Recitals

Witnesseth:

Whereas the Newlands Pharmacy desires to market products and services offered from time to time to potential customers of the PainOsoma’; and

Whereas the Newlands Pharmacy desires to engage the PainOsoma, and the PainOsoma wants to accept the engagement in providing certain promotional services on behalf of the Newlands Pharmacy and to lend his name, reputation, and appearance to endorse and promote the Newlands Pharmacy and its Products, subject to the terms and conditions set forth below.  

Whereas the two parties desire to define the terms and conditions on which PainOsoma shall render such promotional services; and

Therefore, in considering the mutual promises herein contained, the parties agree as follows:

Engagement

Engagement. The Newlands Pharmacy, as a result of this, engages the PainOsoma to provide the services (the “Services”) as set forth below:

Promotional Activities: The Newlands Pharmacy, as a result of this, engages the PainOsoma, and the PainOsoma agrees and promises to hold self available, to use, evaluate, and promote certain Products, as may be reasonably requested by the Newlands Pharmacy from time to time. The PainOsoma also agrees to use the Newlands Pharmacy‘s Name and Appearance (as from now on defined) to promote and advertise the Newlands Pharmacy‘s business and its Products. During the Term, the PainOsoma agrees to perform certain promotional services as outlined in Schedule 1 of the Agreement.

Endorsement of Products: During the Term (as in the future defined), the PainOsoma agrees that the Newlands Pharmacy will evaluate the Products according to professional guidelines, as reasonably determined by the PainOsoma. Based on the Newlands Pharmacy’s professional knowledge and assessment of the Products, the PainOsoma will, from time to time during the Term, provide their professional evaluation, findings, and opinions about the Products he is endorsing and promoting. Endorsements must be based on Newlands Pharmacy professional experience and knowledge about the Products at/or about the time endorsements are made. The Newlands Pharmacy’s statements and endorsements, or paraphrases thereof, may be used by the PainOsoma to advertise, publicize and promote its business and Products as provided herein.

Grant of Licence

The Newlands Pharmacy expressly, exclusively, and irrevocably grants to the PainOsoma the right to use the Newlands Pharmacy’s name, photograph, picture, appearance, or likeness, including quotations and endorsements, or paraphrases of the Newlands Pharmacy’s endorsements, or any other personal identification, however, obtained, including, compositions or simulations mentioned above whether produced by a computer or any other means, during the Term and for the purposes outlined in this Agreement. Collectively, the Newlands Pharmacy personal identifying characteristics, outlined in this paragraph, will be referred to as the Newlands Pharmacy’s “Name and Appearance,” and the rights the Newlands Pharmacy grants to the PainOsoma to use the Newlands Pharmacy’s Name and Appearance will be referred to as the “Right of Publicity” or the “Rights to Publicise.”

The Newlands Pharmacy grants to the PainOsoma and consents to the Company’s unlimited commercial use of the Newlands Pharmacy Name and Appearance, and the Rights to Publicise the Promoter’s Name and Appearance, in the PainOsoma‘s sole discretion, to advertise, promote, endorse and publicise Products, and the PainOsomas‘s enterprise, in any media selected at the single discretion of the PainOsoma, including but not limited to television, print, radio, telephone, electronic, internet, wireless and all other media of any nature or kind which may exist in the hereafter.

The Newlands Pharmacy also irrevocably grants to the PainOsoma and consents to the PainOsoma‘s unlimited editorial use of the Newlands Pharmacy’s Name and Appearance in the PainOsoma promotional material of any nature or kind.

The Newlands Pharmacy expressly represents and warrants that the PainOsoma is not subject to any limitation or restriction by way of employment or contractual obligation that may impair or limit the right of publicity granted herein by the Newlands Pharmacy and that the PainOsoma has the approval of his employer to make the commitments set forth herein.

Term and Termination

The Agreement will continue to be in effect until the same is terminated by either party sixty (60) days prior to written notice.

Any or Either of the parties may terminate this Agreement or any SOW for material breach or default within fifteen days (15) days prior written notice to the breaching party, provided that the breaching party fails to provide such material breach or default within fifteen (15) days of such written notice of termination. In the event of such termination, the Newlands Pharmacy’s sole obligation shall be to make payment for the Services performed as per specifications of the relevant SOW till the effective date of such material breach or default.

