1.  DEFINITIONS:

In this Agreement,

(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 this Agreement, 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, directions, directives and tribunal, board, court in India.

“Applicable Data Protection Law” means Information Technology Act, 2000 and the rules, that maybe amended from time to time.

“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.

“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, 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.

“Service Form” shall means a document separately agreed between Interakt and You which comprises the commercials and other details relevant to the Services that You avail from the Company and shall constitute a valid and binding part of this Agreement.

“Scheduled Maintenance” means the Company’s scheduled routine maintenance of the Solution for which You shall be notified prior to such Scheduled Maintenance.

“Third Party Services” means RCS and other third-party services made available by the Company under the Solution.

“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.

2. TERM:

This Agreement is effective from the Effective Date mentioned in the Service Form unless terminated in accordance with these TnCs’

3. GRANT OF LICENSE:

The Company grants to You a limited license to access and use the Solution, subject to payment of fees and this Agreement. The license provided in this Agreement is non-transferable and does not transfer ownership of the Solution or Intellectual Property Rights to You. The Solution will be provided as a service on a SaaS model. You must comply with applicable terms, conditions , and privacy policies that apply to the Solution including but not limited to Terms, Privacy Policy, RCS Messaging Terms, Acceptable Use Policy, and whereby the Company will provide You access to the Solution by hosting the Solution on a centrally hosted system, to which You will be given necessary access. The Company reserves for itself all other rights and interests not explicitly granted under this Agreement. 

4. LICENSE AND USE OF SOLUTION:

For availing the Solution, You hereby expressly consent and agrees to provide all information, including any applicable documents required by the Company, including Client’s identity, address and credit information, to the Company, from time to time, only if applicable under this arrangement for provision of service.

‍You acknowledge and agree that the Solution provided under this Agreement, 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 Your 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 this Agreement is only for the limited use of the Solution by You 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;

(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 Your internal business operations.

The provisions of this Clause 4 (License and Use of Solution) constitute a material term under this Agreement; the breach of which by You shall constitute a material breach and termination of this Agreement. You agree that the use of the Solution, or any part thereof, by any party other than You will not be permitted, unless specifically approved by the Company in writing. ‍

IMPORTANT: You will need to maintain access and be solely responsible for the registered SIM card and will need to present the same in cases of emergencies in no longer than 30 minutes.‍

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 or as the Company may choose it to be on and shall integrate within various information and inputs in relation to the business and user/ customer details of You, as provided to Company on the Effective date, or at any time during the usage of the Solution.

(b) Inbox Dashboard: You shall have access to its inboxing dashboard, a web-based messaging application forming part of the Solution wherein the messages sent by Your users are automatically visible to You in their messaging application such as RCS.
(c) Support and Assistance:  You can reach out to the support team by sending an email to ent-[email protected]. 

(d) Early Access to Beta Products: The Company may reach out to You in the event of testing any Beta Products, with a written request to You. Such early access to the Beta Products shall be made available to You 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.

5. RIGHTS AND OBLIGATIONS OF YOU:

(i) Client’s unauthorized access: You 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. You 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 You itself and in case of any default on the part of such authorised personnel shall be deemed to be a default by You under this Agreement.

(ii) Client Compliance with the law: You 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. You 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: You shall cooperate with the Company for any integration, as may be required under this Agreement into its system and shall provide the Company unfettered access to its systems computing platform and its data, for the purpose of delivering comprehensive support and debugging services under this Agreement.

(iv) Client Payment: You shall pay any and all payments due under this Agreement, as and when requested by the Company.

6. LICENSE FEE AND PAYMENT TERMS:

In consideration of grant of License, You shall pay the Company, the payments as set out below:

(a) RCS Subscription Fee: The subscription period of the Solution shall commence from the Effective Date and shall continue unless terminated in accordance with this TnC’s, unless agreed otherwise between the Parties. On the Effective Date, You agree to provide appropriate details for the Company to process the payment of a non- refundable fee for subscribing the Solution. You shall make the payment of the amount as indicated by the Company for the License of the Solution annual upfront and within fifteen (15) days of receipt of an invoice of the Fee as more specifically mentioned under Service Form (“RCS Subscription Fees”).

An escalation percentage of 10% (ten percent) per year on the RCS Subscription Fees will follow for every subsequent year from the previous year.

All payments stipulated under this Agreement 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 You at all times. You confirm and agree to pay the RCS Subscription Fees annual upfront within Fifteen (15) days of receipt of an invoice. You 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. You 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.

You agree that all payments required to be made by You to the Company under this Agreement shall be in accordance with the following terms:

(a) Your obligation to pay the amounts stipulated under this Agreement is absolute and shall not be negated by the Company not raising an invoice.

