TYKE WEALTH TERMS AND CONDITIONS
The terms and conditions mentioned herein ( this “Agreement”) shall be applicable to the Services (defined below) extended/to be extended by TYKE TECHNOLOGIES PRIVATE LIMITED, a company incorporated under the Companies Act, 2013 having its registered office at 5th Floor, 3-A Jai Hind Estate, Dr. Atmaram Merchant Road, Bhuleshwar, Kalbadevi, Mumbai- 400002 (hereinafter referred to as “Tyke”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its successors and permitted assigns); to the persons availing the Services through the use of the Platform (defined below).
For the purposes of this Agreement, ‘Investing Company’, and wherever the context may require, shall mean any natural or legal person (including any legal heirs, administrators or successors) who has agreed to become a user of the Platform and the Services mentioned herein by accessing or using the Platform and accepting the terms of this Agreement.
Please read the Agreement carefully before accepting the terms. This Agreement shall be effective and binding upon your ‘acceptance’. ‘Acceptance’ shall mean your affirmative action of clicking on the “Let’s Start” button on the URL https://form.typeform.com/to/B6DhdOge?typeform-source=www.wealth.tykeinvest.com.
By expressly accepting the terms of this Agreement, you also accept and agree to be bound by applicable policies of Tyke as found on https://www.tykeinvest.com. Tyke reserves the right to update the terms of this Agreement and shall notify the Investing Company accordingly of such changes through prior notice.
Subject to compliance with the terms of this Agreement, Tyke hereby grants you a non-exclusive, limited privilege to access and use the Platform to avail the Services. The Investing Company agrees to use the Platform only: (a) for purposes that are permitted by the Agreement; and (b) in accordance with any applicable law, regulation or generally accepted practices or guidelines.
Tyke and the Investing Company are collectively referred to as the “Parties” and individually as a “Party”.
WHEREAS:
- Tyke is engaged in the business of assisting startups to raise capital and operates a technology platform (“Platform”);
- Tyke has executed instant settlements for statutory payments and banking partners (“Vendors”) wherein they have agreed to make instant settlements with no chargeback for statutory payments previously debited from the merchant using their respective banking partner (“Instant Settlements”). Tyke has agreed to be facilitator under such Instant Settlements wherein it shall facilitate the instant settlements of such Vendors to prospective investors through the Platform.
- The Investing Company independently and based on its own determination and market diligence has agreed to avail the Services (as defined hereinafter) from Tyke by registering on the Platform and on the terms and conditions mentioned herein. The Parties have therefore decided to enter into this Agreement to record the mutual terms and conditions between them.
NOW THEREFORE, IN CONSIDERATION OF THE PROMISES, MUTUAL COVENANTS, TERMS AND CONDITIONS AND UNDERSTANDINGS SET FORTH HEREIN, THE PARTIES, WITH THE INTENT TO BE LEGALLY BOUND, HEREBY COVENANT AND AGREE AS FOLLOWS:
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DEFINITIONS AND INTERPRETATIONS
- In this Agreement, including the recital above and the schedules hereto, except where the context otherwise requires: (a) capitalised terms defined by inclusion in quotations and/or parenthesis have the meaning so ascribed; and (b) the following words and expressions shall have the following meanings.
