HAPPAY TERMS OF USE

1. Definitions

2. Scope of Services

Subject to the terms of this Agreement and upon receipt of payment of the applicable Implementation Fees and Subscription Fee, MakeMyTrip grants to Client a non-exclusive, non-commercial, limited use, non-sub-licensable, non-transferable, revocable permission to access the Happay Software solely in relation to the Agreement.

Time is the essence of the implementation process. Client and Service Provider hereby agree to adhere to the timelines of the implementation process as detailed in the SOW.

The Client acknowledges that the success and timeliness of the implementation process shall require the active participation and collaboration of the Client and its representatives and agrees to act reasonably and co-operate fully with Service Provider to achieve the completion of Services.

Client shall have the sole responsibility for: (a) providing necessary re-imbursement policies, other Client 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 Client 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.

It is acknowledged and agreed between the Parties that, on Client’s request, if the Services are extended by MakeMyTrip to the Affiliates of the Client, the accounting treatment of all such Affiliates shall be separate and individual; however, the ultimate payment liability shall be that of the Client and such respective Affiliate jointly and severally.

2.5 Usage Restrictions: Except as may be allowed by Applicable Laws which is incapable of exclusion by agreement between the Parties and unless expressly permitted elsewhere in this Agreement (including on an Order Form), Client shall not, and shall not encourage or permit any User without MakeMyTrip’s prior written approval and consent to:

• copy the Happay Software, or any part of it, or create a database of content or of the output of the Services;

• remove, alter or hide any copyright, trade mark or other notice or code or identifier (including identifying codes associated with any content) on or forming part of the Happay Software;

• rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, copy, modify, create derivative works, or otherwise make available the Happay Software;

• adapt, modify, reverse engineer, reverse assemble, reverse compile or tamper in any way with the Happay Software or any part of it, or create a product that is competitive to the Happay Software;

• use the Happay Software for any unlawful or unauthorized purpose or to facilitate any illegal activity including any infringement of a third party’s copyright or other Intellectual Property Rights;

• use the Happay Software for commercial exploitation other than as authorised by the Service Provider expressly in writing;

• introduce or allow any malware, viruses, trojan horses or other harmful or disabling code on to the Happay Software and/or any of MakeMyTrip’s software or products;

• allow the Happay Software to become the subject of any charge, lien or encumbrance.

2.6 Availability: MakeMyTrip shall use commercially reasonable endeavors to ensure that the Services are available to the Client, excluding downtime for regular or emergency maintenance. MakeMyTrip reserves the right to upgrade, modify, replace, improvise or reconfigure the Happay Software at any time, with or without notice to the Client provided, it will not impact the basic functionality of Happay Software and the delivery of the Services as required under this Agreement.

3. Fees, Reports and Payments.

3.1 In lieu of the Services provided by MakeMyTrip to the Client, MakeMyTrip shall charge the Implementation Fees and Subscription Fee as mutually agreed between the Parties in the Order Form. Client 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.

3.2 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.

4. Intellectual Property

4.1 The Client acknowledges and agrees that MakeMyTrip and/or its licensors at all times, retain all rights, interest and title in the Services and the Happay Software including but not limited to all and any derivatives, customizations, and improvisations or any part or portion thereof. Except as expressly stated herein, this Agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Happay Software. Nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to the Client or any third party, any Intellectual Property rights or other right, title, or interest in or to the Happay Software.

4.2 MakeMyTrip confirms that it has all the rights in relation to the Services and the Happay Software that are necessary to grant all the rights or licenses it purports to grant under, and in accordance with, the terms of this Agreement.

4.3 Notwithstanding anything contained elsewhere in this Agreement, 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 Client of such suspension.

4.4 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.

5. Confidentiality

5.1 Each party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) shall: (a) use the Disclosing Party’s Confidential Information solely for the purposes of fulfilling its obligations under this Agreement; (b) keep the Disclosing Party’s Confidential Information secure and take no lesser security measures and degree of care to protect the Disclosing Party’s Confidential Information than the Receiving Party applies to its own confidential or proprietary information (but not less than reasonable care); and (c) not disclose the Disclosing Party’s Confidential Information to any third party except with the prior written consent of the Disclosing Party or in accordance with this clause.

5.2 Upon the expiry or termination of this Agreement, each party will promptly return or destroy the relevant Confidential Information of the other and any copies, extracts and derivatives of it, except as otherwise set out in this Agreement. 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.

5.3 The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

5.4 Each Party acknowledges that its breach of this clause may cause irreparable injury to the Disclosing Party for which monetary damages may not be an adequate remedy. Accordingly, the Disclosing Party will be entitled to seek any legal or equitable remedies in the event of such a breach by the Receiving Party. The operation of this clause shall survive the termination or expiration of this Agreement.

5.5 Feedback: Client acknowledges and agrees that MakeMyTrip may use any suggestion, enhancement request, recommendation, idea, correction or other feedback provided by Client or Authorized Users from time to time and compile statistical and other information related to the performance, operation and use of the Services and the information contained in them for security and operations management or for research and development purposes or other business purposes. Client assigns to MakeMyTrip by way of assignment of present and future rights all right, title and interest to all feedback and ideas or suggestions contained in it.

5.6 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.

