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I have signed an agreement with employer A, they asked me to sign an agreement mentioning "investment, training etc." and if we leave the company before 2 years from date of signing, we have to pay a lot of money.
Later my H1B application was filed and was stamped. I have now resigned. Employer A is asking me to pay a huge money saying it was an H1B bond - agreeement, otherwise they will not provide relieving letter and experience letter.
Employer A (my previous employer) is in India and now i have joined another emploeyr in India only.
Please advise.
################## Agreement is as below#########
This SERVICE AGREEMENT is made
BETWEEN
M/s Company Ltd., a company incorporated under the Companies Act 1956 and having their registered office at ______________________________________ and hereinafter referred to as "Employer” (which expression shall unless it be repugnant to the subject and context thereof, be to include its successors and assigns).
AND
Mr\Ms _______________________________ son/daughter of Mr._________________________ residing at ____________________________________________________________ ____________ and having permanent address at ____________________________________________________________ _
____________________________________________________________ ____________ (Hereinafter referred to as the "Employee")
Whereas, on the confirmation of Employee that he/she shall serve the Company for a total period of 24 months from the date entering into this agreement, Employer has agreed to invest substantially in the latest technology and advanced courses of Information Technology,
And whereas, to enable Employee to gain substantially from such investments of the Employer, Employer has agreed to invest substantially in the form of time and money, by itself or through its other known sources or through its subsidiary/affiliate companies abroad. The aforesaid investments, which are to be incurred by the Employer on the Employee, on the assurance and representation of the Employee that he/she undertakes to abide by the terms of this agreement.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
1. In consideration of the said investments to be made by the Employer and also the fixed compensation received by the Employee, the Employee, hereby, voluntarily and without there being any force, coercion and undue influence, agrees to abide by the terms of this Service Agreement and conditions herein contained, as agreed upon, by the Employee, in the offer letter of the Employer. The Employer Company, at its discretion, based on performance, and other relevant factors, may revise the fixed compensation, from time to time. The fixed compensation payable and computed in accordance with the terms and conditions stated herein are agreed to be paid to the Employee, in view of the Employee agreeing to the following terms and conditions.
i. The Employee shall engage himself/herself, exclusively for the benefit of the company, and shall not take up any independent or individual assignments.
ii. The Employee, hereby, agrees to a covenant of secrecy and confidentiality and agrees to be bound to maintain, as secret and confidential, without limitation of duration or time, any trade information/trade secrets, client’s confidential and privileged information, client details & strategies, and any other information made available by the Employer Company or its clients to the Employee, during the term of this agreement and engagement with the Employer/its Client.
iii. The Employee agrees that he/she shall at no point of time divulge or part with or leak out any privileged Employer/client information, received in the course of his/her employment, with the Employer/client, to any third party.
iv. The Employee agrees that he/she shall diligently, faithfully and to the best of his/her ability, undergo necessary training and thereon render services for the Employer and its clients, so as to efficiently discharge duties, in accordance with the standards of the industry, which Employer owes to its clients.
2. In view of the investments made by the Employer, the Employee agrees that the services of the Employee shall be utilized purely and solely, for the benefit of the Employer, and as an exercise for skills up-gradation and no part of services, training or training materials or information shall be divulged, to any other competitor or person whatsoever.
3. The Employee agrees that under the provisions of this agreement and any other expenses lawfully incurred by the Employer in connection with the specialized training in the advanced courses of Information Technology together with all allowances during the period are being spent on the Employee with a view that his/her services would be utilized by the Employer after he/she has received the aforesaid training and the same is being imparted to him/her on this faith, assumption and belief that his/her work experience would be utilized for the business of the Employer against the investments made by the Company on the assurances of the Employee. The Employee agrees that in case the Employee fails to serve the Employer for the mandatory period of 24 months from the date of acceptance to the terms of this agreement, he/she shall be bound to pay to the Employer i.e., Company Ltd liquidated damages as stated in Annexure ‘A’ to this Agreement. Employer agrees and understands that, against the investments made by the Employer as stated above, the claim for liquidated damages as stated in Annexure are genuine and the Company may retain any amount payable to the Employee against the said liability, should Employee breach any of the terms of this Agreement. It is commonly understood between the parties to the instant agreement, that the failure to abide by the terms and conditions of this agreement would cause substantial damage to the business of the Employer and or its client, which is incapable of estimation, however, for the purpose of the instant agreement, are estimated as stated in Annexure, and the same shall constitute a debt owing to the Employer and shall be recoverable by the Employer from the Employee with interest thereon @ 18% per annum (from the date of breach of any of the conditions till repayment) immediately upon the Employee committing a breach of any of the conditions contained in this agreement and in particular :-
i. If the Employee:
(a) Abandons or deserts the Employer during the period as agreed herein.
