1. DEFINITIONS

• 1.1. “Applicable Laws” means and includes any law, statute, ordinance, rule, regulation, including all amendments, updates thereto, order, or direction of any governmental, regulatory, or judicial authority, from time to time, having the force of law in India;
• 1.2. “Confidential Information” means and includes, without limitation, all information exchanged between the Parties, including, but not limited to, business, technical, financial data, software codes, employee information, commercials, prices, discounts, product details, know-hows, processes, trade secrets, software, features, functionality, rates, revenues, profits, losses, transaction data, Personal Information, this Agreement.
• 1.3. “Force Majeure Event(s)” shall mean and include events and occurrences beyond the control of the affected Party including, but not limited to, acts of God, pandemic, strikes, work stoppage or other labour disturbances, disruptions due to third parties, network interferences, war, or sabotage;
• 1.4. “Intellectual Property” means all intellectual property, whether existing or future including, without limitation, all patents, trademarks, permits, service marks, brands, trade names, trade secrets, proprietary information and knowledge, technology, source code, object code, upgrades, updates, name and data associated with software and Services, computer programs, databases, copyrights, licenses, franchises, formulae, designs, including all related rights therein, irrespective of the status of registration;
• 1.5. “Happay Platform” shall mean the EPIC platform which will be used by the Customer to manage cards and facilitate payment to its merchant/vendor;
• 1.6. “Order Form” shall mean and include the Order Form as executed by the Parties for the purpose of availing the Services mentioned therein;
• 1.7. “Personal Information” shall have the meaning as set forth in the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, as updated from time to time or as defined under the Applicable Law in force at the time of availing the Services;
• 1.8. “Subscription Fee” refers to subscription fees as detailed in the Order Form;
• 1.9. “Term/ Subscription Term” shall mean the subscription period of Services as specified in the Order Form; and
• 1.10. “User(s)” shall mean and include any person having authorized access to the Services and is designated by the Customer to avail Services.

2. SERVICES

• 2.1 Pursuant to execution of the Agreement, and upon receipt of payment of the applicable Subscription Fee, the Service Provider agrees to grant You a non-exclusive, non-commercial, limited use, non-sub-licensable, nontransferrable, revocable permission to access the Happay Platform solely in relation to the Agreement;; (“Services”).
• 2.2 Customer shall not use the Happay Platform for any purposes beyond the scope of the permission granted in the Agreement. Without limiting the foregoing and except as otherwise expressly set forth in the Agreement, Customer shall not at any time, directly or indirectly: (i) except to the extent set forth in this Clause 2, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, copy, modify, create derivative works, or otherwise make available the Happay Platform (ii) remove any proprietary notices from the Happay Platform or (iii) use the Happay Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any person, or that violates any Applicable Law; or (iv) reverse engineer, reverse assemble, reverse compile or in any other way, analyze the Happay Platform; (v) use the Happay Platform for commercial exploitation other than as authorized by the Service Provider expressly in writing.
• 2.3 Except for the limited rights and permissions expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to the Customer or any third party, any Intellectual Property rights or other right, title, or interest in or to the Happay Platform.
• 2.4 The Service Provider reserves the right to upgrade, modify, replace, improvise or reconfigure the Happay Platform at any time with or without notice to the Customer provided it will not impact the basic functionality of Happay Platform.

3. COMMERCIALS AND PAYMENT TERMS

• 3.1 Customer shall be liable to pay the fees/amounts as detailed in the Order Form as a consideration for the subscription of the Happay Platform.

4. REPRESENTATIONS, WARRANTIES, AND UNDERTAKINGS

• 4.1 Each Party warrants and represents that: (i) it has all legal and proprietary rights in their respective Intellectual Property; and has the legal right and authority to execute this T&C and has completed all corporate actions necessary, to execute this T&C; (ii) the performance of its obligations under this T&C is not in violation of any Applicable Laws and does not conflict with the obligation(s) under any agreement with any third party; (iii) that the Order Form including the T&C, when executed and delivered would constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with the terms prescribed therein.
• 4.2 The Customer warrants to Happay that: (a) it has established notices or policies for and ensures compliance with all applicable data protection laws relating to the collection and transmission of Customer data/User data(if applicable); and (b) it has obtained and maintains necessary authorizations, approvals and permissions for Happay to process such Customer data/User data and to transfer such User data to third parties for the purpose of providing Services.