- “Applicable Laws” or “Law” means all the applicable statutes, constitutions, enactments, acts of legislature or parliament, ordinances, rules, by-laws, regulations, notifications, codes, guidelines, policies, directions, directives and orders of any Governmental Authority, statutory authority, tribunal, board, court or any recognized stock exchange on which the shares of the Investing Company or Tyke may be listed and, if applicable, international treaties and regulations;
- “Confidential Information” means all communications between the Parties, and other material supplied to or received by any of the Parties hereto from the others which is either marked ‘confidential’ or is by its nature intended to be exclusively for the knowledge of the recipient alone, and any information concerning the affairs, the business, customer details, business transactions or the financial arrangements of Tyke or of any Person with whom any of them is in a confidential relationship and shall include the terms of this Agreement and all connected documents and/or writings;
- “Encumbrance” shall mean any claim, mortgage, charge (fixed or floating), pledge, hypothecation, assignment, lien, restriction, deed of trust, voting trust agreement, equitable interest, option, title retention, commitment, restriction or limitation or other encumbrance of any kind securing, or conferring any priority of payment in respect of, any obligation of any Person (defined below), including without limitation any right granted by a transaction which, in legal terms, is not the granting of security but which has an economic or financial effect similar to the granting of security under Applicable Law, right of pre-emption, right of first refusal or other third party right or security interest;
- “Governmental Authorities” shall mean any relevant governmental or quasi-governmental authority, statutory authority or quasi-statutory or regulatory authority, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or stock exchange or taxing authority or anybody entitled to exercise executive power or power of any nature or body or other organization to the extent that the rules, regulations, standards, requirements, procedures or orders of such authority, body or other organization have the force of law;
- “Intellectual Property” ” means all intellectual property that Tyke owns or uses or is licensed to use in India or elsewhere, and includes all patents, models, rights in inventions (whether patentable or not), trade and service marks, trade dress, rights in logos, domain names, get-up and trade names and the goodwill attaching to any of them, right in designs, copyrights, moral rights, topography rights, rights in databases, trade secrets, photographs, technology, computer programs, title and interest, know-how, and any rights, interest or forms of protection of a similar nature, including without limitation, all economic and exclusive rights to reproduce, fix, adapt, modify, translate, create derivative works from, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, transmit or provide access electronically, broadcast, display, enter into computer memory, or otherwise use any portion or copy, in whole or in part, in any form, directly or indirectly, or to authorize or assign others to do so, and having equivalent or similar effect to any of them which subsist anywhere in the world, in all cases whether or not registered or registerable and including registrations and applications for registration or grant of any of these and rights to apply for the same and includes without limitation any intellectual property that a person owns and which is used by Tyke;
- “Instant Settlement Charges” means the interest income earned by the Investing Company for the purpose of advancing deposit for facilitating instant settlements at the rate of 10% per annum on a weekly settlement basis.
- “Merchant” means the person whose statutory payments are being made by the banking partner which requires instant settlements.
- “Person(s)” shall mean any individual, sole proprietorship, unincorporated association, unincorporated organization, body corporate, corporation, company, partnership, limited liability company, joint venture or trust;
- “Settlement Account” means the details of the bank account of the Investing Company, as provided to Tyke by the Investing Company on the date of execution of this Agreement; and
- “Services” means executing instant settlements with no chargeback for statutory payments previously debited from the merchant using their respective banking partner (“Vendors”), in accordance with the terms and conditions of this Agreement.
- Interpretations
- Heading and bold typeface are only for convenience and will be ignored for the purpose of interpretation.
- The recitals form an integral and operative part of this Agreement, and shall have the same force and effect as if set out in the body of the Agreement.
- Unless the context of this Agreement otherwise requires:
- The terms referred to but not defined in this Agreement shall, unless defined otherwise or unless inconsistent with the context or meaning thereof, shall have the same meaning as defined under the Companies Act, 2013 and failing that, under any other relevant applicable statute/legislation.
- words using the singular or plural number also include the plural or singular number, respectively;
- words of any gender are deemed to include the other gender;
- the terms “hereof”, “herein”, “hereby”, “hereto” and derivative or similar words refer to this entire Agreement or specified Clauses of this Agreement, as the case may be;
- the term “Clause” refers to the specified Clause of this Agreement;
- reference to the word “include” will be construed without limitation;
- reference to any statute shall include all statutory modifications, consolidations or re-enactment (whether before or after the Execution Date) for the time being in force;
- reference to this Agreement or any other agreement, deed or other instrument or documents shall be construed as a reference to this Agreement, such agreement, deed or other instrument or document as the same may from time to time be amended, varied, supplemented or novated;
- in addition to the terms defined in Clause 1.1 above, certain other terms are defined elsewhere in this Agreement and wherever such terms are used in this Agreement, they shall have their respective defined meanings, unless the context expressly or by necessary implication otherwise requires;
- words and expressions used herein, but not defined shall have the same meaning respectively assigned to them in Applicable Law in so far as the context so admits;
- reference to days, months and years are to Gregorian calendar days, calendar months and calendar years, respectively; and
- time is of the essence in the performance of the respective obligations of the Parties. Without prejudice to the foregoing, if any time period specified herein is extended, such extended time shall also be of the essence.
