NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES ABOVENAMED AS FOLLOWS:

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, the terms of this MISA and any Order Form;
• 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 status of registration;
• 1.5. “Implementation Fees” refers to implementation fees as detailed in the Order Form;
• 1.6. “Happay Software” includes the Happay software application and its different modules and all its components such as Happay Expense, Happay Travel, Happay Invoice, as the case may be, whether developed now, or in future, including access through both mobile application(s) and web dashboard and is proprietary to the Service Provider, as subscribed by You & detailed under the Order Form;
• 1.7. “Order Form” shall mean and include the Order Form as executed by the Parties for the purpose of availing the Services mentioned therein.
• 1.8.“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;
• 1.9. “Services/ Happay Services” shall mean the services availed by You from the Service Provider as set forth in Clause 2.2 of this MISA;
• 1.10.“SOW/Scope of Work” shall mean the document detailing the scope and implementation of the Services as mutually agreed between the Parties.
• 1.11.“Subscription Fee” refers to subscription fees as detailed in the Order Form;
• 1.12.“Term/ Subscription Term” shall mean the subscription period of Services as specified in the Order Form; and
• 1.13.“User(s)” shall mean and include any person having authorised access to the Services and is designated by the Customer to avail Services.

2. SERVICES

• 2.1 Services as detailed under the Order Form shall be provided to the Customer by the Service Provider, in accordance with the terms of this MISA on a non-exclusive basis.
• 2.2 Pursuant to this MISA, and upon receipt of payment of the applicable Implementation Fees and Subscription Fee, the Service Provider agrees to grant You a non-exclusive, non-commercial, limited use, non-sub-licensable, non-transferrable, revocable permission to: (i) access the Happay Software solely in relation to the Agreement; (ii) use and make a reasonable number of copies of the documentation solely for the Customer’s internal business purposes, or for the Users, in connection with Customer’s or Users’ use of the Happay Software; and on the conditions indicated herein and in the Order Form or any other terms and conditions which Service Provider may prescribe (“Services”).
• 2.3 Time is the essence of the implementation process. Customer and Service Provider hereby agree to adhere to the timelines of the implementation process as detailed in the SOW. (i) In the event of any delay in completing the implementation process within the timelines detailed in the SOW due to reasons attributable to Customer and/or any third party engaged at Customer’s end, the Service Provider shall immediately stop the implementation process. Parties may thereafter agree for a revised timeline for the completion of the implementation process, and the same shall be at additional cost to the Customer. (ii) For reasons solely attributable to Service Provider, additional resources shall be allocated at no additional cost to the Customer to complete the implementation process, subject to written confirmation from Service Provider.
• 2.4 The Service Provider shall not be liable for any delay in implementation of the Services due to any acts, or omissions of the Customer, its employees, or Users.
• 2.5 Customer shall not use the Happay Software 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 Software; (ii) remove any proprietary notices from the Happay Software or (iii) use the Happay Software 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, analyse the Happay Software; (v) use the Happay Software for commercial exploitation other than as authorised by the Service Provider expressly in writing.
• 2.6 Except for the limited rights and permission(s) 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 Software.
• 2.7 The Service Provider reserves the right to upgrade, modify, replace, improvise, or reconfigure the Happay Software at any time with or without notice to the Customer, provided it will not impact the basic functionality of the Happay Software.
• 2.8 Roles and Responsibilities of Service Provider: (i) Service Provider shall determine in its sole discretion the manner and means by which the Services shall be performed subject to terms of the SOW as mutually agreed between the Parties. (ii) Service Provider agrees to work closely with the Customer’s representatives in the performance of Services and shall be available to Customer’s representatives, at all reasonable times, provided prior notice is given to the Service Provider. (iii) The Service Provider shall ensure that it will operate and maintain the security of its systems and the Customer’s/User’s data collected by the Service Provider in accordance with industry standard, security protections and procedures. (iv) The Service Provider, will periodically review the operations and procedures relating to its operations centre applicable to providing the Services to the Customer, including its security and compliance programs and shall maintain it in accordance with the requirements of the applicable industry standard. (v) Service Provider shall provide access to the Happay Software electronically to the Customer following the Subscription Start Date, subject to fulfilment of implementation requirements, if any. (vi) The Service Provider may subcontract implementation related services without obtaining any approval from the Customer.
• 2.9 Roles and Responsibilities of Customer (i) The Customer acknowledges that the success and timeliness of the implementation process shall require the active participation and collaboration of the Customer and its representatives and agrees to act reasonably and co-operate fully with Service Provider to achieve the completion of Services. (ii) The Customer shall be responsible for adequate security, protection and backup of its data when it is Customer’s or its representative possession. Customer shall establish proper backup procedures necessary to replace critical data of the Customer in the event of loss or damage to such data from any cause. Customer shall provide all necessary assistance and support as and when required by Service Provider for effectively rendering the Services. (iii) Customer shall have the sole responsibility for: (a) providing necessary re-imbursement policies, other Customer policies, and all relevant data, as may be required by the Service Provider for completion of Services; (b) acquire and maintain third party hardware and software at its own cost, for the implementation of the Happay Software in case Customer has opted for integration with such third party software,; (c) timely upgrade and keeping current all third party license releases and/or Happay Software products to meet the requirements of the Happay Software, if so required, to continue availing Happay Services as subscribed or to avail any additional feature. (iv) Further Customer shall be responsible at all times for ensuring that: (a) the Service Provider is provided with requisite inputs required to enable the Service Provider to render the Services; (b) all documents provided by the Customer or the User to the Service Provider are authentic and accurate; (c) the usage of the Service shall be in accordance with Applicable Laws; and (d) the Customer or the User do not use any Service for any fraudulent, dishonest, or illegal purpose.

