Agent Agreement

Agreement

This ‘Agreement’ is agreed and entered by and between:

• Wander Nagaland registered as Wander Naga Private Limited, a company incorporated under the companies Act 1956, bearing CIN no. U63040NL2019PTC013496  and having its registered office at H/NO 455, Ward 9, Medziphema HQ, Dimapur, Nagaland - 797106, India (hereinafter referred to as “the Company” which shall unless repugnant to the context or meaning thereof be deemed to mean and include its successors and assigns) through its Authorized Representative,  of the First PARTY; and:

• The Agent, as detailed further in Annexure A (hereinafter referred to as “the Agent” which shall unless repugnant to the context or meaning thereof be deemed to mean and include its successors and assigns) of the Other Part.

PREAMBLE:

1. Wander Nagaland, is a tour agency for adventurous travellers. The company offers opportunities to explore Nagaland and the surrounding regions.
2. The Agent is in the business providing tourism and travel related services
3. Wander Nagaland and the Agent desires to enter into this Agreement to bind themselves with their mutual obligations as prescribed hereunder, and this Agreement supersedes all prior understanding of the Parties with respect to their dealings with each other on the Scope of Services.

NOW THEREFORE THE PARTIES HERETO AGREE TO THIS AGREEMENT TERMS AS FOLLOWS:

1. OBLIGATIONS OF THE AGENT:

 

1. In the performance of the Agent’s obligations, the Agent must:

1. act in Wander Nagaland’s best interests;
2. use all reasonable efforts to promote the interests of Wander Nagaland;
3. use best endeavours to protect and promote Wander Nagaland’s reputation;
4. be honest and diligent and perform obligations to the best of the organisation's capacity and capabilities and in accordance with the law in India.
5. Utilise brand assets provided by the Company or receive approval from the Company for all promotional and marketing collateral under the scope.

2. The Agent shall create both online and offline spaces dedicated to promoting Wander Nagaland's products.
3. The Agent shall provide Wander Nagaland access to its website for the purpose of creating an online portal (webpage) to Wander Nagaland’s products.
4. The Agent shall supply the company to its brand/logo (including trade name, trademark, service mark or other similar indicia of identity or source) for the purpose of building the Agent’s product portal (webpage).
5. The Agent will commit 1 number of personnel to be the main point of contact to coordinate for all activities related to the agreement
6. The information provided by the Company shall remain the exclusive property of the Company. Information provided by the Company may not be edited or modified by the Agent.
7. The Agent shall not make any changes to or updates to any of the product’s attributes (including price and availability, inclusions, exclusions) without the express agreement of the Company.

2. COMMERCIAL TERMS

8. For each booking made via the Agent’s portal by a traveller for a product the Company shall pay the Agent a 10% (GST inclusive) commission.
9. Cancellations made by Travellers will not attract commission.
10. The Company reserves the right to cancel any booking within the terms and conditions as available on the Company website.
11. If Wander Nagaland is offering any promotional sales of tour packages and experiences at discounted prices compared to usual Sell Rate, the same discounted prices shall be offered to the customers booking through the agents.
12. Commission for bookings in a calendar month that contains the (scheduled) departure date of the Traveller in such month will be invoiced and paid in the subsequent month in accordance with the following terms:

1. Commissions are processed on a monthly basis and shall be sent to the nominated bank account of the Agent.
2. All Commission payments to be made under this Agreement shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority. The Agent is responsible and liable for the payment and remittance of any taxes, levies, imports, duties, charges, fees and withholdings over and above the full (net) Commission payment due from the Company to the Agent.
3. The commission invoiced in respect of a month shall be paid by the Company in the relevant currency (and if applicable at the exchange rate) as specified in the invoice.