Confidential Information

Non-Disclosure: Any party can acknowledge that- either party may disclose to either of the other in relation with the performance of the Agreement, information the disclosing party considers proprietary or confidential or classified information the disclosure of which can be damaging to the disclosing party. For purposes of this Section 7, Confidential Information shall include all non-public information of either party which a party-

  • (i) marks as, or
  • (ii) claims to other to be, trade info, or
  • (iii) which is identified by its nature to be a trade secret information, or
  • (iv) which is understood by one party without the intentional disclosure by the other party, or

(v) which either one party knows is considered by the other to be its trade secret information including, all softwares (regarding of its stage of completing or form of record), internally devised technology, product proposals, system or network architecture, product or processing capacities, all security mechanisms, customer data (including identification), revenues, information relating to its business affairs (including policies and internal procedures) and Products

Restrictions on Use. Both parties agree not to disclose, duplicate, transfer or distribute in any manner and form whatsoever the Confidential and sensitive Information provided to others or perceived by the other connections by giving Services hereunder, except

  • (i) both parties’ regular employees needing to know to perform the Services, and
  • (ii) both the parties’ employees or employees of other contractors of PainOsoma, who have been given consent to receive the Confidential/Sensitive Information. All such persons receiving the Confidential/Sensitive Information shall
  • have necessary clearance;
  • need of knowing this data;
  • have been given idea of the confidential nature of the information;
  • agree in writing to act under the terms and conditions (T and C) of this Agreement; and
  • have completed written agreements implied upon such people the same commitments are implied onto the parties hereunder. Both the parties agree in making the copies of such agreements accessible to someone upon request. In no event shall either party use any of the Confidential/Sensitive Information of its own benefit or any third party, nor to the other’s detriment; nor for any purpose other than performance of the Services according to which it is disclosed or later associated; nor in any manner unnecessary to performance of such Services. Except in connection with Services expressly anticipating any such action, neither party can take into interpretation, reverse-engineer, decompile, disassemble, debug or otherwise use any part of software, to which it is given access in connection with the Services, to access or generate corresponding higher-level code, or to access to logic intrinsic to that; nor will it aid, abide or permit another to do so.

Maintenance of Confidential Information. Both parties, concerning the Confidential Information can (i) maintain it by confidence; (ii) use at least the same intention of care in keeping its confidentiality as they use in maintaining the confidentiality of their own proprietary, confidential information, but in no event less than a reasonable degree of care; and (iii) use it only to fulfil their obligations under this Agreement unless hereafter agreed in writing by the other party.

Exchange of Confidential Information.Upon completing the Services, or upon the disclosing party (Newlands Pharmacy) earlier request, the receiving party shall give over to the disclosing party all of the Confidential (required) Information then in the receiving party (PainOsoma) possession. Neither party shall retain a part of information or any of the other’s Confidential (required) Information and, if requested in writing, the receiving party shall certify its exacting compliance with the preceding provision.

Survival. The provisions of this particular Section shall survive to terminate or expire the Agreement and will remain in effect as long as either party has in its possession any Confidential (Required) Information.

Request for Disclosure. Both Businesses acknowledge the competitive value and confidential nature of the Information. If the receiving party becomes legally obligated to disclose any of the disclosing party’s Confidential (required) Information, the receiving party can provide the disclosing party with an instant notice so that the disclosing party may seek a safety order or other appropriate remedies and the receiving party agrees to co-operation in seeking reasonable protective arrangements requested by the disclosing party. If a safety order or other remedies to prevent disclosure is not given, the receiving party can furnish only that portion of the Confidential (Required) Information that is legally binding and the receiving party can exercise its reasonable best efforts to obtain reasonable assurance that confidential treatment will be accorded to the Confidential Information.

Remedies. Both Businesses acknowledge and agree that, given the nature of the Confidential Information and the damage that may result if the information given therein is disclosed to any third party, cost of damages may not be sufficient for remedies of any breach towards the Agreement, and that, in addition to all the other remedies, the non-breaching parties may be entitled to specific performances and injunction of other equitable relief as deemed proper or necessary by a court of competent jurisdiction as remedies for any such breach, and the breaching parties further agreed to waive off any requirements for securing or posting of any binding in connection with such remedy.

 

Exceptions. None of the parties shall have any obligation concerning any portion of the Confidential Information which (i) at the time of disclosing or thereafter, (but prior to either parties’ disclosure) in public domain through no acts or failures to work on recipient parties’ part, or (ii) was already in the recipient parties’ possession at the time of its disclosure and was not acquired directly or indirectly from the different party, or (iii) was lawfully received by the recipient party after disclosing from a third party without obligation of being confidential and without violating such third party of an obligatory of confidentiality to another, or (iv) was independently developed by the recipient party without any use of or benefit of Confidential Information, or (v) is approved for release or disclosure by the disclosing party without restriction. Neither party shall disclose any portion of the Confidential Information to any person except in case of all its employees having a need to know the basis of such a portion to accomplish the purposes contemplated by this Agreement, and strictly following the terms of this Agreement. Both parties represent that they have agreements in place with their employees and PainOsoma which restrict the unauthorised disclosure or use of confidential and proprietary information of third parties.

