ANNEXURE I - jetro.go.jpABC India (Private) Limited], a company incorporated under the Companies Act, 1956 and having its registered office at [ ] (hereinafter referred to as the “Company”,

Privileged & Confidential

Amarchand Mangaldas

March 31, 2009

CopyrightⒸ 2009 JETRO. All rights reserved.

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インド労働法に関する

調査報告書

日本貿易振興機構（ジェトロ）

2009 年

別添 I

ANNEXURE I


Amarchand Mangaldas

March 31, 2009


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EMPLOYMENT AGREEMENT

BETWEEN

ABC INDIA PRIVATE LIMITED

AND

MR.[●]


Amarchand Mangaldas

March 31, 2009


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[To be printed on stamp paper of appropriate value]

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the “Agreement”) is

made at [] on this [] day of [], 2009 by and between:

[ABC India (Private) Limited], a company incorporated under the Companies Act, 1956 and

having its registered office at [] (hereinafter referred to as the “Company”, which

expression shall include its successors and permitted assigns); and

Mr. [●] [Please insert full name], son of [], presently residing at [] (hereinafter referred

to as “you or your or yourself”).

Each of the aforesaid shall hereinafter be referred to individually as a “Party” and

collectively as “Parties”.

WHEREAS:

A. The Company has offered to employ you in the capacity of a/an [Designation] in the

Company;

B. You are desirous of and are willing to be employed by the Company in such

capacity; and

C. The Company and you desire to set forth the terms and conditions of such

employment.

NOW, THEREFORE, expressly incorporating the foregoing Recitals as part of the

consideration hereof, and in further consideration of the premises and the mutual

promises and covenants contained herein, the Company and you hereby agree as

follows:

1. Interpretation

1.1 In this Agreement, where the context admits:


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“Agreement” and “this Agreement” shall mean this Employment Agreement and

all attached Annexures and instruments supplemental to or amending, modifying or

confirming this Agreement in accordance with the provisions of this Agreement;

“Company” shall have the meaning given to such expression in paragraph 1 of the

introduction of the Parties.

“Confidential Information” includes any trade/business secret, technical

knowledge or know-how, financial information, plans, customer lists, pricing

policies and procedures, marketing data, product data, any formula pattern or

compilation of information used in the business of the Company or any company of

its Group or any clients thereof or their affairs.

“Effective Date” shall have the meaning given to such expression in Clause 2.1 of

this Agreement.

“Group” includes the Company, its parent company and any affiliate thereof and

shall be construed accordingly.

“Holiday Year” shall have the meaning given to such expression in Clause 7.1 of

this Agreement.

“Intellectual Property” means all intellectual and industrial property and all rights

therein including, without limiting the generality of the foregoing, all inventions

(whether patentable or not, and whether or not patent protection has been applied for

or granted), improvements, developments, discoveries, proprietary information,

trade marks, trade mark applications, trade names, websites, Internet domain names,

logos, slogans, know-how, trade secrets, processes, designs (whether or not

registrable and whether or not design rights subsist in them), works in which

copyright may subsist (including computer software and preparatory and design

materials therefore).

“Month” means a calendar month.

1.2 In this Agreement, where the context admits:

(A) references to any statute or statutory provisions include a reference to the

statutory amendments thereof;

(B) references to a “person” include any individual, Company, body corporate,

corporation sole or aggregate, government, state or agency of a state, firm,

partnership, joint venture, association, organisation or trust (in each case,


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whether or not having separate legal personality and irrespective of the

jurisdiction in or under the law of which it was incorporated or exists) and a

reference to any of them shall include a reference to the others;

(C) any reference to “writing” shall include typewriting, printing, lithography,

photography, telex, facsimile and the printed out version of a communication

by electronic mail and other modes of representing or reproducing words in a

legible form; and

1.3 In the event of any conflict between the terms of this Agreement and any other

document recording or purporting to record the terms of your employment by the

Company, the terms of this Agreement shall prevail.

2. Appointment

2.1 The Company hereby offers you appointment as and you agree to serve the

Company in the capacity of [Designation] with effect from [●] (the “Effective

Date”) for a period of [] years (unless terminated earlier as hereinafter provided)

(“Term”). However, the Company may assign you to such other roles as the

Company may at its sole discretion determine.

The Company may conduct a background and a medical check on you and you

hereby agree and assent to the aforesaid offer being made subject to the satisfactory

completion of the same.

2.2 You warrant that, by entering this Agreement and performing your obligations

hereunder, you will not be in breach of any terms or obligations under any

subsisting agreement, written or oral, with any third party.

3. Duties and Powers

3.1 Your job description and general responsibilities shall be as set forth in “Annexure

A” and shall also include such further duties and responsibilities as the Company

may delegate to you from time to time.

3.2 You shall perform all such duties as may be delegated to you by the Company to

you and comply with all such directions as [Specify the person/designation who

shall be the supervisor] may from time to time assign or give to you.

3.3 You shall, during the Term of this Agreement (unless prevented by ill health or

accident or as otherwise agreed by the Company in writing), devote your entire time

and attention and abilities to your employment with the Company and shall use your


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best endeavours to promote and protect the general interests and welfare of the

Company.

3.4 You shall not during the Term of your employment with the Company [or for a

period of [] months after the termination/cessation of your employment with the

Company] be engaged, concerned or interested, either directly or indirectly, in any

trade or business or occupation (either for remuneration or otherwise) similar to the

business of the Company, in any manner whatsoever. Nor shall you undertake any

activities which are contrary to or inconsistent with your duties and obligations to

the Company or with the Company‟s interests.

3.5 You shall, at all times, promptly give to the Company and/or to any person to whom

you operationally report (in writing, if so requested) all such information,

explanations and assistance as may be required in connection with your duties under

this Agreement.

3.6 Your hours of work shall be from [09:30 a.m. to 5:30 p.m.], [5 (five)/ 6 (six)] days a

week. However, as the [Designation], you are required to be flexible in working

hours and work such additional hours as may be necessary for efficient performance

of your duties and powers under this Agreement. [You hereby irrevocably waive

any overtime payments with respect to any hours worked by you outside normal

business hours].

