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Indemnity and Limitation of Liability

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SERVICE/ FACILITY AGREEMENT

This SERVICE/ FACILITY AGREEMENT (the ‘Agreement’) by and between:

LAFAYETTE LUXURY CONCIERGE SERVICES PRIVATE LIMITED having its principal place of business at 403, Sunit Capital, Senapati Bapat Road, Pune – 411016 (the “Company”) hereinafter referred to the “Service/ Facility Provider” (which expression shall unless repugnant to the meaning hereof include its successors, administrators and permitted assigns)

… the party of the First Part;

And

The Client

… the party of the Second Part;

Wherever the context so requires in this Agreement, the Service Provider and the Client shall each be individually referred to as Party and collectively referred to Parties.

WHEREAS:

1. The Service Provider has developed a business of providing Luxury Concierge Services to its Client/s and has earned a reputation in the market for providing state of the art services through which Client/s can get easy access to loyalty benefits across various locations outlets in India and elsewhere. 
2. The Service Provider is providing its services and possesses the ability and expertise to provide the required services along with required infrastructural support for various operations. 
3. The Client having understood the nature of the business and post consideration of various aspects, has requested and conveyed his/her/their keen interest in becoming a part of such agreement. 

NOW THEREFORE, in consideration of the mutual agreements and promises contained hereinafter set forth, and for other good and valuable consideration, the parties have agreed to execute this Agreement on the terms and conditions hereinafter contained.

NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:

ARTICLE 1

DEFINITION AND INTERPRETATION

1. “Applicable Law” shall mean any statute, regulation, notification, circular, order, ordinance, requirement, direction, guideline, announcement or other binding action or requirement of any governmental authority, having the force of law in India (or any part thereof);
2. “Client Information”shall mean:
   1. any financial or personal information of the Client, as the case may be;
   2. any account information or any other banking details which are derived by the Service Provider in the course of provision of the Services by the Company pursuant to the terms of this Agreement including, without limitation, all authentication data; and
   3. any other information regarding the Client or any other person in the course of providing any services

3. Deficiency: The term deficiency shall mean, in relation to a Service only, any deficiency of Service by not matching the standards as agreed in writing caused by the mistake of the Service Provider only
4. Remedy: The term remedy shall mean the solution/work around suggested by the Service Provider upon determining the Deficiency, or a possible remedy that may be suggested by the Service Provider at the time of determining the Deficiency.
5. Services: The term service under this Agreement shall mean and include all services listed under Schedule I appended to this Agreement. The same may be duly modified time to time, by the service provider.
6. Service/ Facility Provider:  the term Service/ Facility Provider is a term used for the sake of convenience only and refers to the Party of the First Part herein. However, the same is just a Facility availed by the client wherein the order/ service shall be placed before and with the concerned Vendor
7. Vendor: The Vendor herein refers to the person from whom the client herein wants the actual service, in the form of personal shopping, items, hiring services, etc which shall be chosen at the request of the client, if any, or at the discretion of the Service Provider, which shall be acceptable to the client herein.

ARTICLE 2

NATURE AND SCOPE OF SERVICES/ FACILITY

1. SERVICE PROVIDER agrees to cater to the services/ facility in an expeditious, professional and skilful manner and in accordance with the terms and conditions contained in this Agreement specified in Annexure A to this Agreement, on the fee’s asset out therein. (“Service Charge”).
2. The turnaround time (TAT) to be adhered by the Service Provider for the Services being rendered shall be minimum of 24 hours for proceeding with the request for providing any kind of service.

ARTICLE 3

PROPRIETARY RIGHTS:

1. All right, title, and interest in and to the programs, systems, data, or materials owned by SERVICE PROVIDER or its agents, subcontractors, vendors, prior to the execution of this Agreement and used by SERVICE PROVIDER in the performance of this Agreement shall remain the exclusive property of SERVICE PROVIDER, unless otherwise agreed to between the parties.
2. Nothing herein shall constitute an agreement to transfer or license or to grant any Intellectual Property Rights of either Party to the other Party.

