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Things to keep in mind while drafting a contract

A legal contract or an agreement is not a mere piece of paper for signing between two parties but it protects one business entity with its rights and remedies.

An agreement also create responsibilities, conditions, manners, time limit, monetary issues, etc so that every corner of the agreement is properly sealed failing which it may result unforeseen loses.

A legal and valid agreement should have most important ingredients. They are:

  • Simplicity
  • Clarity
  • Futuristic
  • Options
  • Definitions
  • Straight & Small Sentences

THE DO's

1. Do entitle the document "CONTRACT" so that there can be no mistake as to its intent.

2. Do make sure the parties are properly identified in the first paragraph, that names are spelled correctly, and that addresses are accurate.

3. Do use common-sense headings to make it easier to find particular provisions in the contract.

4. Do use plain language whenever possible

5. Do define all technical terms.

6. Do include the date in the first paragraph so that it is easy to refer back to after contract execution, and so that the contract can later be identified by date, such as "the November 20, 2001 Contract for the Sale of Goods."

7. Do consider the placement of punctuation marks, since even a misplaced comma can change the meaning of a sentence.

8. Do carefully review the use of conjunctions, especially "and" and "or," since the word you choose can have a dramatic impact on meaning.

9. Do sign in blue or other colored ink to make the original easily distinguishable from photocopies.

10. Do include notarization if required by applicable law.

11. Do retain a copy of the contract for your records.

THE DONT's

1. Don't include overly long sentences; rather, break sentences down into easily digestible thoughts

2. Don't assume the other party defines terms the way you do. If there is any doubt, include a definition in the contract.

3. Don't include legalize or archaic phrases like "the party of the first part." "heretofore," etc. They generally add little in terms of clarity.

4. Don't start acting according to the terms of the contract until both parties have executed it.

5. Don't read the contract over hurriedly. It takes time to understand all of the possible nuances of the language used.

6. Don't be repetitive unless it is absolutely necessary.

Intellectual Property Assignment Agreement

This Intellectual property assignment agreement ("Agreement") is entered into on [___] ("Effective Date”), at [___] by and between:

1. [___] hereinafter referred to as the "Company” (which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors and assigns) of the First Part and

2. [___] hereinafter referred to as "Employee”, (which expression shall, unless repugnant to the meaning or context hereof mean and include its successors and permitted assigns) of the Second Part.

The Company and the Employee are each hereinafter collectively referred to as "Parties" and individually as "Party”.

WHEREAS:

A. The employee is an employee of the company and by virtue of being an employee, may conceive and contribute to the development intellectual property of the Company during the course of his/her employment with the Company and for the discharge of the Employee's obligations set forth in the employment agreement executed by the Employee with the Company.

B. The Parties wish to enter into this Agreement to set forth the terms relating to the ownership of intellectual property rights in information shared with the Employee.

NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement (including in the recitals herein above or schedules hereto), the following words and expressions shall have, where the context so permits, the following meaning ascribed to them:

1.2 "Agreement" shall mean this Intellectual property assignment Agreement.

1.3 "Party” means either the employee or the company.

1.4 "Intellectual Property Rights” means and includes, without limitation, any patents, copyrights, trademarks, trade secrets, service marks, database right, design right, moral right or any other property rights (in each case, whether registered or not and including applications for registration, if any) that grant similar rights as the foregoing, anywhere in the world.

1.5 "Company Intellectual Property” means any Proprietary Information created, conceived, developed, improved upon or contributed to by the Employee during the course of Employment.

1.6"Proprietary Information” means and includes, but is not limited to, Company Intellectual Property information about software programs, designs, source code, object code, algorithms, trade secrets, formulae, designs, know-how, domain names, processes, applications, data, ideas, techniques, documents, notes, presentations, works of authorship, business plans, customer lists, user information, vendor data, customer data, operational data, terms of compensation and performance levels of employees, and other information concerning the actual or anticipated business, research or development, prices and pricing structures, marketing and sales information, competitive analysis, and any information and materials relating thereto, or which is received in confidence by or for the Company or its Affiliates from any other person, whether or not it is in written or permanent form.

2 INTELLECTUAL PROPERTY RIGHTS

2.1 The Company shall retain all rights, title and interest and Intellectual Property Rights in any Company Intellectual Property created, conceived, developed, contributed to or improved upon by the Employee during the course of his Employment, shall vest with the Company upon such creation, conception, development, contribution or improvement. Notwithstanding anything to the contrary, no license with respect to Intellectual Property Rights shall be deemed or implied to be granted by the Company to the Employee in respect of the Company Intellectual Property.

2.2 The Employee agrees and understands that any and all copyrightable works that are prepared by the Employee, within his scope of service, is "work for hire” under applicable law and the Company will be considered the first owner of such copyrightable works. To the extent that the Company is not considered the first owner of the Intellectual Property Rights created by the Employee, the copyright and all related rights, title and interest in all such Company Intellectual Property is irrevocably assigned by the Employee to the Company in consideration of the Employment which constitutes valid and adequate consideration. The Employee hereby waives any right to and agrees that he shall not raise any objection or claims under applicable law in respect of ownership of such Company Intellectual Property.

2.3 During the Employment, whatever gets created, developed, modified in the form of any hardware or software design, engineering, hardware code, software code, hardware and software library , schematic, architectural, layout, protocol, model or any Intellectual Property or document in any format by the Employee with or without the assistance or involvement of any other Person during the Term using own tools or the Company's or its partners/Affiliates' tools and systems will always be property of the Company.

2.4 The Employee shall do all acts, deeds and things including execution of necessary documents without charge or compensation but at the cost of the Company for fully and effectively vesting in the Company the rights in any Intellectual Property Rights as referred to in this Clause 2.

