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Monday, September 22, 2014

PROFESSIONAL SERVICE AGREEMENT





Monday, May ___, 2014

To:       _______________
_______________
_______________
_______________
_______________

Dear _______________

Subject : Professional Services Agreement

We take this opportunity to welcome you on board as a Sr. Training Service Provider. _________________ always strives to collaborate with its partners & associates to provide benefits to end customers & achieve a highly satisfying engagement experience for all the stake holders.

______________ is the leading IT Consulting & Training Company with 15 years of industry presence with a large list of loyal patrons & customers who value the contributions made by the organization & its associates.

Our associates are key drivers in the success achieved by our organization. We warmly welcome you to be a part of a team that espouses values of commitment, sincerity, hard work, honesty & transparency.

Please find attached following legal documents;
·         Professional Service Agreement
·         Scope of Service
·         Commercial Terms

Please sign the Professional Service Agreement as an evidence of your acceptance of the terms & conditions.

Wishing you all the best in your professional association with _______.

With best wishes,

Yours faithfully,
For ________________Pvt. Ltd.


_________
Director

Service Provider Declaration

1.  I do hereby accept the terms and conditions of Professional Service Agreement offered to me. I declare that I have read the terms and condition of Professional Service Agreement and I understand its contents clearly.

2.  I hereby agree and accept the terms and conditions stipulated in Professional Service Agreement and I will report for service from the effective date as per Clause III (3) of the Agreement.


Date: __________, 2013
Place: Bangalore                                                                     Service Provider




.
Executed at Bangalore, Karnataka, on the date and year first above written.

COMPANY:                                                              SERVICE PROVIDER:

______________,                                                                   ______________
________________                                                                _____________




APPROVED AS TO FORM:
_________________________________
Sandeep Hegde











PROFESSIONAL SERVICE AGREEMENT

This Professional Service Agreement (“PSA”/”Agreement”) is entered on __________ at Bangalore by and between _________________________________, a company incorporated under the Companies Act 1956, having its Registered Office at ______________________ represented by its Director, Mr. ______________ (Hereinafter referred to as “the Company” which term shall also include the legally constituted signatories, heirs, representatives assignees, successors) and Mr. ___________________, S/o. _______________, Aged about _____ years, R/a. ____________________ ____________________ ___________________(Hereinafter referred to as the “Service Provider/Trainer”)


I.       RECITALS:

1.    The Company is desires to obtain professional Training services on an ongoing basis for a variety of different projects to be undertaken by Company throughout the Term of this Professional Service Agreement, the general scope of which services are described in Scope of Service, attached hereto as Exhibit A.
2.    The Company desires to retain a qualified Service Provider to conduct the services described in accordance with the Scope of Service as more particularly set forth in the Exbhit-A.
3.    Service Provider represents to the Company that he/she is trained professionals and is fully qualified to conduct the services described in Exhibit A and render advice to Company in connection with said services.
4.    The parties have negotiated upon the terms pursuant to which Service Provider will provide such services and have reduced such terms to writing.

II.          Definitions

For the purpose of all the clauses and their sub-clauses:

1.      PSA means the Professional Services Agreement.

2.      The Company means _____________________ Limited and its subsidiaries and affiliates.

3.      Service Provider means any professional who has accepted this PSA

4.      The Client means any company, professional, firm or Organization which has availed or shown interest to avail the training services of the Company.

5.      Prospective Client means any company, professional, firm or Organization to which the Company has one year preceding to the expiry or termination as the case may be of this Agreement  has submitted a proposal to provide such services, the preparation of which included Service Provider’s direct or indirect involvement.

 
III.       TERMS OF AGREEMENT

1.      SCOPE OF SERVICE:

a)      Service Provider shall provide Company with services as directed by Company in accordance with the broad list of potential services for Company, attached as Exhibit A, which is incorporated by reference as though fully set forth, and in accordance with the terms and provisions of this Professional Service Agreement.

b)      Under this Professional Service Agreement, Company shall have the right, at its sole and absolute discretion, to assign Training Assignment to Service Provider, in the form attached as Exhibit B (“Professional Training Order”), requesting training Services from Service Provider under the general terms and provisions of this Professional Service Agreement at any place in India or outside India and at any time and at any of the offices of the Company, its associates, its Clients, with whom the Company has transactions. Company shall make every attempt to give reasonable advance notice to Service Provider about Professional Training Order, however, in case of emergency such Professional Training Order may be made effective immediately.

c)      The Service Provider shall observe work timings as applicable to deputed location or where the service being rendered.