ARTICLE 4

RESPONSIBILITIES AND OBLIGATIONS

1. SERVICE PROVIDER’s Responsibilities-

   SERVICE PROVIDER’s responsibilities will include, but are not limited to, the following:

   1. SERVICE PROVIDER to maintain a log of all the transactions undertaken as contemplated under this Agreement. 
   2. SERVICE PROVIDER shall ensure that its systems are secured in all respects. SERVICE PROVIDER shall further ensure that the data stored in their systems are not shared with any other person/entity. SERVICE PROVIDER shall also ensure that the data of the Client is separately stored with proper partition in their Computer Systems.
   3. SERVICE PROVIDER shall put in place adequate information and data security infrastructure, risk management systems for periodic review and system for prevention and detection of frauds.
   4. Effective Mechanism for redressal of User complaints shall be put in place by SERVICE PROVIDER.
   5. SERVICE PROVIDER shall at all times during the Term of this Agreement, comply with and adhere to all Applicable Law including the law/s applicable to Pre-paid Payments Instruments including the policy guidelines issued by the Reserve Bank of India from time to time.
   6. SERVICE PROVIDER shall at all-time employ adequate and sufficient resources to meet the service needs of Client.
   7. SERVICE PROVIDER confirms that it is aware that the processing/service provided by it are governed by the Information Technology Act, 2000, PCI Guidelines and any other guideline related to transaction processing.

2. CLIENT’S Responsibilities
   1. The Client shall furnish the Client’s Information to the Service Provider as required to perform and provide the Services under the scope of the Agreement to the Client. The Client shall be responsible to provide the accurate and adequate information to the Service Provider.
   2. That the Membership cannot be assigned or transferred to any other person or family member, attorney, beneficiary etc. except with the written permission of the Service Provider and on the terms and conditions as decided by the Service Provider
   3. That the Client shall reimburse the Service Provider in case of any loss of any nature whatsoever caused to the Service Provider, by any act or in action of the client in respect of this engagement. The loss so incurred shall be communicated to the client in writing and the same shall be reimbursed by the client within 15 days of the communication. 
   4. That the client is aware that the Service Provider herein is helping the Client herein to meet its needs. The Client herein shall not hold the Service Provider herein responsible for any loss, delay, harm, injury etc. caused to the client due to the act of Vendors and or third persons.

ARTICLE 5

TERM AND TERMINATION

This Agreement shall commence as of the Effective Date and shall remain in effect until terminated as provided herein.

1. This Agreement shall continue to remain in force for a period of 12 months with effect from 05-06-2021 to 04-06-2021, unless terminated earlier in accordance with the provisions of this Agreement.
2. This Agreement shall be subject to termination in the event of occurrence of following events:
   1. That, Service Provider shall reserve the right to temporarily suspend the access to the Service if it reasonably believe that the Client have violated any provision of the Agreement the Service Provider shall at its sole discretion, be entitled to suspend the availing of the services to Client and shall have the right to terminate the Agreement.
   2. Without prejudice to the foregoing, the Service Provider shall, in its discretion, be entitled to suspend the availing of the Services with immediate effect in the event of any breach of or default under this Agreement being committed by Client.
   3. Upon termination of this Agreement, each party will return to the other any materials owned by such party and upon payment of all outstanding charges, SERVICE PROVIDER shall deliver any work in progress as of the date of termination.

Any termination of this Agreement shall be without prejudice to any rights or obligations of either party arising or existing up to the effective date of such termination.

ARTICLE 6

CONFIDENTIAL INFORMATION

1. Duty of Confidentiality. In connection with the performance of this Agreement, each party may receive information which the other party (the “Furnishing Party”) has identified to the party receiving such information (the “Receiving Party”) as being confidential or proprietary to the Furnishing Party, or otherwise appears from the face of it as not generally available to the public (collectively, the “Confidential Information”). Each party agrees (i) to keep the Confidential Information secured and strictly private and (ii) not to use or disclose the Confidential Information for any purpose, other than the purpose for which it was disclosed, without the prior written consent of the Furnishing Party.
2. Information that is not Confidential Information. For purposes of this Agreement, “Confidential Information” shall not include: (i) information in the public domain at the time that it was provided by the Furnishing Party or subsequently came in to the public domain other than as a result of breach of the confidentiality provisions contained herein; (ii) information obtained from a third party (provided such party was not bound by confidentiality agreements with the Furnishing Party); or (iii) information independently developed by the Receiving Party or in the possession of the Receiving Party prior to its disclosure by the Furnishing Party.
3. Preservation of Confidential Information. The Receiving Party shall disclose Confidential Information only to those of its employees who have a need to know in order to accomplish the purposes of this Agreement. Each party shall use its best efforts to ensure that its employees take such action as shall be necessary or advisable to preserve and protect the confidentiality of Confidential Information.
4. Return of Confidential Information. The Receiving Party shall, at the option of the Furnishing Party, either destroy or return the Confidential Information to the Furnishing Party as soon as possible after completion of the Services or other circumstances for which such Confidential Information was disclosed.

