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TERMS OF USE

Updated on 14/11/2025

THE TERMS OF THIS BIZOM AGREEMENT (“AGREEMENT) GOVERN YOUR USE OF THE SERVICES (AS DEFINED BELOW) OF MOBISY TECHNOLOGIES PRIVATE LIMITED  (“MOBISY”).  BY ACCEPTING THESE TERMS BELOW OR BY USING MOBISY’S SERVICES IN ANY MANNER, YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY (COLLECTIVELY, “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.

Mobisy reserves the right, at its sole discretion, to change, modify, add or remove portions of these terms of use of the Services, at any time. Your continued use of the Services  following the posting of changes will mean that you accept and agree to the changes.

1

DEFINITIONS AND INTERPRETATIONS

1.1

Definitions

“Activation” shall mean the provision of accessibility to the System for the Customer.

“Affiliate” of a Person (“Subject Person”) shall mean: (a) in the case of any Subject Person other than a natural person, any other Person that, either directly or indirectly through one or more intermediate Persons, controls, is controlled by or is under common control with such Subject Person; (b) in the case of any Subject Person that is a natural person, any other Person that is controlled by the Subject Person and any other Person who is a Relative of such Subject Person.

“API” (Application Program Interface) shall mean a way for two or more software programs communicate with each other. It is a type of software interface that offers a service to other pieces of software.

“Applicable Laws” shall mean and include all applicable statutes, enactments, acts of legislature or the Parliament, laws, ordinances, rules, by-laws, regulations, notifications, guidelines, policies, directions, directives and orders having the force of law, of any Governmental Authority, tribunal, board, court or a recognised stock exchange of India.

“Business Day” shall mean a day other than a Sunday or any day on which the scheduled commercial banks are closed for business in India;

“Claim” shall have the meaning ascribed to it in Clause 10.3.

“Confidential Information” shall mean and include any information disclosed by or on behalf of one Party (“Discloser/Disclosing Party”) to the other (“Recipient”) or that the Recipient otherwise has access to by virtue of this Agreement whether disclosed orally, visually, in print or electronic format or otherwise, which is relating to terms and conditions of this Agreement, Customer Data, Personal Information, Sensitive Personal Information, technical or non-technical data, a formula, pattern, program, device, method, technique, drawing, process, business and marketing plans, pricing, financial, legal, investigative and audit information, product plans, or a list of actual or potential customers, vendors or suppliers, and all copies and derivatives of such information; and is marked “confidential” or “proprietary” or with a similar legend; identified orally at the time of disclosure as confidential or proprietary; or given the context of the disclosure or the nature of the information, should reasonably by understood by the Recipient to be confidential or proprietary, marketing and development plans or

projections, technical information, formulae, software application, specifications, methods, know-how, computer programs, processes, inventions, discoveries, designs, devices, knowledge, creations, formulations, methods, techniques, data, rights, devices, drawings, instructions, expertise, trade practices, trade secrets, commercial information, machines, research or development projects, strategic business plans, plans for future development, data and/or information pertaining to the customers etc., whether or not designated as being confidential, or which under the circumstances surrounding disclosure ought to be treated as confidential and is disclosed by the Discloser or their personnel to Recipient pursuant to this Agreement, and shall include all verbal and written discussions between the Parties.

“Customer” shall have the meaning ascribed to it in the Preamble of this Agreement.

“Customization” shall have the meaning ascribed to it in Clause 3.5.

“Customer Data” shall mean all data and information stored by or on behalf of the Customer including but not limited to retailer data accessed during the course of providing Services, Personal Information/data and Sensitive Personal Information of the Customer within the meaning of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or information), Rules 2011 and any other analogous Applicable Laws in force.

“Customer Indemnity Event” shall have the meaning ascribed to it in Clause 10.1.

“Customer Bizom Account” shall refer to any account or instance created by or on behalf of the Customer to provide access to the Services.