- No provisions of this Agreement shall be interpreted in favour of, or against, any Party by reason of the extent to which such Party or its counsel participated in the drafting hereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof.
- References to the knowledge, information, belief or awareness of any person shall be deemed to include the knowledge, information, belief or awareness of such person after examining all information and making all due diligence inquiries and investigations which would be expected or required from a person of ordinary prudence.
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TERM
- This Agreement shall come into effect on the Effective Date and shall continue to be in force and effect until terminated by either Party in accordance with Clause 5 (Term and Termination) of this Agreement (“Term”).
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REPRESENTATIONS & WARRANTIES
- Each Party hereby represents and warrants to the other Parties hereto that it:
- is duly incorporated and created and is validly subsisting and in good standing under the applicable Law(s) of India with power and authority to conduct its business;
- it has the authority and capacity to enter into, execute and deliver this Agreement and to perform its obligations and the transactions contemplated hereby and, if such Party is not a natural Person, such Party has the necessary corporate power/ authority to enter into this Agreement and to carry out its obligations under this Agreement;
- this Agreement constitutes legal, valid and binding obligations of such Party enforceable against it in accordance with its terms;
- it has obtained all necessary corporate approvals, authorisations and consent(s) from Governmental Authorities and third parties, as may be required for the execution, effectiveness and performance of this Agreement;
- the execution and delivery of this Agreement, or consummation of the transactions contemplated by this Agreement or compliance with the terms or provisions of this Agreement, does not and will not throughout the term of this Agreement: (i) conflict or result in a violation, or breach of, or default under the Laws applicable to such Party; (ii) be in breach of or conflict with any of the other commitments or agreements entered into by the Party, binding the Party or any of its assets; (iii) conflict with its constitutional documents; (iv) constitute or result in a breach or violation of any term, condition or provision of, or constitute a default under, or give rise to any right to termination, cancellation or acceleration with respect to, or result in the loss of a benefit under, or result in the creation of any Encumbrance upon its assets pursuant to, any contract to which it is a party or by which it or its assets may be subject or bound; or (v) violate any agreement or other material document binding on such Party.
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TERMS OF TRANSACTING
- Prior to making any investments through the Platform, pursuant to the terms of this Agreement, the Investing Company shall be required to share the Know Your Customer (“KYC”) details as provided under Schedule 1, to Tyke, for the creation of a designated virtual account (“Investco Virtual Account”) integrated with the Platform for availing the Services herein.
- On the creation of such Investco Virtual Account, Tyke will forthwith share the details of such Investco Virtual Account with the Investing Company for the Investing Company to remit the funds to be utilized for instant settlements of statutory payments by the vendor.
- Remittance of Funds: To avail the Services in accordance with the terms and conditions of this Agreement, the Investing Company shall remit funds into the Investco Virtual Account integrated with the Platform, within 5:00 PM of every Saturday per calendar week. Forthwith on the remittance of such funds, the Investing Company shall inform Tyke through a written notice of the (i) amount of funds remitted and (ii) bank reference number for such transaction.
- Investment Cycle: The funds remitted in the Investco Virtual Account by the Investing Company in accordance with the manner provided Clause 4.3 (Remittance of Funds), (“Invested Funds”) shall be utilized through the Platform, in full, for facilitating instant settlements of such Vendors, and such Invested Funds shall accrue certain Instant Settlement Charges on them (“Investment Cycle”). The Invested Funds remitted by the Investing Company within the timelines provided under Clause 4.3 (Remittance of Funds) would be considered for an Investment Cycle by the Platform starting every Monday per calendar week and shall be informed within 5:00 PM every Saturday of such calendar week. For avoidance of doubt, the Invested Funds along with the applicable Instant Settlement Charges shall not be reinvested in the succeeding week after the completion of an Investment Cycle per week.