13. The Agent is responsible for withholding and reporting relevant taxes applicable to the Commission according to the relevant tax regulations and the practices and requests of the tax authorities. The Agent shall bear and be responsible for the payment and remittance of the taxes applicable to the Commission (payments) and the associated late payment interests and penalties imposed by the tax authority for failing to withhold and report any taxes applicable to the Commission. If required, the Agent shall be solely responsible to negotiate and agree with the relevant tax authorities on the tax treatments of the Commission (payments). The Agent shall upon first request of the Company provide the Company with (photo/scanned-) copies of tax payment certificates/tax exemption certificates upon each remittance of the Commission. The Agent represents and covenants that it is duly registered with all relevant tax authorities (including applicable statutory (local) revenue collection authorities) as per relevant tax regulation.
14. In the event of a dispute between the Company and the Agent (e.g. on the amount of the Commission), any undisputed amount of the Commission will be paid in accordance with the terms of this Agreement, notwithstanding the status or nature of the dispute.
15. When a booking is made by a Traveller via the Agent portal, the Company shall receive a confirmation for every booking made, which confirmation shall include the date of arrival, the number of nights, product price, the Traveller's name, address and credit card details (collectively "Customer Data") and such other specific request(s) made by the Traveller.
16. In the case of late payment, the Agent reserves no right to claim statutory interest, to suspend its service under the Agreement (e.g. by suspending the customer access to the agent portal or promotional collateral), require Facilitated Payments or Direct Debit, and/or to ask for a deposit, bank guarantee or other form of financial security from the Company for a period of no less than 30 days.
17. Other than the fees, extra's and (sur-)charges as set out in the confirmed booking sent by the Company to the Traveller, the Agent shall not charge the customer any transaction/administration fee or charge for the use of any payment method (e.g. credit card charge).

3. Obligations of the Company

18. The Company shall build an agent portal that provides customers of the Agent to purchase products and services of the Company. .
19. The Company shall provide the Agent with up-to-date collateral material both in print and electronic form.
20. The Company shall provide sales training to the Agent’s staff on utilizing the agent portal.
21. The company shall provide support for any technical queries and handholding support.
22. By making a reservation through the agent portal a direct contract (and therefore legal relationship) is created solely between the Company and the Traveller.
23. The Company, with respect to its Terms and Conditions, is bound to accept a Traveller as its contractual party, and to handle the online reservation in compliance with the Product Information (including price) contained on the portals at the time the reservation was made and the reservation confirmation, including any supplementary information and/or wishes made known by the Traveller.
24. Save for reservations paid through bank transfer, guarantee of the booking is based on the credit card details provided by the Traveller or the person responsible for the booking. The Company shall at all times accept all major credit cards (including MasterCard and Visa with the exclusion of American Express) for guarantee of a booking.
25. In the event of a Force Majeure Event, the Company shall not charge (and shall repay (if applicable)) the Travellers affected by the Force Majeure Event any fee, costs, expenses or other amount (including the (non- refundable) rate or the no-show, (change of) reservation or cancellation fee) for (i) any cancellation or change of the reservation made by the Traveller, or (ii) that part of the booking that was not consumed, due to the Force Majeure Event. In the event of reasonable and justified doubt, the Company may ask a Traveller to provide reasonable evidence of the causality between the Force Majeure Event and cancellation, no-show or change of reservation (and provide the Agent upon request with a copy of such evidence). In order for the Company to register any cancellation, no-show or amendment of the reservation due to a Force Majeure Event, the Traveller shall inform the Company within 2 business days after (a) the scheduled end date of the no-show or cancellation, or (b) check out, the number of days actually consumed. The Agent will not charge any commission in the event of a registered no-show or cancellation or over that part of the booking which is not consumed due to the Force Majeure Event.
26. The Company hereby grants the Agent a non-exclusive, royalty free and Nagaland-wide right and license (or sublicense as applicable):

1. to use, distribute, sublicense, communicate and make available in any method and display those agreed upon elements of the Intellectual Property Rights of the the Company as provided to the Agent by the the Company pursuant to this Agreement and which are necessary for the Agent to exercise its rights and perform its obligations under this Agreement;
2. to use, process, distribute, sublicense, display and utilize (including without limitation to publicly perform, communicate, copy and make available to the public in any manner whatsoever) the Company Information.

