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These terms and conditions for software licensing and its services (“Terms of Use”), is
a legal
agreement between Jio Haptik Technologies Limited, (CIN U72900GJ2013PLC107560), a
company
incorporated under the laws of India with its registered office at 101, Saffron, Nr. Centre Point,
Ambawadi,
Ahmedabad, Gujarat, whether acting on behalf of itself and/or on behalf of any of its affiliates
and/or its
third party suppliers and/or its licensors and/or service providers (hereinafter referred to as
“Company” or “Our” or “Us”) and merchants (whether an
individual or a
legally recognized entity) involved in any lawful business for provision of any services or goods,
across the
territory of India (“Client”, “You” or “Your”).
The Company, inter alia, offers a suite of messaging software-as-a-service solutions through a
single platform
to enable its customer to manage communications with their users under the name and style of
“Interakt”
(“Solution”).
The Company may, at its sole discretion, authorize such persons from time to time, who shall carry
out all or
any of its rights, duties and obligations under these Terms of Use and any reference to “Jio Haptik”
under these
Terms of Use shall be construed to mean and include any such persons duly authorised and acting on
behalf of the
Company.
These Terms of Use are an electronic record in terms of the Information Technology Act, 2000, the
applicable
rules thereunder and the provisions pertaining to electronic records in various statutes as amended
by the
Information Technology Act, 2000. These Terms of Use are generated by a computer system and does not
require any
physical or digital signatures.
These Terms of Use are published in accordance with the provisions of Rule 3 (1) of the Information
Technology
(Intermediaries Guidelines) Rules, 2011 that require publishing of the rules and regulations,
privacy policy and
terms of use for access to or usage of any electronic devices and services.
In these Terms of Use, (i) capitalized terms defined by inclusion in quotations and/or parenthesis have the meanings so ascribed; and (ii) the capitalized terms as set out below shall have the meanings as indicated therein. In these Terms of Use, the headings are for convenience only and shall not in any way define or limit the scope.
“Applicable Law” means and includes all applicable Indian statutes, enactments, acts of legislature
or
parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies,
directions,
directives and orders of any governmental authority or self-regulatory agency, statutory authority,
tribunal,
board, court in India.
“Applicable Data Protection Law” refers to all relevant laws, regulations, and
guidelines issued by
the Indian government related to aspects such as privacy, data processing, data protection, data
security,
encryption, or confidentiality. This includes, but is not limited to, the Indian Information
Technology Act,
2000. The parties acknowledge and agree that when the Digital Personal Data Protection Act (DPDPA)
of 2023 is
introduced and enforced, the Applicable Data Protection Law will be updated to replace the IT Act,
2000 with the
DPDPA, 2023, and shall apply retrospectively.
“Beta Products” means a pre-released version of the Solution or any of its components
circulated to
you to try under realistic conditions which are not pre-simulated.
“Business Day” shall mean any day other than Saturday, Sunday or any public holidays,
on which the
banks in Mumbai are open for business.
“Intellectual Property” means and includes all intellectual property, in any part of
the world,
whether registered or not registered, and in particular (i) all trademarks, service marks, trade
names, logos,
domain names; patents, design rights; trade secrets, including, know-how, technology, formulae,
industrial and
commercial information, techniques and inventions; processes, manuals, documentation, and technical
data and
information; copyrights, works of authorship, and topography rights, database rights; computer
hardware and
software including source code, computer programs, user interfaces, software applications, software
platform or
infrastructure and any other information in relation to the above; (ii) all rights under licenses in
respect of
all of the above; (iii) any applications or registrations for the protection of all of the rights
specified at
sub-clause (i) and (ii) herein above; and (iv) all renewals and extensions thereof; and the term
“Intellectual
Property Rights” shall be construed accordingly.
“Personal Data” means any information relating to an identified or identifiable natural
person or
that is otherwise considered personally identifiable information, personal information, or personal
data under
Applicable Data Protection Law.
“SaaS” means software as a service.
“Subscription Commencement Date” means the date on which the Client accepts and
acknowledges these
Terms of Use.
“Scheduled Maintenance” means the Company’s scheduled routine maintenance of the
Solution for which
the Client shall be notified at least two (2) hours in advance and shall not exceed eight (8) hours
per week.
“Third Party Services” means the third-party services made available by the Company
under the
Solution including but not limited to WhatsApp.
