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MASTER RENT FACILITY AGREEMENT

This Master Rent Facility Agreement ("Agreement") is executed in Bengaluru on the date mentioned in the Schedule Of Equipement (SOE)

BETWEEN:

BENPLAT DIGITAL PRIVATE LIMITED, a company incorporated under Companies Act, 2013, and having its registered office at Gp1, 205, Green Park Regency 42/5, Near Amrutha, Bangalore South, Karnataka, India,560035 (“Swish”, which expression shall unless repugnant to the context or meaning thereof, include its successors and permitted assigns);

AND

a company incorporated under the Companies Act 1956 or 2013 and having its registered office at as listed in SOE (“Renter” which expression shall unless repugnant to the context or meaning thereof, include its successors and permitted assigns).

The term Swish and Renter are collectively called as the “Parties” and individually called as the “Party”.

WHEREAS

Swish is engaged in the business of providing a full-stack digital platform for running a 'device as a service' program for enterprises of all sizes.

The Renter is in the business of [insert business description of the Renter].

The Renter is desirous of taking on rent one or more Equipment (as defined below) for its own use, and pursuant to the request of the Renter, Swish has agreed to grant the Equipment on rent to the Renter on the terms and conditions contained hereinafter.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS, AGREEMENTS, REPRESENTATIONS, WARRANTIES SET FORTH IN THIS AGREEMENT, THE PARTIES HEREBY AGREE AS FOLLOWS:

DEFINITIONS

In this Agreement, the following words and expressions shall have the following meanings and all capitalized words not defined in this Clause 1.1, shall have the meanings assigned to them in the other parts of this Agreement when defined for use in bold letters and enclosed within quotes (""):

  1. “Affiliate” shall mean and include a person which / who Controls or, is Controlled by or, is under the common Control of any other person; where “Control” means the possession or ownership by a person or a group of persons acting in concert, directly or indirectly, of more than 50% (Fifty per cent) of the voting securities of another person, or the power to appoint majority of the board of directors, or the power to direct or cause the direction of the management and policies of another person, whether through the board of directors or ownership of voting rights in such other person, by contract or otherwise. The terms “Controls” and “Controlled” shall be construed accordingly.

  2. “Applicable Law” means any statute, law, regulation, ordinance, rule, judgment, order, decree, by-law, clearance, directive, guideline, policy, requirement, or any governmental, legislative or judicial restriction or any similar form of decision of, or determination by, or any interpretation or administration having the force of law of any of the foregoing, by any government authority having jurisdiction over the matter in question, whether in effect as of the Execution Date or thereafter.

  3. “Confidential Information” means any and all information, whether conveyed in writing or orally or in any other form, irrespective whether such information is marked as “confidential”, and include without limitation: (a) terms of this Agreement; (b) any data or information concerning any Party’s business, business plans and methods; (c) Intellectual Property Rights (whether registered or not), trade secrets, technical and business know-how, technology, software, codes, data sets, data base, techniques, forms, and other proprietary and price-sensitive information, whether stored electronically or otherwise; (d) the commercial brands of each Party; (e) any financial information, marketing and distribution material, strategy and concept notes, transactions of any Party, any disclosure, details of existing and prospective customers/suppliers/business partners/contracting parties/vendors, cost estimates, budgets, projections, forecasts belonging to either Party; (f) any information, whatsoever concerning or relating to any dispute or claims or settlements arising out of or in connection with this Agreement, or the resolution of such dispute or claims or settlement; and (g) any information or materials, in any form, prepared by or for a Party, that contain or otherwise reflect, or are generated from, Confidential Information.

  4. “Equipment” means all such articles, including but not limited to PCs, laptops, tablets, smartphones, servers, monitors, mobile accessories and IT accessories, to be provided on Rent to the Renter by Swish, as more particularly described in the Schedule of Equipment.

  5. “Force Majeure Event” means any act beyond the reasonable control of a Party and shall include natural calamities, terrorism, civil strife or acts of God but does not include economic hardship, changes in market conditions, or insufficiency of funds.

  6. “Intellectual Property Rights” includes all rights in and in relation to all intellectual property rights of all nature, including patents, patents applications, trade names, service marks, service names, brand names, copyrights, logos, programs (including source code), authorship rights in any content, notes​,​​ ​documents​,​​ ​digital content​,​ anonymised and/or aggregated data sets, design, geographical indication, software and its codes, technology, algorithms, goodwill, brand value, data sets, data base, methods, processes, know-how, trade secrets, findings, patentable or copyrightable concepts, any other proprietary information, including any customizations, improvements, and updates made on such Intellectual Property Right, whether registered or not and including applications to register or rights to apply for registration, in each case anywhere in the world.

