Memorandum of Understanding
This Memorandum of Understanding (“MoU”) is entered into on this the 21st day of October, 2021
1. XIAOMI TECHNOLOGY INDIA PRIVATE LIMITED, a company incorporated under the Companies Act, 2013, having its registered office at Building Orchid, Block-E, Embassy Tech Village, Devarabisanahalli, Outer Ring Road, Bangalore- 560103 (hereinafter referred to as “Xiaomi”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to include its successors and assigns) of the FIRST PART;
AND
2.IBIBO GROUP PRIVATE LIMITED, a company incorporated under the Companies Act, 2013, having its registered office at 19th Floor, Building No.5, DLF Cyber City, Gurgaon, 122002 (hereinafter referred to as the “Company”, which expression shall unless repugnant to the context or meaning thereof mean and include its successors and permitted assigns) of the SECOND PART
Xiaomi and the Company are hereinafter referred to collectively as the “Parties”, and individually as a “Party”, as the context may require.
WHEREAS:
A. Xiaomi is, inter alia, engaged in the business of supplying and distributing smartphones and other consumer electronic products, imported or domestically procured, to consumers;
B. The Company operates the Platform (as defined below) on which Users (as defined below) may select and purchase a range of travel products and services;
C. The Parties have agreed to jointly enable, launch and run promotional offers on Mi.com (as defined below), in accordance with the terms and conditions of this MoU;
D. The Parties have agreed to enter into this MoU, to give effect to the above understanding and to set forth and record the terms and conditions governing their relationship.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
1.DEFINITIONS
In this MoU, unless the context otherwise requires, the following words and expressions shall bear the meanings ascribed to them below:
1.1. “Customer” means a customer purchasing an Eligible Product during the Offer Period from Mi.com;
1.2. “Eligible Products” shall mean any and all variants of Redmi and Mi branded smartphones sold on Mi.com;
1.3. “Codes” shall mean the coupon codes created by the Company and shared with Xiaomi and, issued by Xiaomi to eligible Customers who purchase Eligible Products from a Mi.com during the Offer Period, in a manner set out in Clause 2;
1.4. “Mi.com” shall mean www.mi.com, the related mobile website and mobile application;
1.5. “Offer” shall have the meaning assigned to it under Clause 2.1 of this MoU;
1.6. “Offer Period” means and include the period between 21st October 2021 and 30 November 2021, both days inclusive or such extended period as mutually agreed in writing;
1.7. “Platform” means the Company’s official mobile application, Goibibo;
1.8. “User” means a user of the Platform, either a first time user who registers on the Platform after receipt of the Code or a previously registered User; and
1.9. “Validity Period” for each individual Code shall be a period of three (3) months from the date of issuance of the Code by email.
2.OFFER
2.1. The Parties shall jointly enable, launch and run a promotional offer whereby every Customer who purchases any variant of an Eligible Product from Mi.com during the Offer Period will be eligible to receive a Code, on their registered email address within a period of ten (10) days from the date of purchase of the Eligible Products. The Code received by the Customer can be redeemed on the Platform, to receive the following benefits, in accordance with the terms and conditions set out under ANNEXURE A (“Offer”).
2.2. Following discounts (each a “Discount”) to each Customer who has logged into the Platform and prepaid for each booking
For a domestic flight booking
| User | Discount received when the Code is redeemed | Minimum Transaction Amount |
|---|---|---|
| First time User | 12% instant discount, subject to a maximum of INR 1500 | Not applicable |
| Registered User | 5% instant discount, subject to a maximum of INR 1200 | Not applicable |
For a domestic hotel booking
| User | Discount received when the Code is redeemed | Minimum Transaction Amount |
|---|---|---|
| First time User | 12% instant discount, subject to a maximum of INR 20,000 | Not applicable |
| Registered User | 7% instant discount, subject to a maximum of INR 10,000 | INR 2000 |
To avail the Discount on a booking on the Platform, a User’s transaction/booking must be for the minimum amount identified and set out above (each a “Minimum Transaction Amount”).