4. Mobility

4.1 You may be transferred, at the sole and absolute discretion of the Company, to any

place in India or outside India, on terms and conditions not less favourable than

those contained in this Agreement.

4.2 Your principal place of work as on the Effective Date shall be at [Insert name of

city/town] or at such other place as may be designated by the Company.

4.3 You may be required to travel both inside and outside India on the business of the

Company in the due performance of your duties from time to time.

4.4 The Company may also depute you to any work or assign you to any associate

company, branch, office, subsidiary or other companies, concerns, organizations, or

firms with whom the Company may make any such arrangement or agreement.


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5. Remuneration

5.1 The Company shall pay you the basic salary and other benefits as mentioned in

“Annexure B” hereto.

5.2 The salary payable to you pursuant to Clause 5.1 shall be deemed to accrue from

day to day and shall be paid in arrears in twelve equal monthly instalments on the

[first] working day of each month, subject to necessary deductions mentioned in

Clause 5.3. below. The salary set out in Annexure B hereto is subject to review in

accordance with the Company‟s practice and policies from time to time, however

there shall be no obligation on the Company to increase such salary at any point of

time save and except at its sole discretion.

5.3 The salary and other benefits paid to you hereunder shall be subject to the usual

statutory and other deductions, including tax and social security contributions

normally required to be withheld by an employer in India.

6. Expenses

6.1 [The Company shall pay or refund or procure to be paid or refunded to you monthly

in arrears all reasonable travelling, entertainment and other similar out of pocket

expenses necessarily and incurred by you wholly in the proper performance of your

duties, subject to production by you of such evidence of the expenses as the

Company may reasonably require.]

7. Leave & Holidays

7.1 The Company‟s holiday year commences on [1 January] and expires on [31

December] (the “Holiday Year”). You shall be entitled to such holidays, as may be

declared at the beginning of each Holiday Year by the Company.

7.2 In addition to holidays, you shall be [entitled to paid]:


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(i) casual/sick leave of [] days per year; and

(ii) privilege leave of [] days per year, which can be availed with the

Company‟s prior approval. [In case you do not avail of your accrued

privilege leave or any part thereof during a particular year, the balance leave

shall be added to the leave of succeeding year, provided that the total

accumulated leave shall not exceed [] days.]

7.3 In the first year of employment, you shall be entitled to the aforesaid leave

calculated on a pro rated basis, in accordance with your annual entitlement.

7.4 [Upon termination of this Agreement, you shall be entitled to payment in lieu of any

unavailed outstanding leave entitlement, subject to the limit specified in Clause 7.2.]

7.5 Upon termination of your employment under this Agreement, the Company shall be

entitled to deduct from any sum owed by the Company to you, a sum representing

overpayment of salary with respect to leave which you have taken in excess of your

accrued leave entitlement as at the date of the termination of your employment, or

any other amount owed by you to the Company, and you hereby authorise the

Company to make such deduction.

8. Sickness and Incapacity

8.1 In the event you are absent from work and unable to perform your duties

satisfactorily by reason of any injury, illness or other reason satisfactory to the

Company, you will be entitled to receive your salary and other benefits for up to []

consecutive working days during any such absence, in a period of 12 consecutive

months.

8.2 You shall submit yourself to a medical examination by a doctor appointed by the

Company at the request and at the expense of the Company, at any time during the

continuance of this Agreement, whether or not you are absent by reason of sickness,

injury or other incapacity.

9. Annual Bonus

9.1 You may receive an annual cash bonus of up to Rs. [] (Rupees [] Lakhs), at the

absolute discretion of the Company.

For the avoidance of doubt, you confirm by signing this Agreement that nothing in

this Clause shall confer upon you an automatic right or impose upon the Company


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an obligation to award you a bonus in any year and the same, if paid, shall not form

part of your salary for purposes of Clause 5.1.

10. Inventions, Designs, Copyright and other Intellectual Property

10.1 If at any time during the course of your employment under this Agreement you

make or discover or participate in the making or discovery of any Intellectual

Property directly or indirectly relating to or capable of being used by the Company,

full details of the Intellectual Property shall immediately be disclosed in writing by

you to the Company and the Intellectual Property shall be the absolute property of

the Company. At the request and expense of the Company, you shall give and

supply all such information, data, drawings and assistance as may be necessary or in

the opinion of the Company desirable to enable the Company to exploit the

Intellectual Property to the best advantage (as decided by the Company). You shall

execute all documents and do all things which may, in the opinion of the Company,

be necessary or desirable for obtaining patent or other protection for the Intellectual

Property and for vesting the same in the Company, as the Company may direct.

11. Confidentiality

11.1 As Confidential Information will from time to time become known to you, the

Company considers and you agree that, the restraints set forth in this Agreement (on

which you have had the opportunity to take independent legal advice) are necessary

for the reasonable protection by the Company of its business or the business of the

Group, the clients thereof or their respective affairs.

11.2 You shall not at any time, either during the continuance of or after the termination

of your employment with the Company, use, disclose or communicate to any person

whatsoever any Confidential Information which you have or of which you may have

become possessed during your employment with the Company nor shall you supply

the names or addresses of any clients, customers, vendors or agents of the Company

or any company of the Group to any person except as authorised by the Company or

as ordered by a Court of competent jurisdiction.

11.3 You agree that you will not at any time during the continuance of your employment

or on expiry or on termination/cessation of your employment with the Company or

thereafter, issue any statements to the press (whether oral or written) which have not

directly been authorised by the Company.

Such restriction shall apply to any statement to any representative of television,

radio, film or other similar media and to writing of any article for the press or


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otherwise for publication on any matter connected with or relating to the business of

the Company or any company of the Group.

11.4 The obligations under this Clause shall survive the termination or expiration of this

Agreement.

12. Non-Solicitation

12.1 You shall not during the [12 month period] after the date of termination or expiry of

this Agreement or cessation of your employment, solicit or entice or endeavour to

solicit or to entice or assist any other person, whether by means of supply of names

or expressing views on suitability, or by any other means whatsoever, to solicit or

entice away from the Company any employee, director, client, dealer, vendor or

business associate of the Company.

