EXHIBIT 10.11
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[INDIA CURRENCY -- ONE HUNDRED RUPEE NOTE]
U S E R A G R E E M E N T
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THIS AGREEMENT is made between -
XXXXXX COMPUTER SERVICES LIMITED, a Company incorporated under the Companies
Act, 1956 and having its registered office at Mayfair Centre, Xxxxxx Xxxxx Road,
Secunederabad - 500 003, State of Andhra Pradesh, (hereinafter referred to as
"the Proprietor" which expression shall include its successors in interest and
permitted assigns); of the ONE PART; AND
XXXXXX INFOWAY LIMITED, a Company organised under the Laws of India, whose
principal place of business is at Xx. 00, Xxxxxxxxx Xxxx, Xxxxxx Xxxxx,
Xxxxxxx- 600 015, State of Tamil Nadu, India, (hereinafter referred to as "the
User") of the OTHER PART.
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WHEREAS
A. The Proprietor is an internationally renowned software developer and
distributor in, inter alia, computer software, and all related
products/tools and equipments, books, stationery, instructional and
teaching material, manuals, data sheets as mentioned in the trade xxxx
applications filed at the Trade Xxxx Office, related products and in
connection therewith is the Proprietor of the Trade Xxxx XXXXXX applied for
registration under numbers 769398, 769399, 769400, 769401 in class 9 and
16, (hereinafter called "the said Trade Xxxx"). The details of the
applications are set our Schedule "A" annexed hereunder.
B. The User is desirous of using the said Trade Xxxx on and in relation to the
products dealt in by the User (hereinafter called "the contract products")
and the proprietor is agreeable thereto; the contract products are listed
in Schedule "B" annexed hereunder; and
C. The relationship between the Proprietor and the User is contractual.
NOW THIS AGREEMENT WITNESSETH that in consideration of mutual promises and
covenants contained herein, the parties have agreed as follows:
1. The Proprietor grants to the User the non-assignable and non-sub-licensable
right to use the said Trade Xxxx on and in relation to the Contract
Products manufactured by or for the User for sale in India, as long as the
Agreement remains in force.
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2. At the request of the Proprietor, the User shall join the Proprietor in
making application/s to the Registrar of Trade Marks for registration of
the User as Registered User of the said Trade Xxxx. The User agrees to
execute all applications, Agreement/s, deeds and documents as may be deemed
necessary in this behalf by the Proprietor. The costs of prosecution of any
such application/s shall be borne by the Proprietor.
3. The User shall not be the exclusive User of the said Trade Xxxx.
Notwithstanding the aforegoing, the Proprietor shall have the right to Use
the said Trade Xxxx.
4. The said Trade Xxxx shall be used by the User only on and in relation to
the contract products manufactured by or for the User in accordance with
the technical data, formulae, specifications, directions and quality
control standards which shall, from time to time, be communicated or
approved by the Proprietor and shall not be used on and in relation to any
goods other that the contract products so handled.
5. The User shall at all times during the continuance of this Agreement permit
the proprietor or any representative/s duly authorised by the Proprietor to
enter any part or parts of any factory or premises where manufacture of the
contract products and/or the method of manufacturing them and shall, when
called upon to do so by the Proprietor, supply the Proprietor or its
authorised representatives with samples of the contract products
manufactured by or
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for the User and in the event of any such samples being found sub-standard,
upon which question the decision of the Proprietor will be final, the
remainder of the batch from which the samples were drawn shall be disposed
of in such manner as the Proprietor may direct but without any compensation
whatsoever being payable to the User.
6. No remuneration whether by way of royalty or otherwise shall be payable to
the Proprietor in respect of the use of the said Trade Xxxx.
7. The manner in which the said trade Xxxx xxx be used by the User on or in
relation to the contract products and on labels, packaging, printed
material or wheresoever shall be approved in writing by the Proprietor
prior to any such use. The User shall, at all times, describe the said
Trade xxxx in a manner as to clearly indicate that, that is the Trade Xxxx
of the Proprietor and are being used by the User only by way of permitted
use. neither during the term of this agreement, nor thereafter shall the
User adopt or use any word or xxxx or design which is or is likely to be
similar to or confusing with the said Trade Xxxx.