“Update” means the modifications or revisions made to the Solution: (i) to improve upon
or repair
existing features and operations within the Solution; (ii) to ensure compatibility with new releases
of existing
systems (including hardware, operating systems and middleware) and external services through
standardized
interfaces; (iii) to comply with Applicable Laws, regulations, industry standards or market
practice, other than
an Upgrade.
“Upgrades” means new versions of the Solution intended to enhance the functionality of
the Solution
and that may change the version number of such Solution.
These Terms of Use are effective until terminated in accordance with the terms set forth herein (“Term”) and will be automatically renewed beyond the Term (“Auto Renewal”), upon the same terms and conditions as set forth herein, unless expressly revoked by the Client in writing.
During the Term, in consideration of payment of the Fees by the Client to the Company and subject to
the terms
and conditions herein, the Company grants to the Client, a limited, non- exclusive, personal,
revocable, non-
transferable and non- licensable license to access and use the Solution on a subscription basis, in
accordance
with these Terms of Use. Nothing contained herein shall be construed as creating any arrangement for
transfer of
title, ownership or interest including rights under any Intellectual Property in or of the Solution
in favour of
the Client.
The Solution shall be made available by the Company to the Client as a service on a SaaS model,
whereby the
Company will provide the Client access to the Solution by hosting the Solution on a centrally hosted
system, to
which the Client will be given necessary access. The Company reserves for itself all other rights
and interests
not explicitly granted under these Terms of Use.
The Client’s subscription to the Solution shall commence on the Subscription Commencement Date,
irrespective of
the Trial Period. The Client agrees and acknowledges that any delay in implementation of the
Solution that can
be attributed to the Client, illustratively, due to non-provision or delay in provision of any
material,
information or documents requisitioned by the Company for the purposes of implementing the Solution,
will not
result in any change of the Subscription Commencement Date and will be liable to pay the Fees in
accordance with
the terms set out in these Terms of Use.
Notwithstanding the foregoing, the Client acknowledges and agrees that the use of the Solution shall
be subject
to such additional terms and conditions and privacy policy, as may be applicable thereto and
available at
[insert the link for Privacy Policy], including any updates thereto from time to time. For avoidance
of doubt,
these Terms of Use shall be in addition to and not in derogation of any terms and conditions and
privacy policy
applicable to the Solution. Such terms and conditions and the privacy policy applicable shall be
read into and
shall form an integral part of these Terms of Use.
For availing the Solution, the Client hereby expressly consents and agrees to provide all
information,
including any applicable documents required by the Company, including Client’s identity, address and
payment
details, to the Company, from time to time.
The Client acknowledges and agrees that the Solution provided under these Terms of Use, during the
Term is non-
exclusive in nature and that the Company shall be entitled, at all times, to deal with the Solution
in any
manner it deems fit which includes provision of services using the Solution by itself or any
variation, Update
or Upgrades through any third party, from time to time.
At any time, the Solution shall include all modifications, Updates, future or new Upgrades,
additions, at the
sole discretion of the Company. It is hereby clarified that the Client’s continued use of the
Solution pursuant
to any such Updates and Upgrades will be considered deemed acceptance of such Updates and Upgrades.
The License granted under these Terms of Use is only for the limited use of the Solution by the
Client for its
business operations and shall not include, without limitation, the right to:
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially
exploit or make
available to any third party the Solution or the content in any way;
(b) circumvent or disable any security or other technical features of the Solution;
(c) modify, reproduce or make derivative works based on the Solution or the content;
(d) create internet “links” to the Solution or “frame” or “mirror” any content on any other server
or wireless
or internet-based device;
(e) reverse engineer or access the Solution for any purpose whatsoever, including without
limitation, to (i)
build a competitive product or service, (ii) build a product using similar ideas, features,
functions or
graphics of the Solution; or (iii) to copy any ideas, features, functions or graphics of the
Solution; or
(f) use the Solution for any purpose other than in connection with the Client’s internal business
operations.
The provisions of this Clause 5 (License and Use of Solution) constitute a material
term under
these Terms of Use; the breach of which by the Client shall constitute an immediate and material
breach and
termination hereof. The Client agrees that the use of the Solution, or any part thereof, by any
party other than
the Client will not be permitted, unless specifically approved by the Company in writing.