(b) Neglects or fails to report to the Employer.
(c) Fails or neglects to serve the Employer for the complete period of 24 months from the date of entering into this agreement.
(d) Fails to complete the knowledge transfer to the respective team at offshore on returning back from abroad or at Onsite, as per the request of the Employer.
ii. If the Employer:
(a) Terminates this agreement during the term on account of the failure of the Employee to show satisfactory performance during the term of the agreement.
Service Agreement
(b) Terminates the employment before the completion of the term as agreed herein on account of failure of the Employee to provide adequate results expected of him/her as per the Service Levels provided to him/her for the Work Order assigned to him/her or for breach of any of the terms of this Agreement.
4. Employer and the Employee agree that, the liability to pay liquidated damages would arise as in accordance with the terms of Annexure A and agree that, Annexure ‘A’ forms part and parcel of this Agreement.
5. If the Employee is Physically Based (defined below) in India at the time of termination, this Agreement shall be governed in all respects by the laws of state of Karnataka, India. The courts at Bangalore, India will have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby consents to the jurisdiction and venue of such courts.
6. However, if the Employee is Physically Based in the United States at the time of termination, this Agreement shall be governed in all respects by the laws of the State of Florida without regard to conflicts of law principles. The Florida state courts of Orange County (or, if there is exclusive federal jurisdiction, the United States District Court for the Middle District of Florida) shall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby consents to the jurisdiction and venue of such courts. For purposes herein, “Physically Based” means such Employee is undergoing training/working and living in the United States and reports to an office in the United States at least once a week for two or more consecutive weeks.
7. This Agreement contains the sole and entire agreement between the Parties regarding this subject and shall supersede any and all other agreements between the Parties regarding this subject except for, if applicable, any covenant not to compete, covenant not to solicit, confidentiality agreement, or amended compensation agreement signed by both Parties. The Parties acknowledge that they have read this Agreement in its entirety and that any oral or written statements to the contrary are void and that neither Party has relied on any such representation in connection with this Agreement.
8. The Parties agree that no waiver or modification of this Agreement or of any covenant, condition, or limitation contained within it is valid unless it is in writing, clearly identified as a modification or waiver of this Agreement, or one of the clauses of this Agreement, and duly executed by both Parties. The Parties further agree that neither shall submit or attempt to submit any waiver or modification into evidence in any proceeding, arbitration, or litigation between the Parties arising out of or affecting this Agreement, or the rights or obligations of any Party under it, unless such waiver or modification is in writing, clearly identified as a modification or waiver of this Agreement or one of the clauses of this Agreement, and duly executed by both Parties.
9. If one or more provisions in this Agreement are held invalid or unenforceable, the remaining provisions shall remain in full force and effect.
10. Any waiver or modification of any breach of one or several provisions contained in this Agreement shall not be considered as a waiver of any subsequent breach of the same or other provisions of this Agreement.
Service Agreement
11. The headings and titles used in this Agreement are for the reference and convenience of the Parties and do not serve to limit or change the meaning of any provision contained in this Agreement. All personal pronouns used in this Agreement, whether in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural; and the plural shall include the singular.
12. Any Party required providing notice to the other Party pursuant to this Agreement may affect such notice by personal delivery in writing or by certified mail, postage prepaid, return receipt requested. A Party mailing a notice shall address it to the relevant Parties at the addresses appearing in the introductory paragraph of this Agreement, but any Party may change its notice address in accordance with this paragraph. The Parties deem any personally delivered notice as delivered on the date of actual receipt, provided the notice is signed by the person named in the notice or if the receipt refuses to sign such notice, then by the date of a notation as the delivering Party may show that communicates an attempted, but unclaimed or refused, delivery.
13. Failure to insist upon strict compliance with any of the terms, covenants or conditions; shall not be deemed a waiver of such terms, covenants or conditions, nor shall any waiver or relinquishment of any right or power, at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times.
14. This Agreement shall be binding on, and inure to the benefit of, the successors and assigns of the Employer. Employee shall have no right to assign this Agreement, but the Employer, at its sole discretion, shall have the right to assign it.
15. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall comprise but a single instrument.
16. No provision of this Agreement shall be construed against, or interpreted to the disadvantage of, any Party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have drafted, structured, dictated or required such provision.
