MEMORANDUM OF
UNDERSTANDING
This MEMORANDUM OF UNDERSTANDING (the “MOU”)
is executed on this the day of the 10th September, 2015.
BETWEEN
K M Engineering represented by its
Owner Md. Arif Sultan, son of Md.
Gulam Kabir & Mrs. Moktara Begum, Present Address: Celebration Piont (7th
Floor) Plot-35, Road-113/A, Gulshan, Dhaka-1212, Dhaka, Permanent Address:
House # 766/A, Road # 7, Baitul Aman Housing Society, Mohammadpur, Adabor,
Dhaka-1207. National ID No 2690243847364, by faith- Islam, by profession-Businessman,
by Nationality- Bangladeshi by birth, we the proprietor of K M Engineering, a sole proprietorship concern, (the “Firm”) owned
by us, owned and regulated a VSP Service Provider; License No. BTRC/LL/VSP(614)
KM/2013-614, dated:
25/03/2013 (the“VSP License”) in Bangladesh hereinafter referred
to as the First Party.
AND
Md. Tanvirul Islam, son of Md. Gulam Kabria &
Shahanaj Kabria, House-Ka-88 (3rd Floor) Mohakhali, Dakhsin Para,
Gulshan, Dhaka-1212, National ID No. 2692620330339, by faith- Islam, by
profession-Businessman, by Nationality- Bangladeshi by birth (Hereinafter referred
to as the "Second Party").
Collectively, First Party and Second Party are referred to as "Parties".
RECITALS
(A) K M Engineering,
a sole proprietorship concern, (the “Firm”)
owned by its proprietor Md. Arif Sultan owns and regulates a VSP license bearing No. 614, dated: 25.03.2013
(the “VSP License”) in Bangladesh.
(B) The
Second Party being interested in purchasing the VSP License and the Firm
approached the First Party and the First Party has agreed to sell the VSP
License and the Firm to the Second Party on the terms and conditions
hereinafter mentioned.
(C) In
the premises as stated above, execution of this MOU between the Parties hereto
has become expedient and necessary and the Parties hereto upon their mutual
agreement have agreed to enter into this MOU under the terms and conditions set
forth hereunder.
NOW, THEREFORE, BOTH PARTIES
ENTER INTO THIS MOU, HAVING THE FOLLOWING
TERMS AND CONDITIONS
APPLICABLE AND BINDING
TO THE RELEVANT PARTIES:
In this MOU, unless the context otherwise requires,
the provisions in this Clause shall apply.
1.1
Definitions
‘Claim’
means any action, suit, proceeding or demand of any kind howsoever arising and
whether present or future, fixed or unascertained, actual or contingent,
whether at law, in equity, under statute or otherwise.
‘Consideration’ means Tk. 5,75,000 (Taka Five Lac
Seventy Five Thousand) only;
‘Firm’ means K M Engineering, details of which are set out above;
‘Tk.’ means the lawful currency of
Bangladesh;
‘VSP Licence’ means VSP
license bearing No. 614, dated 25.03.2013;
1.2
Singular, Plural, Gender
References to one gender include all genders and
references to the singular include the plural and vice versa.
1.3
Heading
The
headings are for convenience only and shall not affect the interpretation
thereof.
1.
THE DUTIES,
ROLES, RESPONSIBILITIES AND COMMITMENT OF THE
FIRST PARTY
2.1 The
First Party expresses its desire to release full ownership of the VSP License
and the Firm.
2.2 The
First Party also expresses its sole willingness and sworn legal ability to
release the same stated in section 2.l.
2.3 The
First Party Warrants that:
i. It will be highly ethical and
trustworthy.
ii. It
will provide a special power of attorney and an authorization letter to the
Second Party in relation to the transfer of the VSP License
and the Firm.
iii. It will
hand over the original copy of the VSP License and the Trade License No. 0633710 dated 20.08.2014
iv. It will also
hand over the copy of submitted application to BTRC for the said VSP license
including the photocopy of pay order to the Second Party.
v. The First
Party will not do any related business, whatsoever, with the Second Party’s
client(s).
vi. The First Party
shall not do any illegal business related to the systems and services of VSP
business with the Second Party’s referred client(s) and vice versa.
vii. They will not
revive the ownership, liabilities, duties and responsibilities including
operation from the Second Party by any means.
viii. The 2nd
Party can make another new trade license if needed in future using the same
name.
