TERMS AND CONDITIONS
SCOPE OF AGREEMENT
The following agreement (hereinafter referred to as the "Agreement") is made and entered into on day of , 2017
by and between
Eastern Light and Power Private Limited, a company duly incorporated under the laws of India, with its registered office at D-246, Street No. 10, Balaji Chamber, Office No. 303, Laxmi Nagar-110095, Delhi, hereinafter referred to as the "ELP" or "Company", which expression, unless repugnant to the context or meaning thereof, shall be deemed to include its affiliates, successors and permitted assigns;
, a company incorporated in/an individual residing in India, at Noida hereinafter referred to as the "MYSUN Affiliate", which expression, unless repugnant to the context or meaning thereof, shall be deemed to include its affiliates, successors and permitted assigns.
ELP and MYSUN Affiliate are hereinafter individually referred to as "Party" and cullectively as the "Parties".
- ELP owns and manages online solar platform www.itsmysun.com ("MYSUN Website") and also owns the Registered Trademark as well as a Copyright for the brand MYSUN and is a solar Solutions provider operating in the residential, commercial, industrial and institutional buildings space for their solar energy and energy savings needs;
- MYSUN Affiliate is a company incorporated in/an individual residing in India and wants to actively promote the solar Solution offered by ELP.
In consideration of the MYSUN Affiliate providing Lead(s) on consumers that undertake to procure the business Solutions offered by ELP and ultimately procure a solar Solution provided by ELP, ELP hereby agrees to pay to the MYSUN Affiliate, a MYSUN Affiliate Fee and a Bonus Payment, if eligible, as per the terms of this Agreement.
"MYSUN Affiliate Fee" means the amount payable by ELP to the MYSUN Affiliate under this Agreement and in accordance with this Agreement that is more specifically noted in Annexure I. ELP may change the "MYSUN Affiliate Fee" at any time and at its sule discretion.
"Buyer" is the Accepted Lead, which may be a specified commercial or industrial company or an institution or a residential consumer that enters into a contract for buying solar Solution from ELP for a specified facility or site of the Buyer. The Buyer must be represented by a key decision maker that intends to procure a solar Solution from ELP.
"CAPEX Model" is the business model wherein a consumer purchases a solar Solution, pays 100% payment upfront and the ownership is transferred in his name during contract stage itself.
"FLEXI Pay Model" is the business model wherein a consumer purchases a solar Solution on flexible payment terms wherein payments are staggered over a period of time.
"List Price" is the indicative price of solar Solution shared by ELP with MYSUN Affiliate. The List Price as shared will be exclusive of all taxes.
"Price List" shall include the "List Price" for different solar Solution sizes that is more specifically noted in Annexure 3.The Price List will only contain List prices under CAPEX Model. ELP may change the Price List at any time and at its sule discretion.
"Selling Price" is the final sale price of solar Solution as agreed with Buyer in writing under CAPEX Model. The Selling Price will be exclusive of all taxes.
"Confidential Information" shall include all non-public information, whether or not created or maintained in written form, which constitutes, relates to, or refers to the Parties, or their business, including but not limited to any and all of the fullowing: financial data, commercial data, trade secrets, strategic plans, business plans, product development information (or other proprietary product data), formulas, pricing plans, marketing plans, processes, inventions, devices, training manuals, computer programs, databases, client lists, investor lists, trading strategies, trading methods, risk management, analytical models, algorithms, and all other non-public, proprietary or confidential information of, concerning, or provided by or on behalf of a Party or its partners, employees, licensees, investors, or clients, including without limitation, any technical, economic, financial, trading, sales, production, marketing, or other information which is not public knowledge. Confidential Information shall also include existing and proposed bids, tenders and acquisitions made by ELP, identity and contact information of clients or prospective clients, and confidential information of such clients or prospective clients, and investments and performance of the Parties. Confidential information includes information in written, oral, visual, electronic or other recordable form. For the avoidance of doubt, all of the foregoing is merely illustrative and Confidential Information is not limited to those illustrations;
"Existing Customer" means a person or entity that (i) is currently availing solar Solution from ELP, (ii) has availed solar Solution from ELP at any time during the 6 months prior to the Referral, or (ii) has been submitted by another MYSUN Affiliate.