  7. “Late Payment Charges” means the applicable late payment charges payable on Rent Fee post the applicable due date, and as may be specified in the Equipment Schedule.

  8. “Rent” means the granting of right to use the Equipment to the Renter during the Term excluding right to sell, alienate, transfer, charge, hypothecate or otherwise encumber the Equipment.

  9. “Rental” means the consideration payable by the Renter, during the Term, by way of Rent for the use of the Equipment during the Term.

  10. “Schedule of Equipment or Equipment Schedule” means a document to be executed by Swish and the Renter at the commencement of each rental, which shall serve as the formal record of acceptance of the Equipment by the Renter. The Schedule of Equipment shall set out a detailed description of the Equipment being rented, the rental period, and any additional terms and conditions applicable to the rent and use of the Equipment. Each Schedule of Equipment shall form an integral part of this Agreement.

  11. “Taxes” shall mean all present or future taxes, levies, duties, rates, deductions, charges, stamps, fines, penalties, interest and withholdings whatsoever imposed by the Central or State Government or any local authority for the time being in force.

  12. “Term” means the period calculated from the date of actual delivery of the Equipment, as specified in the Equipment Schedule, and shall include any Renewal Term(s) as applicable under Clause 16.3.

  13. “Renewal Term” means each automatic three-month extension of the Term on identical terms and conditions (including Rental and payment schedule) unless either Party gives at least sixty (60) days’ prior written notice of non-renewal as set out in Clauses 16.2 and16.3.

TERMS OF RENT


  1. Upon receipt of an order from the Renter, Swish shall evaluate the same and if found in order may, solely at its own discretion, consider providing it on Rent to the Renter on the terms and conditions contained herein.
  2. If Swish determines to provide the Equipment on Rent to the Renter then, Swish shall Rent to Renter all of the Equipment and other tangible personal property described in each relevant Schedule of Equipment setting out the terms and conditions of the Rent that are executed from time to time by Swish and the Renter pursuant to this Agreement.
  3. The Parties hereby agree and acknowledge that, during the Term the Equipment shall at all times remain the property of Swish. Subject to the compliance with the obligations under these presents, the Renter shall have the right to have exclusive peaceful possession, operation and use of the Equipment during the Term. Notwithstanding anything to the contrary, the Renter shall not transfer the ownership of the Equipment and/or transfer any rights thereto to any third party or encumber or create any third-party rights in the Equipment.
  4. Except where Swish has expressly agreed in writing to arrange delivery of specific Equipment (such as, but not limited to, certain smartphones with a twelve-month term), the Renter shall be solely responsible for arranging and bearing all costs associated with the collection and delivery of the Equipment from the location specified by Swish. The Renter shall ensure that the Equipment is collected and delivered in accordance with any instructions provided by Swish and within any timelines agreed between the Parties. Where Swish has expressly agreed in writing to arrange delivery of the Equipment, Swish shall arrange for delivery upon issuance of the relevant Equipment Schedule and shall communicate the estimated delivery timelines to the Renter. The Renter acknowledges that, in such cases, Swish may engage third party service providers for delivery, and Swish shall not be liable, in any form or manner, for any defaults or delays relating to the delivery of the Equipment.


CONSIDERATION


  1. In consideration of the Rent of the Equipment from Swish, the Renter agrees to pay to Swish regularly and punctually without any abatements or deductions (except statutory deductions which the Renter is required to deduct under Applicable Laws), the Rental, on its due dates, as more specifically mentioned in the Schedule of Equipment, irrespective of whether the Equipment has been put to use or not or is under repairs maintenance or for replacement for any period whatsoever.
  2. In the event the Renter fails to pay Rental or any other amount payable on its due date, the Renter shall be liable to pay, without prior notification or reminder, following amount, notwithstanding the remedies available to Swish under this Agreement: (a) Late Payment Charges at the rate mentioned in the Schedule of Equipment on the amounts due and outstanding, from the period the amount becomes due till such amounts are paid by the Renter; and (b) any and all costs incurred by Swish to recover such amounts.
  3. The Renter agrees that the Rental may be increased / decreased by Swish, consequent to imposition of any new taxes or consequent to any increase / decrease in taxes whether levied by the State / Central Government or any local authority, as the case may be or change in the depreciation rates any other related and consequential charges and taxes levied on this transaction now or hereafter on any services rendered or on the Equipment or on this Agreement or any deed, document or writing pertaining to this transaction now or hereafter.
  4. Any payments due and payable under or pursuant to this Agreement and made by the Renter shall be appropriated towards such dues in the following order viz: (a) Interest / Late Payment Charges on arrears of Rental that has became due and not paid; (b) costs, charges and other expenses supported with a statement; and (c) Rentals.
  5. Renter shall be solely responsible for all costs and expenses of every nature arising out of the possession, use, and operation of the Equipment. Renter's obligation to pay the Rental and all other sums due hereunder shall be absolute and unconditional and shall not be subject to any setoff, abatement, counterclaim, recoupment, defense, cancellation, repudiation, rejection of Equipment, revocation of acceptance of Equipment or any other right that Renter may have against SWISH. Except as expressly provided for herein, neither this Agreement, nor any Equipment Schedule, shall terminate nor shall the obligations of Renter be affected by reason of any defect in, damage to, or any loss or destruction of the Equipment from any cause whatsoever, or the interference with the use thereof by any private person, corporation, or governmental authority or as a result of any war, riot, insurrection or act of God. It is the express intention of SWISH and Renter that all Rental payable by Renter under each Equipment Schedule shall be, and continue to be, payable in all events throughout the term thereof (including Force Majeure Events).


