MEMORANDUM OF UNDERSTANDING
This MEMORANDUM OF UNDERSTANDING (‘MEMO’) is made on____ day of ______________ 200____.
COMPANY 1 a company incorporated under the relevant Companies Act 1994, represented by ___________, having its registered office at ______________hereinafter referred to as ‘Company 1’ (which expression shall where the context so admits mean and include its representatives, executors, administrators, successors-in-interest and assigns) of the FIRST PART
COMPANY 2, a company incorporated under the relevant Companies Act 1994, represented by its Managing Director Mr. P, having its registered office at address_______________, engaged in software project development, consultancy and other related services, hereinafter referred to as ‘COMPANY 2’ (which expression shall where the context so admits mean and include its representatives, executors, administrators, successors-in-interest and assigns) of the SECOND PART
A BANK 1, a banking Company, having its Head Office at_________(hereinafter referred to as ‘the Bank’) being desirous of introducing computerized on-line networking/message transmission system through installation of a server software with a view to exchange messages securely with other branches approached COMPANY 2 to implement the same on acceptance test basis/trial basis (hereinafter referred to as ‘pilot project’) in the branches mentioned hereunder:
i) Principal Branch, Dhaka
ii) B-Wapda Branch, Motijheel, Dhaka
iii) Newmarket Branch, Chittagong
iv) Kazir Bazar Branch, Sylhet
v) Sir Iqbal Road Corporate Branch, Khulna.
B On successful implementation of the acceptance test by COMPANY 2, the Bank will implement the same in all of its branches throughout Bangladesh (hereinafter referred to as ‘the principal project’).
C COMPANY 2 being engaged in software project development business, consultancy and other related service thereto has arrived at an arrangement with the Bank to implement the system by installing “Structure Financial Messaging System”, a software/system, (hereinafter referred to as ‘SFMS’) in the said branches on acceptance test basis for a term not exceeding _______ .
D COMPANY 2 has due to liquidity deficiency entered into an arrangement with Company 1 to finance the entire project, i.e. both the pilot and principal project which Company 1 agrees under the following terms and conditions.
AND WHEREAS it is necessary and expedient in mutual interest to record in principle,_______ pending execution of a proper and formal Memo with all agreed conditions and standard covenants THIS MEMORANDUM OF UNDERSTANDING has been drawn up and executed by both parties to facilitate the SERVICE AND FUNDING arrangement on the following terms and conditions.
NOW, THIS MEMORANDUM OF UNDERSTANDING WITNESSETH AS FOLLOWS:
01. That this Memo shall run for a period of ______ years from the date of its signature, and thereafter unless or until terminated by either party giving to the other not less than ___ (___) months notice in writing.
02. That COMPANY 2 warrants and represents that it has all the right or is validly licensed to use and install the system SFMS to the Bank, and it is in no way the adaptation, reproduction, translations, conversions or transmissions of the main programme/software. Company 1 shall have no liability in the event that the system infringe any intellectual property rights of a third party
03. That during the implementation of the pilot project COMPANY 2 may come across confidential information of the Bank, which COMPANY 2 shall keep strictly confidential and shall not generate or communicate to any third party. COMPANY 2 will be responsible for any loss suffered by the Bank due to any such disclosure of confidential information by COMPANY 2.
04. That COMPANY 2 warrants and covenants that:
i.) It will be responsible for proper and due implementation of the pilot project acceptable to the Bank so as to secure the obtaining of the work under the principal project.
ii.) It will train the Bank’s service and technical staff in accordance with an agreed training programme free of charge.
iii.) It will be responsible for any loss caused to the Bank by the defective performance, non-performance or delayed performance of any of the obligation under these presents.
iv.) It will ensure that in all respects the system comply with all relevant requirements of law and comply with all regulations/statutes issued from time to time by the Government/Parliament.