2.
THE DUTIES, ROLES,
RESPONSIBILITIES AND COMMITMENT OF THE SECOND PARTY
3.1
The
Second Party expresses
his/her desire to take over full ownership
of the VSP License and the Firm.
3.2
The
Second Party also expressed
his/her willingness and sworn
legal ability to take over
the same stated in section 2.
3.3
The
Second Party warrants that:
i. He/she/they
will be highly ethical and trustworthy.
ii. He/she/they
will operate the VSP License by taking over its full ownership, income tax,
financial liabilities, duties and responsibilities from the First Party.
iii. He/she/they
will take all necessary actions to formalize the transfer of the Trade License
held by the Firm and the First Party shall have no responsibility with regards
to such transfer.
iv. He/she/they will
pay a total of Tk.5,75,000 (Taka Five Lac
Seventy Five Thousand) only to the First Party (the “Consideration”) as consideration for
the VSP License and the Firm, which shall be paid by the Second Party against a
post dated cheque bearing reference no. or pay order.......................................
dated......................... in favour of K M Engineering (the “Cheque”).
v. After signed the
MOU, the second party will pay all government Tax or any other Tax instead of
first party (K M Engineering) if arise in future.
vi. The Second party shall not do any illegal business
related to the systems and service of VSP Business with the First Party’s
referred client(s).
3.4
Indemnity: The Second
Party covenants with the First Party to indemnify and save harmless the First
Party from and against any and all Losses which the First Party may at any time
and from time to time sustain, incur or suffer by reason of misuse of the VSP
License of any kind whatsoever or any breach of any representation, warranty or
undertaking given by the Second Party under this MOU and keep the first party immune from any
legal precedings arising out the license from the date of hand over.
4. BOTH THE PARTIES AGREE ON THE FOLLOWING
4.1 The international and national patent,
copyright and trademarks of the developed materials/software products/services shall remain with the individual Parties.
4.2 The First Party shall neither hold any
responsibility nor bear any liability whatsoever in relation to or in
connection with or arising out of the VSP License that is VoIP.
4.3 Both the Parties should have mutual
respect for each other.
4.4 At the time of signing this Memorandum of
Understanding the Second Party, Buyer of the License shall pay as advance Tk.
1,00,000 (One Lac) only in cash or pay order to the First Party, owner of the
License. The rest amount Tk. 4,75,000 shall be paid by the Second party to the
First Party at the time of signing the power of Attorney.
4.5 The original copy of the VSP License shall
remain deposited with the second party at the time of signing the MOU, subject
to the condition that if second party does not pay or fail or become uncapable
to pay the rest amount within the stipulated time, the original copy of the
License shall be given back/ return to the First Party that is owner of the
License by the Second Party. No excuse in the matter of such return of the
license (original) shall be accepted or entertained.
4.6
Ownership of the
trade license retained by the first party shall be transferred to the name of the second party and address also
will be changed accordingly and within 03 (Three) working days after such
change of ownership of trade license and the address mentioned in the license
the second party shall pay the rest of the total amount to the first party.
After receiving the total amount, the first party shall sign the power of
Attorney in favor of second party. In case of failure in payment of rest amount
within 03 (Three) working days as mentioned above, MOU will be automatically
cancelled.
5. INFORMATION
5.1 The First Party shall promptly provide the
Second Party all necessary
information to perform
its duties, responsibilities and commitments under this MOU.
6.
EXCLUSIVITY
6.1 This is an exclusive MOU.
7.
INCOME SHARING
7.1 Any income (i.e. fees, commissions, gain, profit, and benefits of financial nature) that is received from the First Party or client(s) of the First Party after execution of this MOU shall be the sole property
of the Second Party and there will be no sharing with the First Party.
8.
MUTUAL
CO-OPERATION AND GOOD FAITH
8.1 During
the pendency of this MOU, both
the Parties shall extend mutual cooperation to each other. Both the Parties shall work with mutual co-operation and in good faith.
9.