12.2 The restriction contained in Clause 12.1, on which you have had the opportunity to

take independent legal advice, is considered reasonable by the Parties, and

necessary for the protection of the legitimate interests and Confidential Information

of the Company.

13. Term and Termination

13.1 Termination of this Agreement by the Company beyond the Term for any reason

whatsoever, will not entitle you to claim any damages or compensation or any other

benefit whatsoever.

13.2 Either Party may terminate this Agreement by giving to the other [one] month‟s

written notice. The Company may terminate this Agreement by giving [one]

month‟s salary in lieu of written notice.

13.3 Without prejudice to and notwithstanding the above, this Agreement and your

employment with the Company hereunder may be terminated immediately by the

Company without any requirement of prior notice, if at any time in the sole and

absolute discretion of the Company (which decision shall be final and binding upon

you):

(a) you commit any serious or repeated or continual breach of any of your

obligations under this Agreement or as set out in the policies and procedures

of the Company; or

(b) you are guilty of any misconduct or neglect in the discharge of your duties

under this Agreement; or


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(c) by your actions or omissions, you bring the name or reputation of the

Company into serious disrepute or prejudice the interests of the business of

the Company; or

(d) by your actions or omissions, there are grounds for the summary termination

of your employment.

13.4 In the event of termination pursuant to Clause 13.3, the Company shall not be

obliged to make any payment to you save for, the amount of salary and benefits any

remuneration [and payment in lieu of any unavailed leave] actually accrued (on a

pro rata basis) up to and including the date of such termination. The Company shall

be entitled to deduct from such payment, any sums owing to the Company from you,

which deduction you expressly hereby consent and authorise. Termination of the

Agreement under this sub-clause would be without prejudice to:

(a) The Company's right to claim the actual damages it has suffered through the

breach by you of any terms and conditions hereto; and

(b) Any other relief to which the Company may be entitled under contract, law

or equity.

13.5 In the event that you are incapacitated by ill health, accident or any other cause from

performing your duties under this Agreement for a period of [60] working days or

more (whether consecutive or not) in any continuous period of 12 months, the

Company may terminate this Agreement by giving you one month‟s written notice

(whether or not you remain incapacitated and unable to perform your duties under

this Agreement), provided that you shall receive all benefits lawfully due to you

under this Agreement calculated up to the date of termination of employment.

14. Return of Property on Termination

14.1 Upon the termination or cessation of your employment with the Company for any

cause whatsoever, you shall immediately deliver up to the Company or its

authorised representative, any property or documents of the Company which may be

in your possession, custody or under your control, including, without limitation,

mobile phone, laptop, memoranda, correspondence, notes, records, reports,

sketches, plans, letter heads, visiting cards or other documents and any copies or

reproductions thereof in any medium whatsoever, and all other Confidential

Information, whether or not the property was originally supplied to you by the

Company.


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14.2 If so requested, you shall provide to the Company a signed statement confirming

that you have fully complied with Clause 14.1.

14.3 Without prejudice to any other right available under law, the Company reserves the

right to make reasonable deductions from your full and final salary payment or any

other amount due to you, in the event you fail to return all the property of the

Company which is in your possession, or return it in a damaged state, other than due

to normal wear and tear.

15. Data Protection

15.1 You consent to the Company holding and processing, both electronically and

manually, the data it collects in relation to you, in the course of your employment,

for the purpose of the Company‟s administration and management of its employees,

its business and for compliance with applicable procedures, laws and regulations.

15.2 You also consent to the transfer, storage and processing by the Company of such

data outside India, where the Company may have its offices.

16. Rules and Regulations

16.1 You shall, in addition to the terms and conditions of employment specifically stated

herein, also be governed by the rules, regulations and such other practices, systems,

procedures and policies (collectively, “the Policies”) as may be framed, amended or

modified by the Company from time to time. In the event of any conflict between

the terms and conditions of employment, as specifically stated herein and the

Policies, the terms and conditions specifically stated herein shall prevail.

17. Miscellaneous

17.1 Governing law

This Agreement shall be governed by and construed in accordance with Indian law.

17.2 Jurisdiction

In relation to any legal action or proceedings arising out of or in connection with

this Agreement, both the parties irrevocably submit to the exclusive jurisdiction of

the courts in [New Delhi].


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17.3 Notices

All notices, requests, demands or other communication required or permitted to be

given under this Agreement and the provisions contained herein shall be in writing

in English language and are effective upon delivery to the applicable Party (whether

by mail, fax, personal delivery or otherwise) at the address, and marked to the

attention of the person, indicated below:

(a) If to the Company, at:

Address:

Fascimile no:

E-mail address:

Kind Attention:

Mobile no:

(b) If to you, at:

Address:

Fascimile no:

E-mail address:

Mobile no:

17.4 Severability

(a) Clauses Independent

A Clause contained in this Agreement is enforceable independently of each

of the other Clauses and a Clause‟s validity is not affected if any of the other

Clauses are invalid.

(b) Partial Validity

If a Clause is void under applicable laws but would be valid if some part of

the Clause were deleted, the Clause in question shall apply with such

modification as may be necessary to make it valid.

17.5 Waiver

No failure by a Party to exercise, nor any delay by the Party in exercising, any right,

power or remedy hereunder shall operate as a waiver of that or any other right,


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power or remedy of the Party, nor shall any single or partial exercise of any right,

power or remedy preclude any other or further exercise of that or any other right,

power or remedy.

17.6 Supercession

This Agreement supersedes any prior or subsisting agreement, correspondence or

arrangement, including but not limited to any service agreement or contract of

employment (oral or otherwise), made between the Company and you in relation to

your employment and any such agreement(s) shall be deemed to have been

terminated by mutual consent with effect from the Effective Date.