TAXES


  1. SWISH shall not be responsible for any proceedings initiated by any competent authorities in respect of any non-payment, short-payment, non-compliance, penalty, interest or other such issue, and for all liabilities and expenses related to any default by the manufacturer/supplier of its compliances under Applicable Laws. The Renter shall not raise a claim on account of such proceedings on SWISH.
  2. In case of regular default by the manufacturer/supplier on payment of applicable Taxes or filing of returns or issuance of proper documents of entitlement to SWISH to avail credit, then, notwithstanding anything contained in the present arrangement, SWISH shall have the right to terminate the instant arrangement forthwith and also shall have the right to recover any loss arising to SWISH as a result of the default by the manufacturer/supplier, either by withholding the amounts due to the manufacturer/supplier or by recovering the said amount from the Renter.
  3. The Renter shall pay to SWISH, all applicable Taxes that are levied on interest charges, penalties and any other charges or amounts that shall become due and payable by the Renter pursuant to this Agreement.
  4. All payments to be made by the Renter to SWISH under this Agreement and an Equipment Schedule shall be made free and clear of Taxes and without any Tax deduction unless a Tax deduction is required under Applicable Laws.
  5. If the Renter is required to make a Tax deduction from any amounts paid or payable to SWISH, it shall immediately make the necessary payment required in connection with that Tax deduction to the relevant authorities and undertake required compliances in this regard. The Renter shall forthwith on demand, indemnify and hold harmless SWISH from and against all Taxes along with the interest, penalties, costs and expenses and reasonable attorneys' fees, if applicable, payable or incurred in connection therewith amount which are imposed on SWISH as a consequence of the non-payment in full or in part, of those Rents, Taxes, Equipment value or stipulated loss value which are required to be paid, in full or in part, by the Renter pursuant to this Agreement.