4. INDEMNITY

1. Each Party (the "Indemnifying Party") shall be liable towards, and compensate, indemnify and hold the other Party (or its directors, officers, employees, agents, affiliated companies and subcontractors) (the "Indemnified Party") harmless for and against any direct damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses (including, without limitation, reasonable attorneys’ fees and expenses) actually paid, suffered or incurred by the Indemnified Party pursuant to:

1. a breach of this Agreement by the Indemnifying Party, or
2. any claim from any third party based on any (alleged) infringement of the third party's Intellectual Property Right by the Indemnifying Party.

2. The Agent shall fully indemnify, compensate and hold the Company (or its directors, officers, employees, agents, affiliated companies and subcontractors) harmless for and against any liabilities, costs, expenses (including, without limitation, reasonable attorneys’ fees and expenses), damages, losses, obligations, claims of any kind, interest, penalties and legal proceedings paid, suffered or incurred by the Agent (or its directors, officers, agents, affiliated companies and subcontractors) in connection with:

1. all claims made by Travellers concerning inaccurate, erroneous or misleading information of the Company on the agent portal or promotional material;
2. all claims made by Travellers concerning or related to a tour or experience, overbooking or (partly) cancelled or wrong bookings or repayment, refund or chargeback of the product price;
3. all other claims from Travellers which are wholly or partly attributable to or for the risk and account of the Company (including its directors, employees, agents and representatives) (including claims related to (lack of) services provided or product offered by the the Company) or which arise due to tort, fraud, wilful misconduct, negligence or breach of contract (including the Traveller Booking) by or attributable to the Company (including its directors, employees, agents and representatives) in respect of a Traveller or its property; and

3. Save as otherwise provided for in this Agreement, the maximum liability of one Party to any other party in aggregate for all claims made against such party under or in connection with this Agreement in a year shall not exceed the aggregate commission received or paid by such Party in the preceding year or Rs. 100,000 (whichever is higher), unless in the event of tort, fraud, wilful misconduct, gross negligence, deliberate non- disclosure or deliberate deception on the part of the liable Party (i.e. the Indemnifying Party), in which event the limitation of liability is not applicable for such liable party.
4. In the event of a third party claim, Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defense and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defence (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
5. In no event shall any Party be liable to any other Party for any indirect, special, punitive, incidental or consequential damages or losses, including loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim, whether such damages are (alleged as) a result of a breach of contract, tort or otherwise (even if advised of the possibility of such damages or losses). All such damages and losses are hereby expressly waived and disclaimed.
6. Each Party acknowledges that remedies at law may be inadequate to protect the other Party against any breach of this Agreement and without prejudice to any other rights and remedies otherwise available to the other Party, each Party will be entitled to injunctive relief and specific performance.

5. Intellectual Property

7. All rights to industrial and intellectual property (including but not limited to any idea, product, process, work, result, design, procedure, formula, method of production, concept or invention or any patentable apparatus or process) produced under the course of the partnership are assigned to and vest in the Company. The Agent is required to notify and fully disclose any such intellectual property which is produced in the course of the partnership that could be of value to the Company.
8. At the Company's expense, the Agent must do anything the Company reasonably requests the Agent  to do to assist it to protect its industrial or intellectual property. In particular, the Agent must assist the Company to protect its ownership of anything dealt with in this clause.
9. The Agent presently assigned to the Company all existing and future Intellectual Property, including Intellectual Property Rights which in any way relates to research undertaken and/or resources and tools, techniques and other matters relating to how Wander Nagaland performs its functions.
10. The Agent must disclose to the Company everything in which Intellectual Property Rights may subsist and must do all things reasonably requested by the Company to enable the Company to capitalise and further assure the rights assigned, and consents given, under this clause.
11. Any publication related to this project, in whatever form and by whatever medium, including the internet, must carry the Wander Nagaland branding as provided.