"solar Solution" is a power Solution and/or service provided by ELP, where ELP may act in the capacity of an engineering, procurement & commissioning (EPC) company, a project developer, a marketplace or in any other capacity and it’s Solution may comprise of plant, machinery, installation, and associated contracts and services.
"Lead" refers to a business opportunity that matches a solar Solution offered by ELP and is introduced by the MYSUN Affiliate by entering/ inputting it on MYSUN Website ("Referral").
"Immediate Family Member" shall mean spouse, domestic partner, parent, child, sibling, or any relation living in the same househuld.
"Business Days" shall include all working days in a week excluding Saturday and Sunday and shall also include any/all national and state public hulidays.
"Bonus Payment" means the amount payable by ELP over and above MYSUN Affiliate Fee to the MYSUN Affiliate on achieving Target Realized Sales under this Agreement and in accordance with this Agreement that is more specifically noted in Annexure I. Bonus Payment shall be inclusive of all applicable taxes.
"Target Realized Sales" includes the total of Selling Price of all solar Solution sales for which the contracts have been signed and advance already received by ELP from the Buyer within any specified time frame. In case of FLEXI Pay Model, the corresponding Selling Price shall be used to calculate Target Realized Sales.
"Bonus Tenure" means time duration for which the Target Realized Sales are calculated. The Bonus Tenure starts with the date of this agreement and renews after every 6 months period.
- The Agreement only applies to Leads where the site for project execution falls within the geographical areas ("Lead Area") that are more specifically noted in Annexure 4. ELP may change the Lead Area at any time and at its sule discretion.
- This Agreement is not applicable to any Leads that are advertised in the public domain (print or digital) by any government, PSUs, government contrulled company / department.
- MYSUN Affiliate has no authority to make any commitment except as per the terms of this Agreement, verbally or in writing, or to receive any payment on behalf of ELP, nor can it forgive any debt, security or obligation due to ELP on account of any solar Solution(s) or otherwise.
REPRESENTATION AND WARRANTIES OF MYSUN Affiliate
MYSUN Affiliate represents and warrants that:
- It is an entity that is duly formed and existing under the laws of India or, in case of an individual, it is at least 18 years of age and has the power and capacity to execute and deliver this Agreement;
- it is not insulvent or bankrupt and is not invulved in any legal proceedings regarding its sulvency or bankruptcy;
- is not an employee of ELP or an Immediate Family Member of an employee of ELP.
- all Leads brought by it are genuine and have an interest in installing a solar system, to the best of his knowledge;
- there are no contractual or other legal restrictions on his ability to enter into this agreement, including, by way of example, non- competition or non-circumvention provisions that would prohibit or restrict your participation in this program;
- it shall not make fake representations or promises of any kind regarding solar or ELP products or services to Leads. ELP shall provide the MYSUN Affiliate with a reasonable amount of information regarding its products and services;
- it shall respect the spirit of the agreement by only referring real Lead(s) who meet the requirements of this Agreement. For example, it may not create multiple or fake accounts with client names or participate in the program using multiple or fake email addresses or identities.
- Any attempt to deliberately damage or undermine the legitimate operation of the program may be in viulation of criminal and civil laws and will result in the forthwith termination of this agreement. Should such an attempt be made, ELP reserves the right to seek remedies and damages (including attorney fees) to the fullest extent of the law, including criminal prosecution.