(b) In the event of any payment default by You in making any payment (whether in whole or part), the pending amount due from You, 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.

7. REPRESENTATIONS AND WARRANTIES

You hereby represent and warrant to the Company 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 this Agreement; 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 this Agreement; 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 this Agreement, it possesses the financial ability to make payment of Fees in relation to the Solution; it has procured and You 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 shall at all times during the Term continue to be, in full compliance with all Applicable Laws, including the Applicable Data Protection Laws.

8. RIGHT TO SUSPEND YOUR ACCESS TO THE SOLUTION:

(i) Company’s right to suspend access to the Solution: The Company may suspend Your right to access or use any portion or all of the Solution immediately without notice to You if it determines that:

Your 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; You are in breach of this Agreement, including if You are delinquent on its payment obligations as stipulated under Clause 6 (License Fee and Payment Terms); or You cease 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 Your right to access or use any portion or all of the Solution in accordance with Clause 8(i) above;

You shall remain responsible for all Fees incurred through the date of suspension; You shall remain responsible for all applicable Fees for any portion of the Solution to which You 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’s right to suspend Your right to access or use the Solution is in addition to the Company’s right to terminate this Agreement pursuant to Clause 10 (Termination) herein.

9. CONFIDENTIALITY:

(i) Definition and Exclusions:

(a) For purpose of this Agreement, “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 You or Your affiliates or subcontractors, or its or its affiliates’ or its subcontractors’ employees, agents and other representatives, by or on behalf of the Company and relating to the business, operations, affairs, technologies, plans and strategies of the Company, whether observed or provided orally, in written, graphic or electronic form, or in the form of samples, and whether or not marked, or otherwise identified as “confidential,” “secret” or “proprietary” (it being acknowledged and agreed that the existence and terms of this Agreement will be considered to be Confidential Information as to You).

 (ii) Disclosure of Confidential Information

You hereby agrees and acknowledges that You shall:

(a) use the same level of care to prevent disclosure of the Confidential Information of the Company to any third parties as You employ to avoid disclosure, publication, or dissemination of Your own information of a similar nature, but in no event less than a reasonable standard of care;
(b) use the Confidential Information of the Company solely for the purpose of performing Your obligations under this Agreement;
(c) not acquire any right in or assert any lien against Confidential Information of the Company;
(d) promptly delete, or provide a copy of, as the Company directs, Confidential Information upon its request;
Notwithstanding the foregoing, You may disclose Confidential Information of the Company to Your employees, agents, and subcontractors who have: (i) a need to know such Confidential Information in order to perform their duties; and (ii) a legal duty to protect the Confidential Information. You assume full responsibility for the acts or omissions of Your subcontractors and employees with respect to such Confidential Information; and
(f) immediately notify the Company, in the event of any unwanted disclosure or loss or breach of Confidential Information.

(iii) Required Disclosure

You may disclose Confidential Information received from the Company, to the extent required by Applicable Laws or by order of a court or governmental agency; provided, however, that You shall give the Company prompt notice and shall use its best efforts to cooperate with the Company if it wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information, as the case may be. Further, You may disclose the terms of this Agreement to the extent required to enforce its terms or its rights. The confidentiality obligations shall survive the termination of this Agreement.

(iv) Equitable Relief

The Parties acknowledge that any breach of the confidentiality obligations under this Agreement by You or, or Your personnel or subcontractors, will cause immediate and irreparable injury to the Company , and in the event of any such breach, the Company shall be entitled to injunctive relief, without bond or other security, and to any and all other remedies available at law or in equity.

10. TERMINATION:

This Agreement shall be terminated by You by providing a ninety (90) days prior written notice to Company.

The Company has the right to terminate the Services mentioned under this Agreement by providing thirty (30) days prior written notice to You. 

(ii) In addition to the expiration provisions set forth in Section 10(i), these Agreement may be terminated immediately: 

a) upon the failure of You to cure such failure/ breach of this Agreement within thirty (30) days after You have received written notice of such breach from the Company. 

b) in the event that You fail to remit to Interakt the full amount owed, including interest, within the time period required therefore under this Agreement and following ten (10) days of written notice to You of such failure; or 

c) upon written notice to You, in the event You file for bankruptcy, are declared insolvent, become subject to proceedings under the Insolvency and Bankruptcy Code, 2016, have a resolution professional or liquidator appointed, or undergo winding-up, liquidation, or dissolution

(ii) Effect of Termination:

(a) On termination of this Agreement, all rights and benefits granted herein shall revert to respective Parties, and all amounts due from You till the subscription End Date shall remain payable immediately.
(b) On the termination of this Agreement, Your right to access and/or usage of the Solution shall immediately cease and You shall have no other or further right to access and use the Solution.
(c) You 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 You pursuant to this Agreement.