6. Data Privacy and System Security

6.1 MakeMyTrip shall ensure that it will periodically review its security and compliance programs and maintain the security of its operations centre in accordance with industry standard, security protections and procedures such as ISO 27001 to ensure the confidentiality, security, availability and integrity of the Client/User data.

6.2 The Client shall (a) at all times be solely responsible for procuring, maintaining and securing its network connections, system and taking all precautions to prevent any unauthorised use of the Happay Software and/or Services; (b) use its own infrastructure and equipment(s) for accessing the Happay Software; (c) maintain and use appropriate and up-to-date virus protection procedures and software on the equipment used to access the Happay Software; and (d) be responsible for all problems, conditions, delays and delivery failures and all other loss or damages arising from or related to the Client’s network connections, system and equipment

6.3 The Client warrants to MakeMyTrip 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 Client data/User data; and (b) it has obtained and maintains necessary authorizations, approvals and permissions for Happay to process such Client data/User data and to transfer such User data to third parties (which shall be due to the requirement of the Client) for the purpose of providing Services.

8. Disclaimer

8.1 Except for the warranties and representations expressly made in this Agreement, 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. MakeMyTrip provides the Services and the Happay Software on an “as is” and “as available” basis.

8.2 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 Client 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 Client.

9. Indemnities

Subject to clause 10 below, each Party shall indemnify, hold harmless and defend the other Party, its officers, employees and directors from and against all claims, demands, suits, judgments, expenses, liabilities and losses (including all reasonable attorney fee) arising out of or in connection with (i) any third party claim, demand or action alleging that the Services as provided by MakeMyTrip, infringes any Intellectual Property Rights of a third party; (ii) breach of applicable laws; (iii) breach of the Agreement; (iv) breach of any representations or warranties; and (v) fraud, gross negligence or wilful omission by the other Party.

The indemnified Party shall promptly notify the indemnifying Party 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 the Indemnifying Party.

The Client understands that should any part of the Services become, or in MakeMyTrip’s opinion is likely to become, the subject of a claim, action or demand MakeMyTrip may, as Client’s sole and exclusive remedy, either: (a) procure for the Client the right to continue using the Services; (b) replace or modify the Services so that it becomes non-infringing; or (c) suspend or terminate Client’s rights to the Services.

10. Limitation of Liability

10.1 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 Clients, 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.

10.2 Under any and all circumstances, to the extent permitted under Applicable Law, 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 the preceding 3 months. To the extent permitted by Applicable Laws, this clause constitutes the entire liability of the Service Provider.

11. Term and Termination

11.1 This Agreement commences on the Effective Date and continues until all subscriptions hereunder have been terminated.

11.2 Effect of Termination: Upon expiry or termination of the Agreement, the Parties agree that: (a) You shall immediately pay all outstanding unpaid invoice amounts to the Service Provider; and (b) You shall cease using the Services with immediate effect. Expiry or termination of this Agreement shall be without prejudice to the accrued rights and obligations of the parties and the (Intellectual Property), (Indemnity), (Liability), (Confidentiality), (Term and Termination) shall survive expiry or termination of this Agreement.

12. General

12.1 Entire Agreement: This Terms of Use, along with applicable Order Form and documents executed by the Client as part of the Agreement 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 Client and MakeMyTrip are hereby superseded. Pre-printed terms on any order or any term or condition on a Client form/PO, have no legal effect and do not modify or supplement this Terms of Use, even if the MakeMyTrip does not expressly object to those terms.

12.2 Amendments: Amendments to the Agreement will only be valid if made in writing and signed by a duly authorized representative of each party.

12.3 Relationship of the Parties: The Parties are independent contractors. Nothing in this Agreement shall be construed as constituting a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.4 Waiver and Cumulative Remedies: No failure or delay by either party in exercising any right under this Agreement constitutes a waiver of that right. The rights and remedies arising under, or in connection with, this Agreement are, unless otherwise stated, cumulative and, except where otherwise expressly provided in this Agreement, do not exclude rights and remedies provided by law or otherwise.

12.5 Severability: The illegality, invalidity or unenforceability of any provision of this Agreement shall not affect or impair the legality, validity or enforceability of the rest of this Agreement.

12.6 Force Majeure: The Parties release each other from any liability for failure to perform their obligations under this Agreement which results from a Force Majeure Event. A Party affected by a Force Majeure Event shall, within ten (10) 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 Client, 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.

12.7 Dispute Resolution: 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 fifteen (15) working days from the date of such dispute arising. Any claim(s) against the Service Provider arising under this Agreement shall be raised only by the Client, on its own behalf or on behalf of its User(s).

12.8 Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of India. All disputes between the Parties, arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of courts at Gurugram (Haryana), India.

12.9 Notices: Any notice or other communication required or which may be given hereunder shall be in writing and shall be delivered by official email, and shall be deemed to be received within one (01) day of the ‘sent’ date.

12.10 Assignment: Neither of the Parties shall be entitled to assign its rights and obligations, unless otherwise expressly stipulated under this Agreement, without the prior written consent of the other Party. Notwithstanding the aforesaid, MakeMyTrip shall be entitled to assign its rights and obligations under the Agreement to its subsidiaries, affiliates, holding companies and companies under common control without any prior consent.

12.11 Counterparts: This Agreement 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.