[Portion intentionally left blank]


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IN WITNESS WHEREOF, the Parties to this Agreement have caused their respective

duly authorized representatives to execute this Agreement on the day and year first above

written:

SIGNED AND DELIVERED BY:

Signed for and on behalf of the Company

by:

Signed:

__________________________

__________________________

[Insert Name], Director, ABC LTD

Insert the name of Mr.[●]

WITNESSED BY:

___________________________

_______________________________

Name:

Name:

Address:

Address:

Occupation:

Occupation:


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ANNEXURE A

Duties, Responsibilities and Job Description


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ANNEXURE B

Compensation Package

A) Basic Salary - Rs. [●] (Rupees [●]) per month.

B) Allowances & Perquisites:

i) [●]; and

ii) [●].

Comment: The statutory benefits payable to an employee in terms of provident

fund, gratuity etc., has been explained in Chapter [●] hereto.


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別添 II

ANNEXURE II


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ADDITIONAL CLAUSES TO BE INSERTED IN AN AGREEMENT TO ENGAGE

A MANAGING DIRECTOR

A. In an agreement drafted/executed for the purpose of hiring a Managing Director,

certain clauses appearing in the standard Employment Agreement (attached as

Annexure I to this Report) would be required to be substituted while some new

clauses (or sub-clauses) may need to be incorporated in the standard Employment

Agreement.

B. Clause 3 of the standard Employment Agreement would be required to be

substituted by the new Clause 3 set out hereinbelow:

3. Duties and Powers1

3.1. As Managing Director of the Company, you shall perform your duties and

exercise powers in respect of management of the Company under the control

and superintendence of the Board.

3.2. Without prejudice to the Board‟s powers to modify your powers, duties and

responsibilities, as Managing Director of the Company, you shall have the

following powers:

i) to enter into arrangements with any Governmental body and/or authority,

supreme, municipal, local and otherwise, and to obtain from such

Governmental body and/or authority, rights, concessions, allowances,

licenses, leases and privileges;

ii) to negotiate and enter into contracts, agreements, etc, for the acquisition of

land, for construction of buildings, with the suppliers of plant and machinery

(both indigenous and foreign) and to sign and execute all contracts,

agreements and other documents required to be extended in pursuance of the

business of the Company and for implementation of the decisions of the

Board;

1 The list of powers indicated herein are merely illustrative; the company may delete from or add to the same,

or retain the same with such modifications as it may deem fit.


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iii) to constitute, conduct, defend, compromise or refer to arbitration, and to

initiate or abandon any legal and/or other proceedings and claims by or

against the Company and the directors and officers of the Company, or

otherwise concerning the affairs of the Company;

iv) to issue the property of the Company for such purpose and to such extent

and in such manner as you may think proper;

v) to give effectual receipt(s) and discharge(s) on behalf of the Company for

any money, funds, goods or property lent or payable or belonging to the

Company;

vi) to draw, accept, endorse, negotiate cheques, bills of exchange, bills of lading,

railway receipts, delivery orders and other documents of title, pay orders and

other securities;

vii) to appoint and employ requisite staff, and to engage necessary consultants,

for the purpose of administration and management of the day-to-day affairs

and business of the Company and from time to time, to remove, dismiss,

discharge and suspend and re-employ / re-engage officers, secretaries,

engineers, accountants, lawyers, contractors, servants and other persons as

he shall think proper with such powers and duties and upon such terms and

conditions as to the duration of office, remuneration or otherwise as he shall

think fit;

viii) to delegate all or any of the powers, authorities and directions for the time

being vested in you except financial powers;

ix) to incur expenditure on capital goods as and when required by the Company

from time to time in accordance with the decisions of the Board;

x) to incur expenditure expedient and necessary in the event of fire, damage of

life and property, thefts, strike, lock-out, labour unrest, civil commotion, etc,

subject to all such expenditure being placed before the Board for ratification;

xi) to incur expenditure on official entertainment;

xii) to incur all necessary expenditure for purchase of raw materials and other

consumables; and


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xiii) to negotiate and enter into contracts, agreements, etc, for marketing the

goods dealt with by the Company, with customers, suppliers of materials and

goods (both indigenous and foreign) and to sign and execute all contracts,

agreements and other documents required in pursuance of the business of the

Company and for implementation of the decisions of the Board, and if

necessary visit any place or places in India or abroad for this purpose.

3.3. In addition to the specific powers indicated in clause 3.2 above, you will

have the power to generally to make all such arrangements and to

perform/delegate/supervise all matters relating to the general control,

management and superintendence of the day-to-day affairs of the Company

and to do all such acts and things on behalf of the Company as may be

necessary or expedient and as are not specifically required to be done by the

Board under the Companies Act, 1956 or by the Articles of Association of

the Company for the time being in force.

3.4. You shall also exercise such powers, perform such duties and comply with

such directions in relation to the business of the Company as the Board, or

any person authorised by the Board, may from time to time confer upon or

assign or give to you.

3.5. You shall, during the Term of this Agreement (unless prevented by ill health

or accident or as otherwise agreed by the Company in writing), devote your

entire time and attention and abilities to your employment with the Company

and shall use your best endeavours to promote and protect the general

interests and welfare of the Company.

3.6. You shall not during the Term of your employment with the Company [or

for a period of [] months after the termination/cessation of your

employment with the Company] be engaged, concerned or interested, either

directly or indirectly, in any trade or business or occupation (either for

remuneration or otherwise) similar to the business of the Company, in any

manner whatsoever. Nor shall you undertake any activities which are

contrary to or inconsistent with your duties and obligations to the Company

or with the Company‟s interests.

3.7. Additionally, you shall exercise such powers, perform such duties and

comply with such directions in relation to the business of the Company as


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the Board, or any person authorised by the Board, may from time to time

confer upon or assign or give to you.

3.8. You shall, at all times, promptly give to the Company and/or to any person

to whom you operationally report (in writing, if so requested) all such

information, explanations and assistance as may be required in connection

with your duties under this Agreement.

3.9. Your hours of work shall be from [09:30 a.m. to 5:30 p.m.], [5 (five)/ 6

(six)] days a week. However, as the Managing Director, you are required to

be flexible in working hours and work such additional hours as may be

necessary for efficient performance of your duties and powers under this

Agreement. [You hereby irrevocably waive any overtime payments with

respect to any hours worked by you outside normal business hours].