INSURANCE


  1. Throughout the Term of each Equipment Schedule, Renter shall, at its expense, maintain in full force and effect "special risk" extended coverage, fire and casualty insurance for the Equipment or such insurance as may be provided for in the Equipment Schedule. Such insurance shall provide for coverage in an amount equal to the greater of the stipulated loss value or the replacement cost of the Equipment at the time of loss. Such policy shall provide that coverage will not be invalidated because of any act or neglect of Renter and that it may not be cancelled or materially altered unless thirty (30) days prior written notice is given to all parties named therein. Upon SWISH's written request, Renter shall provide SWISH with a certificate of insurance evidencing such insurance coverage. If, within 2 (two) weeks after Renter's receipt of such request, Renter has not provided SWISH with a satisfactory certificate of insurance, then SWISH may, at SWISH's option, obtain such insurance until Renter provides the certificate of insurance, and Renter shall reimburse SWISH for the cost of such insurance when billed.
  2. For all smartphones under this Agreement, the Renter shall be required to procure and maintain, throughout the entire rental period, insurance coverage arranged exclusively through Swish. Such insurance shall mandatorily include protection against accidental damage, liquid damage, theft, and employee absconding in respect of the Equipment. The cost of this insurance shall be borne by the Renter and included within the Rental payments. The insurance policy covering employee absconding shall provide protection for up to zero point seven five per cent (0.75%) of the total instances of employee absconding during the rental period, as determined solely by Swish. In the event that the number of absconding cases exceeds this threshold, or in respect of any losses or damages not covered by the insurance policy (including, but not limited to, theft or absconding beyond the insured limit), the Renter shall remain fully liable to Swish for all outstanding Rent and any other amounts due under this Agreement, irrespective of the loss or non-recovery of the Equipment.
  3. During the term of this Agreement, Renter, at its expense, shall maintain reasonable, commercial general liability and property damage insurance with respect to the use, possession and operation of the Equipment.
  4. Upon the happening of an event, post commencement of the Term, causing damages or losses to the Equipment and/or its accessories, including accident, theft, hit caused by fire explosion, or lightening, burglary, riot, earthquake, flood, hurricane, storm, tempest, cyclone, frost, malicious act and/or terrorist activity, the Renter shall promptly, but no later than 48 (Forty-Eight) hours notify to Swish of such damage or loss relating to the Equipment.
  5. Under no circumstances shall Swish be liable towards the Renter or any third parties in respect of any losses or damages to the Equipment.
  6. In the event of any damages or losses to the Equipment that are insured or recoverable under the insurance policy, the Renter shall extend all assistance as may reasonably be requested by Swish, in making a recovery claim under the insurance policy.
  7. The Renter agrees and acknowledges that in the event, (i) any losses or damages to the Equipment are not insured under the insurance policy; or (ii) any claim in relation to any losses or damages has been rejected by the insurer of the insurance policy, (collectively, “Uncovered Damages”), the Renter shall continue to pay the Rental for the device irrespective of the uncovered damages to the Equipment.
  8. It is hereby clarified that in the event the Rent is terminated prior to the expiry of the Term, Swish shall be entitled to collect the amounts in relation to the Uncovered Damages (which would be the actual cost of repairing the Equipment from the brand authorized service centre) and the Rental payments from the Renter.
  9. At the Renter’s discretion, and subject to Swish’s agreement, insurance coverage for the Equipment may be arranged either by Swish or by a third-party insurance provider nominated by Swish, in lieu of the Renter procuring such insurance directly; in such cases, the Renter shall be liable to pay Swish the full amount of the applicable insurance premium, which shall be included in and form part of the Rental payments under this Agreement, and Swish shall provide the Renter with details of the insurance policy, including the scope of coverage, exclusions, and any applicable deductibles. The Renter shall promptly provide all information and documentation reasonably required by Swish or the insurer for the arrangement, maintenance, or renewal of such insurance, and shall comply with all policy terms and conditions. In the event of any theft, loss or damage to the Equipment, the Renter shall immediately notify Swish and cooperate fully in the claims process, including providing statements, evidence, or access to the Equipment as may be required by Swish or the insurer. The Renter acknowledges that any failure to pay the insurance premium as part of the Rent, or to comply with the terms of the insurance policy, may result in loss of coverage, in which case the Renter shall remain fully liable for all losses, damages, or costs not covered by insurance. For the avoidance of doubt, Swish shall not be liable for any shortfall in insurance proceeds or for any uninsured losses, and the Renter shall remain responsible for any such amounts in accordance with the terms of this Agreement.


WARRANTIES


  1. SWISH represents and warrants that:
    1. During the term of this Agreement, if no event of default has occurred, Renter's quiet enjoyment and peaceable possession of the Equipment shall not be interrupted by SWISH or anyone claiming solely through or under SWISH.
    2. SWISH is not a non-banking financial company as defined under the Reserve Bank of India Act, 1934.
  2. The affirmative warranties set forth above are in lieu of all other warranties of SWISH. SWISH makes no other warranties, express or implied, as to any matter whatsoever, including, without limitation, the design or condition of the Equipment, its merchantability, fitness, capacity or suitability for any particular purpose, the quality of the material or workmanship of the Equipment, or conformity of the Equipment to the provisions and specifications of any purchase order or orders relating thereto. Without limiting the generality of the foregoing, SWISH shall not be liable to Renter for any liability, claim, loss, damage or expense of any kind or nature including strict liability in tort caused directly or indirectly by the Equipment, any inadequacy thereof for any purpose, any deficiency or defect therein, whether known or unknown to SWISH. In any event, SWISH shall not be liable to Renter for any loss of business or any other incidental, indirect, or consequential loss or damage resulting from any cause whatsoever.
  3. SWISH hereby assigns to Renter any and all manufacturer's warranties, if assignable, and any other such rights that are assignable as SWISH may have against the manufacturer or distributor or supplier of the Equipment provided, however, that Renter's sole remedy for the breach of any such warranty or right shall be against the manufacturer or distributor or supplier and not SWISH. SWISH will use commercially reasonable efforts to cooperate with Renter, at Renter's expense, in any action by Renter to enforce such warranty rights against the manufacturer or distributor or supplier.
  4. Renter acknowledges, represents and warrants that it has made the selection of the Equipment based on its own judgment and expressly disclaims any reliance upon statements made by SWISH.
  5. Swish shall in no way be liable or responsible to the Renter for any liability, claim, loss, damage, or expense of any kind or nature whatsoever arising from the use of the Equipment.


USE AND MAINTENANCE


  1. Renter shall, at its expense, maintain the Equipment in good operating order, repair, and condition. Renter shall not use the Equipment for any purpose other than that for which it was designed.
  2. During the subsistence of the Rent and till the Equipment is delivered back to Swish in good order and condition in terms hereof, the Renter shall use and operate the Equipment in conformity with the manufacturer manual of the Equipment.