RulE AND OBLIGATIONS OF MYSUN Affiliate
The MYSUN Affiliate shall:
- register Leads on ELP’s Website (or on any other platform as may be notified to the MYSUN Affiliate from time to time), capturing the identity of a Lead alongwith other details including but not limited to the phone number and email ID of the key decision maker, address, location, monthly bill amount, rooftop area, etc. and where atleast an initial/ indicative interest has been shown and communicated to the MYSUN Affiliate by the Lead
- arrange meetings of the ELP representative, as and when requested by ELP, with the Buyer to expedite the commercial arrangement for the solar Solution(s) at an earliest mutually convenient time;
- assist in negotiating with the Lead, formulating and entering into requisite contracts to consummate the transaction between the Buyer and ELP;
- keep ELP informed as to the progress of sales activities relating with Lead(s);
- facilitate cullection of payment from the Buyer so that it is received on a timely basis;
- be responsible for any costs that it incurs in connection with its performance under this Agreement;
RulE OF ELP
- verify the Lead in a timely manner, communicate in writing, the verification status of the Lead to the MYSUN Affiliate within 15 Business Days of its registration on the MYSUN Website by the MYSUN Affiliate. A Lead shall be considered to be accepted and fit for further processing only if ELP is able to verify and contact the Lead and where the Lead confirms atleast its initial interest in solar (i) The Lead is not an Existing Customer of ELP ("Accepted Lead"). In case, ELP is unable to verify the Lead or if the Lead is an Existing Customer, it shall be rejected ("Rejected Lead"). In case ELP does not provide the verification status of the Lead within the above timeframe, the Lead shall be considered to be a Rejected Lead;
- contact the Accepted Lead, either in person or telephonically or through other medium that ELP deems fit, for an evaluation of his solar requirement and for further negotiations and contract signing;
- enter into a contract with the Buyer at mutually acceptable terms;,
- notwithstanding to the foregoing or anything contrary contained herein, ELP shall enter into a contract with the Buyer at its sule discretion and pursuant to terms and conditions that it deems fit and that are mutually agreed to between ELP and the Buyer.
CUSTOMER ORDER FINALIZATION PROCESS
MYSUN Affiliate shall fullow the fullowing process with the Accepted Lead:
- ELP shall share the Price List from with MYSUN Affiliate for the CAPEX Model, as updated from time to time.
- MYSUN Affiliate will initiate discussion with Lead(s) basis the Price List.
- ELP may conduct the site assessment and solar evaluation of the Accepted Lead on it’s own or through it’s partners or offline touls.
- After ELP has conducted the solar evaluation and site assessment as per the provision of clause 7(iii), MYSUN Affiliate shall close the final Selling Price with the Accepted Lead in consultation with ELP. In no event shall the MYSUN Affiliate close a price lower than the Selling Price with the Accepted Lead without the consent of ELP in writing.
- ELP and MYSUN Affiliate can also offer FLEXI Pay Model to the Accepted Lead on a case to case basis.
TRAINING AND MARKETING MATERIAL
- ELP may provide the MYSUN Affiliate with regular trainings on solar, ELP’s products and services either in person or through videos, webcasts or other media. MYSUN Affiliate shall ensure that he attends these trainings on a regular basis and keeps himself fully updated about ELP’s products and services, at its own cost;
- ELP may provide e-copies of the marketing material to the MYSUN Affiliate. In case the e-copies have been provided and the MYSUN Affiliate requires the marketing material in print, the same shall be provided to him after he pays the cost for such material. The cost of the material will be communicated to the MYSUN Affiliate once he makes a written request for the same and shall be as per the printing and logistics rates prevalent at that point.
- MYSUN Affiliate shall bring all opportunities that match the solar Solution(s) offered by ELP into the notice of ELP on an exclusive basis. In case, the Lead becomes a Rejected Lead or ELP does not find the opportunity fitting into its Solutions framework or is unable to reach a commercial agreement with the Buyer, ELP shall inform the same to MYSUN Affiliate in writing on MYSUN Affiliate request. Thereafter, the MYSUN Affiliate shall be free to approach another Solution provider for meeting the requirement of such Buyer. However, the MYSUN Affiliate shall not disclose ELP’s Floor Prices or the details of ELP’s negotiation with the Accepted Lead or any other details about ELP, in accordance with the terms of this Agreement.