3.10. Upon the expiry of this Agreement, the Company may at its sole option, but

is not obliged to, assign you such other functions/roles with the Company, at

any place in or outside India, as may be determined by the Company at its

absolute discretion, on terms and conditions not less favourable than those

contained in this Agreement.

C. Some of the clauses / sub-clauses that could be required to be added in an agreement

for a Managing Director, are as set forth below2:

5. Remuneration

5.4. You will not be entitled to any fee for attending any meetings of the Board

or a Committee thereof.

13. Term and Termination

13.5. Your appointment as the Managing Director shall automatically stand

terminated if you cease to be a director of the Company.

13.6. Notwithstanding the foregoing clause, upon the expiry of this Agreement or

upon its termination for any reason whatsoever, you shall forthwith resign

2 The numbering of these sub-clauses indicate where these sub-clauses are required to be inserted in the

standard Employment Agreement.


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from the position of director on the Board and you hereby irrevocably

undertake to forthwith provide such resignation letter to the Company.


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別添 III

ANNEXURE III


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CONSULTANCY AGREEMENT

BETWEEN

MR. A

(“CONSULTANT”)

AND

XYZ PRIVATE LIMITED

(“CLIENT”)


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[To be printed on stamp paper of appropriate value]

CONSULTANCY AGREEMENT

This Consultancy Agreement (“Agreement”) is made at [●] on this [●] day of [●], 2009

by and between:

(1) XYZ Ltd., a company registered under the (Indian) Companies Act, 1956 and

having its registered office at [●] (hereinafter the “Company”); and

(2) Mr. A, S/o [●], aged [●] years and a citizen of [●] and presently residing at [●]

(hereinafter the “Consultant3”).

(The Consultant and the Company are collectively referred to as “Parties” and individually

as “Party”.)

WHEREAS

A. The Company is engaged in the business of [●].

B. The Company is desirous of availing certain services pertaining to [●].

C. The Consultant has represented that it has the necessary expertise, experience and

infrastructure to render the desired services. Accordingly, the Consultant is desirous

of providing [Insert details with respect to the nature of services] services, more

clearly set out in Schedule I to the Company (hereinafter referred as the “Services”).

D. Relying on the aforesaid representation of the Company, the Company intends to

engage the Consultant for the purpose of providing the Services to the Company and

the Consultant has agreed to offer Services to the Company, on the terms and

subject to the conditions set out in this Agreement.

NOW, THEREFORE, in consideration of the premises and other good and valuable

consideration, the receipt and adequacy of which are hereby acknowledged, the Parties,

intending to be legally bound, hereby agree as follows:

3 In the event, this Agreement is used to engage a service provider, all references to „Consultant‟ should be

replaced by „Service Provider‟.


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1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement the following expressions shall, unless the context otherwise

requires, have the following meanings:-

“Commencement Date” shall mean the [●];

“Company Records” shall mean and include any notes, memoranda, records, tape

recordings, computer programs, photographs, plans, drawings or any other form of

record relating to any matter within the scope of the business of the Company or

concerning any of the dealings or affairs of the Company, which is shared with the

Consultant for the purpose of facilitating the Consultant in providing the Services;

“Confidential Information” shall mean

i) information relating to the businesses, finances, dealings, transactions and

affairs of the Company;

ii) trade secrets (including, without limitation, price and cost information,

business plans and programs, business opportunities, expansion plans,

research and development projects, technical data, and details of and

technical data relating to business ventures, licences, sale agreements and

joint venture agreements, computer programs and all intellectual property

rights whatsoever relating to the business of the Company or and which is

for the time being confidential to the Company);

iii) the identity of potential business co-venturers of the Company;

iv) analyses made, or views taken, by the Company in respect of the businesses,

finances, dealings, transactions and affairs of the Company, any business co-

venturers or potential business co-venturers of the Company or any other

third party; and

v) information in respect of which the Company is bound by an obligation of

confidentiality to a third party.

“Consultancy Fee” shall have the meaning ascribed to it in Clause 4.1;

“Due Date” shall have the meaning ascribed to it in Clause 4.1;


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“Intellectual Property Rights” means all intellectual property rights of whatever

nature throughout the world including all rights conferred under statute, common

law or equity, whether existing now or at any time in the future, including rights in

all copyright, patents, trade marks, business names, trade names, domain names,

designs, confidential information, trade secrets and know-how.

“Invoice” shall have the meaning ascribed to it in Clause 4.1;

“Law(s)” mean all laws, by-laws, rules, regulations, orders, ordinances, protocols,

codes, guidelines, policies, notices, directions, judgements, decrees or other

requirements or official directive of any governmental authority or Person acting

under the authority of any governmental authority or of any statutory or regulatory

authority in India, whether in effect on the date of this Agreement or thereafter.

“Person” shall mean and include an individual, corporation, trust, partnership, un-

incorporated body or other entity;

“Relevant Intellectual Property” shall have the meaning ascribed to it in Clause

6.2;

“Services” shall have the meaning ascribed to the term in the Recitals of this

Agreement, and as detailed in Schedule I;

“Term” shall have the meaning ascribed to it in Clause 3.1; and

“Territory” shall mean the territory of the Republic of India.

1.2 In this Agreement:-

(i) words and expressions defined in the Companies Act, 1956, shall, unless the

context otherwise requires, have the same meanings when used in this

Agreement;

(ii) references to statutes or any provisions thereof shall be construed as

references to such statutes or the provisions thereof as amended, extended,

consolidated or replaced from time to time and to any orders, regulations,

instruments or subordinate legislation made under the relevant statutes or the

provisions thereof which have been so replaced (whether with or without

amendment);


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(iii) the masculine gender shall include the feminine and neuter genders and vice

versa and the singular number shall include the plural and vice versa;

(iv) unless otherwise stated, references to Clauses and Schedules are references

to Clauses and Schedules of this Agreement;

(v) headings to Clauses are for convenience only and shall not affect the

construction or interpretation of this Agreement;

(vi) the Schedules to this Agreement shall be deemed to be incorporated in and

form an integral part of this Agreement; and

(vii) the rule of construction, if any, that a document should be interpreted against

the parties responsible for the drafting and preparation thereof, shall not

apply.