- Withdrawal of Funds:
- The Invested Funds, along with the Instant Settlement Charges accrued on such funds (net of applicable taxes deducted at source) (“Accrued Amounts”) shall be deposited in the Investco Virtual Account by the Vendors through the Platform. The Accrued Amounts shall cause to be deposited by Tyke through the Platform, in the Settlement Account on every Monday per calendar week.
- The Investing Company shall have the right to request Tyke, through an email, for a full or partial withdrawal of the Accrued Amounts by 5:00 P.M every Saturday per calendar week. On the receipt of such request by Tyke, within the timeline provided herein under this Clause 4.5 (Withdrawal of Funds), Tyke shall cause the Accrued Amounts to be deposited in the Settlement Account by every Monday of the succeeding calendar week (“Settlement Date”).
- The Parties agree that any delay by Tyke in depositing the Accrued Amounts in the Settlement Account shall incur an interest of 18% (eighteen) percent per annum on the outstanding and unpaid amounts for a period commencing from the Settlement Date till the date when actually paid (both inclusive).
- Deposit of additional funds: The Investing Company shall have the right to deposit additional Invested Funds in the Investco Virtual Account by 5 P.M every Saturday, per calendar week. Forthwith on the deposit of such additional Invested Funds, the Investing Company shall send the details of the bank reference number for the transaction to Tyke through an email. On the receipt of such notice, within the timeline provided herein under this Clause 4.6 (Deposit of additional funds), by Tyke, Tyke shall cause such additional Invested Funds to be utilized for the Investment Cycle on every Monday per calendar week. Tyke shall also share the receipt of the Instant Settlement Charges on the Accrued Amounts by every Tuesday per calendar week.
- Responsibilities of Tyke: The Parties agree that Tyke is merely a service provider that provides the Services herein, and that Tyke shall not be responsible for holding any interest on the Invested Funds or the Instant Settlement Charges thereto. The Accrued Amounts are deposited by the Vendors, to be forwarded for deposit into the Settlement Accounts and Tyke merely provides the Platform as the infrastructure and interface for causing the same. Further, under no circumstances shall it be construed that Tyke is providing any discounting or credit facilities to any party, and Tyke is merely acting as an intermediary between the Vendors and the Investing Company.
- Indemnities: Tyke shall indemnify the Investing Company and hold them harmless against all costs, expenses, claims (including third party claims), liabilities, demands, prosecutions, damages and proceedings which may be caused to or suffered by or made or taken against the Investing Company as a result of failure by the Vendors to deposit the Accrued Amounts in the InvestCo Virtual Account within the Settlement Date, in accordance with the terms of Instant Settlements. Such indemnification obligations of Tyke under this Agreement shall be mutatis mutandis the respective indemnification obligations of the Vendors to Tyke under the Instant Settlements, and Tyke shall not incur any additional liabilities or indemnification obligations.
- Non-solicit: The Investing Company agrees not to solicit any Vendors or similar consultants of Tyke of any such affiliate of Tyke, directly or indirectly, to enter into a business relationship which is similar to the terms of Service provided under this Agreement, at any time while the Parties and/or their affiliates are engaged under the terms of this Agreement, unless mutually agreed upon.
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TERM AND TERMINATION
- This Agreement may be terminated by either Party by giving a prior written notice of 30 days to the other Party (“Termination Notice”).
- On the service of the Termination Notice by either Parties, Tyke shall cause the Accrued Amounts to be deposited in the Settlement Account (through the Platform) within the timelines (immediately following the date of the issuance of the Termination Notice) specified under Clause 4.4 (Investment Cycle) and Clause 4.5 (Withdrawal of Funds) under this Agreement.
- Consequences of Termination: Following the service of a Termination Notice, but prior to the effective date of such termination, each Party shall continue to abide by the terms and conditions of this Agreement in effect at such time and comply fully with its obligations hereunder during any period between the date of service of a termination notice and the date of actual termination. Further, termination shall be without prejudice to any rights or remedies that each Party may have against other Parties in respect of any antecedent breach of the terms of this Agreement.
- Survival: Upon termination of this Agreement, all rights and obligations of the Parties shall terminate forthwith save and except the rights and obligations under those clauses that by their nature should survive expiration or termination of this Agreement including Clauses 7 (Confidentiality), 6 (Intellectual Property), 8.11 (Notices), and 8(Miscellaneous) of the Agreement.