2.      TERM OF AGREEMENT:

This Agreement shall become effective from  ________ and shall expire on ___________, unless terminated in accordance with the provisions of Article 7 of this Agreement. However the partiers are free to renew the PSA on mutually agreed terms.

3.      STATUS OF SERVICE PROVIDER:

a)      It is the express intention of the parties that Service Provider is an Independent Service Provider and not an employee, agent, joint venturer or partner of the Company. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the Company and Service Provider or Service Provider. Both parties acknowledge that Service Provider is not an employee for state or Central tax purposes. Service Provider shall surrender the right to perform services for others during the term of this Agreement.

b)      Exclusivity: During the existence of this Agreement Service Provider shall devote full time to provide service to the Company and shall not undertake any direct / indirect business or work, honorary of remunerative, except with the written permission of the Company.

c)      Service Provider Qualifications: Service Provider warrants that it has the necessary competence, experience and qualifications for the services to be performed.

d)     Agreement Management: Service Provider shall report to the Company’s Administrative Officer who will review the activities and performance of the Service Provider and administer this Agreement.

e)      Service Provider agrees provide service for 21 days a month to the Company throughout the term this Agreement, unless terminated in accordance with the provisions of Article 7 of this Agreement.

f)       Service Provider shall not be eligible for any paid leave benefits. 


4.      COMPENSATION TO SERVICE PROVIDER:  
For the satisfactory completion of the services to be provided under this Contract, the Company will pay the Service Provider a sum as set forth on the attached in Exhibit B which by this reference is made a part hereof. Compensation for services will be provided in monthly installments, based on actual work performed. Payment will be based upon the number of days of Service and performance measures used to determine Service Provider’s compliance.
(The exhibit should describe the maximum amount payable under the contract, the procedures for approving payment, the terms of payment, and the performance measures to be used to determine Service Provider compliance.)

Professional

5.      OBLIGATIONS OF SERVICE PROVIDER:

a)      Records: It is understood and agreed that all plans, studies, specifications, and data magnetically or otherwise recorded on computer or computer diskettes, records, files, reports, etc., in possession of the Service Provider relating to the matters covered by this Agreement shall be the property of the Company, and Service Provider hereby agrees to deliver the same to the Company upon request. It is understood and agreed that the documents and other materials including but not limited to those set forth hereinabove, prepared pursuant to this Agreement are prepared specifically for the Company and are not necessarily suitable for any future or other use. Service Provider shall maintain such records for a minimum of three (3) years or as otherwise required by law.

b)      Service Provider’s Books and Records: Service Provider’s shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, cancelled tickets and other records, emails or documents evidencing or relating to charges for services or expenditures and disbursements charged to the Company for a minimum of three (3) years, from the date of final payment to the Service Provider. Any records or documents required to be maintained shall be made available for inspection, audit and/or copying at any time during regular business hours, upon oral or written request of the Company.

c)      Assignability of Agreement: It is understood and agreed that this Agreement contemplates personal performance by the Company and is based upon a determination of his/her unique personal competence and experience and upon his/her specialized personal knowledge. Assignments of any or all rights, duties or obligations of the Service Provider under this Agreement will not be permitted.

d)     CONFLICT OF INTEREST. The Service Provider covenants that he/she presently has no interest and will not acquire any interest, direct or indirect, in the Training Projects during the term of this Agreement and 2 years preceding the termination of this Agreement. 

6.      OBLIGATIONS OF COMPANY

Cooperation of Company: Company agrees to comply with all reasonable requests of Service Provider and provide access as allowed by law to all documents reasonably necessary to the performance of Service Provider’s duties under this Agreement.