2. NATURE AND SCOPE OF THE SERVICES

2.1 During the Term of this Agreement, the Consultant shall, for the benefit of the

Company, provide Services subject to the following terms and conditions:

(i) the Consultant shall provide the Services as and when requested by the

Company and in the manner set out in Schedule I;

(ii) the Services shall be provided by the Consultant in a professional, timely

and efficient manner and in accordance with international standards in this

regard;

(iii) [the Consultant shall use his own infrastructure and equipments for

rendering the Services];

(iv) the Consultant shall provide the Services at such locations as may be

required by the Company;

(v) the Consultant‟s point of contact in the Company shall be [Insert

appropriate name/designation] (“Company Representative”) or any

person authorised by him and shall keep them fully informed of all steps and

actions taken by the Consultant in the performance of his obligations under

this Agreement;

(vi) the Consultant shall in the performance of Services under this Agreement,

comply with and conform to the instructions or directions given by the

Company Representative or any person assigned by him, from time to time;

and

(vii) the Consultant agrees that it shall exercise reasonable due diligence and

profession skill and care in performance of all his duties, covenants and

obligations under this Agreement; and

(viii) [Insert].


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2.2. The Services which the Consultant shall provide hereunder shall [not be exclusive,

and the Consultant may perform similar services for others].

2.3. The Consultant agrees to maintain in full force and effect any licences and permits

which it may be required by applicable Laws to have in order to carry out its

obligations under this Agreement.

2.4. The Consultant shall provide the Services in compliance with all applicable Laws.

3. COMMENCEMENT AND DURATION

3.1 This Agreement shall become effective from the Commencement Date and shall,

subject to the provisions of Clause 8 of this Agreement, continue for a period of [●]

([●]) years (“Term”).

3.2. In case the Company is desirous of extending the term of the Agreement, it shall

give the Consultant a written notice at least 60 (sixty) Business Days prior to the

expiry of the Term, as the case may be, of its intention to renew the Agreement for

a further period of [●] years. Subject to the Consultant‟s written acceptance of the

extension of the term of the Agreement, this Agreement shall stand extended for the

period agreed, on terms and conditions as may be mutually agreed upon between the

Parties at such time.

4. REMUNERATION

4.1 In consideration of the Services provided by the Consultant to the Company under

this Agreement, the Company has agreed to pay to the Consultant, consultancy fees

as per the rates set out in Schedule II of this Agreement (the “Consultancy Fee”).

The Consultant shall raise an invoice with respect to the Services provided by the

Consultant (as per the rates set out in the Schedule II) not later than the [fifth] day of

every calendar month for the Services rendered in the previous month, set out in the

format attached hereto as Schedule III (the “Invoice”). The Consultant hereby

acknowledges that the Invoice raised by him shall be paid by the Company within

[●] days from the receipt of the Invoice (the “Due Date”) subject to the provisions

of Clause 4.4 below.

4.2 The Company hereby agrees to reimburse the Consultant for all reasonable and

actual costs incurred by the Consultant, if any, such as travel expenses, boarding [●],

etc., towards performance of his Services hereunder. In this regard, the Consultant


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agrees that such expenses shall not be payable or reimbursed by the Company unless

approved by the Company in advance, and vouchers evidencing the same are

furnished by the Consultant to the Company.

4.3 All amounts payable by the Company under this Agreement shall be subject to such

withholding tax or tax deduction at source or any other taxes, as may be required

under applicable Laws.

4.4 In the event of any dispute in relation to the amount to be paid under an Invoice or

any other amount to be paid by the Company under this Agreement, the Consultant

hereby agrees and acknowledges that the Company shall pay the undisputed part of

such amount on or before the Due Date. In the event the dispute relating to the

disputed part of such amount is not resolved amicably between the Parties within a

period of [fifteen days], the same shall be resolved in accordance with Clause 18.

5. CONFIDENTIAL INFORMATION

5.1 Recipient to keep information confidential

Where one Party to this Agreement (“Discloser”) discloses Confidential

Information to the other Party (“Recipient”), the Recipient shall:

(i) use the Discloser‟s Confidential Information solely for the purposes of

performing its obligations under this Agreement; and

(ii) keep all the Discloser‟s Confidential Information confidential and not

disclose it to any Third Party except:

a) as otherwise permitted under this Agreement; and

b) as provided for in Clause 5.2.

c) if the information is in the public domain (other than as a result of a

breach of this provision);

5.2. Permitted disclosures

The Recipient may disclose the Discloser‟s Confidential Information:

(i) with the prior written consent of the Discloser; and


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(ii) to the extent that the disclosure is required by applicable Law, provided that:

a) the Recipient immediately notifies the Discloser of the particulars of

the required disclosure; and

b) the Recipient gives the Discloser all assistance reasonably required

by the Discloser to enable the Discloser to take any steps available to

it to prevent the disclosure or to ensure that such disclosure occurs

subject to an obligation of confidence.

5.3. Return of Confidential Information

The Recipient shall, immediately upon expiry or termination of this Agreement or

on request by the Discloser, at the Discloser‟s option:

(i) return;

(ii) destroy; or

(iii) in the case of machine-readable records, delete,

all the Discloser‟s Confidential Information that is in the Recipient‟s possession,

custody or under its direct control. In case of (ii) or (iii) above, the Consultant shall

provide a certificate duly signed by its authorised representative in this regard.

5.4. Right to injunctive relief

The Recipient acknowledges that if it breaches its obligations under this Clause 5:

(i) monetary damages shall not be a sufficient remedy; and

(ii) the Discloser will be entitled, without limiting any of its other rights or

remedies, to injunctive or equitable relief to deal with the breach.

6. INTELLECTUAL PROPERTY

6.1 The Consultant shall forthwith communicate and assign to the Company all

Intellectual Property which the Consultant may create, make or originate, either

solely or jointly with another, during the Term of this Agreement in connection with

or in the course of rendering the Services.