6.  REPRESENTATIONS AND WARRANTIES

12. Each Party represents and warrants that:

1. It has full legal right, power and authority to carry on its business and to enter into this Agreement and perform all of its obligations, terms and conditions hereunder; and
2. Neither the execution nor delivery of this Agreement, nor the fulfilment nor compliance with the terms and provisions hereof, will conflict with, or result in a breach of terms, conditions or provisions of, or constitute a default under, or result in any violation of its charter documents or by laws, if any, or any agreement, restrictions, instrument, order, judgment, decree, statute, law, rule or regulation to which it is subject, or require any consent, approval or other action by any court, tribunal, administrative or governmental body.

7. CONFIDENTIALITY

13. The Agent must not, at any time, whether or not in partnership by the Company use or disclose any Confidential Information, without the written express permission of the Company, unless it is necessary to so do in order for the Agent to perform services or is required by law.

14. The Agent must only use Confidential Information for the purpose of performing services and must immediately notify the Company of any suspected or actual unauthorised use, copying or disclosure of Confidential Information. Without limiting the Company's rights, the Agent  must provide assistance reasonably requested by the Company in relation to any proceedings the Company may take, or threaten to take, against any person for unauthorised use, copying or disclosure of Confidential Information.

8. TERM AND TERMINATION

15. The Agreement shall commence from the Effective Date and continued to be valid for a period of 12 months unless terminated by either Party with 30 (thirty) days’ notice to the other Party anytime during the term of this Agreement.
16. In addition, either Party may terminate this Agreement with immediate notice for material breach of the terms of this Agreement by the other Party or for any statutory reasons; in case of a breach by a Party capable of being cured, the other Party may terminate this Agreement with immediate notice if the former Party fails to cure the breach within 15 (fifteen) days’ from the date the latter Party notifies the breach. However the accrued obligations of the Parties prior to the termination will continue to be fulfilled post termination.

9. GENERAL

1. Headings in this Agreement are inserted for convenience only and shall not be used in its interpretation. The recitals and Annexures form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include any recitals and Annexures to it.
2. This Agreement is governed by the laws of India and Parties agree to the exclusive jurisdiction of courts of Nagaland, India.
3. The waiver of any right in this Agreement shall be in writing and signed by the Party against whom enforcement is sought, and shall not be a waiver of any other right in this Agreement.
4.  Any notices under this Agreement by a Party to the other Party shall be issued to the respective Party’s address mentioned in Annexure A
5. Modifications to this Agreement shall be done by (1) means of a separate amendment as an agreement signed by both Parties, or (2) by way of a mutually accepted email, or (3) by means of a revised link sent by Company and acceptance of the same by the Agent, or (4) by means of a written communication via email or otherwise by Company and deemed acceptance by means of conduct by the Agent.
6. Unless as otherwise specified in the Agreement, neither Party shall be responsible for any failure to comply with its respective obligations under this Agreement, where such failure or delay is due to events of Force Majeure (as defined below) provided that the affected Party notifies the non-affected Party within reasonable time of the commencement of the event of Force Majeure. Force Majeure events shall mean any circumstances beyond the reasonable control of Parties like war, riot, flood, fire, Acts of God, epidemic, explosion, disease, earthquake, hijacking, sabotage, crime.
7. The Parties acknowledge and agree that the relationship between them is solely that of principal and agent, operating independently and nothing in this Agreement is to be construed as employer/employee, franchise/franchisee, partners, joint ventures, co-owners, or otherwise participants in joint or common undertaking. This Agreement shall be signed by the Agent through filling the online form with its details, and agreeing to these terms and agreements with Agents as a click wrap agreement. Accordingly, this Agreement is legally valid between the Parties by virtue of their online acceptance.