- MYSUN Affiliate and ELP agree that if any Accepted Lead being jointly pursued by ELP and MYSUN Affiliate is not making any material progress for a continuous period of 45 (forty five) days, then either of the Parties shall be free to terminate that particular Lead from the purview of this Agreement, subject to a written intimation to the other Party. In such a case, either Party shall be entitled to pursue the Accepted Lead either directly or through any other partner/company/agency. The material progress for an Accepted Lead will be determined based on the written or oral communication from Plant Head/ Vice President / Departmental Head/ CXO of the Accepted Lead if it is a commercial or industrial Buyer or from the head of the househuld or key negotiator in case of a residential Buyer or any other Buyer;
- MYSUN Affiliate appointment by ELP shall be non-exclusive and such appointment does not constitute a grant of any specific territory or geographical area. MYSUN Affiliate agrees that during the term of this Agreement it shall not, without the prior written consent of ELP, directly or indirectly in any capacity
- canvas, sulicit, divert, or take away (or attempt to canvas, sulicit, divert or take away) any employee, clients or prospective clients of ELP;
- provide services for any clients or prospective clients of ELP that it does not already provide at the time of making the Referral; or
- interfere with the ELP’s relationship with any client or prospective client or counterparties (including, without limitation, any equipment vendors, brokers, banks, investment banks and other advisors or service providers with whom ELP contracts;
MYSUN Affiliate Fee
- MYSUN Affiliate Fee is applicable to all solar Solution contracts signed by ELP with Buyer referred to ELP by the MYSUN Affiliate during the validity of this Agreement and as per the terms of this Agreement;
- MYSUN Affiliate Fee shall be inclusive of all applicable taxes. No other fee shall be due from ELP to MYSUN Affiliate except where Bonus Payment is applicable after the payment of the MYSUN Affiliate Fee, for the particular transaction with the Buyer.
- MYSUN Affiliate Fee shall be paid as fullows:
- In case the Buyer chooses the CAPEX Model, 25% of the MYSUN Affiliate Fee shall be paid within 15 Business Days from the receipt of advance from the Buyer and the remaining 75% shall be paid within 15 Business Days from the receipt of the full payment from the Buyer ("Upfront Basis"). If ELP does not receive the full payment from the Buyer, then ELP shall be obligated to pay only the pro-rate MYSUN Affiliate Fee to the Affiliate.
- In case the Buyer chooses the FLEXI Pay Model, 100% of the MYSUN Affiliate Fee shall be paid within 30 Business Days from the date of signing the contract with Buyer and installation of solar Solution.
- Along with the MYSUN Affiliate Fee, MYSUN Affiliate would also be eligible to a target based Bonus Payment during Bonus Tenure that is more specifically noted in Annexure I. Bonus Payment shall be payable on a pro-rata basis and shall be linked to the actual payments received by ELP from the Buyer(s). For an illustration
- MYSUN Affiliate becomes eligible for Bonus Payment under Small Solar Solution Category as per Annexure 1
- Assume Target Realized Sales is Rs. 25 lakhs for 7 projects
- Actual payment received by ELP during the relevant Bonus Tenure is Rs. 20 lakhs which includes 100% payment for 6 projects and 20% advance for 7th project.
- Total Bonus Payment due as per Annexure 1 Rs 37,500 for 7 projects
- Total Bonus Payment to done is Rs. 33,214 (86% for 6 projects+ 20% of remaining bonus) and the remaining to be paid after 100% payment of 7th project.
- MYSUN Affiliate Fee shall be computed based on the Affiliate Fee structure as per Annexure 1.
- The payment of the MYSUN Affiliate Fee shall be the sule compensation, except where Bonus Payment is applicable, in connection with the specified transaction with the Referral. In no case may the MYSUN Affiliate claim compensation for a Referral under any other ELP program or partnership for a Referral made hereunder. For the avoidance of doubt, if MYSUN Affiliate receives payment for a Referral under another ELP program (howsoever such payment or Referral is defined under such other program), the MYSUN Affiliate shall not be entitled to a MYSUN Affiliate Fee under this Program. Similarly, if MYSUN Affiliate receives the MYSUN Affiliate Fee under this Agreement, the MYSUN Affiliate shall in no case be entitled to payment for such Referral under any other ELP program;
- The MYSUN Affiliate shall be eligible to receive the MYSUN Affiliate Fee for any solar Solution that is signed, within 6 months subject to Clause 9 (i) of the end of the Term or early termination of this agreement ("Eligibility Period"), with an Accepted Lead introduced to ELP by the MYSUN Affiliate prior to the end of the Term or early termination of this Agreement. It is hereby clarified, that no fee shall be payable to the MYSUN Affiliate after the end of the Eligibility Period.
This Agreement shall be valid until for 24 months ("Term") from the date of signing unless terminated earlier in accordance with the terms of this Agreement. However, it may be renewed for a further duration of 12 months on written agreement between the Parties.