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6.2 In the case of such Intellectual Property as is made or originated wholly or

substantially in the course of performance of the Consultant‟s obligations under this

Agreement and which affect or relate to the affairs of the Company, or are capable

of being used or adopted for use in connection therewith, (the “Relevant

Intellectual Property”), Clauses 6.3 to 6.5 shall apply.

6.3 All Relevant Intellectual Property (or, in the case of Relevant Intellectual Property

made or originated by the Consultant jointly with another or others, to the full extent

of the Consultant's interest therein so far as the Law allows) shall be and become the

exclusive property of the Company and shall not be disclosed to any other person,

company or other undertaking without the prior written consent of the Company.

Without prejudice to the foregoing, the Consultant, by his execution of this

Agreement, assigns to the Company all of his proprietary rights (if any) in respect of

all Relevant Intellectual Property for the full terms thereof throughout the world.

6.4 The Consultant shall, if and when required by the Company (whether during or after

the termination of this Agreement) and at the expense of the Company (or its

nominees):-

(i) give and supply all such information, data and drawings as may be required

to enable the Company (or its nominees) to exploit all Relevant Intellectual

Property to the best advantage of the Company; and

(ii) do, and combine with others in doing, all acts and sign and execute all

applications and other documents (including powers of attorney in favour of

nominees of the Company) necessary or incidental to obtaining, maintaining

or extending patent or other forms of protection for such Relevant

Intellectual Property in India and in any other part of the world or for

transferring to or vesting in the Company or its nominees the Consultant's

entire right, title and interest to and in the Relevant Intellectual Property or

to and in any application, patent or other form of protection or copyright (as

the case may be), including the right to file applications in the name of the

Company or its nominees for patent or other forms of protection or for

registration of copyright in any country claiming priority from the date of

filing of any application or other date from which priority may run in any

other country.


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6.5 For the avoidance of doubt, the provisions of this Clause 6 shall remain in full force

and effect notwithstanding that after the Consultant has made or originated any

Relevant Intellectual Property, the Agreement may have ceased or been terminated

for any reason whatsoever.

7. COMPANY RECORDS AND OTHER PROPERTY

7.1 The Consultant shall, on the request of the Company at any time, and from time to

time (and, in any event, on termination of this Agreement), immediately deliver up

to the Company or its authorised representative all keys, passes, credit or charge

cards, Confidential Information, Company Records and other documents, records,

files, manuals, papers, computer disks, tapes or other software storage media and

any other property of whatsoever nature which may be in his possession or control

and relates in any way to the business and affairs of the Company and the

Consultant shall not, without consent of the Company, retain any copies thereof.

8. TERMINATION

8.1 Either Party may terminate this Agreement by giving a written notice of not less

than [●] months.

8.2 Notwithstanding the provisions of Clause 8.1, the Company shall be entitled to

terminate this Agreement at its sole discretion by giving a written notice of [seven]

([7]) days if the Consultant:

(i) in any material respect, neglects or fails to carry out or refuses to attend to,

or commits any material breach or non-observance of, his duties or

obligations under this Agreement or commits any act of gross misconduct or

gross negligence in performance of his obligations under this Agreement; or

(ii) is convicted of a criminal offence, or indicted of any criminal offence, which,

in the reasonable opinion of the Company, may detrimentally affect the

Company; or

(iii) is rendered unable to perform his obligations under this Agreement for a

consecutive period of [●] days; or


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(iv) becomes of unsound mind or a person whose person or estate is liable to be

dealt with in any way under Laws relating to mental health4; or

(v) has an order for winding-up or liquidation passed against it5.

9. NON-COMPETE AND NO SOLICITATION

9.1 The Consultant hereby expressly agrees and undertakes that, during the Term of this

Agreement and for a period of [six] months thereafter, the Consultant shall not,

directly or indirectly, on his own account or as an agent, employee, officer, director,

consultant, or shareholder or equity owner of any other Person, engage or attempt to

engage or assist any other Person to engage in the business or activities undertaken

by the Company within the Territory or otherwise own, manage, operate, finance,

control or participate in the ownership, management, operation, financing, or control

of, be employed by, associated with, or be connected in any manner with or render

services or advice to, any business whose products, services or activities compete in

whole or in part with the products, services or activities of the Company anywhere

within the Territory.

9.2 The Consultant hereby acknowledges and agrees that the provisions of this Clause 9

are reasonable and necessary to protect and preserve the legitimate business interests

of the Company and that the Company would be irreparably damaged if the

Consultant were to breach the covenants contained in this Clause 9.

9.3. The Consultant hereby acknowledges and agrees that during the [12 month period]

after the date of termination or expiry of this Agreement or cessation of its

employment, it shall not solicit or entice or endeavour to solicit or to entice or assist

any other person, whether by means of supply of names or expressing views on

suitability, or by any other means whatsoever, to solicit or entice away from the

Client any employee, director, client, dealer, vendor or business associate of the

Client.

10. RELATIONSHIP OF PARTIES

4 This is applicable if the Consultant is an individual.

5 This is applicable if the Consultant is a company.


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10.1 The relationship between the Company and the Consultant under this Agreement is

that of independent contractors. Nothing in this Agreement shall be construed as

creating a relationship between the Parties in the nature of a joint venture,

partnership, employer-employee, or agency. Neither Party has the authority under

this Agreement to create any obligations for the other Party, or to bind the other

Party to any representation or document.

10.2 The Consultant shall be solely responsible for obtaining any required insurance (at

its own cost) and to bear and deposit all applicable tax and other governmental

charges etc. payable with respect to the Services.

10.3. The Consultant shall be solely responsible for compliance with all applicable labour

laws with respect to its employees and employees of the Consultant will remain the

Consultant‟s employees and under no circumstances shall they be considered the

Company‟s employees or agents.