5. DISCLAIMER

• 5.1 The Service Provider shall not be liable under any circumstance, in any manner whatsoever for: (i) any erroneous, inaccurate, faulty, miscalculated, input provided by the Customer or User, in using the Services or unauthorized usage of Services, including any results therefrom; (ii) errors or interruptions in the Service, due to (a) acts or omission of any third party; or (b) use of non-current or altered version of Happay Platform (in case of Mobile app) or; (iii) liabilities arising from the use of third party products or services.
• 5.2 Notwithstanding anything contained in this T&C, the Services will be provided on an “AS IS” and “AS AVAILABLE” basis. Except for the warranties and representations expressly made in this T&C, the Service Provider makes no warranty or representation, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties of merchantability, satisfactory quality or fitness for a particular purpose.

6. INTELLECTUAL PROPERTY

• 6.1 Subject to the provisions of this Section 6 (Intellectual Property), each Party retains all rights in their respective Intellectual Property(ies) and nothing in this T&C shall be construed as a transfer or assignment of any Intellectual Property from the Service Provider to the Customer.
• 6.2 The Service Provider shall, at all times, retain all rights, interest and title in the Services including but not limited to all and any derivatives, customizations, and improvisations or any part or portion thereof.
• 6.3 Notwithstanding anything contained elsewhere in the T&C, the Service Provider reserves the right to temporarily suspend User(s) access to Services, which it reasonably believes is/are being used for unauthorized purpose(s), or upon apprehension of Intellectual Property infringement from such access and shall promptly notify the Customer of such suspension.
• 6.4 You agree that the Service Provider may use Your logo, brand name, and trademark for the limited purposes of displaying You as a user/recipient of the Services.

7. TERM AND TERMINATION

• 7.1 This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.
• 7.2 The term of each subscription shall be as specified in the applicable Order Form under Subscription Term. Either Party shall have the right to terminate the Agreement with a prior written notice of minimum thirty (30) days to the other Party.
• 7.3 Service Provider reserves the right to suspend Services until all outstanding undisputed amounts are paid in full after giving You an advance notice to make the outstanding undisputed amounts.
• 7.4 Upon expiry/termination of the Agreement, the Parties agree that:
  (i) You shall immediately pay all outstanding unpaid invoice amounts to the Service Provider; and
  (ii) You shall cease using the Services with an immediate effect.
• 7.5 All rights and obligations accrued prior to the date of expiry of any Order Form shall survive such expiry or termination.

8. CONFIDENTIALITY

• 8.1 Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely (i) to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information; (ii) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (iii) as reasonably necessary to comply with any applicable law or regulation. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
• 8.2 Service Provider may use the data that is derived from the use of the Happay Platform by the Customer or its User(s) that is anonymized and aggregated such that such data could no longer directly or indirectly identify the Customer or its User(s). eg. to generate statistical reports of travel across all its users.
• 8.3 Service Provider will not be responsible for any use, disclosure, modification or deletion of data/User data that is transmitted to, or accessed by, a third-party software or platform.

9. LIABILITY AND INDEMNITY

• 9.1 Notwithstanding any other provision of the Agreement, under no circumstance shall either Party be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages, lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of customers, loss of data, interference with business, or cost of purchasing replacement services, arising out of the performance or failure to perform the Agreement, whether or not caused by the acts or omissions or negligence (including gross negligence or willful misconduct) of its employees or agents, and regardless of whether such Party has been informed of the possibility or likelihood of such damages.
• 9.2 Customer shall fully indemnify, defend, and hold harmless the Service Provider, its directors, officers, and employees from and against all direct losses, claims, actions, proceedings, judgments against any claims arising out of any fraud, misrepresentation or non-compliance or any breach of any terms of the Agreement or any breach of Applicable Laws by You or User(s).
• 9.3 Under any and all circumstances, the Service Provider’s gross aggregate liability shall not exceed an amount equal to the Subscription Fees actually paid and received by the Service Provider for 30 (Thirty) days of Services provided. To the extent permitted by Applicable Laws, this Clause 9 constitutes the entire liability of the Service Provider.