2.5 The Employee represents and warrants that the Employee has not violated and will not violate the Intellectual Property Rights of any third party and agrees not to violate the Intellectual Property Rights of any third party in the course of Employment.

2.6 The Employee acknowledges that the Employment and the remuneration paid by the Company to the Employee is a good, valuable and adequate consideration, to be bound by the terms and conditions of this Agreement.

2.7 The parties hereby undertake to do and perform, sign, swear and execute all such further and other acts, deeds, documents, matters or things as may be required by the Company or considered necessary, desirable or proper to give effect to the transfer and assignment of the said Intellectual Property rights.

3.Waiver

3.1. The failure, with or without intent, of any Party to insist upon the performance (in strict conformity with the literal requirements) by the other Party of any term or stipulation of this Agreement, shall not be treated or deemed to constitute a modification of any terms or stipulations of this Agreement. Nor shall such failure or election be deemed to constitute a waiver of the right of such Party at any time whatsoever thereafter to insist upon performance by the other party strictly in accordance with any terms or provisions hereof.

All terms, conditions and obligations under this Agreement shall remain in full force and effect at all times during the subsistence of this Agreement except where otherwise amended or modified by them by mutual written agreement.

4. Entire Agreement and Modifications

4.1. The Parties confirm and acknowledge that this Agreement shall constitute the entire agreement between them and shall supersede and override all previous communications, either oral or written, between the Parties with respect to the subject matter of this Agreement, and no agreement or understanding varying or extending the same shall be binding upon any party unless arising out of the specific provisions of this Agreement.

4. 2. No amendment, modification or addition to this Agreement shall be effective or binding on either of the Parties unless set forth in writing and executed by them through their duly authorised representatives; and subject to obtaining requisite approval, if any, following such execution.

5. Indemnity and Remedies

5.1 Without prejudice to any other right available to the Company in law or under equity, the Employee shall jointly and severally be liable to compensate and indemnify, defend and hold harmless the Company, its Affiliates, their directors, officers and employees, from and against losses, liabilities, damages, deficiencies, demands, claims, actions, judgments or causes of action, assessments, interest, penalties and other costs or expenses (including, without limitation, reasonable attorneys' fees and expenses) based upon, arising out of, or in relation to or otherwise in respect of breach of its obligations under this Agreement.

5.2 The Employee acknowledges and agrees that breach of this Agreement may cause the Company irreparable damage and harm and therefore, without prejudice to any other rights or remedies that the Company may have, the Employee agrees that the Company shall be entitled to seek extraordinary relief in court, including without limitation, specific performance, preliminary or permanent injunctions or other appropriate remedy without the necessity of posting a bond or other security. If any court of competent jurisdiction holds that the restrictions contained in this Agreement are unreasonable on any criteria, the said restrictions shall be deemed to be reduced to the extent necessary in the opinion of such Court to make them reasonable.

6. Severability

6.1. Should any part of this Agreement be declared illegal or unenforceable, the Parties will co-operate in all ways open to them to obtain substantially the same result or as much thereof as may be possible, including taking appropriate steps to amend, modify or alter this Agreement.

6.2. If any term or provision of this Agreement shall be hereafter declared by a final adjudication of any tribunal or court of competent jurisdiction to be illegal, such adjudication shall not alter the validity or enforceabilityof any other term or provision unless the terms and provisions declared (by either Party) shall be one expressly defined as a condition precedent or as of the essence of this Agreement, or comprising an integral part of, or inseparable from the remainder of this Agreement.

7. Governing law and arbitration

7.1 This Agreement shall be governed by and construed and enforced in accordance with the laws of India.

7.2 Any dispute, controversy or claim arising out of or in relation to this Agreement or the breach, termination or invalidity thereof, if the same cannot be settled amicably among the Parties concerned, shall be settled by final and binding arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The arbitration proceedings, shall take place at Bangalore in India and the proceedings shall be exclusively in English.

7.3. No Party shall be entitled to commence or maintain any action in a court of law upon any matter in dispute until such matter shall have been submitted to arbitration and determined as provided above, and then only for the enforcement of the arbitral award.

7.4. Pending the resolution of a dispute by arbitration, the Parties shall, except in the event of termination, continue to perform all their obligations under this Agreement without prejudice to a final adjustment inaccordance with the arbitral award.

7.5. Notwithstanding anything contained herein, the Parties shall have a right to institute legal proceedings to prevent any continuing breach of the provisions of this Agreement to seek an injunctive or any other specific relief.

8. Notice

Any notice pursuant to this Agreement shall be in writing by (or by some person duly authorised) the person giving it and may be served at the address or email address provided below:

If to the Company:

  • Address:
  • Attention:
  • Email:

If to the Employee:

  • Address:
  • Attention:
  • Email:

9. Miscellaneous

9.1 This Agreement shall become valid, effective and binding from the Effective Date and shall continue to be valid until terminated by the Company.

9.2 Neither this Agreement nor any right granted hereunder shall be assignable or otherwise transferable by the Employee.

9.3 This Agreement shall be governed by the laws of India. The competent courts in [__] shall have exclusive jurisdiction over all disputes arising from or relating to this Agreement.

9.4 This Agreement along with the employment agreement, if any, executed by the Employee with the Company constitutes the entire agreement of the Parties pertaining to the subject matter of this Agreement and may be modified only by an instrument in writing signed by each Party to this Agreement. This Agreement supersedes any and all prior oral discussions and/or written correspondence or agreements between the Parties in respect of the subject matter.

IN WITNESS WHEREOF THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT ON THE DATE HEREINABOVE LAST MENTIONED.

Signed by Mr.B for an on behalf of the Company in the presence of Mr. Y
Vice-President of the said company.
Signed by Ms.K, employee under the said agreement.

 

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LIYANA SHAJI 
on 03 August 2020
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