TERMS & CONDITIONS
IMPORTANT. READ CAREFULLY
The Company, UPWAW, offers a suite of messaging software-as-a-service solutions through a single platform to enable its customer to manage communications with their users under the name and style of “UPWAW” (“Solution”).
“Applicable Law” means and includes all applicable UK statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any governmental authority or self-regulatory agency, statutory authority, tribunal, board, court in UK.
“Applicable Data Protection Law” means all applicable UK government-issued Laws, rules, regulations and guidance pertaining to privacy, data processing, data protection, data security, encryption, or confidentiality including but not limited to the Information Technology Act, 2000.
“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, on which the banks in Mumbai are open for business.
“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, works of authorship, 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.
“Scheduled Maintenance” means the Company’s scheduled routine maintenance of the Solution for which the Client shall be notified at least two (2) hours in advance and shall not exceed eight (8) hours per week.
“Third Party Services” means the third-party services made available by the Company under the Solution including but not limited to WhatsApp.
“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.
GRANT OF LICENSE:
LICENSE AND USE OF SOLUTION
For availing the Solution, the Client hereby expressly consents 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.
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Solution or the content in any way;
(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 the Client’s internal business operations.
IMPORTANT: Client 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, UPWAW, 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 [‘UPWAW’] and shall integrate within various information and inputs in relation to the business and user/ customer details of the Client, as provided to Company on the Subscription Commencement Date, or at any time during the usage of the Solution.
(b) Inbox Dashboard: The Client shall have access to its ‘Inbox Dashboard’, a web-based messaging application forming part of the Solution wherein the messages sent by the Client’s users is automatically visible to the Client in their messaging application such as WhatsApp/WhatsApp Business.
(c) Support and Assistance: The Company shall provide prompt support and assistance to the Client in case of any exigencies, breakdown, error or deficiency in the Solution that may affect the use of the Solution by the Client.
(d) Early Access to Beta Products: The Company may reach out to the Client in the event of testing any Beta Products, with a written request to the Client. Such early access to the Beta Products shall be made available to the Client 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.
RIGHTS AND OBLIGATIONS OF THE CLIENT
(ii) Client Compliance with the law: The Client 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. The Client 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.
LICENSE FEE AND PAYMENT TERMS
In consideration of grant of License, the Client shall pay the Company, the payments as set out below:
(a) Subscription Fee: The subscription period of the Solution shall commence from the Subscription Commencement Date and shall continue until the Subscription End Date, unless agreed otherwise between the Parties. On the Subscription Commencement Date, the Client agrees to provide appropriate details for the Company to process the payment of a non- refundable fee for subscribing the Solution, at the end of the Trial Period. The Client shall make the payment of the amount as indicated by the Company for the License of the Solution (“Subscription Fees”).
(b) Usage Fee: In addition to the Subscription Fee as set forth above, the Client shall also be liable to pay a monthly usage fee as linked to the utilization of the Solution, if such Client exceeds the usage limit offered under the Subscription Fee model, in the manner as notified to the Client by the Company (“Usage Fees”). (The Subscription Fees and the Usage Fees shall hereinafter collectively be referred to as “Fees”).
General Payment Terms:
(b) The Client shall pay the Subscription Fee, immediately or at the end of the Trial Period as applicable; and (ii) the Usage Fee by the 5th (Fifth) day of every month for the work performed in the previous month.
(c) The Company shall have the right to suspend the Client’s access and use of the Solution, if the Usage Fee has not been paid within a stipulated time period indicated by the Company.
(d) In the event of any payment default by the Client in making any payment (whether in whole or part), the pending amount due from such Client, 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.
REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants to the other that:
In addition to the general representations as set out above, the Client, further represents and warrants as follows:
it possesses the financial ability to make payment of Fees in relation to the Solution; it has procured and 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 it is as on the Subscription Commencement Date e, and shall at all times during the Term continue to be, in full compliance with all Applicable Laws, including the Applicable Data Protection Laws.
RIGHT TO SUSPEND CLIENT’S ACCESS TO THE SOLUTION
(i) Company’s right to suspend access to the Solution: The Company may suspend the Client’s right to access or use any portion or all of the Solution immediately without notice to the Client if it determines
(ii) Effect of suspension: If the Company suspends the Client’s right to access or use any portion or all of the Solution in accordance with Clause 9 (i) above;
(i) Definition and Exclusions:
(ii) Disclosure of Confidential Information
Each Party hereby agrees and acknowledges that it shall:
(a) use the same level of care to prevent disclosure of the Confidential Information of the disclosing Party to any third parties as it employs to avoid disclosure, publication, or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care;
(c) not acquire any right in or assert any lien against Confidential Information of the disclosing Party;
(d) promptly return, or provide a copy of, as the disclosing Party directs, Confidential Information upon its request;
(e) notwithstanding the foregoing, the receiving Party may disclose Confidential Information of the disclosing Party to its 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. The receiving Party assumes full responsibility for the acts or omissions of its subcontractors and employees with respect to such Confidential Information; and
(f) immediately notify the disclosing Party, in the event of any unwanted disclosure or loss or breach of Confidential Information.
(iii) Required Disclosure
(iv) Equitable Relief
(v) Return of Confidential Information
(ii) Effect of Termination:
(a) On the Subscription End Date, , all rights and benefits granted herein shall revert to respective Parties, and all amounts due from the Client till the Subscription End Date shall remain payable.
(b) On the Subscription End Date, the Client’s right to access and/or usage of the Solution shall immediately cease and the Client shall have no other or further right to access and use the Solution.
Target Availability. The Company will use commercially reasonable efforts to make the Solution available with an uptime of 95% (ninety five percent) of each financial year (“Target Availability”).
THIRD PARTY APPLICATION