7.      TERMINATION OF AGREEMENT
a)      Termination Occurrence of Stated Events: This Agreement shall terminate automatically on the occurrence of any of the following events:
1. Upon expiry of term of the Agreement
2. Death of Service Provider.


b)      Either Party can terminate this Agreement by provision of Thirty day’s written Notice to the other Party. Company shall be entitled to require normal services from the Service Provider during the said notice period on the same terms as contained herein and at the service charges as those provided hereunder. Failure on the part of the Service provider in providing the services during the notice period shall make the Service Provider liable to pay one month’s Professional fee in lieu of the notice period service and compensate/reimburse Company for any expenses incurred and the loss suffered by Company in resulting from such non provision of Service.

c)      No notice or notice pay is required to be paid by either side if the employment is terminated by mutual consent.

d)     The service offered carries responsibilities and entails confidence. In case at any time Service Provider’s integrity is found doubtful and/or the management at its own discretion loses confidence in Service Provider, then this Agreement shall stand terminated. The Company management reserves its right to initiate appropriate proceedings for recovery on account of damages suffered.

e)      Notwithstanding anything hereto contained, the services of the Service Provider shall be liable to be terminated without notice and/or without salary in lieu thereof in any of the following events:
                                i.            if Service Provider fail, refuse or neglect to carry out and perform the assigned duties;
                              ii.            if Service Provider is guilty of misbehavior, fraud, insubordination or any misconduct;
                            iii.            if Service Provider commit breach of any of the terms of his contract;
                            iv.            for loss of confidence;
                              v.            if Service Provider remain absent for service unauthorizedly for a continuous period of 8 days;

8.      Non Compete:
a)      During the period of Service and for a further period of one year, Service Provider shall not, directly or indirectly, alone or as an owner, member, manager, partner, officer, employee, director, investor, lender, consultant or independent contractor of any entity, (i) accept employment with any business or entity that does business in the state of Karnataka and that is in Competition with the services being rendered, created, developed, marketed, distributed or sold by the company, or (ii) engage in any business or activity, including but not limited to services rendered, that are in competition with the services being rendered created, developed, marketed, distributed or sold by the Company in the state of Karnataka.

b)      Service Provider recognize, acknowledge and agree that this covenant not to compete is reasonable and necessary to protect Company's legitimate business interests, including without limitation, the confidential and professional information and trade secrets of the Company the substantial relationships between the company and its customers and clients, and the goodwill of the company. Additionally, Service Provider acknowledge, recognize and agree that the company provides its products and services on a worldwide basis and, thus, the geographical limitation of this covenant not to compete also is reasonable. Service Provider further agree that the enforcement of this covenant not to compete, whether by injunctive relief, damages, or otherwise, is in no way contrary to public policy.

9.      Non-Solicitation of Customers:
a)      During the period of rendering service and for a further period of one year, Service Provider shall not, directly or indirectly, alone or as an owner, member, manager, partner, officer, employee, director, investor, lender, consultant or independent contractor of any entity, solicit or have any contact or have any dealings or do business, or assist any company or business organization to solicit or do business, with any client or customer of the company or any potential client or customer of the company (i) with whom Service Provider have had contact or (ii) about whom Service Provider have obtained information, or become familiar with through the Company's confidential information and trade secrets, during the course of employment with the company.

b)      Service Provider acknowledge, recognize and agree that this covenant not to solicit clients or customers is reasonable and necessary to protect the Company's legitimate business interests, including, without limitation, the confidential business or professional information and trade secrets of the Company, the substantial relationships between the Company and its customers, and the goodwill of the Company. Service Provider further agree that the enforcement of this covenant not to solicit or customers, whether by injunctive relief, damages, or otherwise, is in no way contrary to public policy.