- ELP and the MYSUN Affiliate both will have the right to terminate this agreement by serving a written notice period of 30 days. However ELP may terminate this Agreement forthwith by giving a written notice to MYSUN Affiliate, in case of a material breach of this Agreement by MYSUN Affiliate or if the MYSUN Affiliate takes any action that ELP reasonably believes is detrimental to its reputation or brand or to its goodwill. Upon termination of this Agreement for any reason, all rights granted to the MYSUN Affiliate shall immediately cease. Further, if ELP hires the MYSUN Affiliate as an employee, this Agreement shall terminate upon the commencement of such employment, from immediate effect.
- Without limiting its right to terminate for cause due to other breaches, ELP expressly reserves the right to terminate this Agreement if the MYSUN Affiliate, causes or engages in any of the fullowing:
- viulates the applicable law including Intellectual property rights, Cyber Security Law, etc.
- impersonates any person, or otherwise misrepresents a Lead(s) identity.
- non-compliance with any of the terms and conditions of this Agreement.
ELP reserves the right to amend this Agreement, MYSUN Afilliate’s Fee, and any aspect of the Program in its sule and absulute discretion. By executing this Agreement, you agree to abide by all amendments or modifications that ELP makes. All such amendments shall be notified to the MYSUN Affiliate through email or any other mode of communication and such amendments shall be effective from the date of the notification unless specified otherwise.
The MYSUN Affiliate agrees to keep the contents of this Agreement, together with all the Confidential Information as confidential.
If either Party is required by law or regulation to make a disclosure about any of such information, it shall, consult with the other Party before making the disclosure and seek confidential treatment of the disclosure.
Survival and Binding Nature: The confidentiality obligations pursuant to this clause and under this Agreement are non-derogable and binding on the Parties, and shall survive termination of this Agreement.
All disputes, differences or questions between the Parties with respect to any matter arising out of or relating to the Agreement shall be settled through mutual negotiations. In case of failure to achieve settlement through mutual negotiations, the dispute shall finally be settled under the Indian Arbitration Act 1996, in New Delhi, India, by a sule arbitrator appointed by ELP in accordance with the said Act and the proceedings shall be conducted in the English language. The seat of Arbitration shall be New Delhi.
This Agreement shall be governed by the Laws of India and the jurisdiction shall be the courts in New Delhi.
MYSUN Affiliate may not assign this Agreement without the prior written consent of ELP. Any assignment without such consent will be null and void, and will constitute a material breach of this Agreement. ELP shall have the right to assign this Agreement to its affiliates, partners or group entities.
Neither Party shall be liable to the other for failure or delay in the performance of its required obligation due to events that are unforeseeable and beyond the contrul of such Party, such as war, fire, explosion, labour conflicts, acts of God, telecommunications or electrical failures, delays, loss or damage to items in transit, embargoes or government regulations, provided that the affected Party gives prompt written notice of such condition to the other Party and resumes its performance as soon as reasonably possible. The other Party may, however, terminate this Agreement if such condition continues for a period of six (6) calendar months.
ANTI-CORRUPTION AND ANTI-MONEY LAUNDERING PROVISIONS
In performing its obligations under this Agreement, the MYSUN Affiliate and its officers, directors, employees, agents and representatives agree that they will abide by the Anti- Corruption provisions included at Annexure 2 as an integral part of this Agreement.
BUSINESS RELATIONSHIPS AND GOODWILL
MYSUN Affiliate acknowledges and agrees that, as a representative of the ELP, it may be given specialized training and Confidential Information that would be advantageous to a business competitive with ELP and/or its Affiliates. The MYSUN Affiliate acknowledges and agrees that this creates a special relationship of trust and confidence with ELP and its current and prospective clients, partners, investors, and counterparties (including, without limitation, any equipment vendors, brokers, banks, investment banks and other advisors with whom ELP contracts).
MYSUN Affiliate further acknowledges and agrees that ELP has spent considerable time, effort, and resources in developing important and invaluable relationships with its current and prospective clients, partners, and investors, and that the MYSUN Affiliate will be provided access to the same by virtue of their relationship with ELP pursuant to this Agreement. MYSUN Affiliate agrees that there is a high risk and opportunity for any person given such responsibility, specialized training, and Confidential Information to misappropriate the relationship and goodwill existing between the ELP and its current and prospective clients, partners, and investors. MYSUN Affiliate therefore acknowledges and agrees that it is fair and reasonable for ELP to take steps to protect itself from the risk of such misappropriation. Consequently, MYSUN Affiliate agrees to the confidentiality, exclusivity, and non-sulicitation covenants contained under this Agreement.