3.CONSIDERATION
Activities carried out by the Parties under this Agreement shall not be construed as that of ‘services’ being provided by one Party to another. Instead it shall be construed in the manner it is intended and agreed between the Parties, i.e., as activities being carried on by both Parties for achievement of a common objective, for which there is no payment being made by one Party to another for any underlying activity. Accordingly,
i. It is mutually agreed that no consideration is payable under this Agreement by either by the Company to Xiaomi or by Xiaomi to the Company for the obligations/ rights herein.
ii. The marketing or business promotion or support services provided by one Party to the other Party do not, in any manner, warrant payment of any consideration.
iii. Taxes: Each Party would be solely responsible for the compliance of all applicable laws and shall be liable for the payment of its own tax liability arising from this Agreement including withholding tax.
4.RESPONSIBILITIES OF THE PARTIES
4.1. Xiaomi’s responsibilities
4.1.1. Xiaomi shall, within ten (10) days from the date of purchase of an Eligible Product by a Customer from Mi.com, send an email containing the Code to the Customer.
4.1.2. Xiaomi will determine, at its sole discretion, which transactions and Customers are eligible to receive a Code, and whether to issue a Code to a concerned Customer.
4.1.3. Xiaomi shall ensure that each Customer receives not more than one (1) Code under the Offer against each invoice.
4.1.4. Xiaomi shall ensure that Eligible Products shall carry standard manufacturer’s warranty, which shall be serviced by Xiaomi.
4.1.5. Xiaomi shall make available and display to the Customers, the Offer terms and conditions in the format set out in ANNEXURE A, including the redemption process, prior to the Customer’s purchase of the Eligible Products and participation in the Offer.
4.1.6. Xiaomi shall manage any customer grievances in relation to the after-sales service of the Eligible Products.
4.2. Company’s Responsibilities
4.2.1 The Parties agree that there is no service agreement inter-se between them; any rights and obligations defined under this Agreement are merely to protect their own brand. The Parties are entering into this Agreement with a common endeavor and a limited purpose, to promote the Offer launched as per this Agreement. The Agreement does not create any commercial rights between the Parties, and no Party can make any claim of interest from the other for any activities carried out under this Agreement.
4.2.2 The Company shall provide One Lakh Fifty Thousand (1,50,000) unique coupon Codes (each, a Code) to Xiaomi, prior to the commencement of the Offer Period, for distribution to eligible Customers. Additional Codes may be shared as and when required during the Offer Period, as agreed between the Parties.
4.2.3 The Company shall be responsible for fulfilling the terms of the Offer to Customers including allowing the redemption of each Code on its Platform.
4.2.4 As part of the redemption process, the Company must allow Customers to use their Code to purchase any domestic flight and/or domestic hotel available on the Platform, as applicable.
4.2.5 For the Offer, the Company shall enable the following process of redemption of the Codes for the Customers:
Steps to redeem the Code
Domestic Flights:
Domestic Hotels:
4.2.6. The Company must share with Xiaomi a report setting out the number of Customers acquired, traffic generated on the Platform, and the number of Customers who have redeemed the Codes, every seven (7) days during the Offer Period.
4.2.7. The Company may market and promote the Offer with Xiaomi’s prior written consent on a case to case basis, in India. Where Xiaomi approves the method and design of usage of its name, tradename, logo and trademark, Xiaomi hereby
agrees to provide a limited, India-wide, non-sub-licensable, revocable, non-exclusive, non-assignable, and non-transferable right to the Company to use its trademark, logo and trade name solely for the purpose of marketing and promoting the Offer strictly in accordance with the mutual agreement of the Parties.
4.2.8. The Company hereby agrees to provide a limited, non-sub-licensable, irrevocable, non-exclusive, non-assignable, and non-transferable right to Xiaomi to use its intellectual property for the purpose of marketing and promoting the Offer, prior to and during the Offer Period.
4.2.9. The Company shall address and manage all Customer grievances in relation to the redemption of Codes, the Offer and/or the Platform, including applicability/non-applicability of the Codes on the Platform.