10.  Non-solicitation of Employees:
a.       During the period of rendering Service and for a further period of one year, Service Provider will not, in any manner, directly or indirectly, hire or engage, or assist any company or business organization to hire or engage, any person who is or was employed by the Company (or is or was an agent, representative, contractor, project consultant or director of the company).

b.      Service Provider acknowledge, recognize and agree that this covenant not to solicit employees, clients or customers of the company is reasonable and necessary to protect the Company's legitimate business interests, including, without limitation, the confidential business or professional information and trade secrets of the Company, the substantial relationships between the Company and its officers, directors, employees, independent contractors, consultants, agents, and other personnel or representatives. Service Provider further acknowledge and agree that the enforcement of this covenant not to solicit or hire employees, whether by injunctive relief, damages, or otherwise, is in no way contrary to public policy.

11.        Notice to future Employers and of Future Employment:
Service Provider agree that after the expiry or termination of this Agreement with the company, he/she will inform each prospective new employer, prior to accepting the contract with the prospective new employer, of the existence of this Agreement, and shall provide each prospective employer with a copy of this Agreement. Service Provider also agree that the Company has the right to independently contact any of Service Provider’s potential or actual future employers and notify his/her obligations under this Agreement and provide such future employer with a copy of the Agreement. The Company shall also be entitled to notify such actual or potential future employer of the Company's interpretation of the requirements of this agreement and what steps, if any, the company intends to take to ensure compliance with or enforcement if this agreement.

12.        Assignment of Intellectual Property Rights:
This Professional Service Agreement is entered on the express understanding that all services provided by Service Provider whether at the company's site(s) or on deputation, are being done on behalf of the company or its clients. Consequently, any and all intellectual property rights (including but not limited to patents, copyrights, trademarks, etc.) arising therein shall be owned exclusively by the company or its clients to whom Service Provider may be providing the services on deputation. In this regard, it shall be deemed that Service Provider have provided his/her consent for the assignment of any and all intellectual property rights developed either solely by he/she or jointly with the company or its clients exclusively and solely either in favor of the company or its clients and he/she shall do all such acts as may be necessary to ensure that the ownership of all such intellectual property rights vests solely with the company or its clients as the case may be.

13.        Severability:
a)      Service Provider agrees that the provisions of this Agreement shall be enforced as between Service Provider and the Company to the fullest extent permissible under the laws and public policies applied in India. In the event that the Company deems it necessary to enforce the provisions of this Agreement against any of the Service Provider’s future employers/clients, Service Provider acknowledge the Company's right to bring legal action against such future employer/Client under the laws of and in the courts of any jurisdiction in India. Service Provider expressly agree that the character, duration, and geography of this Agreement are reasonable in light of the circumstances as they exist on the date upon which this Agreement has been executed.

b)      However, should a court of competent jurisdiction nonetheless determine at a later date that the character, duration or geography of this Agreement is unreasonable in light of the circumstances as they then exist, then this Agreement shall be construed in such a manner as to impose only those restrictions that are reasonable in light of the circumstances they then exist and as are necessary to assure the Company of the intended benefit of this Agreement to the maximum extent permitted by applicable law.

14.        Mediation; Arbitration of Disputes required (in lieu of litigation): 

a)      MEDIATION:  The parties acknowledge that mediation usually helps parties settle their dispute.  Therefore, before or after initiating the arbitration process, any party may propose mediation through any mediation process or mediator as the parties may agree upon. 

b)     ARBITRATION:  Every dispute, difference, or question which may at any time arise  between the parties  hereto or any person  claiming under them, touching or arising out of or in respect of this agreement (deed) or the subject matter thereof shall be referred to the arbitration  by sole arbitrator to be nominated by the Company or, failing agreement to two  arbitrators  one to be appointed by each party to the  difference (whether consisting of one or more than one person) and in case of difference of opinion between them  to an umpire appointed by the said two arbitrators before entering on the reference  and the decision  of the arbitrator ( or such arbitrators, or umpire as the case may be) shall be final  and binding on the parties. The arbitration shall be conducted in accordance with the Arbitration and conciliation Act, 1996 and amended from time to time. The place of arbitration shall be Bangalore and the language of the arbitration proceedings shall be English.

15.        Amendments/Waiver.
a)      Any amendment to or modification of this Agreement, or waiver of any provision hereof, shall be in writing and signed by Service Provider and the company. Any waiver by the Company of a breach of any provision of this agreement shall not operate or be construed as a waiver of any subsequent breach of such provision or any other provision hereof. Amendment of this Agreement cannot be effected via emails.

b)      Service Provider agrees to waive any and all rights to attack the validity of the Clause 8 and their sub-clauses on the grounds of severity or on the breadth of geographic area during the restrictive period.