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INTELLECTUAL PROPERTY
- Parties agree that this Agreement does not result in the assignment or licensing of any Intellectual Property Rights by any Party to the other Parties.
- Each Party retains ownership of any pre-existing Intellectual Property Rights. Tyke reserves all rights, title and interest in and to the Platform, including all Intellectual Property Rights in the Platform.
- The Investing Company agrees and undertakes that during the Term and during any other period of time during which it may have a right to use the Platform, it shall not: (i) permit any third party to access the Platform and/or (ii) use, copy, or distribute any Intellectual Property Rights associated with the Platform.
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CONFIDENTIALITY
- The Parties shall not disclose the Confidential Information to or permit access by any third party without the prior written consent of the disclosing Party. The receiving Party shall be permitted to disclose the Confidential Information to its/their employees, shareholders, directors, agents, advisors and sub-contractors (as applicable) (“Representatives”) on a need-to-know basis, provided the receiving Party ensures that its/their Representatives agree to be bound by similar non-disclosure obligations and sign a non-disclosure or similar agreement in content substantially similar to this Agreement. The receiving Party shall be responsible for any breach of this Agreement by its Representatives and further agrees to indemnify the disclosing Party at all times for any loss suffered on account thereof. The Parties shall not use any Confidential Information of the other Parties for any purpose other than as contemplated under this Agreement. Each Party shall take all reasonable measures to maintain the confidentiality of all such Confidential Information of the other Party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, the obligation of confidentiality shall not apply to any disclosure (i) of information that is in or enters the public domain other than by reason of a breach by a Party; or (ii) of information that was in the possession of the receiving Party prior to disclosure under this Agreement, as evidenced in writing, except to the extent that such information was unlawfully appropriated; or (iii) of information which has been independently developed as a result of the efforts of receiving Party and not as a direct or indirect result of the disclosure of Confidential Information by the disclosing Party; or (iv) of information that was rightfully disclosed to it by a third party, the disclosure of which to the receiving Party does not, violate any contractual or legal obligation such third party has to the disclosing Party with respect to such information that the receiving Party is aware of. The receiving Party may make disclosures required under Applicable Law or court order provided the receiving Party uses diligent reasonable efforts to limit disclosure and has allowed the disclosing Party to seek a protective order or appropriate remedy.
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MISCELLANEOUS
- Further assurances: the Parties shall, with reasonable diligence, do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated by this Agreement in the manner contemplated herein, and each Party shall provide such further documents or instruments required by the other Party (as may be reasonably necessary or desirable to effect the purpose of this Agreement and carry out its provisions.
- Governing Law and Jurisdiction: The provisions of this Agreement shall, in all respects, be governed by, and construed in accordance with the laws of India. Subject to Clause 8.3 (Dispute Resolution) below, each Party agrees that the courts in Mumbai shall have exclusive supervisory jurisdiction to settle any claim or matter arising under this Agreement.
- Dispute Resolution: Any disputes and differences whatsoever arising under or in connection with the subject matter herein shall be settled amicably between the disputing Parties. Any dispute, which is not settled amicably between the disputing Parties for period of 15 (fifteen) business days, shall be finally settled by a sole arbitrator mutually appointed by the disputing Parties. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996. The venue of arbitration shall be Mumbai and all proceedings shall be conducted in English language.
- Amendment: No amendment, supplement, modification or clarification to this Agreement shall be valid or binding unless set forth in writing and duly executed by all Parties.
- Entirety: This Agreement (i) contains the entire understanding between the Parties in relation to the transactions contemplated under this Agreement and (ii) supersedes all previous verbal and written understandings or any other documents issued/exchanged by the Parties in relation to the transactions contemplated under this Agreement.
- Severability: If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or the applicable part of such provision and the remaining part of such provision and all other provisions of this Agreement shall continue to remain in full force and effect.
- Assignment: No Party shall be entitled to assign any of its rights and obligations as contained in this Agreement unless same has been approved by such Party in writing.