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 implementation and subscription of the Happay Software.

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 MISA and has completed all corporate actions necessary, to execute this MISA; (ii) the performance of its obligations under this MISA 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 MISA, 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; 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 (which shall be due to the requirement of the Customer) 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 unauthorised usage of Services, including any results therefrom; (ii) errors or interruptions in the Service, due to (a) acts or omission of any third party, except for such interruptions for reasons which are solely attributable to Service Provider, or (b) use of non-current or altered version of Happay Software; (iii) liabilities arising from the use of third party products or services in combination with Happay Software and Services, or from such combination or integration thereof or third party supplier services or any transfer of User data to third parties due to the requirement of the Customer.
• 5.2 Notwithstanding anything contained in this MISA, the Services will be provided on an “AS IS” and “AS AVAILABLE” basis. Except for the warranties and representations expressly made in this MISA, 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 MISA 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 The Customer agrees to take due care, to protect and safeguard the Intellectual Property of the Service Provider. Further, the Customer shall not, and shall ensure that User(s) do not in any way modify, change, reverse engineer, alter, or create derivative work-based on Service Provider’s Intellectual Property.
• 6.4 Notwithstanding anything contained elsewhere in the MISA, the Service Provider reserves the right to temporarily suspend User(s) access to Services, which it reasonably believes is/are being used for unauthorised purpose(s), or upon apprehension of Intellectual Property infringement from such access and shall promptly notify the Customer of such suspension.
• 6.5 To the extent required under Applicable Law, the provision of Services under this MISA shall be deemed as a grant of a limited, non-sub-licensable, non-transferrable, revocable permission in the Happay Software from the Service Provider to the Customer, for the limited purpose of enabling the Customer to avail the Services.
• 6.6 You agree that the Service Provider may upon a prior written intimation to You, 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. Upon expiry of the initial Subscription Term, the Agreement will either expire or shall stand auto renewed, as specified in the Order Form. Post expiry of the initial Subscription Term, during the renewal/extended term (“Renewal Term), either Party shall have the right to terminate the Agreement, without cause, with a prior written notice of a minimum ninety (90) days to the other Party.
• 7.3 Termination for cause. A Party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
• 7.4 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.
• 7.5 Refund or Payment upon Termination. If this Agreement is terminated by the Customer in accordance with the “Termination for cause” section above, Service Provider will provide a pro-rata refund to the Customer of any prepaid subscription fees covering the remainder of the term of all Order Forms after the effective date of termination for which Services will not be rendered. If this Agreement is terminated by Service Provider in accordance with the “Termination for cause” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by Applicable Law. In no event will termination relieve the Customer of its obligation to pay any fees payable to Service Provider for the period prior to the effective date of termination.
• 7.6 Upon expiry or 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.
• 7.7 All rights and obligations accrued prior to the date of termination/expiry of any Order Form shall survive such expiry or termination.

