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MASTER SUBSCRIPTION AGREEMENT

By executing the Order Form (as defined below) in relation to subscription of the Happay Software (as defined below) you hereby acknowledge that you have read understood and agreed to the terms and conditions, including but not limited to the Order Form and this Master Subscription Agreement, (“MSA”). All these documents collectively are referred to herein as the “Agreement”.

Please read the Agreement carefully before executing the Order Form. It is effective as of the date on which You accept it by executing an Order Form that references this Agreement (“Effective Date”)

“Customer”, “You” or “Your” means the person or the company which is entering into the Order Form with Us. “We”, “Our”, “Service Provider”, “Us”, “Happay” and “VA Tech” means VA Tech Ventures Private Limited

For the purposes of this MSA, You and the Service Provider have been individually referred to as “Party” and collectively as the “Parties”.

WHEREAS:

(A) The Service Provider is engaged in the business of providing a variety of payment and expense workflow and management solutions to body corporates and other services as more fully described under Clause 2 of this MSA; and

(B) The Service Provider has agreed to provide its Services (defined below) to the Customer and the Customer has agreed to avail Services on the terms and conditions as mentioned below.

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 MSA 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 “Happay Software” includes the Happay software application and web dashboard and is proprietary to the Service Provider, as subscribed by You & detailed under the Order Form;
  • 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;
  • 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 this MSA, 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, non-transferrable, revocable permission to: access the Happay Software solely in relation to the Agreement (“Services”/ “Happay Services”).
  • 2.2 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.
  • 2.3 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.
  • 2.4 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 Happay Software.

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 Software.
  • 3.2 All fees and charges payable by the Customer to Service Provider/card issuing entity or partner bank; the Service Provider shall have the right to auto-deduct such amounts from the Customer pool account.

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 MSA and has completed all corporate actions necessary, to execute this MSA; (ii) the performance of its obligations under this MSA 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 MSA, 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; (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; (c) the usage of the Service shall be in accordance with Applicable Laws; (d) the Customer or the User do not use any Service for any fraudulent, dishonest, or illegal purpose.

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 reasons which are solely attributable to Service Provider, or (b) use of non- current or altered version of Happay Software.
  • 5.2 Notwithstanding anything contained in this MSA, the Services will be provided on an “AS IS” and “AS AVAILABLE” basis. Except for the warranties and representations expressly made in this MSA, 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 MSA 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 MSA, 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 upon a prior written intimation to You use the 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, without cause, with a prior written notice of 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 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.
  • 7.5 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 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 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.

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:(i) any fraud, wilful misconduct and misrepresentation or non-compliance or any breach of any terms; and/or (ii) breach of Applicable Laws by You and/or Users; (iii) any claims raised by 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. MISCELLANEOUS

  • 11.1 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.
  • 11.2 Waiver – The failure by either Party to exercise or enforce any right conferred by this MSA shall not be deemed to be a waiver of any term, provision, or condition of this MSA and/or Order Form or restrict such Party from the exercise or enforcement of any such right subsequently.
  • 11.3 Severability – In the event that any provision of this MSA and/or Order Form is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of this MSA 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 MSA and/or Order Form held to be invalid, void, or unenforceable.
  • 11.4 Survival – The provisions of this MSA which whether expressly or by their nature survive the termination of this MSA. Notwithstanding the generality of the foregoing, the following sections shall survive the termination of this MSA 5, 6, 7.4, 8, 9 (for a period of 1 year from termination), 10, and this Section 11.4.
  • 11.5 Headings – The headings contained in this MSA are for reference purposes only and shall not affect the meaning or interpretation of the provisions of this MSA.
  • 11.6 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 MSA to any person or entity.
  • 11.7 Notices – All notices or communications required or permitted to be given hereunder must be in writing to the address as specified in this MSA, 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.
  • 11.8 Relationship of the Parties – The Customer and the Service Provider are independent contractors and this MSA 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.
  • 11.9 Entire Understanding – This MSA, along with applicable Order Form and documents executed by the Customer as part of the MSA 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 MSA 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 MSA, precedence shall be given to the documents in the following order: (1) Order Form, including any addendum to this MSA; and (2) this MSA. 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 MSA, even if the Service Provider does not expressly object to those terms.