The Standard Terms set out herein shall, if the Foreign Exchange Transaction Agreement
so provides, be applicable to the Customer. If there is any inconsistency between
the Terms and the Foreign Exchange Transaction Agreement, the Foreign Exchange Transaction
Agreement will prevail.
"Agreement" means Foreign Exchange Transaction Agreement (including but not
limited to duly accepted the proposal letters, commercial terms of offer to sell
& purchase of foreign currency , Prepaid Forex Cards, Foreign Currencies and Traveler
Cheques agreed by the customer and Essel VKC) the Annexures and addendum / extension
/ renewal, if any, collectively known as Agreement.
“ Customer ” means the person(s) named in the Foreign Exchange Transaction
Agreement and shall, unless it be repugnant to the subject or as the context may
permit or require, include its successors and permitted assi gns .
“ Customer Information” means a ny and all information or data that is provided
by, through or on behalf of Customer or any Affiliate to any Essel VKC Personnel,
or is otherwise acquired by any Essel VKC Personnel in the course of performing
Services under this Ag reement that relates to any: (i) current, prospective or
former customer (whether an individual, business entity, governmental unit, or otherwise)
of Customer or any Affiliate,
“ Forex Services’, shall mean services relating to buying and selling foreign
e xchange by means of including, but not limited to Prepaid Forex Cards, Foreign
Currencies and Traveler Cheques provided by Essel VKC , hereinafter called as the
“ Governmental Authority ” shall mean any international, national, provincial,
municipal, loc al, territorial or other governmental department, regulatory authority,
self - governing agencies, judicial or administrative body, domestic, international
“Intellectual Property Rights” means all patents (including originals, divisional
, continu ations, continuations - in - part, extensions, foreign applications, utility
models and re - issues), patent applications, designs (including all registrations
and applications therefore), copyrights (including all registrations and applications
therefore), trad e secrets, service marks, trademarks, trade names, trade dress,
trademark applications and other proprietary and intellectual property rights (whether
or not any of these is registered and including applications for registration of
any such thing) , includin g moral rights and all rights or forms of protection
of a similar nature or having equivalent or similar effect to any of these which
may subsist anywhere in the world .
"Law(s)" shall mean any declaration, decree, directive, legislative enactment,
order, ordinance, regulation, rule or other binding requirement of or by any Governmental
“RBI” means Reserve Bank of India.
Terms shall mean these terms and condition and/or the terms and conditions
posted on the Essel VKC website from time to time
“ Essel VKC ” refers Essel Finance VKC Forex Limited, a company duly incorporated
under the Companies Act, 1956 as amended from time to time and registered with Reserve
Bank of India as an Authorised Dealer Cat.II and having its registered office at
Jeyam Kondar Apartments , No.40/12, Murray ’ s Gate Road, Alwarpet, Chennai - 60018,
which expression shall, unless it be repugnant to the context and meaning thereof,
be deemed to mean and include its successors and assigns.
“ Essel VKC Personnel” means Essel VKC and each of its employees, along with
any subcontractors or agent s of Essel VKC.
Services. Essel VKC shall provide and perform: (a) the services, functions and responsibilities
described in this Agreement (including without limitation all exhibits and Statement(s)
of Work), as may be amended and supplemented from time to time; and (b) any services,
functions or responsibilities not specifically described in the above clause but
that are inherent in or necessary for the proper provision and performance of such
services, functions and responsibilities. The services, functions and responsibilities
described in this Agreement are referred to collectively as the “Services”.
Each Party shall take necessary measures and precautions to safeguard all Confidential
Information in their possession and to prevent unauthorized disclosure thereof by
any of its employees, agents, or representatives. All confidential and proprietary
information of a Party (including the Proprietary Data) [“Confidential Information”]
hereto that is made known to the other Party during the term of this Agreement,
shall be received in confidence and the receiving Party shall not disclose or use
the same for any purpose, except for complying with its obligations under this Agreement
or required to be disclosed by Law or by order of a court, or by any governmental
agency/authority/regulatory body. In particular, such Confidential Information shall
not be used for the benefit, financial or otherwise by any Party, its employees,
without prior written approval from the disclosing Party. However, such obligation
shall not cover Confidential Information
a. which are already known to, or in the possession of the either party prior to
receipt of such information;
b. which are legally received by the either party from a third party without any
confidentialit y obligation;
c. which are in the public domain or enter the public domain through no wrongful
act of either party;
d. which can be proven by the either party to have been developed independently
having no access to other party’s Confidential Information.