Confidential Agreement. This Agreement is a confidential agreement between PainOsoma and the Newlands Pharmacy. Without prior written consent of both the parties, this Agreement may not be shown to any third parties’ legal counsel other than the Newlands Pharmacy’s regulators, the parties’ legal counsel and accountants, the parties’ authorised employees and the parties’ authorised agents and subcontractors under this Agreement. Notwithstanding the preceding, this Agreement may be disclosed as necessary by reason of legal, accounting or regulatory requirements beyond the reasonable control of PainOsoma or the Newlands Pharmacy, as the case may be, in which event PainOsoma and the Newlands Pharmacy agree to exercise diligence in limiting such disclosure to the minimum amount necessary under the particular circumstances.

Non-Disparagement. Both Parties agree that they will not put forth any statement, written or oral, or causing to encourage others to make any statements, written or verbal, or release or cause or encourage others to release any document(s), that defame, disparage, or in any way criticise the business or business reputation, practices, or conduct of the other party, its employees, directors, or officers. Parties agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to the other party or such other party’s PainOsoma, suppliers, and personnel, internet audience, news media, competitors, PainOsomas, and potential Newlands Pharmacy.

Indemnity

Newlands Pharmacy warrants to PainOsoma that Newlands Pharmacy has obtained, at Newlands Pharmacy’s expense, the necessary consents from third parties interested in the Newlands Pharmacy’s products to permit PainOsoma to perform the Services with respect to promoting Newlands Pharmacy’s Newlands Pharmacy agrees to indemnify PainOsoma for all losses, claims, damages and costs arising from PainOsoma’s performance of Services on promoting the Newlands Pharmacy’s products which is licensed to Newlands Pharmacy by third parties wherein the losses, claim or damages result from an allegation that PainOsoma’s services infringed or violated any rights of such third party software provider.

The terms of this Section 8 shall survive the termination of this Agreement.

Assignment

No party shall transfer and assign any or all of its rights and interests mentioned under this Agreement to delegate any of its obligations without the prior written consent of the other party; provided, however, that PainOsoma may transfer or assign its rights or interests, or delegate its obligations, under this Agreement to any of PainOsoma’s other divisions, business units, subsidiaries or Affiliates without the prior written consent of Newlands Pharmacy.

Notices

Any notices required to permit hereunder shall be deemed given if contained in a written instrument delivered in person, or by facsimile, overnight courier, or first-class registered or certified mail, postage prepaid, addressed to both parties.

In the case of Newlands Pharmacy

In the case of PainOsoma

All notices given to any party hereto following the provisions of this Agreement shall be deemed to have been given on the date of delivery if personally delivered, on the date when sent if sent by facsimile, on the business day after the date when sent if sent by overnight courier, and on the fifth business day after the date when sent, if sent by mail, in each case addressed to the party as provided herein or following the latest unrevoked direction from such party.

Entire Agreement

This Agreement, together with all attachments including any exhibits that may become associated with this Agreement by mutual consent, constitutes the full and complete understanding and agreement of the parties hereto and supersedes all prior understandings and agreements. Any waiver, modification or amendment to any clause of this Agreement can be effective only if written and signed by the parties.

Severability

If any of the clauses of this Agreement are held to be not to be agreed upon or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not be affected or impaired

Section Title

Section title is the subject matter of a particular section herein for convenience only and is in no manner to be construed as part of this drafted Agreement or limitations of the scope of particular sections to which they refer.

Limitations Period

Unless involving death or personal injury, no action or claim under this drafted Agreement can be brought by both the parties against the other more than one (1) year after the cause of action arises.

No Waivers of Defaults

The failure of both parties to exercise any right of termination hereunder shall not constitute a waiver of the rights granted herein with respect to any subsequent default.

Non-Interference with Contractual Relationship

Newlands Pharmacy warrants that, as of the effective date hereof, it is not subject to any contractual obligation that would prevent Newlands Pharmacy from entering into this Agreement, and that PainOsoma’s offer to promote the Services in no way caused or induced Newlands Pharmacy to breach any contractual obligation.

Dispute Resolution

All controversies, or differences arising in connection with the validity, execution, performance, breach, non-renewal or termination of the Agreement can be finalised in an arbitration proceeding under the Rules and regulations of the London Court of International Arbitration by two (2) arbitrators with expertise in the computer consulting/information technology industry in accordance with the Commercial Arbitration Rules then in effect of the London Court of International Arbitration. Selection of the arbitrators can be as follows: any of the party can appoint one (1) arbitrator within a span of twenty (20) days after the parties have agreed for arbitration, and those two (2) arbitrators shall appoint a third arbitrator who shall act as chairman, within a twenty (20) day period thereafter. The parties are agreed to be bound by the findings of the arbitration. Notwithstanding the foregoing, the courts shall have jurisdiction over injunctive or provisional relief pending arbitration. The arbitrators shall be empowered to award damages only as permitted by the express terms of this Agreement. The non-prevailing party to the arbitration can pay all the prevailing party’s expenses of the arbitration, including reasonable attorneys’ fees and other costs and expenses incurred in connection with the prosecution or defence of such arbitration.

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