ARTICLE 7

REPRESENTATIONS AND WARRANTIES

1. Each of the Parties represents and warrants to the other as under:
   1. It is duly organized, validly existing and in good standing, under the laws of the jurisdiction of its incorporation;
   2. It has all the requisite power and authority to execute, deliver and perform its obligations under these presents and to comply with the terms and conditions contained herein;
   3. These presents have been validly executed and delivered and constitute a legal, valid and binding obligation of such Party.
   4. The SERVICE PROVIDER warrants and represents that all the Services agreed to be performed and provided under the terms of this Agreement shall be in accordance with the standards and specifications as agreed upon in Annexure A.
   5. The SERVICE PROVIDER warrants that, during the subsistence of this Agreement, the SERVICE PROVIDER shall use its best efforts to attempt to correct documented errors within fifteen (15) business days of notification that the deliverables were not in accordance with the specifications and to restore such Software Application to compliance with the terms of this Agreement. SERVICE PROVIDER shall carry out all such correction efforts and the Client shall provide suitable documentation and support to assist SERVICE PROVIDER in identifying and attempting to provide the corrections.
   6. The Client represents that it has not provided nor shall provide any gift, gratuity, service, or other inducement to any of the Service Provider’s representatives involved in delivering the Services;
   7. All personnel/ employees currently employed by the Service Provider are the employees of the Service Provider. All such personnel/ employees are under the direction, supervision and control of the Service Provider
   8. The Client warrants and represents to provide all materials and details required by the Service Provider’s staff for rendering the Services.
   9. Exclusion of Other Warranties: Except for the warranty set forth above, the SERVICE PROVIDER makes no other warranties, express or implied, of any type or description, including any warranties of merchantability or fitness for any particular purpose with respect to any work, Services or Software Applications, services to be provided or the results, if any, to be obtained from such Software Applications and services.

ARTICLE 8

INDEMNITY

Client expressly and unequivocally agrees to and hereby does indemnify, save, defend and hold harmless, the Service Provider and its officers, directors, employees, shareholders, agents, consultants and other representatives, successors and assigns of, from and against all, direct and indirect, claims, damages, fines, penalties, losses, costs and expenses, including attorneys’ charge incurred by the Service Provider in respect of or in the course of performing its obligations under this Agreement or otherwise incurred as a result of entering into this Agreement including without limitation in the following cases:

1. Client’s breach of any representation and warranty made/ undertaken by it under this Agreement;
2. Client’s breach of Applicable Law;
3. Client’s willful misconduct or gross negligence in connection with the Agreement effected;
4. As a result of faulty, inaccurate or unauthorized information having been provided to the Service Provider by the Client and/or vendors;
5. Bodily injuries (including death, no matter when death occurs) or damages to real or tangible property that are caused by, arise out of, are connected with or result from the negligence or willful misconduct of Client or it’s personnel in connection with the performance of the Services by Service Provider hereunder;
6. Breach of any confidential information due to negligence or willful misconduct of Client or it’s personnel in connection with the performance of the Services by Client hereunder; and/or
7. Breach of security due to negligence or willful misconduct of Client or it’s personnel in connection with the performance of the Services by Client hereunder.

ARTICLE 9

LIMITATION OF LIABILITY

1. In no event shall either party be liable to the other for any indirect, special or consequential damages, including without limitation, loss of business or lost profits in connection with or arising out of this Agreement, even in the event that it is advised of the possibility that such damages may arise, occur or result.
2. Service Provider’s aggregate liability arising under or related to this Agreement hereto, whether from negligence, misrepresentation, breach of contract or otherwise, shall not exceed the charge paid by Client to Service Provider under which such claim for direct damages arose.
3. Client shall remain liable for all claims, damages, losses suffered by Service Provider, arising out of or related to this Agreement or any hereto including but not limited to liability arising due to i) breach of confidentiality, ii) breach of any intellectual property rights, iii) willful misconduct or gross negligence and iv) damages resulting from personal injury or death.

ARTICLE 10

ASSIGNMENT

1. The Service Provider has the right to delegate and assign all or any part of its rights and/or obligations under this Agreement to the vendors without any written authorisation of the Client.
2. The Vendor may further assign its right and responsibilities of the Service Provider mentioned in the Agreement to the Sub-Contractors.
3. The Service Provider is the aggregator of the services and shall not be responsible for any damage, loss, claims, deficiency, etc made by Sub-Contractor.