The Solution shall, inter alia, consist of the following components:
(a) Client Data. The Solution shall be structured entirely on the Company’s proprietary
platform
under the name and style [‘interakt’] and shall integrate within various information and inputs in
relation to
the business and user/ customer details of the Client, as provided to Company on the Subscription
Commencement
Date, or at any time during the usage of the Solution.
(b) Inbox Dashboard: The Client shall have access to its ‘Inbox Dashboard’, a web-based
messaging
application forming part of the Solution wherein the messages sent by the Client’s users is
automatically
visible to the Client in their messaging application such as WhatsApp/WhatsApp Business.
(c) Support and Assistance: The Company shall provide prompt support and assistance to
the Client
in case of any exigencies, breakdown, error or deficiency in the Solution that may affect the use of
the
Solution by the Client.
(d) Early Access to Beta Products: The Company may reach out to the Client in the event
of testing
any Beta Products, with a written request to the Client. Such early access to the Beta Products
shall be made
available to the Client on an ‘as is’, and ‘as available’ basis and to the extent permitted under
Applicable
Laws, without any warranties, representations, indemnities, or contractual commitments of any kind.
(i) Client’s unauthorized access: The Client shall take all reasonable measures to
ensure that the
information transmitted to or from the Company servers are secure and shall not authorize any third
person to
have any unauthorized access to the Company servers. The Client may authorize any of its personnel
to use the
Solution and must ensure that such authorised personnel follows reasonable security measures as
would have been
followed by the Client itself and in case of any default on the part of such authorised personnel
shall be
deemed to be a default by the Client under these Terms of Use.
(ii) Client Compliance with the law: The Client shall ensure that it has taken all
necessary
approvals, licenses from concerned authority(ies) within or outside the territory for utilizing the
Solution
from the Company. The Client shall be liable for any default committed by it or by any of its
personnel,
employees, consultants and any other personnel authorised on its behalf and shall be solely
responsible for any
claims or liabilities that may arise on account of any such default.
(iii) Client Cooperation: The Client shall cooperate with the Company for any
integration, as may
be required under these Terms of Use into its system and shall provide the Company unfettered access
to its
systems and computing platform as and when required.
(iv) Client Payment: The Client shall pay any and all payments due under these Terms of
Use, as and
when requested by the Company.
(v) Trial Period: In furtherance of the Company’s efforts to ensure client
satisfaction, the Client
shall, for usage of the Solution, may be placed on trial for a period of 7-14 days (“Trial
Period”)
from the Subscription Commencement Date and may be entitled to a limited/ complete use of the
Solution for such
Trial Period. The rights and obligations set out in these Terms of Use shall also apply to the use
of the
Solution during the Trial Period. The Client shall be entitled to terminate these Terms of Use on or
before the
expiry of the Trial Period, without payment of any Subscription Fees. However, on the expiry of the
Trial
Period, the Client shall be automatically charged for the Subscription Fees and/or the Usage Fees,
as the case
may be.
In consideration of grant of License, the Client shall pay the Company, the payments as set out
below:
(a) Subscription Fee: The subscription period of the Solution shall commence from the
Subscription
Commencement Date and shall continue until the Subscription End Date, unless agreed otherwise
between the
Parties. On the Subscription Commencement Date, the Client agrees to provide appropriate details for
the Company
to process the payment of a non-transferable, non-refundable fee for subscribing the Solution, at
the end of the
Trial Period. The Client shall make the payment of the amount as indicated by the Company for the
License of the
Solution (“Subscription Fees”).
(b) Usage Fee: In addition to the Subscription Fee as set forth above, the Client shall
also be
required to recharge their Wallet as per their needs in order to send and receive conversation
messages from
their connected WhatsApp Business API number on Interakt as per conversation messaging charges
defined in
Interakt's pricing page. Wallet Recharges are non-transferable and non-refundable. (“Usage
Fees”).
(The Subscription Fees and the Usage Fees shall hereinafter collectively be referred to as
“Fees”).
All payments stipulated under these Terms of Use are exclusive of all government levies and taxes
and all
applicable taxes and charges payable on the Fees, including any goods and service tax, shall be
borne by the
Client at all times. The Client shall additionally bear to its own account all other taxes, as may
be
applicable, for payments made to the Company pursuant to these Terms of Use. The Client shall comply
with all
filing formalities and requirements in respect of any tax withholdings to be made, including the
filing of
withholding tax return as prescribed under the applicable tax laws and issue to the Company, a
certificate for
tax deducted or paid on its behalf at source in the form of a certificate issued in accordance with
applicable
tax laws. The Client shall make best efforts to ensure that the Company gets credit for any tax
deducted and
provide to the Company, all information that is necessary to assist the Company in connection with
its tax and
statutory obligations.