RETURN OF EQUIPMENT


  1. Upon the termination of Renter's right of possession of any Equipment, Renter shall, in accordance with SWISH's instructions and at Renter's expense (including without limitation to transportation costs and costs of in-transit insurance) return the Equipment to such location within India as shall be designated by SWISH. Renter shall reimburse SWISH for all expenses paid by SWISH associated with return of the Equipment when billed. Renter shall return each Equipment in the same operating order, repair, condition and appearance as when received, excepting only normal wear and tear, and in accordance with the following conditions:
    1. Renter shall test the Equipment prior to return to verify that it is in working condition, and within 15 (fifteen) days after receipt of the Equipment, SWISH shall inspect it and confirm that it is in good operating condition. If the Equipment is not in good operating condition, SWISH shall notify Renter within 45 (forty-five) days after receipt and Renter, at Renter's option, shall either replace or repair the Equipment at Renter's expense.
    2. If the Equipment contains software integral to the functioning of the Equipment, Renter will return such software with the Equipment. Upon termination, Renter will provide to SWISH the original certificate of authenticity, component parts, media and printed materials, if any, which were delivered to Renter with such Equipment or software. Renter will assign and transfer to SWISH any rights it may have acquired under an end user license agreement to SWISH. Renter shall not retain any copy of such software or attempt to transfer it to other equipment without SWISH's consent.
  2. If any Equipment is lost, damaged, destroyed, stolen, or otherwise rendered unfit for use, Renter shall give to SWISH immediate notice thereof, and this Agreement and the applicable Equipment Schedule shall continue in full force and effect without any abatement in the Rental. Renter shall determine within fifteen (15) days after the date of the occurrence of damage whether such Equipment can be repaired. In the event Renter determines that such Equipment can be repaired, Renter, at its expense, shall cause such Equipment to be promptly repaired. If a Equipment is lost, destroyed or stolen or if Renter determines that a damaged Equipment cannot be repaired, Renter shall, within thirty (30) days of such event, at SWISH’s discretion, either replace the Equipment with an identical Equipment, the title to which shall thereupon vest in SWISH and which thereafter shall be considered the Equipment subject to the Equipment Schedule with no abatement in the Rental or, in SWISH's sole discretion, pay to SWISH an amount determined by SWISH in accordance with this Agreement of the Equipment Schedule


Premature Termination of RENT AGREEMENT


  1. Notwithstanding the Rent for Term, upon occurrence of any of the events specified hereunder there shall be Premature Termination:
    1. at the discretion of Swish, occurrence of any one of the events of default specified in this Agreement;
    2. irreparable damage / total loss caused to the Equipment or theft of the Equipment.
  2. For the avoidance of doubt, the Renter shall have no right to terminate this Agreement or the Term for any reason whatsoever, including but not limited to irreparable damage, total loss, or theft of the Equipment, whether or not insurance has been obtained or any insurance proceeds are received. In all cases, including premature termination pursuant to Clause 9.1, the Renter shall remain fully liable to pay all Rental and any other amounts due under this Agreement for the entire Term, as if the Agreement had not been terminated, irrespective of the condition, loss, or non-recovery of the Equipment, or the receipt or non-receipt of any insurance proceeds.
  3. Upon expiration of the Term or Premature Termination, the Renter shall deliver to Swish, at its own cost and expenses, forthwith the Equipment.


EVENTS Of DEFAULT


  1. An event of default shall be considered to have occurred under this Agreement if the Renter:
    1. fails to make any of the payments or part thereof or any other payment required to be made hereunder and remained due for more than 7 (Seven) calendar days from the due date;
    2. attempts to and /or terminates the Agreement without the consent of Swish;
    3. fails to perform or observe any other covenant, conditions of Agreement to be performed or observed by it hereunder or in any other document furnished to the Renter in connection herewith;
    4. without Swish’s consent transfer, assign or otherwise dispose of or purport to transfer, assign or dispose of Swish’s rights or obligations or interest hereunder by way of mortgage, charge, sublease, sale or other assignment, hypothecation, pledge, hire, encumbrance, license or otherwise in any manner part with the possession of the Equipment or any part thereof or allow or purport to do or allow or create any lien, charge, attachment or other claim of whatsoever nature on the Equipment or any part thereof;
    5. becomes bankrupt or is declared insolvent or make an assignment for the benefit of creditors, or consent to the appointment of a trustee or receiver for a substantial part of its property without its consent or reorganization or insolvency proceedings shall be instituted by or against the Renter, voluntary or otherwise;
    6. shall suffer an adverse material change in the financial condition from the date hereof, and as a result thereof, Swish deems itself or any of the Equipment to be insecure;
    7. makes any major additions/alterations to the Equipment which affects the marketability of the Equipment, without the prior written permission of Swish;
    8. is in breach of any representation or warranty or they are found to be or become incorrect.