17. EMPLOYEE CERTIFIES THAT EMPLOYEE HAS READ THE ENTIRE CONTENTS OF THIS AGREEMENT BEFORE EXECUTING SAME; THAT EMPLOYEE FULLY UNDERSTANDS ALL THE TERMS, CONDITIONS AND PROVISIONS SET FORTH IN THIS AGREEMENT, PARTICULARLY INCLUDING, BUT NOT LIMITED TO, EMPLOYEE’S FIDUCIARY AND CONFIDENTIAL RELATIONSHIP WITH YYYY ZZZ AND EMPLOYEE’S PROTECTIVE COVENANTS AND AGREEMENTS; THAT EMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT AS SIGNED BY EMPLOYEE; AND THAT EMPLOYEE BEING BOUND BY THIS AGREEMENT IS A CONDITION PRECEDENT TO YYYY ZZZ’ ENGAGEMENT OF EMPLOYEE’S SERVICES AND YYYY ZZZ’ EXECUTION OF THIS AGREEMENT.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED THIS AGREEMENT ON THIS THE ____ day of ________ 201_.
$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$
ANNEXURE ‘A’
Stages of Recovery and Amount to be paid:
It is mandatory that the employee serves the company for the complete term of 24 months from the date of acceptance to the terms of this agreement.
If the employee resigns or the employment of the employee is terminated for willful breach committed, the employee will be liable to pay a pro-rated amount as stated below.
However, if employee resigns after the decision of the company to waive the terms of this agreement, the employee would not be liable to make any payment.
Note: The applicable dues to be settled with the company in the form of cheques during the notice period and any exits will be cleared only on completion of full and final settlement of accounts with the company.
* If employee leaves:
Within 6 months of signing the agreement: entire Rs.3 lakhs if in India or the equivalent amount in local currency will be recovered.
Between 6 months and 12 months: Rs.2.25 lakhs if in India or the equivalent amount in local currency will be recovered.
Between 12 months and 18 months: Rs.1.5 lakhs if in India or the equivalent amount in local currency will be recovered.
Between 18 months and 24 months: Rs.75K if in India or the equivalent amount in local currency will be recovered.
Beyond 24 months: NIL.
I have signed an agreement with employer A, they asked me to sign an agreement mentioning "investment, training etc." and if we leave the company before 2 years from date of signing, we have to pay a lot of money.
Later my H1B application was filed and was stamped. I have now resigned. Employer A is asking me to pay a huge money saying it was an H1B bond - agreeement, otherwise they will not provide relieving letter and experience letter.
Employer A (my previous employer) is in India and now i have joined another emploeyr in India only.
Please advise.
################## Agreement is as below#########
This SERVICE AGREEMENT is made
BETWEEN
M/s Company Ltd., a company incorporated under the Companies Act 1956 and having their registered office at ______________________________________ and hereinafter referred to as "Employer” (which expression shall unless it be repugnant to the subject and context thereof, be to include its successors and assigns).
AND
Mr\Ms _______________________________ son/daughter of Mr._________________________ residing at ____________________________________________________________ ____________ and having permanent address at ____________________________________________________________ _
____________________________________________________________ ____________ (Hereinafter referred to as the "Employee")
Whereas, on the confirmation of Employee that he/she shall serve the Company for a total period of 24 months from the date entering into this agreement, Employer has agreed to invest substantially in the latest technology and advanced courses of Information Technology,
And whereas, to enable Employee to gain substantially from such investments of the Employer, Employer has agreed to invest substantially in the form of time and money, by itself or through its other known sources or through its subsidiary/affiliate companies abroad. The aforesaid investments, which are to be incurred by the Employer on the Employee, on the assurance and representation of the Employee that he/she undertakes to abide by the terms of this agreement.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
1. In consideration of the said investments to be made by the Employer and also the fixed compensation received by the Employee, the Employee, hereby, voluntarily and without there being any force, coercion and undue influence, agrees to abide by the terms of this Service Agreement and conditions herein contained, as agreed upon, by the Employee, in the offer letter of the Employer. The Employer Company, at its discretion, based on performance, and other relevant factors, may revise the fixed compensation, from time to time. The fixed compensation payable and computed in accordance with the terms and conditions stated herein are agreed to be paid to the Employee, in view of the Employee agreeing to the following terms and conditions.
i. The Employee shall engage himself/herself, exclusively for the benefit of the company, and shall not take up any independent or individual assignments.