The Client agrees that all payments required to be made by the Client to the Company under these
Terms of Use
shall be in accordance with the following terms:
(a) The Client’s obligation to pay the amounts stipulated under these Terms of Use is absolute and
shall not be
negated by the Company not raising an invoice.
(b) The Client shall pay the Subscription Fee, immediately or at the end of the Trial Period as
applicable; and
(ii) the Usage Fee by the 5th (Fifth) day of every month for the work performed in the previous
month.
(c) The Company shall have the right to suspend the Client’s access and use of the Solution, if the
Usage Fee
has not been paid within a stipulated time period indicated by the Company.
(d) In the event of any payment default by the Client in making any payment (whether in whole or
part), the
pending amount due from such Client, shall be subject to interest from the stipulated due date until
the date of
repayment, at a rate equal to 2% (two percent) per month (i.e. 24% (twenty four percent) annually)
or the
maximum allowed under Applicable Law, whichever is lesser.
Each Party hereby represents and warrants to the other that:
it is duly incorporated and validly existing under the Applicable Laws;
it has taken all actions including any corporate actions necessary to execute, deliver and to
perform
obligations under these Terms of Use;
it has obtained all the statutory approvals/ permissions/ no objections as necessary and required
under the
Applicable Law for carrying on its activities and related services;
there are no judicial or administrative actions, proceedings or investigations pending or, to the
best of its
knowledge after due inquiry, overtly threatened against it, which would have a materially adverse
effect on its
capacity to perform the obligations under these Terms of Use;
it is not subject to the obligations under any contract as a consequence of which it may be in
breach of its
obligations and covenants contained in these Terms of Use.
In addition to the general representations as set out above, the Client, further represents and
warrants as
follows:
it possesses the financial ability to make payment of Fees in relation to the Solution;
it has procured and shall at all times during the Term continue to hold, all applicable and
necessary third
party approvals/consents, governmental approvals, registrations, authorizations, licenses, permits
and any other
permissions whatsoever required under the Applicable Law to utilize the Solution; and
it is as on the Subscription Commencement Date e, and shall at all times during the Term continue to
be, in full
compliance with all Applicable Laws, including the Applicable Data Protection Laws.
(i) Company’s right to suspend access to the Solution: The Company may suspend the
Client’s right
to access or use any portion or all of the Solution immediately without notice to the Client if it
determines
that:
The Client’s use of the Solution: (i) poses a security risk to the Company, the
Solution or any
third party or; (ii) may adversely impact Company’s other services and products including the
Solution or the
systems or content of any of other customers of the Company; (iii) may subject the Company or its
Affiliates, or
any third party to liability; or (iv) may be fraudulent;
The Client is in breach of these Terms of Use, including if the Client is delinquent on its payment
obligations
as stipulated under Clause 7 (License Fee and Payment Terms); or
The Client ceases to operate in the ordinary course, has made an assignment for the benefit of
creditors or
similar disposition of assets, or become the subject of any bankruptcy, reorganization, liquidation,
dissolution
or similar proceeding.
(ii) Effect of suspension: If the Company suspends the Client’s right to access or
use any
portion or all of the Solution in accordance with Clause 9(i) above;
The Client shall remain responsible for all Fees incurred through the date of suspension;
The Client shall remain responsible for all applicable Fees for any portion of the Solution to which
the Client
continues to have access, as well as any applicable data storage fees and charges, and fees and
charges for
in-process tasks completed and incurred through the date of suspension;
The Company shall not erase any of the Clients’ content or data, uploaded prior to such suspension,
as a result
of suspension, except as specified elsewhere in these Terms of Use.
The Company’s right to suspend the Client’s right to access or use the Solution is in addition to
the Company’s
right to terminate these Terms of Use pursuant to Clause 12 (Termination of the
Agreement) herein.
(a) For purpose of these Terms of Use, “Confidential Information” shall include any and
all
confidential and proprietary information or material (including information, data and materials
relating to
current or prospective products and processes) made available (whether intentionally or otherwise)
to a Party or
its affiliates or subcontractors, or its or its affiliates’ or its subcontractors’ employees, agents
and other
representatives, by or on behalf of the other Party and relating to the business, operations,
affairs,
technologies, plans and strategies of such other Party, whether observed or provided orally, in
written, graphic
or electronic form, or in the form of samples, and whether or not marked, labeled or otherwise
identified as
“confidential,” “secret” or “proprietary” (it being acknowledged and agreed that the existence and
terms of
these Terms of Use will be considered to be Confidential Information as to both Parties).