- No Third-Party Rights: Nothing herein expressed or implied is intended, nor shall it be construed to confer upon or give to any third party any right, remedy or claim under or by reason of this Agreement or any part hereof.
- Relationship: Nothing contained in this Agreement shall be construed to be a joint venture, partnership or agency between the Parties. Further, neither Party nor their respective directors, officers, employees, shareholders or representatives (as applicable) shall, in any manner be entitled to bind or represent or make any commitment or enter into any contract or otherwise act in any manner on behalf of other Party.
- Force Majeure, delay:
- Neither Party shall be liable for any failure or delay in performance of any obligation, under this Agreement, to the extent such failure or delay is due to a Force Majeure Event. The Party having any such cause shall promptly notify the other Party in writing of the nature of such cause and the expected delay.
- Tyke shall not be liable for any failure or delay in performance of any obligation, under this Agreement, to the extent such failure or delay is due to a technical outage in the Platform (limited to a period of 48 hours).
- If, however, it is not feasible for a Party to prevent the occurrence of the Force Majeure Event as a result of which that Party is prevented from performing its obligation under this Agreement, for more than 30 (Thirty) days due to such Force Majeure Event (“Aggrieved Party”), the other Party may decide to release the Aggrieved Party from performing its obligation hereunder or may modify the relevant provisions of this Agreement affected by the Force Majeure Event, so long as the Force Majeure Event continues, in order to enable the Aggrieved Party to perform its other obligations hereunder as so modified.
- For the purpose of this sub-clause 8.10 (Force Majeure, delay), “Force Majeure Event” shall mean and include occurrence of any contingency beyond the reasonable control of the Party, including, without limitation, Acts of God, civil or military authority, acts of the public enemy, civil disturbances, insurrections, accidents, explosions, transportation embargos, strike or other labor disturbance or disputes, union issues, riot, vis major, spread of any contagious disease, pandemic, epidemic, virus, power failure, war, national emergency, terror attacks, cyberattacks, interference by any government or governmental agency, embargo, seizure, or enactment or abolition of any law /notifications, natural calamities including but not limited to floods, earthquakes, fire, volcanic eruptions, epidemics or any other legitimate cause beyond the reasonable control of the Parties.
- Notices:
- Communications in writing: Any communication to be made under or in connection with this Agreement or any other document(s) pursuant hereto shall be made in writing and, unless otherwise stated, shall either be delivered personally by hand or sent by courier or email. (ii) Addresses: The address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be delivered under this Agreement is:
To Tyke:
Tyke Technologies Pvt Ltd
5th Floor, 3-A Jai Hind Estate, Dr. Atmaram
Merchant Road Bhuleshwar, Kalbadevi,
Mumbai – 400002
To the Investing Company:
As per the information provided in the KYC format under Schedule 1
- Waiver: No delay or omission to exercise any right, power or remedy accruing to either Parties upon any breach or default by the other Party under this Agreement shall impair any such right, power or remedy of the Party nor shall it be construed to be a waiver of any such breach or default or an acquiescence therein or of any similar breach or default thereafter occurring nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default therefore or thereafter occurring. Any waiver, permission, consent or approval on the part of either Parties in respect of any breach or default under this Agreement or any provisions or condition of this Agreement must be in writing and shall be effective only to the extent in such writing specifically set forth. All remedies either under this Agreement or by Applicable Law or otherwise afforded to either Parties shall be cumulative and not alternate.
- Counterparts: The Agreement shall be executed in two counterparts, each of which shall be deemed to be an original, and both shall constitute one and the same instrument. The Parties may enter into this Agreement by signing any such counterpart. Delivery of an executed counterpart signature page of this Agreement by email (PDF) shall be as effective as delivery of a manually executed counterpart of this Agreement. In pleading or proving any provisions of the Agreement, it shall not be necessary to produce more than one of such counterparts.
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SCHEDULE 1
- Legal Name of the Entity
- Permanent Account Number (PAN)
- GST Registration Number (GSTIN)
- Contact Details: Phone Number and Email ID
- Bank Account details
Above mentioned details are to be submitted at this link https://tyke.typeform.com/wealth