11. INDEMNIFICATION

11.1 The Consultant shall indemnify, defend and hold the Company harmless from and

against any and all damages, claims, penalties, fines, costs paid or incurred by the

Company as a result of, arising from, or in connection with, or relating to:-

(i) any breach by the Consultant of any of its responsibilities/obligations or

covenant under this Agreement; or

(ii) any claim by a third party that any aspect of the Services infringes any of

their rights, including Intellectual Property Rights; or

(iii) any negligence, recklessness or wilful misconduct of the Consultant or its

personnel in the performance of the Services.

12. NOTICES

12.1. All notices, requests, demands or other communication required or permitted to be

given under this Agreement and the provisions contained herein shall be in writing

in English language and are effective upon delivery to the applicable Party (whether

by mail, fax, personal delivery or otherwise) at the address, and marked to the

attention of the person, indicated below:


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(a) If to the Company, at:

Address:

Fascimile no:

E-mail address:

Kind Attention:

Mobile no:

(b) If to the Consultant, at:

Address:

Fascimile no:

E-mail address:

Kind Attention:

Mobile no:

13. NO ASSIGNMENT

13.1 Obligations of the Consultant under this Agreement are personal in nature and shall

not be assigned or transferred to any third party without the prior written consent of

the Company.

14. NON-WAIVER, AMENDMENT

14.1 No failure by the Company to exercise, nor any delay by the Company in exercising,

any right, power or remedy hereunder shall operate as a waiver of that or any other

right, power or remedy of the Company, nor shall any single or partial exercise of

any right, power or remedy preclude any other or further exercise of that or any

other right, power or remedy.

14.2 This Agreement may only be amended or supplemented by an instrument in writing

duly executed by both the Parties.


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15. SEVERABILITY

(i) Clauses Independent

A Clause contained in this Agreement is enforceable independently of each

of the other Clauses and a Clause‟s validity is not affected if any of the other

Clauses are invalid.

(ii) Partial Validity

If a Clause is void under applicable Laws but would be valid if some part of

the Clause were deleted, the Clause in question shall apply with such

modification as may be necessary to make it valid.

16. ENTIRE AGREEEMENT

This Agreement supersedes all previous agreements in respect of its subject matter

and embodies the entire Agreement between the Parties in respect of its subject

matter.

17. GOVERNING LAW

17.1 This Agreement shall be governed by and construed in accordance with the Laws of

India and subject to Clause 18 below, the Parties hereby agree to submit to the

exclusive jurisdiction of the courts in [●].

18. DISPUTE RESOLUTION

18.1 The Parties agree that they shall attempt to resolve through good faith consultation,

any dispute or difference between any of the Parties in respect of or concerning or

connected with the interpretation or implementation of this Agreement or arising out

of this Agreement, and such consultation shall begin promptly after a Party has

delivered to another Party a written request for such consultation.

18.2 In the event that the Parties have been unable to resolve a dispute within a period of

[●] ([●]) days in accordance with the mechanism provided in Clause 18.1 above,

such dispute shall be finally settled according to the procedures set forth in Clause

18.3 below.


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18.3 In the event of any dispute or difference between the Parties to this Agreement in

respect of or concerning or connected with the interpretation or implementation of

this Agreement or arising out of this Agreement, such dispute or difference shall be

referred to arbitration by 3 (three) arbitrators, 1 (one) arbitrator to be appointed by

each of the disputing Parties; and the presiding arbitrator to be appointed by the 2

(two) arbitrators so appointed, in accordance with the (Indian) Arbitration and

Conciliation Act, 1996, or any modification or amendment thereof.

18.4. The Arbitration shall be held in [●], India. The decision of such arbitration shall be

binding and conclusive upon the Parties and may be enforced in any court of

competent jurisdiction.

18.5 This Clause 18 constitutes an irrevocable consent by the Parties to any proceedings

in terms hereof and no Party shall be entitled to withdraw therefrom or to claim at

any such proceedings that it is not bound by this Clause 18.

18.6 This Clause 18 is severable from the rest of this Agreement and shall remain in

effect even if this Agreement fails to come into force or is cancelled or otherwise

terminated for any reason.

19. COUNTERPARTS

19.1 This Agreement may be executed by the Parties in separate counterparts each of

which when so executed and delivered shall be an original, but all such counterparts

shall together constitute one and the same instrument.

20. FORCE MAJEURE

20.1. 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 [48] hours of the commencement of the event of Force

Majeure.

20.2. Force Majeure events shall mean and shall include: acts of God such as fire, storm,

flood, earthquake, explosion or accident; acts of the public enemy; acts of war or

terrorism; rebellion; insurrection; sabotage; epidemic; quarantine restrictions;

transportation embargoes or failures or delays in transportation; strikes; acts of any


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government, whether national, municipal or otherwise, or any agency thereof; and

acts of third parties which are beyond the reasonable control of such Party.

[This portion is intentionally left blank]


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IN WITNESS WHEREOF, the Parties to this Agreement have caused their respective

duly authorized representatives to execute this Agreement on the day and year first above

written:

SIGNED AND DELIVERED BY:

Signed for and on behalf of XYZ LTD by:

Signed for and on behalf of [Insert the

name of Consultant] by:

__________________________

__________________________

[Insert Name], Director, XYZ LTD

[Insert the name of Consultant]

WITNESSED BY:

___________________________

_______________________________

Name:

Name:

Address:

Address:

Occupation:

Occupation:


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SCHEDULE I

SERVICES TO BE PROVIDED BY THE CONSULTANT6

6 In an agreement with a service provider instead of a consultant, this schedule will be required to detail the

services required to be rendered by the service provider, and the manner of rendering the same e.g. whether

the service provider intends to assign contract labour for performing the desired services, the means of

supervising the performance of services by such contract labour, the point of contact on behalf of the service

provider who will be responsible for all liaison / communication with the clients, etc.


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SCHEDULE II

CONSULTANCY FEES

(Consultant to attach copies of supporting documentation, wherever applicable or

available.)


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SCHEDULE III

FORMAT OF INVOICE

Documents

ANNEXURE I - jetro.go.jpABC India (Private) Limited], a company incorporated under the Companies Act, 1956 and having its registered office at [ ] (hereinafter referred to as the “Company”,