16.        Duties:-
Service Provider shall carryout the duties and responsibilities that are assigned to him/her from time to time including change in the nature of work without adversely affecting his/her emoluments to effectively use of his/her efficiency and services, depending on the availability of projects and the need of the company.

17.        Performance Review:-
Service Provider’s performance will be regularly reviewed during his/her contract period, which will involve discussions between Service Provider and representatives of the Company in relation to Service Provider’s performance and conduct.

18.        Code of Conduct:-
Service Provider will be expected to abide by the Company Policy, codes of conduct and dress code as laid down by the Company from time to time.

19.  Indemnification:
Service Provider shall indemnify the Company against all claims arising out of Service Provider's actions or omissions occurring during term of this Agreement to the fullest extent provided such actions or omissions are not covered in the scope of Service of the Service Provider.

20.  Partial Invalidity:
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

21.  Attorney’s Fees:
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.  Conformance to Applicable Laws: Service Provider shall comply with the standard of care regarding all applicable laws, rules and ordinances. No discrimination shall be made by Service Provider in the training of persons under this Agreement because of race, color, national origin, ancestry, disability, sex or religion of such person.

22.  Governing Law:
This Agreement and all matters relating to it shall be governed by the laws of India and any action brought relating to this Agreement shall be held exclusively in Bangalore.

23.  Sharing of Agreement:
Service Provider agrees that the Company may from time to time, in its discretion, and without further permission from Service Provider, furnish copies of this Agreement to any clients or potential client of the Company and indicate that Service Provider have entered into this Agreement with the intention that the Company and each of its clients may rely upon Service Provider’s compliance with this Agreement.

24.  Others:
a.       Service Provider shall not directly or indirectly, accept any commission, profits, presents or gratification of any kind from any person, firm or company having dealings with the Company, and, Service Provider is offered any such commission, profits, presents or gratification, Service Provider shall immediately report the same to the Company in writing and, if called upon to do so by the Company, shall forthwith hand over the same to the Company.

b.      Service Provider shall not engage in any act subversive of discipline in the course of rendering service to the client either within the client's organization or outside it, and if Service Provider at any time found indulging in such act/s, the company shall reserve the right to initiate disciplinary action as is deemed fit, against Service Provider.

c.       Service Provider should furnish correct residential address to the company for the purpose of correspondence. Any change in the address should be intimated forthwith.

d.      Service Provider is prohibited from making any Public statements with direct or indirect reference of the Company to any person, body, organization etc. Service Provider is also not permitted to disclose any information regarding the company or products/ services etc.

e.       Any concealment and misrepresentation of information will be treated as a breach of trust by the management and can lead to termination of this Professional Service Agreement.

f.       Upon expiry or termination of this Agreement with the company for any reason whatsoever, Service Provider will return to the company all papers, documents, materials and equipments of the company, which may be in Service Provider’s possession.

g.      Service Provider shall not, after the termination of this Agreement for whatever reasons, represent himself /herself as being in any way connected with or interested in the business of the company.

h.      This Agreement will be deemed void abinitio and liable for termination without any notice or salary in lieu of notice if any of the information provided by Service Provider in the application/resume/profile is found false or incorrect.

i.        the Service Provider’s service with the company is subject to he/she being found medically fit to efficiently perform the assignments. An authorized medical officer of the company will conduct a medical examination and he/she will be the sole authority for certifying Service Provider’s medical fitness.

j.        If at any time anyone or more provisions of this contract is or become invalid, illegal or unenforceable in any respect under the law of any relevant jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent necessary without affecting or impairing the validity, legality and enforceability of the remaining provisions hereof or such provision in any other relevant jurisdiction.

k.      This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the rendering of services by Service Provider for Company and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by the party to be charged and approved by the Company as provided herein or as otherwise required by law.

l.        For purposes of this Agreement, "the Company" shall include any company affiliated with, controlled by, controlling or under common control of the Company.

m.    The head notes hereto are for the purpose of convenience of reference only and shall not be taken into account in ;considering or constructing or interpreting any of the provision hereof.