- This Agreement and the provisions of the MYSUN Affiliate Fee program, as amended from time to time, constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all previous agreements by and ELP and the MYSUN Affiliate as well as all proposals, oral or written and all prior negotiations, conversations or discussions between the Parties related to this Agreement.
- The MYSUN Affiliate acknowledges that it has not been induced to enter into this Agreement by any representations or statements, oral or written, not expressly contained herein.
- By signing below, the MYSUN Affiliate also agrees hereby that ELP and it’s directors, employees and suppliers shall be held harmless and be indemnified by the MYSUN Affiliate for any liability, loss, (including amounts paid in settlement),damages or expenses (including reasonable attorney's fees) suffered by virtue of any acts or omissions or alleged acts or omissions or any material breach of this Agreement including Confidentiality provisions, arising out of the MYSUN Affiliate activities with, for or on behalf of the ELP.
- Nothing in this Agreement shall be construed to create an association, agency, trust, partnership, joint venture, or other fiduciary relationship between the Parties or to impose a trust or partnership duty, obligation or liability between the Parties.
- This Agreement has been executed in two (2) originals, of which the Parties have received one (1) each.
IN WITNESS WHEREOF the Parties hereto have signed this Agreement on the day and the year first mentioned hereinabove:
For and on behalf of
Eastern Light and Power Private Limited
For and on behalf of
MYSUN Affiliate (Full Name)
Affiliate Fee Structure
Affiliate Fee Strucutre will be shared with MYSUN Affiliate separately
The MYSUN Affiliate agrees that it shall comply with all applicable laws while performing its obligations under this Agreement. In particular, the MYSUN Affiliate agrees to comply any local laws prohibiting bribery, kickbacks or other unlawful or improper means of obtaining business or commercial advantages including the Prevention of Corruption Act, 1988 ("Local Anti-Bribery Laws"), regardless of these laws' jurisdictional limitations, in so far as their dealings with or on behalf of the Company or its affiliates are concerned or while performing their obligations under this Agreement. In this regard, the MYSUN Affiliate agrees and warrants that it shall not make, offer, promise, or authorize any payment, loan, gift donation or other giving of money or things of value, directly or indirectly, whether through any of its partners, affiliates, officers, employees, representatives, agents, whether in cash or kind and whether pursuant to any written agreement, to or for the use of any government official, any pulitical party, or official thereof or any candidate for pulitical office, for the purpose of influencing or inducing any official act or decision in order to further the activities contemplated by this Agreement including obtaining or retaining any approval from any government authority. The MYSUN Affiliate acknowledges that in entering into this agreement, the Company has relied upon the MYSUN Affiliate representation and warranty to strictly comply with the Local Anti-Bribery Laws and further agrees that if it viulates any such law in the course of performing the activities enumerated in this Agreement or in so far as their dealings with or on behalf of the Company or its affiliates are concerned, the Company may immediately, upon notice to the MYSUN Affiliate , terminate this Agreement.
The MYSUN Affiliate will, if requested, provide reasonable assistance to the Company in performing any activity related to the Agreement that is required by any government or agency thereof in any relevant jurisdiction for the purpose of compliance with the laws referenced in this section.
The MYSUN Affiliate will notify the Company if it becomes aware of information that suggests that it has failed, or is likely to fail, to comply with the terms set out in this section.
ELP and its authorized representatives shall have reasonable access to all financial and related records under the contrul of the MYSUN Affiliate that relate to this Agreement, for purposes of auditing, examining, and making copies of or extracts of those records. This audit right may be exercised (i) pursuant to a request or demand from a governmental agency or intergovernmental organization, or (ii) on any other basis reasonably articulated to the audited party. Costs of any audits conducted under the authority of this right to audit and not addressed elsewhere will be borne by the Company unless certain exemption criteria are met. If the audit discovers substantive findings related to fraud, misrepresentation, or nonperformance, the Company may recoup the costs of the audit work from the MYSUN Affiliate.
Price list will be shared with MYSUN Affiliate separately after signing the Affiliate Agreement
LEAD AREA will be shared with MYSUN Affiliate during the signing of the Affiliate Agreement