05. That Company 1 warrants and covenants that:
i.) It will be responsible for financing in the said pilot project and the principal project to the extent as agreed upon by the parties hereto and shall undertake to disburse the same in the manner described hereunder within ____(___) days of the demand made by COMPANY 2.
ii.) It will not sell, distribute or dispose of the software of SFMS or publish any information pertaining to the same or disclose to any third party.
iii.) It will by itself or through anybody will not try to decompile, reverse engineer, modify, decipher or hack any part of the SFMS software or service.
06. That in order to establish and maintain clear and effective communications throughout the execution of the pilot project, the COMPANY 2 and Company 1 shall each nominate an individual who will be responsible for co-ordination and dissemination of all information within their respective organisation for preparation of progress report at monthly intervals and inter exchange the same.
07. That neither COMPANY 2 nor Company 1 shall have any liability in respect of any delay in carrying out the pilot project or failure to carry out of their obligations under these presents caused by fire, strikes, or other industrial or banking action or dispute, acts of government, or any circumstances outside the reasonable control of the parties hereto.
08. That where COMPANY 2 is unable to install the system or the total project failed due to the negligence, mishandling, application of less technical support or for any other reason whatsoever, COMPANY 2 hereby give unconditional undertaking to refund the entire Advance made by Company 1 within fifteen (15) days of the receipt of the termination notice of this Memo and/or if the term expires. COMPANY 2 further undertake to indemnify against all loss, costs, expenses whatsoever which Echotech or the Bank may incur during the implementation resulting from the negligence, mishandling, application of less technical support or for any other reason whatsoever.
09. That if the project is approved by the Bank on successful completion of the acceptance test, this Memo shall be deemed to be continuing and bind all the parties hereto until execution of a fresh legally binding contract for installation of SFMS in all of the branches of the Bank.
10.1 That Any notice to be given hereof, if it is in writing shall be served by personal delivery or by sending it by registered airmail or telefax addressed to the party concerned at the address of such party first above written or any other address communicated in writing to the other party as being effective for the purpose of this Memo .
10.2 Notice given by registered airmail or telefax shall be deemed to have been delivered in the usual course of post or transit and in proving service thereof it shall be sufficient to show that the registered letter or telefax containing such notice was properly addressed and dispatched.
11 This Memo supersedes all previous negotiations and any representations or understandings written or otherwise between the parties hereto and this Memo shall constitute the entire Memo between the parties hereto with respect to the pilot project.
12 That none of the provisions of this Memo shall be deemed to constitute a partnership amongst the parties hereto
13 That if any term or provision in this Memo shall be held to be illegal or unenforceable, in whole or in part, under any enactment, such term or provision or part shall to the extent be deemed not to form part of this Memo.
14 That this Memo may at any time be amended by mutual Memo in writing between the parties hereto.
15 That this Memo shall be binding upon the heirs, personal representatives, successor-in-title and permitted assigns of the parties hereto.
16 Thatall disputes and differences concerning the validity, scope, meaning construction or effect of this Memo or any dispute or disagreement between the parties hereto as to any matter relating to this Memo which cannot be settled by mutual discussion shall be settled by arbitration by 2 (Two) Arbitrators, appointed by each parties, in case of difference of opinion between the said two Arbitrators to an Umpire, who shall be appointed by the Arbitrators, and any such decision is binding on the parties hereto within the meaning of Arbitration Act, 2001.
17 That the headings in this Memo shall not affect its interpretation.
18 That the annexures/schedules to this Memo constitute an integral part hereof.
IN WITNESS WHEREFORE THE PARTIES HERETO SIGN, SEAL AND DELIVER THIS MEMORANDUM OF UNDERSTANDING ON THE DAY, MONTH AND YEAR ABOVE MENTIONED.
SIGNATURE OF THE COMPANY 2
Signed in the presence of :-
SIGNATURE OF THE COMPANY 1
Signed in the presence of :-
For: “The Lawyers & Jurists”
M.L.Hotel Tower Ltd,
208,Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.