IN WITNESS WHEREOF this Agreement is signed on the date first written above.

.
Executed at Bangalore, on the date and year first above written.
COMPANY:                                                              SERVICE PROVIDER:

______________,                                                                   ______________
________________                                                                _____________




APPROVED AS TO FORM:
_________________________________
Sandeep Hegde
Advocate
Mo: 08971784550












EXHIBIT- A

Scope of Service
 A Training Service Provider will have following scope of service:

·         Training Programs
·         Events & Seminars
·         Consulting Assignments
·         External Software Development Assignments
·         Webinars
·         Support Faculty
·         Co-Faculty
EXHIBIT- A

Commercial Terms
Commercial Terms for all the Billable resources will include:

·         Fixed Professional Fees

The appointed Trainer shall perform the responsibilities defined in the Scope of Services Document.

Fixed Professional Fees-Fixed

Service Provider shall receive a fixed Professional Fees of ___________/- during the Agreement Period, for extending the services mentioned below for 24 days per month. Fixed Professional Fees is inclusive of TDS, Service Tax & any other applicable tax.


On confirmation (3 months from the date of joining) you shall receive a Fixed Professional Fees of Rs.___________/- Fixed Professional Fees is inclusive of TDS, Service Tax & any other applicable tax 

After completion of 6 months from the date of joining Trainer shall receive a fixed Professional Fees of Rs.__________/- the increase will be on your performance based. Professional Fees-Fixed is inclusive of TDS, Service Tax & any other applicable tax 

There will be a lock-in period of 24 Months. In case you leave the Organization before 24 months, then you will have to compensate the company a sum of Rs.75,000/- as charges  of Training. (HR: For this we can execute separate Training Bond to be more effective)


·         Attending Faculty
·         Technical Upgrade
·         Webinars
·         Internal Events
·         Internal Assessment
·         Pre-Sales Support
·         Post Sales Support
·         Customer Delight
·         Content Development
·         Technical Query Support

Terms of disbursement / Deduction:

  1. You will be paid the Professional Fees- Fixed for delivering above mentioned services subject to your being available for 21 person days & not refusing to deliver the services.
  2. If you make yourself unavailable   or refuse to deliver the service due to any reason the Professional Services-Fixed shall be deducted on a per day basis based on the Monthly Fixed Professional fee amount (incl of Service Tax) for the days/durations of the assignment not delivered/refused.
  3. A carry forward of the 2 days Leave every month shall be permitted within the financial year. (In this case Financial year is from 1st April to 31st March).
  4. If the GPA for the Training delivered does not meet the client expectations then the Professional Services-Fixed shall be deducted on a per day basis based on the Monthly Fixed Professional fee amount for the days/durations of the assignment.The Management shall have a One-on One meeting with the Trainer before any deduction is done.

v  Other Terms


·         GPA below 3.0 (1) per Service Provider per quarter will be reviewed for payment subject to approval by VP-Technology Transformation

·         Certification cost will be paid by the company on successful completion for the certification by prior approval of VP-Technology transformation.

·         New Technology adaption: Payment will be released only after certification


This Agreement is made effective between:

__________________ Limited and _______________


Signed on behalf of _____________________Limited

Name               :           _____________
Position           :           Director

Signature         :           __________________________


Date                :           __________________________


I have read and understood this agreement and agree to the terms and conditions herein.

Name               :           Employee


Signature         :           __________________________


Date                :           __________________________


















Check list

1)      Signed profile/resume
2)      Copy of the signed welcome letter from both the parties.
3)      Copy of PSA and Exhibit A & B.
4)      Pass post sized photo
5)      Copies of the Academic Records from 10th till highest qualification
6)      Copies Previous Relieving Letters and Pay slips/Invoices.
7)      Copy Address Proof(less than 2 years old)
8)      Copy of the Pass book or Bank statement (for verifying Address)
9)      Effective date complied with? III(3)

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