4.2.10. The Company shall ensure that the products and/or services to be availed using the Codes and intended to be sold/made available on the Platform are available during the Offer Period, and that the products and/or services provided on the Platform do not, at any point of time adversely prejudice or affect the Offer.
4.2.11. The Company shall not make any commitments or provide any assurances to Customers on behalf of Xiaomi including any additional warranties or commitments with respect to the Eligible Products.
4.2.12. Save as expressly provided hereinabove, the Company shall not issue any other statement or announcement of any nature relating to the subject matter of this Offer, save as required by applicable law or, order or notice of a statutory authority, without prior written consent of Xiaomi. This includes disclosures in any form, written or verbal, in partial or in full, of any information related to the Offer, to the public or to members of the press or media.
4.2.13. The Company acknowledges that the decision regarding the eligibility of a Customer to receive a Code lies with Xiaomi.
4.2.14. The Company shall be responsible for the quality, shipping and warranty for any product/service redeemed by Customers using the Code, from the Platform.
5.INTELLECTUAL PROPERTY
5.1. Each Party shall retain all rights, title and interest in its patents, copyrights, trademarks, proprietary and/or licensed software, logos, service marks and trade secrets (“Intellectual Property Rights”).
5.2. No right, title or interest whatsoever in the other Party’s Intellectual Property Rights is granted by this MoU and use of any Intellectual Property Right permitted to one Party by the other Party shall be strictly in terms of this MoU. The Parties shall not claim any rights, title or interest nor shall it license, sell, publish, disclose, display or otherwise make available the Intellectual Property of the other Party to any person or entity except as provided in this MoU. Neither Party shall use the Intellectual Property of the other Party in any manner whatsoever without the prior consent of the other Party or as provided hereunder.
5.3. Any joint and combined usage by either Party of its own trademarks, copyrights or other intellectual proprietary material along with the trademarks, copyrights or other intellectual proprietary material of the other Party, if at all permitted by such other Party shall cease forthwith upon the expiration or termination of this MoU. The Party so using such material jointly shall, thereafter, neither use such material in combination nor shall claim any right, title or interest in such combination nor shall register or attempt to register the said combination or any other mark or combination deceptively similar thereto, phonetically or otherwise, in any jurisdiction.
5.4. The provisions of this Clause shall survive the expiry or termination of this MoU, howsoever caused.
6.TERM AND TERMINATION
6.1. This MoU shall be deemed to have come into effect from 21st October 2021 (the “Effective Date”), and shall remain valid till the fulfilment of the Parties’ obligations under this MoU (“Term”).
6.2. This MoU shall terminate upon the occurrence of any of the following:
6.2.1. Any material breach by a Party of any provision of this MoU which, if capable of remedy, is not remedied within fifteen (15) days after a written notice from the other Party requiring the breach to be remedied; or
6.2.2. Either Party has a receiver or administrator appointed, or passes a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect, or becomes subject to an administration order or petition for insolvency or bankruptcy, enters into any voluntary arrangement with its creditors, or ceases (or threatens to cease) to carry on business, proposes any dissolution, composition or financial reorganization with creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to all or substantially all property or business of the such other Party; or such other Party makes a general assignment for the benefit of creditors.
6.3. The termination or expiry of this MoU shall in no event terminate or prejudice: (a) any right or obligation arising out of or accruing under this MoU attributable to events or circumstances occurring prior to such termination/expiry; or (b) any provision which by its nature is intended to survive termination.
6.4. Notwithstanding the termination or expiry of the MoU, the Company shall ensure that the Codes already issued to Customers can be redeemed on the Platform during the Validity Period of the Code.
7.COMPLIANCE WITH LAWS
The Parties shall comply with all applicable laws, ordinances, codes and regulations. If at any time during the Term of this MoU, a Party is informed or information comes to its attention that it is or may be in violation of any law, ordinance or code (or if it is so determined by any court, tribunal or other authority), that Party shall immediately take all appropriate steps to remedy such violation and comply with such law, regulation, ordinance or code in all respects.