ii. The Employee, hereby, agrees to a covenant of secrecy and confidentiality and agrees to be bound to maintain, as secret and confidential, without limitation of duration or time, any trade information/trade secrets, client’s confidential and privileged information, client details & strategies, and any other information made available by the Employer Company or its clients to the Employee, during the term of this agreement and engagement with the Employer/its Client.
iii. The Employee agrees that he/she shall at no point of time divulge or part with or leak out any privileged Employer/client information, received in the course of his/her employment, with the Employer/client, to any third party.
iv. The Employee agrees that he/she shall diligently, faithfully and to the best of his/her ability, undergo necessary training and thereon render services for the Employer and its clients, so as to efficiently discharge duties, in accordance with the standards of the industry, which Employer owes to its clients.
2. In view of the investments made by the Employer, the Employee agrees that the services of the Employee shall be utilized purely and solely, for the benefit of the Employer, and as an exercise for skills up-gradation and no part of services, training or training materials or information shall be divulged, to any other competitor or person whatsoever.
3. The Employee agrees that under the provisions of this agreement and any other expenses lawfully incurred by the Employer in connection with the specialized training in the advanced courses of Information Technology together with all allowances during the period are being spent on the Employee with a view that his/her services would be utilized by the Employer after he/she has received the aforesaid training and the same is being imparted to him/her on this faith, assumption and belief that his/her work experience would be utilized for the business of the Employer against the investments made by the Company on the assurances of the Employee. The Employee agrees that in case the Employee fails to serve the Employer for the mandatory period of 24 months from the date of acceptance to the terms of this agreement, he/she shall be bound to pay to the Employer i.e., Company Ltd liquidated damages as stated in Annexure ‘A’ to this Agreement. Employer agrees and understands that, against the investments made by the Employer as stated above, the claim for liquidated damages as stated in Annexure are genuine and the Company may retain any amount payable to the Employee against the said liability, should Employee breach any of the terms of this Agreement. It is commonly understood between the parties to the instant agreement, that the failure to abide by the terms and conditions of this agreement would cause substantial damage to the business of the Employer and or its client, which is incapable of estimation, however, for the purpose of the instant agreement, are estimated as stated in Annexure, and the same shall constitute a debt owing to the Employer and shall be recoverable by the Employer from the Employee with interest thereon @ 18% per annum (from the date of breach of any of the conditions till repayment) immediately upon the Employee committing a breach of any of the conditions contained in this agreement and in particular :-
i. If the Employee:
(a) Abandons or deserts the Employer during the period as agreed herein.
(b) Neglects or fails to report to the Employer.
(c) Fails or neglects to serve the Employer for the complete period of 24 months from the date of entering into this agreement.
(d) Fails to complete the knowledge transfer to the respective team at offshore on returning back from abroad or at Onsite, as per the request of the Employer.
ii. If the Employer:
(a) Terminates this agreement during the term on account of the failure of the Employee to show satisfactory performance during the term of the agreement.
Service Agreement
(b) Terminates the employment before the completion of the term as agreed herein on account of failure of the Employee to provide adequate results expected of him/her as per the Service Levels provided to him/her for the Work Order assigned to him/her or for breach of any of the terms of this Agreement.
4. Employer and the Employee agree that, the liability to pay liquidated damages would arise as in accordance with the terms of Annexure A and agree that, Annexure ‘A’ forms part and parcel of this Agreement.
5. If the Employee is Physically Based (defined below) in India at the time of termination, this Agreement shall be governed in all respects by the laws of state of Karnataka, India. The courts at Bangalore, India will have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby consents to the jurisdiction and venue of such courts.
6. However, if the Employee is Physically Based in the United States at the time of termination, this Agreement shall be governed in all respects by the laws of the State of Florida without regard to conflicts of law principles. The Florida state courts of Orange County (or, if there is exclusive federal jurisdiction, the United States District Court for the Middle District of Florida) shall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby consents to the jurisdiction and venue of such courts. For purposes herein, “Physically Based” means such Employee is undergoing training/working and living in the United States and reports to an office in the United States at least once a week for two or more consecutive weeks.
7. This Agreement contains the sole and entire agreement between the Parties regarding this subject and shall supersede any and all other agreements between the Parties regarding this subject except for, if applicable, any covenant not to compete, covenant not to solicit, confidentiality agreement, or amended compensation agreement signed by both Parties. The Parties acknowledge that they have read this Agreement in its entirety and that any oral or written statements to the contrary are void and that neither Party has relied on any such representation in connection with this Agreement.