  2. Upon occurrence of an event of default, Swish shall provide a written notice to the Renter specifying in detail the breach and calling upon the Renter to rectify / cure the breach / default within 15 (Fifteen) calendar days (“Cure Period”) from the date of receipt of the notice. In the event the Renter fails to rectify or cure the breach (if curable) on or before end of the Cure Period, Swish shall have right to invoke the remedies available to it under this Agreement.


REMEDIES


  1. If an event of default occurs, SWISH may, at its option, do any or all of the following:
    1. proceed to enforce performance (whether through a suit of specific performance or not) by Renter of the relevant Equipment Schedule, and the covenants and terms of this Agreement to the extent it pertains to such Equipment Schedule, and to recover from Renter any and all damages or expenses, including reasonable attorneys' fees, which SWISH shall have sustained or incurred by reason of the event of default or on account of SWISH's enforcement of its remedies hereunder, or
    2. by notice to Renter, declare immediately due and payable all monies to be paid by Renter during the Term and/or any extended term then in effect of the Equipment Schedule, as liquidated damages, and not as a penalty, and SWISH shall have the right, to the extent permitted by law, to (a) recover all monies so declared due and payable as liquidated damages, and not as a penalty; (b) recover all other amounts which are due or which become due under the Equipment Schedule; (c) cancel Renter's right to possession but not Renter's obligations under the relevant Equipment Schedule and this Agreement and to retake immediate possession of the Equipment without any process of law and for such purpose SWISH may enter upon premises where the Equipment may be located and may remove the same therefrom without notice, and without being liable to Renter therefor; and (d) pursue any other remedy permitted by applicable law or equity. In addition, SWISH shall be entitled to recover all expenses, including reasonable attorneys' fees, that SWISH shall have incurred or may incur by reason of the event of default or on account of SWISH's enforcement or defense of its rights or remedies under this Agreement or an Equipment Schedule.


REPRESENTATIONS AND WARRANTIES


  1. Each Party represents and warrants that:
    1. it has the requisite power and authority to execute, deliver and perform this Agreement;
    2. this Agreement shall, upon execution, constitute legal, valid and binding contract enforceable as per the terms contained herein;
    3. the execution of this Agreement does not violate, nor is inconsistent with any Applicable Law, prior contractual obligations, charter documents or any other binding agreement to which the Party is privy;
    4. there are no bankruptcy, insolvency, reorganization, moratorium or similar proceedings affecting creditors’ rights generally, filed and / or pending against the either Party;
    5. no order or resolution has been passed for the winding up, for a provisional liquidator to be appointed and no petition has been presented and no meeting has been convened for winding up. No receiver has been appointed in respect of either Party for any or all of the assets.


CONFIDENTIALITY


  1. Each Party agrees that it shall not reveal, and shall use reasonable efforts as it would generally employ for maintaining confidentiality of its own Confidential Information to ensure that its representatives, or any third party to whom Confidential Information is made available do not reveal, to any other third party, any Confidential Information without the prior written consent of the disclosing Party and use such Confidential Information only in relation to performance of its obligations under this Agreement. Provided that the provisions of this Clause shall not be applicable to any information that: (a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving Party in breach of this Clause 13); (b) was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party; (c) was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving Party’s knowledge, is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party; (d) the disclosing Party agrees in writing is not confidential or may be disclosed; (e) is developed by or for the receiving Party independently of the information disclosed by the disclosing Party; or (f) the receiving Party is required by law, a court of competent jurisdiction or any governmental or regulatory authority to disclose.
  2. The confidentiality obligations under this Clause shall survive the termination or expiry of this Agreement.
  3. Neither Party shall decompile, disassemble or otherwise reverse engineer any Confidential Information.
  4. Each Party shall prevent the unauthorized use, disclosure, dissemination or publication of the Confidential Information with the reasonable and standard degree of care. The receiving Party agrees to promptly notify the disclosing Party in writing of any misuse or misappropriation of the Confidential Information that may come to receiving Party’s attention.
  5. Upon termination of the Agreement, each Party, upon request by the other Party, shall at the option of such other Party, either destroy or return the Confidential Information of such other Party.


INTELLECTUAL PROPERTY RIGHTS


  1. Nothing in this Agreement shall affect the ownership of each Party’s Intellectual Property Rights, including which is and shall remain the exclusive property of the Party owning it (or, where applicable, the third party from whom its right to use the Intellectual Property Rights has derived) and nothing in this Agreement shall operate to transfer any Intellectual Property Rights of one Party to the other.
  2. The Parties agree and acknowledge that any Intellectual Property Rights developed by Swish pursuant to the operation of this Agreement, shall be deemed to be the exclusive Intellectual Property Right of Swish. The Renter shall at the request of Swish, provide all reasonable assistance to Swish in giving effect to Lessor’s rights in the aforementioned Intellectual Property Rights.
  3. This Clause shall survive the termination or expiry of this Agreement.