“Documentation” shall mean all written or electronic documentation, images, videos or audios describing the functionalities of the Services. It shall also include pricing plans, user manuals and other such documents related to the Services, as may be made available by Mobisy and updated from time to time.

“Due Date” shall have the meaning ascribed to it in Clause 5.7.

“Effective Date” shall mean date of commencement of this Agreement.

“Excess Burden” shall mean use of Software/Services to engage in denial of service attacks, spamming or any illegal activity, or use of Software/Services which causes immediate, material and ongoing harm to Mobisy or Mobisy’s other customers.

“Force Majeure Event” shall have the meaning ascribed to it in Clause 18.

“Governmental Authority” shall mean: any (a) nation, state, city, town, village, district or other jurisdiction; (b) federal, state, local, municipal, foreign or other government or political subdivision; (c) governmental or quasi-governmental authority of any nature (including any agency, branch, department, board, commission, court, tribunal or other entity exercising governmental or quasi-governmental powers); (d) multinational organization or body; (e) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power; (f) the Reserve Bank of India; or (g) any official of any of the foregoing.

“Indemnity Event” shall mean, collectively the Customer Indemnity Event and Mobisy Indemnity Event.

“Indemnification Notice” shall have the meaning ascribed to it in Clause 10.3.

“Indemnified Party” shall mean the Party entitled to claim indemnity under the provisions of this Agreement.

“Indemnifying Party” shall mean the Party liable to indemnify the other Party under the provisions of this Agreement.

“Intellectual Property” shall mean tangible or intangible property, which can be in the form of patents, copyright, registered designs, trademarks and service marks (whether registered or not), database rights, design rights, moral rights, know-hows, domain names, goodwill and the right to sue for passing off or unfair competition, and other proprietary rights in any jurisdictions that grant similar rights as the foregoing, including those subsisting in inventions, software, source code, object code, applications drawings, performances, software, business names, trade names, trade secrets, algorithms, methodologies, algorithmic risk intelligence – ARI, API and digital contract execution and in applications for the protection of any of the foregoing and/ or any enhancements, improvements, modification, customization thereof any or all Intellectual Property Rights and derivative works thereof whether registered or not.

“Intellectual Property Rights” include (i) all rights, title, and interest under any statute or under common law including patent rights; copyrights including moral rights; and any similar rights in respect of Intellectual Property, anywhere in the world, whether negotiable or not; (ii) any licenses, permissions and grants in connection therewith; (iii) applications for any of the foregoing and the right to apply for them in any part of the world; (iv) right to obtain and hold appropriate registrations in Intellectual Property; (v) all extensions and renewals thereof; (vi) causes of action in the past, present or future, related thereto including the rights to damages and profits, due or accrued, arising out of past, present or future infringements or violations thereof and the right to sue for and recover the same.

“Late Charges” shall have the meaning ascribed to it in Clause 5.2(d).

“License” shall mean the limited, non-exclusive, non-transferable, non-sublicensable right granted by Mobisy to the Customer to access and use the Software for the duration of the Term, and in accordance with the terms hereof and any other applicable documents.

“Loss” shall mean any and all direct losses, liabilities, actions, claims, proceedings, costs, damages, taxes and demands including fines, penalties, interest, judgments, amounts paid in settlement and expenses (including without limitation any fines, court fees, actual out of pocket expenses and reasonable attorney’s fees and other professional fees and expenses, and disbursements), provided that “Loss” shall, in no event, include any punitive, special, incidental, indirect, remote, consequential, exemplary, speculative and/ or special damages/ losses, including loss of profits, loss of goodwill, or loss of opportunity.

“Mobisy Indemnity Event” shall have the meaning ascribed to it in Clause 10.2.