(b) Notwithstanding above, the Confidential Information does not include any information or items
that: (i) were
generally available to the public, or otherwise part of the public domain, when received by the
receiving Party;
(ii) become generally available to the public, or otherwise becomes part of the public domain, other
than
through breach of these Terms of Use; (iii) can be demonstrated by the receiving Party to have
already been in
its possession, or otherwise known by it, prior to the time of receipt from the disclosing Party;
(iv) are
received by the receiving Party from a third Party that is (1) in lawful possession thereof; and (2)
under no
confidentiality obligation to the disclosing Party; or (v) are independently developed by the
receiving Party
without use of the Confidential Information of the disclosing Party that has or could have
commercial value or
other utility in disclosing Party’s business and is treated with confidentiality.
Unless it is expressly authorized by these Terms of Use to retain the disclosing Party’s Confidential Information, the receiving Party shall, either at the request of the disclosing Party or on termination and/or expiry of these Terms of Use, promptly return or destroy with a confirmation in writing, any and all Confidential Information received and all copies thereof.
These Terms of Use shall be terminated by the Client, on or before the Trial Period. The Client may
terminate
these Terms of Use, after the Trial Period, if it does not exercise the option of Auto Renewal and
notifies the
same in writing to the Company. On receipt of such written notification, the Company shall terminate
the
Client’s access to the Solution (“Subscription End Date”).
(ii) Effect of Termination:
(a) On the Subscription End Date, , all rights and benefits granted herein shall revert to
respective Parties,
and all amounts due from the Client till the Subscription End Date shall remain payable.
(b) On the Subscription End Date, the Client’s right to access and/or usage of the Solution shall
immediately
cease and the Client shall have no other or further right to access and use the Solution.
(c) The Client shall be required to destroy all Confidential Information, promotional and other
materials or
documentations (if any) furnished as well as any manuals, instruction booklets in any version or
medium as
provided by the Company to the Client pursuant to these Terms of Use. However, if the Client retains
any copies
of the Confidential Information after the Subscription End Date pursuant to any automatic archiving
and back up
procedures, the obligations set out under Clause 10 (Confidentiality) shall continue to apply.
The utilisation of the Solution under these Terms of Use shall be measured against the service levels
and
standards, as established in good faith by mutual agreement between the Parties
(“SLA”).
Target Availability. The Company will use commercially reasonable efforts to make the
Solution
available with an uptime of 95% (ninety five percent) of each financial year(“Target Availability”).
Exclusions. The calculation of uptime will not include unavailability to the extent due
to: (a) use
of the Solution by the Client in a manner not authorized in these Terms of Use or any other
applicable
documents; (b) general internet problems, force majeure events or other factors outside of the
Company’s
reasonable control; (c) Clients' equipment, software, network connections or other infrastructure;
(d) third
party systems, acts or omissions; or (e) any Scheduled Maintenance or reasonable emergency
maintenance.
Remedy for Failure to Meet Target Availability. If there is a verified failure of
services to meet
Target Availability for two (2) consecutive months, then the Client shall have the right to
terminate these
Terms of Use by notifying the Company of such continuous unavailability after the end of the second
such month.
In such case of Target Availability, the Company will refund to Client any Fees as paid by the
Client for the
utilization of the Solution.
Third party products, software, services, applications, including but not limited to Third Party Services, may be included with, or downloaded in the course of the Client availing the Solution. Notwithstanding anything to the contrary stated in these Terms of Use, the Company makes no representations whatsoever about any such third-party products, software, services and applications. Since the Company has no control over such products, software, services and applications, the Client acknowledges and agrees that the Company is not responsible for the availability of such products, software, services and applications and is not responsible or liable for any content, advertising, products, services, or other materials on or available from such third parties. The Client expressly acknowledges and agrees that use of such third-party products, software, services and applications is at the Client’s sole risk and that the entire risk of unsatisfactory quality, performance, accuracy and effort is with the Client and the Client hereby indemnifies, saves and holds harmless the Company from any and all such risks. The Client acknowledges and agrees that the use of any such third party products, software, services and applications is governed by such third party terms of use, license agreement, privacy policy, or other such agreement and that any information or personal data that the Client provides, whether knowingly or unknowingly, to such third parties, will be subject to such third party privacy policy, if such a policy exists and shall be incorporated herein by reference to the extent applicable under these Terms of Use.