ARTICLE 11

PAYMENT

1. That the payment terms are mentioned in Annexure A. That the same shall not be negotiated and payment terms shall not be altered. That the entire payment of the facility/service to be undertaken, shall be made upfront by the client, upon demand by the Service provider. That the payment shall be inclusive of the Service charges/ charge of the Service provider who shall be coordinating with the concerned Vendors.
2. Lafayette Luxury Concierge reserves the right to produce Night Surcharge for the services rendered by the customer post 2200hrs. This additional charge will amount to INR 2000 per request.

ARTICLE 12

CANCELLATION AND REFUND

1. That if the client desires to cancel any of the services of the Service Provider, requested by the client, the client shall inform the Service Provider, in writing requesting for such cancellation. 
2. That the Service Provider shall convey and confirm the same after confirmation from the Vendor and or the concerned person. 
3. That the refund of the amount paid shall be as per the terms and conditions and the policies of the concerned Vendor and or the concerned person, the time period of the cancellation, etc which shall be conveyed to the Client and will generally be between 7 to 10 working days post approval.
4. Subject to the actual expenses incurred by the Service Provider, which shall be reimbursed by the Client, there shall be no cancellation charges taken by the Service Provider herein.
5. If any of the services are ordered for, and not cancelled, the same shall be deemed to be used by the client. 
6. Service Charge will not be refunded.

ARTICLE 13

MISCELLANEOUS

1. Force Majeure. Service Provider shall make all its best efforts to provide the services but in no case it shall be liable for its failure to perform as a result of any event of force majeure events like acts of god, fire, wars, sabotage, civil unrest, labour unrest, action of Statutory Authorities or local or Central Governments, change in Laws, Rules and Regulations, affecting the performance of Service Provider
2. The Client agrees to the Agreement voluntarily and that there has not been any coercion or any type of force or instigation.
3. This Agreement constitute the entire agreement between the Parties and supersedes all previous agreements and understandings, whether oral or written, between the Parties with respect to the Subject Matter.
4. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by an authorised representative of Party against which it is sought to be enforced.
5. Neither this Agreement nor any provision hereof is intended to confer any rights or remedies onto any third parties who are alien to this Agreement.
6. You may be required to accept separate terms of use of Linked Service Providers who shall be providing services through the Website. At no time shall Service Provider be held liable for deficiency of service by such Linked Service Providers and your remedy against such Linked Service Providers shall be subject to the terms of use/EULA accepted with them.
7. Unless otherwise provided herein, all notices or other communications under or in connection with the Services shall be given in writing and may be sent by email to [email protected] , personal delivery or post. Any such notice or other communication will be deemed to be effective if sent by personal delivery, when delivered and if sent by post, two days after being deposited in the post.
8. The laws of India shall govern this Agreement. The Courts of Pune shall have exclusive jurisdiction in respect of matters arising out of or relating to this Agreement.
9. This Agreement shall not be amended or supplemented, in whole or in part, except by an instrument in writing duly executed by authorized officers of each of the parties hereto.
10. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated unless to so continue the Agreement would unjustly prejudice the parties hereto.
11. At the first instance, the parties will attempt to promptly and mutually resolve any dispute or controversy arising out of or relating to the formation performance or termination of this Agreement. If the parties are unable to reach a settlement amicably, such dispute will be submitted to binding arbitration before a Sole arbitrator to be appointed mutually by both the parties and venue of arbitration will be at Pune, Maharashtra, in accordance with the Arbitration and conciliation Act, 1996 and rules then in effect and the language of Arbitration shall be English. 
12. The remedies herein reserved shall be cumulative, and in addition to any other remedies provided at law or equity. Any failure by a party to enforce or insist upon strict compliance with any provision of this Agreement shall not be deemed to constitute a waiver of rights to demand strict compliance with the terms hereof. No waiver of any term or condition of this Agreement shall be deemed or construed to be a waiver of any subsequent such term or condition in the future.
13. Service Provider shall have the right to transfer and assign any of its rights and obligations under this Agreement to any parent, subsidiary or group company provided express written intimation is provided in advance to the Client. 
14. Injunctive Relief: The Client and SERVICE PROVIDER, including any consultants/subcontractors for the Client and SERVICE PROVIDER, also acknowledge that any breach of this Agreement, would cause both parties irreparable damage for which any remedies at law would be inadequate and that both parties shall have the right to obtain, in addition to all other remedies, such injunctive and other equitable relief from a court of competent jurisdiction to prevent or correct any violation of this Agreement.
15. Lafayette Luxury Concierge reserves the right to deny any service requested by the member in case it is deemed unethical or illegal in the requested region.