10. DISPUTE RESOLUTION

• 10.1 This Agreement shall be governed in all respects by the Laws of India and the courts at Bangalore, India shall have exclusive jurisdiction (“Governing Law”).
• 10.2 In the event of a dispute, the Parties shall make reasonable efforts to resolve the dispute through mutual discussions and negotiations within a period of 30 (thirty) days from the date of such dispute arising. In the event the Parties fails to settle their dispute through amicable discussions and negotiations, the Parties will refer such dispute to arbitration by a sole arbitrator to be mutually appointed by the Parties, in accordance with the Arbitration and Conciliation Act, 1996 and any amendment thereof. The arbitration proceeding shall be held in Bangalore, India and the arbitration shall be conducted in English language. The award of the arbitrator shall be final and binding on the Parties.

11. SUPPORT

• 11.1 For the subscribed Services, the Customer/User may avail customer support by Email – epic@happay.in. Subject to the features offered in the module selected by the Customer, the Customer may get additional/dedicated support for the Services.

12. MISCELLANEOUS

• 12.1 Force Majeure – Neither Party shall be liable for any performance that is prevented or hindered due to a Force Majeure Event. In the event either Party is constrained from discharging its obligations due to a Force Majeure Event, such Party shall, within 10 (ten) days of occurrence of such an event, provide a written notice of such Force Majeure Event to the other Party, and the affected Party’s obligations shall stand suspended for the duration of the Force Majeure Event. However, in the event Services are already rendered or are continuing to be rendered, the payment obligation incurred by the Customer, as per the terms of the Agreement, shall subsist even during a Force Majeure Event.
• 12.2 Waiver – The failure by either Party to exercise or enforce any right conferred by this T&C shall not be deemed to be a waiver of any term, provision, or condition of this T&C and/or Order Form or restrict such Party from the exercise or enforcement of any such right subsequently.
• 12.3 Severability – In the event that any provision of this T&C and/or Order Form is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of this T&C and/or Order Form shall remain legal, valid, and binding. To the extent permitted by Applicable Laws, the Parties shall make reasonable efforts to give effect to the original intention of the provision of the T&C and/or Order Form held to be invalid, void, or unenforceable.
• 12.4 Survival – The provisions of this T&C which whether expressly or by their nature survive the expiry/termination of this T&C. Notwithstanding the generality of the foregoing, the following sections shall survive the expiry/termination of this T&C: 5, 6, 7.4, 7.5, 8, 9 (for a period of 1 year from expiry/termination), 10, and this Section 12.4.
• 12.5 Headings – The headings contained in this T&C are for reference purposes only and shall not affect the meaning or interpretation of the provisions of this T&C.
• 12.6 Assignment – The Customer shall not assign any right, interests, or obligations hereunder without the prior written consent of the Service Provider. However, the Service Provider may, upon prior written notice, assign this Agreement to any person or entity.
• 12.7 Notices – All notices or communications required or permitted to be given hereunder must be in writing to the address as specified in this T&C, or the applicable Order Form and may be delivered either through: (1) reputable courier; (2) registered post return receipt requested; (3) email, provided that such email is followed by a copy of such communication being sent through registered post return receipt requested. Each notice transmitted shall be deemed received upon actual receipt thereof by the addressee.
• 12.8 Relationship of the Parties – The Customer and the Service Provider are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Customer and the Service Provider. Each Party shall be responsible for compliance and fulfillment of all Applicable Laws relating to its own employees.
• 12.9 Entire Understanding – This T&C, along with applicable Order Form and documents executed by the Customer as part of the T&C process, constitutes the entire understanding of the Parties related to the subject matter hereof. All prior written or oral agreements, understandings, communications, or practices between the Customer and the Service Provider are hereby superseded. Pre-printed terms on any order or any term or condition on a customer form/ PO, have no legal effect and do not modify or supplement these T&C, even if the Service Provider does not expressly object to those terms.