DISTRAINT AND MEASURES BY THIRD PARTIES


  1. If third parties lay claim to or otherwise take action in respect of an Equipment, the Renter shall take immediate action to safeguard the rightful property of Swish. If the Renter loses legal control of any Equipment, the Renter shall inform Swish immediately, but no later than 24 (Twenty-Four) hours and if necessary, take appropriate counter measures. Swish may take any and all actions it sees fit in the interests of protecting its rights, not excluding action in the name of the Renter.
  2. The costs incurred as a result of any action as aforesaid are to be borne by the Renter and payment shall be made to Lessor upon a written request supported with substantiated proof by Swish. The Renter shall ensure that the Equipment is only used by persons satisfying the requirements laid down under applicable law and regulations pertaining to such use.


TERM AND TERMINATION


  1. This Agreement shall commence on the date of signing and shall continue to remain in force until terminated in accordance with the provisions of this Agreement.
  2. Either party may terminate this Agreement at the end of the Term by providing the other party with no less than two (2) months’ prior written notice of its intention not to renew or extend the rental. If either Swish or the Renter fails to provide such notice, or if the Renter fails to return the Equipment to Swish within seven (7) days following the expiration of the Term, the Renter shall be liable to pay Swish an amount equivalent to two (2) months’ rent as liquidated damages. This sum shall be payable in addition to any other amounts due under this Agreement and shall not prejudice Swish’s right to recover possession of the Equipment or to claim for any further loss or damage arising from the Renter’s failure to return the Equipment as required.
  3. For clarity, unless either Party provides written notice of its intent not to renew agreement at least sixty (60) days prior to the expiry of the End Term (whether initial or any extended period as per the Equipment Schedule), the Term shall automatically renew for successive periods of three (3) months each (“Renewal Term”), on the same terms and conditions, including the Rental amount and payment schedule, as specified in the relevant Equipment Schedule. This auto-renewal shall continue indefinitely until terminated by either Party in accordance with this Clause.
  4. Notwithstanding the foregoing, Swish may upon providing written notice to the Renter, to terminate this Agreement, with immediate effect if:
    1. the Renter commits a breach of the Agreement, and if the same is curable, is not cured within 15 (fifteen) calendar days of the notice from Swish notifying the Renter of such breach;
    2. if the Renter becomes insolvent or if an order for insolvency is passed against the Renter for its winding up or if an administrator / liquidator / receiver is appointed in respect of the whole or any part of the Renter’s assets or business.
  5. Swish may, at its sole discretion terminate this Agreement upon the occurrence of a Force Majeure Event.
  6. Termination of this Agreement for any reason will be without prejudice to any rights that will have accrued to the benefit of a Party prior to such termination. Such termination will not relieve a Party of obligations that are expressly indicated to survive the termination of this Agreement.
  7. Upon expiration or termination of the Agreement, the obligations which by their nature are intended to survive expiration or termination of the Agreement shall survive.


INDEMNITY


  1. Renter hereby indemnifies and holds harmless SWISH, its Affiliates, employees, directors and officers from and against any and all claims, costs, reasonable attorneys' fees, expenses, damages, and liabilities (including those resulting from intellectual property (including but not limited to patent, trademark and copyright) infringement or the application of strict liability doctrines or statutes) arising out of Renter's selection, possession, renting, operation, control, use, maintenance, delivery, or return of the Equipment or the breach of the provisions of this Agreement or the seizure or any action being taken with the effect of a seizure of any Equipment or any Equipment being under any distress or any kind of legal proceedings being threatened, instituted or pending against the Renter.
  2. IN NO EVENT WILL SWISH OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES.


MISCELLANEOUS


  1. No partnership or agency: Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party as agent of the other, or authorise any Party to make or enter into any commitments for or on behalf of the other Party.
  2. Notices
    1. Any notice or other communication to be given under or in connection with this Agreement (“Notice”) shall be in the English language in writing and signed by or on behalf of the Party giving it. A Notice may be delivered personally or by electronic mail to the address or e-mail address provided in Clause 18.2 and marked for the attention of the person specified in this Section.
    2. The addresses for service of Notice are as follows:
      Swish
      Attn: BENPLAT DIGITAL PRIVATE LIMITED
      Address: Hustlehub H207, 3rd Floor, 27th Main Rd, Sector 2, HSR Layout, Bengaluru, 560102
      E-mail: daas@swishclub.in