e. already known to the public at the time of disclosure
Neither Party shall be liable for disclosure of Confidential Information if disclosure
was required by law, rule or regulation including RBI or other regulatory authorities
or was in response to a valid or der of a court or authorized agency of government
or other legal process, Upon expiry / termination of this Agreement or on a demand
from the disclosing Party, the receiving Party shall promptly return to the disclosing
Party, all correspondence, document s and all materials or items belonging to such
The Parties shall, and shall cause their respective employees to, hold all Confidential
Information in the strictest of confidence at all times, making no use thereof other
than in connection with the performance of their obligations under this Agreement.
Neither Party shall, without the prior written approval of the other Party: (i)
release any Confidential Information to any third party other than its employees
who need access to such Confidential Inf ormation in order to perform their obligations
under this Agreement; or (ii) duplicate or otherwise reproduce any Confidential
Information except as required in connection with the performance of their obligations
under this Agreement. The Parties shall en sure that their employees are made aware,
prior to the disclosure of such Confidential Information, of the confidential nature
thereof and that they owe a duty of confidentiality to the Party disclosing Confidential
In the event that any of t he Parties hereto becomes legally compelled to disclose
any Confidential Information, such Party shall give sufficient notice to the other
Party to enable the other Party to prevent or minimize to the extent possible, such
disclosure. The Party which recei ved the Confidential Information will fully co
- operate with disclosing Party in connection with its efforts to obtain any such
order or other remedy. If any such legal requirement does not allow giving the notice
referred to above, the Party receiving the Confidential Information will make such
disclosure only to the extent that such disclosure is legally required and will
use its best efforts to have confidential treatment accorded to the disclosed Confidential
The obligation to maintain conf identiality of the Confidential Information shall
survive the expiry or termination of this Agreement.
INTELLECTUAL PROPERTY RIGHTS (IPRS)
a) Each party shall own all intellectual property rights in respect of its respective
websites and other services, including any literature, manuals, reports, research
papers, data, flow charts, drawings, designs, diagrams, tables, software, source
code or object code or other information or materials in whatever form and on whatever
media stored or held, acquired, created, developed, designed or otherwise prepared
by the respective party and any related patents, trademarks and service marks, Party’s
name, logo, trade names, database rights, registered designs, utility models or
applications for any of the foregoing. Design rights, copyrights and all or any
similar or equivalent rights arising or subsisting in any country in the world shall
be owned by such party and all or any part thereof shall belong to such party absolutely.
b) Neither party shall use or infringe on the other’s IPRs at any point of time
except as otherwise provided herein. Both the parties further undertake to help
each other on a best effort basis in case of infringement by a third party of either
REPRESENTATIONS AND WARRANTIES
The Partie s hereto represent and warrant to each other that:
a. Each of the Parties is duly formed and validly existing under the respective
laws that they are subject to with full power and authority to conduct the business
as contemplated in this Agreement.
b. Each Pa rty has full power, capacity and authority to execute, deliver and perform
this Agreement and has taken all necessary action (corporate, statutory or otherwise)
to authorize the execution, delivery and performance of this Agreement.
c. This Agreement and any other agreement executed in connection herewith, if any,
have been duly executed and delivered by each Party and constitute legal, valid
and binding obligations of such Party, enforceable against the other Party in accordance
with the terms of this Agreem ent .
d. Each of the representations and warranties set out above are and shall remain
true and accurate in all respects at the execution hereof in respect of each Party
and that all documents provided to the Parties by each such other Party as required
by th is Agreement or otherwise, are true and accurate in all respects and fully,
and accurately disclose every matter to which they relate.
e. Each of the representations and warranties, given above is without prejudice
to any other warranty or undertaking and ex cept where expressly stated no clause
contained in the Agreement governs or limits the extent or application of any other
clause in any other agreement.
f. All of the representations and warranties made under this Clause shall survive
the execution and deliv ery of this Agreement and none of the Parties shall take
action nor permit action to be taken which would cause any of such representations
or warranties to be no longer true or correct in all respects.
g. Essel VKC represents and warrants that it has obtained all the authorizations,
approvals, licenses to operate and provide foreign exchange services and to fulfill
all its obligations under this agreement and it shall maintain the same during the
tenure of this Agreement.
h. Any claims arising out of non - compliance of any legislation in force relating
to foreign exchange services provided under this Agreement would be the sole responsibility
of Essel VKC and Customer will be in no way held responsible for any such claims
i. The employees of Essel VKC shall continue to be the employees of Essel VKC and
work under its directions and shall not become or claim any employment from Customer
virtue of providing the Services, irrespective of the location of their work.