8.MISCELLANEOUS
8.1. In the course of this MoU, either Party may have access to and be entrusted with the other Parties’ trade secrets, business and financial plans, strategies, know-how and other information in respect of the business of the other Party, which is of a confidential nature (the “Confidential Information”). It is hereby agreed that each Party shall maintain as confidential at all times the Confidential Information, and shall: (i) apply the same security measures and degree of care, which shall not be less than a reasonable degree of care, to the Confidential Information as it applies to its own confidential information; (ii) not, directly or indirectly, disclose or make the Confidential Information available, in whole or in part, to any third party or persons, without the prior written consent of the other Party; and (iii) not disclose Confidential Information to any employees or contractors unless they have a demonstrable need to know and are bound by confidentiality obligations at least as restrictive as those stated in this MoU. The obligations of confidentiality specified herein shall survive the termination or expiry of this MoU, howsoever caused.
8.2. In no event shall Xiaomi be responsible for claims arising out of redemption of Codes. Nothing in this Offer shall disclaim the Company’s liability for claims arising out of the Offer and/or the redemption of Codes and/or the Platform. Subject to Clause 8.6, the liability of the Company for any claim arising under or in relation to the Offer shall be limited to the value of discounts being offered by the Company to the User(s).
8.3. Each Party represents and warrants to the other Parties that: (a) it is duly incorporated, organized and validly existing under the laws of India; (b) it has full power, authority and necessary corporate authorizations to enter into, execute and deliver this MoU and to perform the obligations contemplated herein; (c) this MoU constitutes legal, valid and binding obligations, enforceable against it in accordance with its terms; (d) it has, and for the Term of this MoU, shall continue to have such skill, expertise, infrastructure and manpower as may be necessary to perform its obligations under this MoU; (e) it is, and shall for the term of this MoU remain, in compliance with all applicable laws and possesses all requisite governmental approvals, licenses, permits relevant for performing its obligations hereunder; (f) the execution of this MoU and the performance of any provision herein by either Party shall not amount to licensing or transfer of any intellectual property to the other Party; and (f) all information, data, reports and other information provided to the other shall be accurate and complete.
8.4. Each Party (“Indemnifying Party”) agrees to indemnify, defend and hold the other Party (“Indemnified Party”) harmless from and against claims, demands, actions, liabilities, costs, interest, damages, losses and expenses of any nature whatsoever (including all legal and other costs, charges and expenses) incurred or suffered by the Indemnified Party, arising out of or relating to: (i) any breach of any representations, warranties, covenants or obligations by the Indemnifying Party; (ii) any breach of the provisions of applicable laws by the Indemnifying Party; (iii) any breach by the Indemnifying Party of confidentiality obligations hereunder; (iv) any infringement, actual or alleged, of any third party’s intellectual property rights by the Indemnifying Party; and (v) any fraud, misrepresentation, gross negligence or wilful misconduct by the Indemnifying Party or its personnel, representatives or agents.
8.5. The Company agrees to indemnify, defend and hold Xiaomi harmless from and against third party claims, demands, actions, liabilities, costs, interest, damages, losses and expenses of any nature whatsoever (including all legal and other costs, charges and expenses) incurred or suffered by Xiaomi, arising out of or relating to the Platform, Codes and/or services being made available by the Company on the Platform to the Customers under this Offer.
8.6. Xiaomi agrees to indemnify, defend and hold the Company harmless from and against third party claims, demands, actions, liabilities, costs, interest, damages, losses and expenses of any nature whatsoever incurred or suffered by the Company, arising solely out of or relating solely to the Eligible Products.
8.7. Nothing in this MoU shall limit or exclude either Party’s liability for:
8.8. Subject to Clause 8.8 but notwithstanding anything else to the contrary contained herein or elsewhere, neither Party shall be liable to the other, whether in contract, tort, breach of statutory duty, or otherwise, for any loss of profit, or any other special, incidental, indirect or consequential damages, damages from loss of profits or business opportunities even if the other Party shall have been advised in advance of the possibility of such loss, cost or damages.