8. The Parties agree that no waiver or modification of this Agreement or of any covenant, condition, or limitation contained within it is valid unless it is in writing, clearly identified as a modification or waiver of this Agreement, or one of the clauses of this Agreement, and duly executed by both Parties. The Parties further agree that neither shall submit or attempt to submit any waiver or modification into evidence in any proceeding, arbitration, or litigation between the Parties arising out of or affecting this Agreement, or the rights or obligations of any Party under it, unless such waiver or modification is in writing, clearly identified as a modification or waiver of this Agreement or one of the clauses of this Agreement, and duly executed by both Parties.
9. If one or more provisions in this Agreement are held invalid or unenforceable, the remaining provisions shall remain in full force and effect.
10. Any waiver or modification of any breach of one or several provisions contained in this Agreement shall not be considered as a waiver of any subsequent breach of the same or other provisions of this Agreement.
Service Agreement
11. The headings and titles used in this Agreement are for the reference and convenience of the Parties and do not serve to limit or change the meaning of any provision contained in this Agreement. All personal pronouns used in this Agreement, whether in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural; and the plural shall include the singular.
12. Any Party required providing notice to the other Party pursuant to this Agreement may affect such notice by personal delivery in writing or by certified mail, postage prepaid, return receipt requested. A Party mailing a notice shall address it to the relevant Parties at the addresses appearing in the introductory paragraph of this Agreement, but any Party may change its notice address in accordance with this paragraph. The Parties deem any personally delivered notice as delivered on the date of actual receipt, provided the notice is signed by the person named in the notice or if the receipt refuses to sign such notice, then by the date of a notation as the delivering Party may show that communicates an attempted, but unclaimed or refused, delivery.
13. Failure to insist upon strict compliance with any of the terms, covenants or conditions; shall not be deemed a waiver of such terms, covenants or conditions, nor shall any waiver or relinquishment of any right or power, at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times.
14. This Agreement shall be binding on, and inure to the benefit of, the successors and assigns of the Employer. Employee shall have no right to assign this Agreement, but the Employer, at its sole discretion, shall have the right to assign it.
15. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall comprise but a single instrument.
16. No provision of this Agreement shall be construed against, or interpreted to the disadvantage of, any Party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have drafted, structured, dictated or required such provision.
17. EMPLOYEE CERTIFIES THAT EMPLOYEE HAS READ THE ENTIRE CONTENTS OF THIS AGREEMENT BEFORE EXECUTING SAME; THAT EMPLOYEE FULLY UNDERSTANDS ALL THE TERMS, CONDITIONS AND PROVISIONS SET FORTH IN THIS AGREEMENT, PARTICULARLY INCLUDING, BUT NOT LIMITED TO, EMPLOYEE’S FIDUCIARY AND CONFIDENTIAL RELATIONSHIP WITH YYYY ZZZ AND EMPLOYEE’S PROTECTIVE COVENANTS AND AGREEMENTS; THAT EMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT AS SIGNED BY EMPLOYEE; AND THAT EMPLOYEE BEING BOUND BY THIS AGREEMENT IS A CONDITION PRECEDENT TO YYYY ZZZ’ ENGAGEMENT OF EMPLOYEE’S SERVICES AND YYYY ZZZ’ EXECUTION OF THIS AGREEMENT.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED THIS AGREEMENT ON THIS THE ____ day of ________ 201_.
$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$
ANNEXURE ‘A’
Stages of Recovery and Amount to be paid:
It is mandatory that the employee serves the company for the complete term of 24 months from the date of acceptance to the terms of this agreement.
If the employee resigns or the employment of the employee is terminated for willful breach committed, the employee will be liable to pay a pro-rated amount as stated below.
However, if employee resigns after the decision of the company to waive the terms of this agreement, the employee would not be liable to make any payment.
Note: The applicable dues to be settled with the company in the form of cheques during the notice period and any exits will be cleared only on completion of full and final settlement of accounts with the company.
* If employee leaves:
Within 6 months of signing the agreement: entire Rs.3 lakhs if in India or the equivalent amount in local currency will be recovered.
Between 6 months and 12 months: Rs.2.25 lakhs if in India or the equivalent amount in local currency will be recovered.
Between 12 months and 18 months: Rs.1.5 lakhs if in India or the equivalent amount in local currency will be recovered.
Between 18 months and 24 months: Rs.75K if in India or the equivalent amount in local currency will be recovered.
Beyond 24 months: NIL.
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