8. a) The User undertakes to bring to the notice of the Proprietor all causes
of infringement and/or passing off of the said Trade Xxxx or registration
or attempted registration of the said Trade Xxxx or of any Trade Marks
similar thereto. The User undertakes both during the term of this Agreement
and thereafter, at the request of the Proprietor, to render to the
Proprietor all assistance which the Proprietor may require from time to
time in respect of the defence
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of the said Trade Xxxx including the registration and/or maintenance
thereof and more particularly in the event that the Proprietor proceeds
against any third party to restrain misuse of the said Trade Xxxx. In the
event of the Proprietor undertaking an opposition to or any action to
restrain or punish such act or acts, the User agrees to co-operate fully
freely with the Proprietor and, if required by the Proprietor, shall permit
the Proprietor to undertake such opposition or action in the name of the
User. The costs of any such action shall be borne by the parties in such
proportion as may be mutually agreed upon.
b) If the User or any or its customers is sued for alleged misuse of the
said Trade Xxxx, the User on service upon it of any notice of any such
claim shall forthwith give the Proprietor written notice thereof and of all
particulars thereof and the Proprietor shall have the right to participate
in the defence of such suit at its own expense. Pursuant to the foregoing
the User shall advise the proprietor of any misuse of the said Trade Xxxx
of which it obtains knowledge and the Proprietor shall, in this sole
discretion, decide whether or not to institute proceedings against the
infringing party.
9. a) This Agreement shall stand terminated forthwith if the User goes into
liquidation (otherwise than for the purpose of reorganisation of capital),
has receiver of its assets appointed, makes composition with creditors,
causes to carry on business or merges
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or amalgamates with another company or there shall occur, in the opinion of
the Proprietor, a substantial change in the management or control of the
User.
b) This Agreement may be terminated by the Proprietor forthwith if the
User shall happen to be in breach of any of the terms and (if capable of
rectification) shall have failed to rectify such breach within 30 days of a
notice in this respect having been served on the User.
c) This Agreement may be terminated by the Proprietor forthwith if
circumstances beyond its control prevent the commercial exploitation of
this Agreement, including (but without limiting the generality of the
foregoing) strikes, lockouts of employees or employment disputes, riots or
civil commotion, legislation of or intervention by any governmental
authority.
d) This Agreement may be terminated by the Proprietor forthwith if the
group of companies to which the Proprietor belongs will lose for whatever
reason its majority shareholding in User, and is not otherwise in a
position to exercise control over the User.
10. Upon termination of this Agreement, for any reason whatsoever;
a) The user shall immediately cease any further use of the said Trade Xxxx,
labels, tradename/s or description which the User might have been
authorised to use by the Proprietor.
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b) The User hereby covenants and agrees that it shall hand over to the
Proprietor or its duly authorised representative/s all dyes, blocks,
labels, packaging printed material or the like featuring the said Trade
Xxxx, tradename/s codes or description of any sort which is obtained from
and was authorised to use by the Proprietor.
c) The User undertakes to do all such acts as may be necessary to produce the
cancellation of the User as a registered User if it has been recorded as
such. The User shall join the Proprietor in an application to have the
entry of the User as a registered User cancelled at the Trade Marks office,
and for this purpose undertakes to do such acts or sign such papers or sign
such papers or documents as may be requisite to this end and in the event
of failure by the User to comply with the requirements of this provision,
the Proprietor is hereby given full and irrevocable power of attorney by
the User in the User's place and stead to do such acts or sign such papers
or documents as may be necessary on behalf of the User to effect
cancellation of the User as the registered User in respect of the said
Trade Xxxx.
d) No compensation or indemnity whatsoever shall be due or may be claimed by
one party from the other by reason of the non-renewal or termination of
this Agreement under Sub clause 9 c or 9 d above.
11. The User recognises the title of the proprietor to the said Trade Xxxx and
shall not at any time, during the term of this Agreement or thereafter, do
or suffer to be done any act or thing which will in any way challenge the
validity of or impair the rights of the
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Proprietor in and to the said Trade Xxxx. It is understood that the User
shall not acquire and shall not claim any rights by virtue of this
Agreement or through its use of the said Trade Xxxx. The User shall not
use or register the said Trade Xxxx or any other Trade Xxxx similar thereto
as a Trade Xxxx or as part of the User's corporate or trade name. The
covenant aforegoing shall survive the termination of this Agreement.
12. The Proprietor shall have the exclusive right to assign its rights under
this Agreement. This Agreement shall be binding on successors-in-title and
assigns of the Proprietor, subject to the User duly performing its
obligations under this Agreement; and the User shall have the uninterrupted
right to use the said Trade Xxxx, irrespective of the assignment of the
said Trade Xxxx to any third party by the Proprietor, but subject to clause
9 hereinabove.
