24. Any notice required or permitted by this Agreement to be given by the
Owners to the Users shall be in writing and shall be addressed to the
Users at 602 Kismet, North Avenue, Santa Xxxx (West), Mumbai 400 054 or
at such other address as the Users may from time to time designate to
the Owners in writing. Any notice required or permitted by this
Agreement to be given by the Users to the Owners shall be in writing
and shall be addressed to the Owners at X-0 Xxxxxxxxxx Xxxx, XXXX,
Xxxxxxx, Pune 412 114 or at such other address as the Owners may from
time to time designate to the Users in writing.
25. All other appropriate supplemental Agreements or other instruments
necessary or desirable in order to make this Agreement and each
provision hereof fully and legally effective and binding, or to carry
out the intent and purpose thereof, but not inconsistent with any of
the provisions hereof shall be executed and delivered and all other
acts necessary of appropriate for such purpose shall be duly or
effectively executed, done or taken by the parties hereto.
26. This Agreement together with other writing signed by the parties
expressly stated to be supplemental hereto and together with any
instruments to be executed and delivered pursuant to this Agreement
constitutes the entire Agreement between the parties and supersedes all
prior undertakings and writings and may be changed only by writing
signed by the parties hereto.
IN WITNESS THEREOF the Owners and the Users have set and subscribed their hands
and seals the day and year first above written.
SIGNED, SEALED AND DELIVERED by the } FOR SOFTWARE TECHNOLOGY PARK
withinnamed Software Technology Park Pvt. Ltd. } XXX.XXX.
in the presence M. G. DALAMAL } DIRECTOR
of
/s/ M. G. DALAMAL
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SIGNED SEALED AND DELIVERED by the } For KANBAY SOFTWARE (I) PVT.
withinnamed Kanbay Software (I) Pvt. Ltd. } LTD.
/s/ Xxxxxx X. Xxxx
in the presence of X. X. XXXxxxx } -----------------------
XXXXXX X. XXXX
/s/ X. X. XXXxxxx Managing Director
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SCHEDULE I
IBS Earth Station
Control Room
Microwave Tower
Other necessary telematics equipment incidental thereto
installed in the premises of the Owners at MIDC Talwade Pune 412114 and
available for the use of users for transmission of software from and through
MODULE III in the said Premises.
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SCEHDULE II
Period
From To Maximum Charges Rate per hour
per annum and
Proportionately for
part thereof
01.10.1997 31.07.1998 Rs. 8,76,000/- Rs. 120.00
01.08.1998 31.07.1999 Rs. 13,97,000/- Rs. 160.00
01.08.1999 31.07.2000 Rs. 14,95,000/- Rs. 171.00
01.08.2000 31.07.2001 Rs. 16,00,000/- Rs. 183.00
01.08.2001 31.07.2002 Rs. 17,12,000/- Rs. 195.00
01.08.2002 31.07.2003 Rs. 18,31,000/- Rs. 209.00
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