(i) Unless explicitly stated otherwise in these Terms of Use, the Client shall be responsible to
ensure that
relevant consents under Applicable Data Protection Laws have been obtained from the users and/or
individuals/
data subjects. The Client hereby agrees and acknowledges that the Company shall have no liability
towards any
users arising as a result of the collection and processing of any Personal Data by the Client.
(ii) The Client shall be responsible to maintain records of all consents collected as per the
Applicable Data
Protection Laws. The Client shall be liable to pay for any damages that the Company incurs due to
inaccurate
and/ or insufficient consents received from any users.
(iii) The Company will not use Personal Data collected on behalf of the Client, received from the
Client or its
authorized personnel or otherwise processed on behalf of the Client for any purpose other than as
necessary for
the utilization of the Solution under these Terms of Use.
(iv) The Parties shall be compliant with the provisions of Applicable Data Privacy Laws and shall
undertake
reasonable security practices as may be prescribed under such Applicable Data Protection Law.
(v) Cloud API: WhatsApp Infrastructure means WhatsApp Enterprise Client deployment which
helps
communication between users and the Interakt platform.
- The Client hereby confirms and agrees that upon sharing the data on the WhatsApp infrastructure,
all the data
shared by the Client in relation to the WhatsApp messaging will now reside on Cloud API's ("Data
Residence"), a
Meta Product..
- It is further understood and accepted that any Client data previously routed & stored on WhatsApp
infrastructure i.e. for the purpose of messaging/notification on WhatsApp, the WhatsApp
infrastructure shall
henceforward be migrated to the data centers of Meta.
- For the purpose of the provision of services under this Agreement, the Client hereby acknowledges
that for the
WhatsApp infrastructure data localization is not offered by the Company for any such data shared or
obtained by
the Company in the process of providing the WhatsApp messaging to the Client.
(i) To the extent permitted by the Applicable Laws from time to time, the Company disclaims any and
all
representations and warranties that the Solution provided under these Terms of Use shall be
uninterrupted,
error-free and devoid of any bugs, viruses, bots or that the Solution shall be provided as timely
and/or secure
and/or on uninterrupted basis.
(ii) The Company shall not be liable for any errors, omissions, interruptions, deletion of files or
emails, loss
of or damage to data, errors, defects, viruses, delays in operation or transmission, or any failure
of
performance, communication failure, data pilferage due to the use of any data or information in
respect of the
Solution.
(i) Client Indemnity: The Client hereby agrees to indemnify, defend and hold harmless the Company, its Affiliates, directors, officers, agents, employees from and against any and all losses, liabilities, claims, damages, demands, suits, actions, proceedings, costs and expenses, incurred or suffered by the Company, in connection with or arising out of: (a) Breach of or violation of or non-compliance with any of the obligation, warranties, representation, covenants and undertakings herein, by the Client or any of its representatives; (b) infringement of any third party’s Intellectual Property Rights for availing the Solution from the Company. (ii) Company’s Indemnity: The Company agrees to indemnify, defend and hold harmless the Client from and against any and all losses, liabilities, claims, damages, demands, suits, actions, proceedings, costs and expenses in connection with or arising out of any third party claims for providing Solution to the Client.
(i) Neither Party shall be liable to the other Party for any indirect, special, incidental, punitive
or
consequential loss or damages of any kind, or for any loss that could have been avoided by the use
of reasonable
diligence, arising in connection with the Terms of Use, even if the Party responsible for the
damages has been
advised or should be aware of the possibility of such damages.
(ii) In no event shall the maximum aggregate liability of the Company under these Terms of Use to
the Client
whether arising from contract, indemnity, tort or otherwise, exceed the amount of the Fees payable
by the Client
to the Company in the twelve (12) months preceding the date on which the claim arose.