8.9. Subject to Clause 8.8 but notwithstanding anything else to the contrary contained herein or elsewhere, Xiaomi’s aggregate cumulative liability for any and all claims arising under or in relation to the Offer shall be limited to the value of the Eligible Products purchased in the immediately preceding one (1) month computed from the date on which such liability arises, for which the Codes are given to the Customer.
8.10. Notwithstanding anything contained in this MoU, neither Party shall be liable for any default or delay in performance of any obligation under this MoU on account of any reason beyond its reasonable control, including but not limited to fire, flood, /casualty, an act of god (such as a natural disaster, an earthquake, and an epidemic or pandemic), a war, acts of terrorism, lockout, strike, labour disputes, industrial action of any kind, unavoidable accident, breakdown of equipment, national calamity or riot, the enactment of any act of Parliament or the act of any other legally constituted authority, changes to the laws and/ or rules which prevents the performance of its obligations (“Force Majeure Event”). Where a Party’s ability to meet its obligations under this MoU is adversely affected by Force Majeure Events, it shall use its best endeavors to minimize any delay in performance of its obligations, shall immediately notify the other Party of the Force Majeure Event, and the Parties shall immediately consult with each other in order to find an equitable solution. The Parties shall accordingly enter into an amendment to this MoU to record such mutually agreed equitable solution. The Parties shall use all reasonable effort to minimize the consequences of the Force Majeure Event. Notwithstanding the foregoing, if the period of non-performance exceeds fifteen (15) days from the date of receipt of the notice of Force Majeure Event, either Party shall have the right to terminate this MoU.
8.11. Nothing in this MoU, and no action taken under this MoU, shall create a partnership or establish a relationship of principal and agent between the Parties or (save as otherwise stated herein) otherwise authorise any Party to bind the other Party for any purpose.
8.12. In the event any clause of this MoU is found to be unlawful or unenforceable, it shall be severed from this MoU and the remainder of this MoU shall continue to be in force. The Parties agree to negotiate in good faith to replace such an invalid provision with a valid provision, the effect of which comes as close as legally and commercially possible to that of the invalid provision.
8.13. Each Party shall always ensure that the services in this MoU are performed/ delivered in a manner that protects the reputation and goodwill of the other Party.
8.14. No modification or amendment to this MoU and no waiver of any of the terms or conditions hereto shall be valid or binding unless made in writing and duly executed by the Parties.
8.15. The Parties shall not assign this MoU or any of the rights, interests or obligations hereunder to any third party, unless agreed in writing by the other Party.
8.16. This MoU shall be governed by and construed in accordance with the laws of India and both Parties hereby submit to the exclusive jurisdiction of the courts at Bangalore in relation to any dispute arising out of or in connection with this MoU.
Xiaomi Technology India Private Limited Ibibo Group Private Limited
ANNEXURE A OFFER TERMS AND CONDITIONS
This Offer is brought to you by Xiaomi Technology India Private Limited (“Xiaomi”) and Ibibo Group Private Limited (“Goibibo”). Please read these terms and conditions (“T&Cs”) before availing the Offer. You agree that, by availing this Offer, you will be bound by these T&Cs and you acknowledge and agree that you satisfy all Offer eligibility requirements as provided herein below.
1. Offer:
Customers purchasing an Eligible Product (as defined below) from www.mi.com, the related mobile website and mobile application (“Mi.com”) during the Offer Period may be eligible to receive a coupon code (“Code”) which can be redeemed on the Goibibo mobile application downloaded from Google Play Store of from the App Store maintained by Apple Inc. (“Platform”) to receive the following discounts (each a Discount). The Code shall be sent to the Customer’s email address registered on Mi.com within a period of ten (10) days from the date of purchase of the Eligible Product.