DOCUMENTS REQUIRED FOR TRANSACTION
As per Anti Money Laundering (AML) Guidelines of the Reserve bank of India the Customer
shall provide such information and / or documents as the Essel VKC may from time
to time reasonably request for the purpose of the providing services along with
the following as one time documents to the “ Essel VKC ”
. Memorandum & Articles of Association.
. Address Proof (Tel bill copy / Corp tax payment, if any).
. Detailed list of staff who would be Authorised to place request for foreign exchange
to be furnished.
. Copy of Company Pan Card.
. List of officials with names, designation and signatures authorised by the Managing
Director//Chief Financial Officer of the company to conduct forex transactions on
behalf the company.
.KYC Form. And such other documents as notified by the RBI from time to time.
OBLIGATIONS OF ESSEL VKC
a. Essel VKC shall ensure that it’s personnel, employees, representatives and agents
engaged in the performance of the Services under this Agreement shall not to influence,
directly or indirectly, any officer, agent, representative of Customer to obtain
any favourable business decision, Policy on prevention of Insider Trading and such
other corporate governance policies as adopted by it from time to time.
OBLIGATIONS OF CUSTOMER
a. Customer shall provide such information/documents as notified by the Reserve
Bank of India (RBI) notified Anti Money Laundering guidelines, Know Your Customer
Policy and Foreign Exchange Management Act (FEMA) prevailing from to time.
b. Customer (including its representatives) has not provided nor shall provide any
gift, gratuity, service, or other inducement to any of the Essel VKC’s representatives
involved in retaining the Services.
c. Customer shall ensure that the execution, delivery and performance of this Agreement
by it in accordance with its terms shall not: - (a) violate or conflict with its
organizational documents; or
(b) with or without the giving of notice or the passage of time or both, conflict
with, result in the breach or termination of, or constitute a default under, any
agreement or arrangement to which it is a party or by which it or any of its properties
or assets may be bound; or
(c) constitute violation of any law, regulation, order, writ, judgment, injunction
or decree applicable to it or any of its properties or assets, or violate any license,
permit, authorization, agreement, undertaking or other obligation to which it is
LIMITATION OF LIABILITY
Notwithstanding anything contained in the Foreign Exchange Transaction Agreement
or in other document:
Under no circumstances shall Essel VKC’s total cumulative liability under this agreement
(regardless of whether those claims arise out of a single event or a number of different
events, exceed the aggregate amount paid to Essel VKC for services hereunder in
the immediately preceding month to the month in which the claim or action arose
Without prejudice to the other provisions of this Agreement and/or any other rights
of the Parties, each Party to this Agreement (“Indemnifying Party”) shall indemnify
and keep indemnified the other Party (“Indemnified Party”) including the Indemnified
Party's directors, employees and agents from and against any and all actions, suits,
claims, proceedings, costs, damages, judgements , amounts paid in settlement and
expenses (including reasonable attorneys fees) (collectively “Loss”) rel ating to
or arising out of non – performance, and/or any breach of the representations, warranties,
terms, undertakings or covenants under this Agreement by the Indemnifying Party.
Notwithstanding anything to the contrary elsewhere contained in this or any other
contract between the parties, neither party shall, in any event, be liable for any
indirect or speculative or consequential or penal damages, including but not limited
to, any loss of use and loss of income or profits, irrespective of whether it had
an advance notice of the possibility of any such damages.
SETTLEMENT OF DISPUTES
a. If any dispute arises between any of the Parties during the subsistence of this
Agreement or thereafter, in connection with the validity, interpretation, implementation
or alleged breach of any provision of this Agreement or regarding a question, including
the question as to whether the termination of this Agreement by any Party hereto
has been legitimate (“Dispute”), the disputing Parties hereto shall endeavor to
settle such Dispute amicably. The attempt to bring about an amicable settlement
shall be considered to have failed if not resolved within 60 days from the date
of the Dispute.