      Renter
      Name: as mentioned in SOE
      Address: as mentioned in SOE
      E-mail: as mentioned in SOE
  3. Governing law and Dispute Resolution:
    1. Governing Law: This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with and be governed by the laws of Bengaluru, India.
    2. Dispute Resolution
      1. If any dispute, controversy or claim arises out of or in connection with this Agreement, including any question regarding its existence, validity or termination (“Dispute”), the Parties shall use all reasonable endeavours to resolve the matter amicably. If either Party gives another Party notice that a Dispute has arisen (“Dispute Notice”) and the Parties are unable to amicably resolve the Dispute within 30 (thirty) calendar days of service of the Dispute Notice, then the Dispute shall be referred to arbitration.
      2. All Disputes, which are unresolved pursuant to this Agreement and which a Party wishes to have resolved, shall be referred upon the application of a Party to and finally settled under the rules of the Indian Arbitration and Conciliation Act, 1996 (the “Arbitration Act”) in force at the date of this Agreement. The number of arbitrators shall be 1 (one), appointed mutually by the Parties, failing which the arbitrators shall be appointed in accordance with the Arbitration Act. The seat and venue of the arbitration shall be Bengaluru, India and the language of the arbitration shall be English.
      3. The arbitrator shall have the power to grant any legal or equitable remedy or relief available under law, including injunctive relief (whether interim and/or final) and specific performance and any measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction. 
      4. Any award of the arbitrator pursuant to this Clause shall be in writing and shall be final, conclusive and binding upon the Parties.
      5. During the course of any arbitration under this Clause except for the matters under Dispute, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under this Agreement.
      6. Each Party shall participate in good faith to reasonably expedite (to the extent practicable) the conduct of any arbitral proceedings commenced under this Agreement.
  4. Amendment: No change or modification of this Agreement shall be valid unless the same shall be in writing and signed by all the Parties.
  5. Costs: Each Party shall bear its own expenses incurred in drafting and negotiating this Agreement. The stamp duty payable on this Agreement and shall be borne by the Parties equally.
  6. Counterparts: This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.


Assignment


  1. The Renter shall not assign, transfer, deliver up, part with possession of, or sublet the Equipment or any interest therein under this Agreement without the prior written consent of Swish. Any purported assignment, transfer, or subletting by the Renter in contravention of this clause shall be void and of no effect. If the Renter is a corporate entity or partnership, any sale, transfer, or other disposition of shares, partnership interests, or any change in control (whether direct or indirect) of the Renter shall be deemed an assignment for the purposes of this Agreement. In such circumstances, the prior written consent of Swish (and, where applicable, its assignees or beneficiaries) shall be required.
  2. Swish may at any time, without the consent of the Renter, assign, transfer, pledge, mortgage, charge, or otherwise dispose of, in whole or in part, its rights, title, and interest in and to this Agreement, any Equipment Schedule, and/or the Equipment, including the right to receive payments from the Renter. Such assignment may be made to any financial institution, lender, investor, or other third party as Swish may determine.
  3. Effect of Assignment:
    1. Any assignment by Swish shall not release Swish from its obligations to the Renter under this Agreement unless the assignee expressly agrees in writing to assume such obligations and the Renter is notified accordingly.
    2. Upon written notice of assignment from Swish, the Renter shall, if so directed, make all payments due under this Agreement to the account or person specified by the assignee. Payment in accordance with such instructions shall constitute a valid discharge of the Renter’s payment obligations under this Agreement. The Renter shall be required to execute a written undertaking, agreement or acknowledgment, in a format prescribed by Swish, to this effect.
    3. The Renter shall, upon request, execute and deliver such documents or acknowledgements as may reasonably be required by Swish or its assignee to give effect to any assignment or to evidence the Renter’s obligations to the assignee.
    4. The Renter acknowledges that any assignment by Swish will not materially alter the Renter’s duties or obligations under this Agreement nor materially increase the burden or risk imposed on the Renter.
  4. Rights of Assignee:
    1. In the event of default by the Renter, the assignee shall have the right (but not the obligation) to exercise any and all rights and remedies of Swish under this Agreement, including but not limited to repossession of the Equipment and recovery of all outstanding amounts due.
    2. The Renter shall not be entitled to withhold payments, or assert any set-off, counterclaim, or right of recoupment against the assignee that the Renter may have against Swish.
  5. Swish shall provide the Renter with written notice of any assignment, including the identity of the assignee and any updated payment instructions. The Renter shall be deemed to have received such notice if sent to the address specified in this Agreement or otherwise notified in writing.
  6. The Renter shall, at the request of Swish or its assignee, do all such acts and execute all such documents as may be necessary or desirable to give effect to the provisions of this clause.


In case of any queries, please contact us at daas@swishclub.in