For a domestic flight booking
| User | Discount received when the Code is redeemed | Minimum Transaction Amount |
|---|---|---|
| First time User | 12% instant discount, subject to a maximum of INR 1500 | Not applicable |
| Registered User | 5% instant discount, subject to a maximum of INR 1200 | Not applicable |
For a domestic hotel booking
| User | Discount received when the Code is redeemed | Minimum Transaction Amount |
|---|---|---|
| First time User | 12% instant discount, subject to a maximum of INR 20,000 | Not applicable |
| Registered User | 7% instant discount, subject to a maximum of INR 10,000 | INR 2000 |
2.Steps for redemption of the Code on the Platform:
Domestic Flights:
To avail the offer, visit Goibibo Android or iOS App then login/register to create your account.
Domestic Hotels:
3.Eligible Products: All variants of the Redmi and Mi branded smartphones sold in Mi.com during the Offer Period
4.Validity Period: Three (3) months from date of receipt of the Code by the Customer on his/her registered email address
5.Offer Period: [ ]21st Oct 2021 to 30th Nov 2021 (both dates inclusive)
6..Customers:. Consumers who purchase an Eligible Product from Mi.com during the Offer Period
7.Other terms and conditions:
a. This Offer is valid only in the territory of India.
b. Customers must: (a) be located in India; (b) have a billing address in India; (c) purchase an Eligible Product and (d) be 18 (eighteen) years or above; to be eligible to avail the Offer.
c. Each Customer who purchases an Eligible Product during the Offer Period shall, receive a Code on his/her registered email address, which can be redeemed on the Platform.
d. Xiaomi will determine, at its sole discretion, which transactions and Customers are eligible to receive a Code, and whether to issue a Code to a concerned Customer. Such decision regarding the eligibility of the Customers for issuance of the Code shall be final and binding on all Customers.
e. The Discount on domestic hotel bookings is not available for previously registered Users of the Platform.
f. Users must have logged into the Platform and prepaid for each booking.
g. Xiaomi holds out no warranty or makes no representation about the quality, delivery or otherwise of the Platform, the redemption and applicability of the Codes and/or related products and services. Any dispute or claim regarding Platform and/ or use of it and/or redemption of the Codes, disputes or claims regarding the products/services provided by Goibibo must be resolved by the Customer/User directly with the Company without any reference to Xiaomi.
h. The Offer cannot be combined with any other offer of Xiaomi or Goibibo.
i. In no event the entire liability of Goibibo under this Offer shall exceed the amount of promotional discount under this Offer. Neither Xiaomi nor Goibibo shall be liable for any indirect, punitive, special, incidental or consequential damages arising out of or in connection with the Offer.
j. Any person availing this Offer shall be deemed to have accepted these terms and conditions.
k. Xiaomi/ Goibibo reserves the right, at any time, without prior notice and without assigning any reason whatsoever, to add/alter/modify/change or vary all of these terms and conditions or to replace, wholly or in part, this Offer by another offer, whether similar to this Offer or not, or to extend or withdraw it altogether.
l. Nothing herein amounts to a commitment by Xiaomi to conduct further, similar or other offers.
m. This Offer is non-transferable, non-encashable, non-extendable and non-negotiable.
n. Customers are not bound in any way to avail this Offer. Any participation is voluntary and the Offer is being made purely on a best effort basis.
o. Customer shall contact Goibibo at 0124-6280407 for any query relating to the Platform or the redemption of the Codes.
p. Any query regarding the Offer will be entertained only for a period of fifteen (15) days after the end of the Offer Period. Post such date, Xiaomi will not entertain any correspondence or communication regarding this Offer from the Customers.
q. Tax liability, if any, is to be borne by the Customer.
r. The Offer is subject to force majeure events.
s. The Company reserves the right to disqualify any customer from the benefits of this Offer and such customers will have no right against Xiaomi for such disqualification.
t. This Offer shall be subject to all applicable laws, rules and regulations which are in existence and which may be promulgated anytime by any statutory authority.
u. All disputes, if any, arising out of or in connection with or as a result of this Offer or otherwise relating hereto shall be subject to the exclusive jurisdiction of the competent courts / tribunals in Bangalore only, irrespective of whether courts / tribunals in other areas have concurrent or similar jurisdiction.