b. If the disputing Parties are unable to amicably settle the Dispute in accordance
as per above Clause 1 within the period specified therein, any disputing Party shall
be entitled to serve a notice invoking this Clause and making a reference to a panel
of three (3) arbitrators. For this purpose, each disputing Party shall appoint one
arbitrator each and the arbitrators so appointed shall appoint another arbitrator
who shall be the presiding arbitrator. The Arbitration proceedings shall be held
in accordance with the Arbitration and Conciliation Act, 1996.
c. The place of the arbitration shall be place of business . The proceedings of
arbitration shall be in the English language.
d. The Arbitrator’s award shall be substantiated in writing. Each Party to the Dispute
shall bear its own costs, in relation to the arbitration proceedings and the Parties
shall equally share the costs of arbitration.
e. Subject to Clause 2 of this Settlement of Disputes Clause hereinabove, the Courts
of Chennai alone shall have jurisdiction in all matters arising out of the arbitration
proceedings or this Agreement.
This Agreement shall be governed by and construed in accordance with the Law of
India and Chennai Courts shall have exclusive jurisdiction.
No Party shall be liable to the other, nor be in default if, and to the extent,
that the performance or delay in performance of any of its obligations under this
Agreement is prevented, restricted, delayed or interfered with due to circumstances
beyond the reasonable control of such Party, including but not limited to, Government
legislations, fires, floods, explosions, epidemics, diseases, accidents, acts of
God, threat of wars, riots, strikes, lockouts, or other concerted acts of workmen,
acts of Government, and/or industrial emergency. The Party claiming an event of
force majeure shall promptly notify the other Parties in writing, and provide full
particulars of the cause or event and the date of first occurrence thereof, as soon
as possible after the event and also keep the other Parties informed of any further
developments. The Party so affected shall use its best efforts to remove the cause
of non-performance, and the Parties shall resume performance hereunder with the
utmost dispatch when such cause is removed.
Waiver by either Party of any default by the other Party shall not be deemed a waiver
of any other default. No waiver of rights hereunder shall be effective unless in
writing and signed by or on behalf of the Party granting the waiver.
Essel VKC and Customer are independent contractors and this Agreement shall not
establish any service arrangement, relationship of partnership, joint venture, employment,
franchise or agency between Essel VKC and Customer . Neither Party shall have the
power to bind the other Party or incur obligations on the other Party’s behalf without
such other Party’s prior written consent, except as otherwise expressly provided
This Agreement and the rights and liabilities hereunder shall bind and inure to
the benefit of the respective successors of the Parties hereto, but no Party hereto
shall assign or transfer any of its rights and liabilities hereunder to any other
person (except for affiliates) without the prior written consent of the other Party.
Either Party may terminate the Foreign Exchange Transaction Agreement by providing
one (1) months prior written notice.
If any provision of this Agreement or the application thereof to any person or circumstance
shall be invalid or unenforceable to any extent, the remainder of this Agreement
and the app lication of such provision to persons or circumstances other than those
as to which it is held invalid or unenforceable shall not be affected thereby, and
each provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law. Any invalid or unenforceable provision of this Agreement shall
be replaced with a provision, which is valid and enforceable and most nearly reflects
the original intent of the unenforceable provision.
This Agreement, including all documents incorporated herein by reference, constitutes
the complete and exclusive agreement between the Parties with respect to the subject
matter hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and Agreements, written and oral, regarding
such subject matter. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement may not be altered, modified or amended unless such alteration, modification
or amendment is evidenced in writing and signed by the Parties.
The persons signing this Agreement on behalf of the Parties represent and covenant
that they have the authority to so sign and execute this document on behalf of the
Parties for whom they are signing.
NON EXCLUSIVE AGREEMENT
This Agreement shall be a non-exclusive agreement between the parties. Either party
shall be entitled to enter in to similar kind of arrangements with third parties.
All notices required or permitted under this Agreement shall be in writing and shall
be delivered personally, sent by registered post or sent by facsimile transmission
and promptly confirmed by registered post to the addresses as follows:
ESSEL FINANCE VKC FOREX LTD
Jeyam Kondar Apartments
Unit 2A, Second Floor,No,40/12
Murray’s Gate Road
(Opp Udhi Eye Hospital)
Any such notice shall be deemed given when so delivered personally. If the not ice
is sent by facsimile, then it will be deemed given upon completion of transmission,
unless it is transmitted after 4pm or not on a Business Day, in which case, it will
be deemed given on the next business day. In matters of urgency, email notification
shall suffice, when followed up by written notice.