13. This Agreement shall be governed by the laws of India. The substantive law
for the purpose of interpreting this Agreement shall be the laws enacted
for the purpose of determining contractual obligations between the parties.
If any dispute or difference arises in respect of this Agreement, the same
shall be referred to arbitration. The Arbitration shall be held in
accordance with Arbitration and conciliation Act, 1996 or any other
Arbitration law in force in India from time to time. The venue of the
arbitration shall be Hyderabad, State of Andhra Pradesh. The award should
be a speaking order passed on merits and in writing.
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14. The Agreement will come into effect from 1 April, 1999.
IN WITNESS WHEREOF the parties hereto have executed these presents the day month
and year written against their respective signatures.
SIGNED:
For and on behalf of:
XXXXXX COMPUTER SERVICES LIMITED
Signature: [illegible]
Designation: Managing Director of Xxxxxx Computer Services LTD,
Seal:
WITNESS
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Signature:
Name:
SIGNED:
For and on behalf of:
XXXXXX INFOWAY LIMITED,
Signature: /s/ X. Xxxxxxx
Designation:: Managing Director of Xxxxxx Infoway
Seal:
WITNESS
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Signature:
Name:
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Schedule "A"
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1. Trade Xxxx : XXXXXX LOGO
Application No. : 769398
Date : 26-9-97
Class : 16
Goods : As mentioned below in Class 16.
2. Trade Xxxx : XXXXXX (WORD)
Application No. : 769400
Date : 26-9-97
Class : 16
Goods : As mentioned below in Class 16.
Goods in Class 16: PAPER AND PAPER ARTICLES, CARDBOARD AND CARDBOARD
ARTICLES, PRINTED MATTER, NEWSPAPERS AND PERIODICALS, BOOKS, BOOKS-BINDING
MATERIAL, PHOTOGRAPHS, STATIONERY ADHESIVE MATERIALS (STATIONARY) ARTISTS
MATERIALS, PAINT BRUSHES, TYPEWRITERS AND OFFICE REQUISITES (OTHER THAN
FURNITURE) INSTRUCTIONAL AND TEACHING MATERIAL (OTHER THAN APPARATUS)
PLAYING CARDS (PRINTERS) TYPE AND CLICHES (STEREOTYPE), COMPUTER HARD XXXX
AND SOFTWARE MANUALS COMPUTER DOCUMENTATION NAMELY, REFERENCE USER
INSTRUCTIONAL AND GENERAL UTILITY MANUALS AND DATA SHEETS FOR COMPUTER
HARDWARE AND SOFTWARE MANUFACTURES, PRODUCERS AND USERS ALL BEING GOODS
INCLUDED IN CLASS 16".
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3. Trade Xxxx : XXXXXX LOGO
Application No. : 769399
Date : 26-9-97
Class : 9
Goods : As mentioned below in Class 9.
4. Trade Xxxx : XXXXXX (WORD)
Application No. : 769401
Date : 26-9-97
Class : 9
Goods : As mentioned below in Class 9.
Goods in Class 9: ELECTRIC AND ELECTRONIC GOODS, APPARATUS AND APPLIANCES
AND PARTS, FITTINGS AND ACCESSORIES THEREOF INCLUDING MAGNETIC DATA
CARRIERS, COMPUTERS, DATA PROCESSING EQUIPMENTS, INTERFACES, COMPUTER
HARDWARE, COMPUTER PERIPHERALS, TERMINALS, DISC DRIVE AND DRIVERS,
PRINTERS, MODEMS, FLOPPY DISCS, DISKETTE HOLDERS, MONITORS, INTEGRATED
CIRCUITS, PRINTED CIRCUIT BOARDS, MAGNETIC RECORDING, ELECTRONIC
TYPEWRITERS, VOLTAGE STABILIZERS, REGULATORS, TRANSFORMERS, INVERTORS,
CONVERTORS, UNINTERRUPTED TREATABLE POWER SUPPLIERS, APPARATUS FOR
RECORDING TRANSMISSION OR REPRODUCTION OF SOUND OR IMAGES, PHOTOGRAPHIC,
CINEMATOGRAPHIC, OPTICAL WEIGHING, MEASURING, SIGNALING CHECKING AND
TEACHING APPARATUS AND INSTRUMENTS, COINS, COUNTERFEED APPARATUS, TALKING
MACHINES, CASH REGISTERS, CALCULATING MACHINES, FIRE EXTINGUISHER APPARATUS
INCLUDED IN CLASS 9".
Schedule "B"
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CONTRACT PRODUCTS