8. CONFIDENTIALITY

• 8.1 Each Party agrees to hold the other Party’s Confidential Information in strict confidence and to use, at the very least, the same degree of care that such Party uses to prevent disclosure of its own Confidential Information, but in any event, no less than a reasonable degree of care.
• 8.2 Each Party agrees that it will: (i) use the other Party’s Confidential Information only in connection with fulfilling its rights and obligations under this MISA, any Order Form, and providing or improving the Services; (ii) implement reasonable security practices and procedures to prohibit and prevent unauthorized disclosure, duplication, misuse, or loss of the other Party’s Confidential Information, and shall not disclose Confidential Information to any third party, except in accordance with the provisions of this Section 8 (Confidentiality); (iii) execute confidentiality agreements to bind upon its representatives (including, but not limited to, employees, sub-contractors, agents, etc.) the obligations of confidentiality under this MISA, if such representative has access to the Confidential Information.
• 8.3 The obligations of confidentiality under this Section 8 (Confidentiality) shall not apply in the following circumstances: (i) to information already existing in the public domain, either at the time of disclosure, or subsequently (through no fault of the Party receiving the Confidential Information); (ii) information disclosed pursuant to any order of a law enforcement agency, government, regulatory, or judicial authority; or (iii) the Party receiving the Confidential Information is authorized, in writing, by the Party disclosing the Confidential Information, to disclose such Confidential Information.
• 8.4 Without prejudice to any other rights or remedies which the disclosing Party may have, the receiving Party acknowledges and agrees that monetary damages may not normally be an adequate remedy for any breach by the receiving Party of confidentiality and the disclosing Party shall be entitled to the remedies of injunction, specific performance, and other equitable relief for any threatened or actual breach of any such provision by the receiving Party or any other relevant person and no proof of special damages shall be necessary for the enforcement by the disclosing Party of its rights under this MISA.
• 8.5 Upon expiry/termination of the Agreement, the Service Provider, upon a specific request, shall either anonymize, return or destroy any copies of the Personal Information belonging to You and/or the User(s) or shall process such information in accordance with the Applicable Laws.
• 8.6 Service Provider may use the data that is derived from the use of the Happay Services 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), e.g., to generate statistical reports of travel across all its users.
• 8.7 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 i.e. Non-Happay Software.

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 wilful 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, it’s directors, officers, and employees from and against all direct losses, claims, actions, proceedings, judgements against any claims arising out of: (a) any fraud, wilful misconduct and misrepresentation or non-compliance or any breach of any terms, covenant, representation or warranty contained in the Agreement by You or User(s); and/or (b) breach of Applicable Laws by You and/or Users; (c) any claims raised by User(s).
• 9.3 The Service Provider shall indemnify, defend, and hold You harmless from and against all direct losses finally adjudicated claims, actions proceedings, judgments against claims arising out of: (i) fraud and wilful misconduct of the Service Provider; (ii) breach of Applicable Laws by Service Provider. Further the Service Provider shall indemnify, defend, and hold You harmless from any undisputed liability resulting from adjudicated claims by third-parties that Your use of the Happay Software in accordance with the Agreement, infringes the Intellectual Property provided the Service Provider is promptly notified of any and all threats, claims, and proceedings related thereto, and is provided with reasonable assistance and the opportunity to assume sole control over the defence, and settlement of such claim(s), by You. However, the foregoing obligation of Service Provider shall not apply with respect to: (i) use of non-Service Provider software by You; and (ii) where You continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement. If, due to a claim of infringement, the Happay Software is held by a court of competent jurisdiction to be or is believed by the Service Provider to be infringing, the Service Provider may, at its sole option and expense: (a) replace or modify the Happay Software to be non-infringing, (b) obtain for You a permission to continue using the Happay Software, or (c) if neither of the foregoing is commercially practicable, terminate the Agreement and Your rights hereunder and provide You, a pro-rated refund of any prepaid, unused Subscription Fee for the Service.
• 9.4 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 the English language. The award of the arbitrator shall be final and binding on the Parties.
• 10.3 Any claim(s) against the Service Provider arising under this MISA shall be raised only by the Customer, on its own behalf or on behalf of its User(s).

11. SUPPORT

• 11.1 For the subscribed Services, the Customer/User may avail customer support by (i) Email – help@happay.com or Phone No. at 080 61776177. 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. If the period of delay or non-performance continues for four (4) weeks, the Party not affected may terminate this Agreement by giving fourteen (14) days written notice to the affected Party.
• 12.2 Waiver – The failure by either Party to exercise or enforce any right conferred by this MISA shall not be deemed to be a waiver of any term, provision, or condition of this MISA 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 MISA and/or Order Form is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of this MISA 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 MISA and/or Order Form held to be invalid, void, or unenforceable.
• 12.4 Survival – The provisions of this MISA which whether expressly or by their nature survive the termination of this MISA. Notwithstanding the generality of the foregoing, the following sections shall survive the termination of this MISA: 5, 6.6, 7.7, 8, 9 (for a period of 1 year from termination), 10, and this Section 12.4.
• 12.5 Headings – The headings contained in this MISA are for reference purposes only and shall not affect the meaning or interpretation of the provisions of this MISA.
• 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 MISA, 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 MISA 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 fulfilment of all Applicable Laws relating to its own employees.
• 12.9 Entire Understanding – This MISA, along with applicable Order Form and documents executed by the Customer as part of the MISA 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. This MISA may be amended only in writing signed by a duly authorized representative of the Customer and the Service Provider, each. In the event of any conflict or inconsistency between the documents comprising this MISA, precedence shall be given to the documents in the following order: (1) Order Form, including any addendum to this MISA; (2) this MISA and (3) Scope of Work (if any). 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 this MISA, even if the Service Provider does not expressly object to those terms.
• 12.10 Counterparts – This MISA may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.