CONFIDENTIALITY
9.1 The
Parties recognize that each Party has a legitimate interest in maintaining
confidentiality regarding this MOU, the subject matter of this MOU, or any
other agreements, documents or transactions referred to or contemplated herein
and all trade secrets, confidential and/or proprietary knowledge or information
of the other Parties which that Party may receive or obtain as a result of
entering into or performing its obligations under this MOU (collectively, “Confidential Information”).
9.2 Each
Party:
(i) agrees that
it shall keep the Confidential Information in the strictest confidence;
(ii) agrees
that it shall not divulge, communicate to any person (other than those whose
province it is to know the same) or use or exploit for any purpose whatsoever
any of the Confidential Information;
(iii) undertakes to restrict access to the Confidential Information
to its respective officers, employees, bankers and professional advisers on a
need-to-know basis only; and
(iv) undertakes
that it shall not make any announcement relating to this MOU, the subject
matter contained herein and the fact of entering into this MOU without the
prior written consent of the other Parties and each Party shall prevent its
employees, agents or professional advisers (if any) from so doing. Any such
announcement shall be made in the manner and on terms agreed in writing between
the Parties.
9.3 The
restrictions contained in this section 9 in relation to the Confidential
Information shall not apply to:
(i) any
information which becomes generally known to the public, other than by reason
of any willful or negligent act or omission of any Party or any of their
employees or representatives;
(ii) any information which is, at the time of disclosure, legally
in the possession of the Party to which such information is to be furnished;
and
(iii) any information which is required to be disclosed pursuant to
any applicable legal requirement or legal process issued by any court or any
competent government or regulatory authority or rules or regulations of any
relevant regulatory body; provided, that prior to making any such disclosure,
the Party shall promptly inform the Party that owns such Confidential
Information so that the Party owning such Confidential Information may seek a
protective order or other confidential treatment.
10.
INDEMNITY
10.1 The Parties
hereby agree to indemnify each other on full indemnity
basis from all loss damages, costs and expenses sustained by the other Party for the failure
of a Party to perform
its obligation agreed pursuant to this MOU.
11.
ARBITRATION AND
JURISDICTION
11.1
Any
disputes or differences arising between the Parties out of or in
connection with or incidental to this MOU including the operation or interpretation of this MOU shall be solved amicably by mutual discussions between
the Parties. In the event of failure to solve any such disputes within 30 days from the date of the dispute, the matter shall be referred
to arbitration in accordance with the provisions
of the Arbitration Act, 2001. Each Party shall appoint
its own arbitrator and the appointed arbitrators shall appoint the Chairman of the arbitral tribunal. The language
of the arbitration shall be English and the venue
shall be Dhaka. The
procedure of arbitration shall be
determined by the arbitral tribunal.
11.2
This MOU is subject
to exclusive jurisdiction of the laws of Bangladesh and the courts
of Bangladesh shall have jurisdiction to resolve any dispute
between the parties.
12.
AMENDMENTS
12.1 This MOU may
not be modified, amended, or terminated except
by an instrument in
writing, signed by the First Party and the Second
Party.
13.
MISCELLANEOUS
13.1 No failure
or delay (whether
express or implied)
on the part of one Party in exercising
nor any omission to exercise
any right, power, privilege or remedy
accruing to the aforementioned Party upon any default or breach of any covenant
condition or duty on
the part of the other
Party shall impair
any such right, power, privilege
or remedy or be construed
as a waiver thereof or any acquiescence in any such default or breach
affect or impair any right,
power, privilege or remedy of the first
mentioned Party in respect
of any other or subsequent
default.
14.
COUNTERPARTS
14.1 This
Agreement may be executed in any number of counterparts. All counterparts will be taken to constitute
one instrument.
In witness whereof this MOU has been
entered into on the date stated at the beginning.
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FIRST PARTY
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SECOND PARTY
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...........................................................
1. Md. Arif Sultan
Proprietor
K M Engineering
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...................................................
Md. Tanvirul Islam
House-Ka-88 (3rd Floor) Mohakhali, Dakhsin Para,
Gulshan, Dhaka-1212
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Witness:
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Witness:
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1.
..............................................
Mohammad Anisor
Rahman
28/2/A
Mir HajirBagh, Shampur,
Dhaka-1204
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1.
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