All Intellectual Property Rights in and title to the Solution, the present or future modifications, Updates and Upgrades shall unconditionally remain under the exclusive ownership of the Company at all times. These Terms of Use does not and shall not transfer any ownership or proprietary interest in the Solution from the Company to the Client, except as may be otherwise expressly provided herein or as may be agreed in writing by and between the Parties. The Client understands and acknowledges that the License granted herein pertains to the Solution solely developed by the Company, and does not include a license to any third-party software or intellectual property. Unless otherwise expressly agreed upon, the Client shall be solely responsible for obtaining and maintaining such third-party software and Intellectual Property Rights, at its sole cost and expense. The Client shall have no rights whatsoever with respect to any other software or products developed by the Company, not expressly subscribed or licensed under these Terms of Use. In the event the Client subsequently desires to license or deal in any other manner with any other software developed by the Company, then the Parties will negotiate in good faith to determine the terms upon which such other software/ solution would be provided to the Client. The Client shall at no time, during the Term or after its termination, contest the validity or ownership of the Intellectual Property of the Company. The Client shall not use or register any trademark, design, product name or trade name which is confusingly similar to Company’s trademarks, product names or trade names. The Client agrees to promptly notify the Company of any claims, demands or notices arising in connection with the Intellectual Property of the Company. The Client shall provide necessary support, execute documents and do such acts and things as may be reasonably requested by the Company in this regard.
The relationship between Parties shall be on principal-to-principal basis. Each Party is an independent contractor and is not a legal representative, partner or agent of the other Party. Neither Party shall have any right, power or authority, whether express or implied, to create any obligation on behalf of the other Party or bind the other Party.
Any and all questions of enforceability and interpretation, which may arise under these Terms of Use, shall be determined and governed by and in accordance with the laws of India and subject to the arbitration clause as set out below, the courts located at Mumbai shall have exclusive jurisdiction. In the event of any dispute arising out of or in relation to these Terms of Use, each Party shall make efforts to resolve the same amicably through their respective representatives/ senior management of both the parties. In case the dispute is not resolved amicably within 30 (thirty) days of arising of such dispute, then the dispute shall be referred to arbitration before a sole arbitrator appointed jointly by both Parties, in accordance with the Arbitration and Conciliation Act, 1996 and any amendments thereafter. The venue of arbitration shall be Mumbai. The language of the arbitration proceedings shall be English. Notwithstanding anything to the contrary, the Parties may agree to conduct the arbitration proceedings virtually through such video conferencing or other audio-visual means as may be mutually agreed between the Parties.
It is agreed between the Parties that the Company reserves the right to use certain details of the Client, including but not limited to the logo or name of the Client and any performance metrics obtained under these Terms of Use for its own marketing and advertising purposes. The Client hereby expressly consents to the usage of such details by the Company and provide the Company a perpetual, irrevocable, worldwide, royalty free license for the provision of such usage.
Except for the duty to make payments hereunder when due, and the indemnification provisions under these Terms of Use, neither the Company nor the Client shall be liable by reason of any failure or delay in the performance of its obligations arising out of a Force Majeure Event. As used in these Terms of Use, “Force Majeure Event” shall mean: any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes (except financial) beyond the control of either Party. In the event, if one or more Force Majeure Events results in delay of 15 (fifteen) consecutive days in the performance of the obligations under these Terms of Use, the Parties shall mutually discuss to terminate these Terms of Use without any further liability. However, the Client shall be liable to pay the Company for the utilization of the Solution provided in accordance with these Terms of Use.
All communications or notices permitted or required to be given or served to the Company under these Terms of Use shall be in writing, shall be addressed to the Company as per the details set out below. These details may be updated from time to time by the Company and shall also be made available on the Solution.
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The rights and obligations arising out of these Terms of Use, which by their nature should survive or are expressly so stated herein, shall remain in full force and effect to the extent so specified, notwithstanding any expiry or termination of these Terms of Use. If any provision of these Terms of Use (or any portion thereof) is determined to be invalid or unenforceable the remaining provisions of these Terms of Use shall not be affected by such determination, shall be binding upon the parties and shall be enforceable.
Neither Party shall, by mere lapse of time, without giving notice thereof, be deemed to have waived any right or remedy arising hereunder or in connection with any breach or illegality involving the other Party. The waiver by either Party of any such right or remedy shall not be construed as a waiver of any other right or remedy or as a continuing waiver with respect to any similar, ongoing, or repeated circumstances.
The Company may assign these Terms of Use and/or part thereof at its discretion, at any time, to any of its Affiliates, group companies, holding company, subsidiary companies, third parties without any notice to the Client. However, the Client shall not assign these Terms of Use or any part thereof to any party without taking prior written consent of the Company.