“Personal Information” means data / information about or relating to a natural person who is directly or indirectly identifiable, including information or an opinion forming part of a database, whether true or not, and whether recorded in material form or not, about an individual or natural person whose identity is apparent, or can be reasonably ascertained, from the information or opinion or data within the meaning of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or information), Rules 2011 and any other Applicable Laws as the case may be.

“PO” shall have the meaning ascribed to it in Clause 5.2.

“Professional Services” shall mean set-up and implementation, configuration, customization, development, migration, integration, testing, conversion, consulting or other services and deliverables, related to the SaaS Services but not otherwise provided as part of the SaaS Services and as agreed to be provided by Mobisy in pursuance of the applicable Statement of Work;

“Professional Services Fee(s)” shall mean the charges due and payable by the Customer to Mobisy for Professional Services, as set forth in the Order form;

“Reminder Message” shall have the meaning ascribed to it in Clause 5.9.

“SaaS Services” shall mean the Software and related software-as-a-service, hosting, maintenance and/or standard support services made available by Mobisy for access and use by the Customer, and as mentioned in Schedule I of this Agreement.

“SaaS Services Fee(s)” means the charges due and payable by the Customer to Mobisy for availing the SaaS Services, as set forth in Order Form;

“Sensitive Personal Information” shall mean such personal data / information relating to a natural person or entity recognized in terms of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or information), Rules 2011 and any other analogous regulations, laws in force / applicable.

“Services” shall mean the SaaS Services and the Professional Services, collectively and shall include the Documentation provided by Mobisy in connection therewith.

“Software” means software owned and/or licensed by Mobisy and/or its Affiliates, as currently existing and as hereafter modified, developed, prepared, customized, purchased, licensed, acquired or otherwise received, conceived, made or suggested, including individually or jointly by Mobisy or its representatives, including all such developments as are originated or conceived during the Term but are completed or reduced to practice thereafter. The Software is accessed by Customer over its internet connection through communication with the hosting site.

“Statement of Work (SOW)” means the statement of work executed in accordance with the format prescribed in Order Form of this Agreement in respect of any additional API request, major Software customization, change request, Professional Services and/or any additional Services (which are over and above the Services agreed to be provided to the Customer by Mobisy under this Agreement).

“Suspension” shall have the meaning ascribed to it in Clause 6.3.

“Suspension Event” shall have the meaning ascribed to it in Clause 6.3.

“System” means the hardware, configuration, systems software, applications software, software utilities, firmware, embedded software, telecommunications equipment and connectivity, hosting sites and other facilities that Mobisy hosts, maintains and uses to provide Users with access to and use of the Software.

“Updates” shall have the meaning ascribed to it in Clause 3.4.

“Users” are employees and agents of Customers, or any individuals otherwise authorized by Customer, that have been designated or permitted by Customer to access the System on behalf of Customer.

1.2

Interpretation

In this Agreement, unless the context requires otherwise:

  1. any reference herein to Recital, Clause, or Schedule is to such recital, clause of or schedule to this Agreement;
  2. the headings and sub-heading are inserted for convenience only, and shall not affect the construction or interpretation of this Agreement;
  3. words importing the singular shall include the plural and vice versa, and pronouns importing a gender include each of the masculine, feminine and neuter genders;
  4. reference to a document includes an amendment, modification or supplement to, or replacement or novation of that document, and reference to this Agreement shall include this Agreement as amended or supplemented in accordance with its terms;
  5. reference to a day, month or year is reference to a day, month or year in accordance with the Gregorian calendar. When any number of days is prescribed in any document, the same shall be reckoned exclusively of the first and inclusively of the last day unless the last day does not fall on a business day, in which case the last day shall be the next succeeding day which is a business day;
  6. any notice, waiver or amendment shall be effective only when made in writing;
  7. any reference to writing includes typing, printing, lithography, or email;
  8. if any provision in a Schedule is a substantive provision conferring a right or imposing an obligation on any Party, effect shall be given to it as if it were a substantive provision in the body of this Agreement;
  9. if there is any conflict or inconsistency between a term in the body of this Agreement and a term in any of the Schedules or any other document referred to or otherwise incorporated into this Agreement, then unless otherwise specified, the term in the body of this Agreement shall take precedence;
  10. the word ‘including’ means ‘including without limitation’ and the words ‘include’ or ‘includes’ have correlative meanings;
  11. the expressions ‘hereof’, ‘herein’ and similar expressions shall be construed as references to this Agreement as a whole and not limited to the particular clause or provision in which the relevant expression appears;
  12. reference to statutory provisions shall be construed as meaning and including references also to any amendment or re-enactment (whether before or after the date of this Agreement) for the time being in force, as well as any subordinate legislation made from time to time under such statutory provision;
  13. an obligation to ‘procure’ or ‘ensure’ or ‘cause’ any act or forbearance, shall be deemed to include an obligation to exercise all rights and powers (including voting rights) available to the Parties undertaking such obligation to procure or ensure, as the case may be, such act or forbearance;
  14. this Agreement has been jointly drafted by the Parties to give effect to their commercial intentions. Any rule requiring that the construction of a document least favourable to the Party who was responsible for its preparation or who seeks to rely on it or who seeks to benefit from it should be preferred, is expressly excluded and is not applicable to this Agreement;
  15. unless otherwise specified, references to days, months and years are references to calendar days, calendar months and calendar years, respectively;
  16. the words ‘directly’ or ‘indirectly’ mean directly or indirectly through one or more intermediaries, agents, persons or through contractual or other legal arrangements, including by the exercise of voting or any other rights in another person and ‘direct or indirect’ will be construed accordingly;
  17. any reference to an authorisation, approval or consent or permission of any person means such authorisation, approval, consent or permission, obtained in writing from that person;
  18. where a word or expression is defined, other parts of speech and grammatical forms and the cognate variations of that word or expression shall have corresponding meanings; and
  19. any reference to a document in “agreed form” is to a document in a form agreed between the Parties, in writing.i

2. 

TERM AND RENEWAL

2.1

This Agreement shall come into force with effect from the Effective Date and shall continue to be in force unless terminated earlier by either Party in the manner provided in Clause 7 of this Agreement (“Term”).

3. 

SCOPE OF SERVICES

3.1

SaaS Services: On and with effect from the Effective Date and subject to the terms and conditions of this Agreement, Mobisy grants to the Customer a non-exclusive, non-transferable right and license to access and use, the SaaS Services.

3.2

Professional Services:

  1. Without prejudice to the aforesaid, the Customer may from time-to-time avail Professional Services and the Parties shall execute the Statement of Work, in respect of such services.
  2. It is hereby clarified that the Statement of Work shall be treated as an integral part of this Agreement and in case of a conflict between the Statement of Work and this Agreement, the terms of Statement of Work will supersede the terms of this Agreement.

3.3

Mobisy shall use commercially reasonable efforts and ensure compliance with the Applicable Laws while discharging its obligations under this Agreement. It is hereby clarified that the scope of Services to be provided by Mobisy under this Agreement shall be limited to the services specifically set out hereunder.

3.4

Updates:

  1. Without prejudice to other terms of this Agreement, the Customer hereby acknowledges that Mobisy may, at any time and at its sole discretion, cease supporting older versions or releases of the Software and Systems forming part of SaaS Services and/or Professional Services and provide, from time to time and at its sole discretion upgrades, patches, enhancement, fixes or other modifications to the Software or System (“Updates”), and such Updates become part of the SaaS Services and/or Professional Services, as applicable, and shall be governed by the terms of this Agreement. Mobisy hereby covenants that it shall not knowingly make any changes to the System or Software or otherwise introduce any Updates that are likely to have a material adverse impact on Customer’s access to or use of the Systems.
  2. The Customer further acknowledges that the quality and provision of SaaS Services and Professional Services, as the case may be, shall be dependent on the timely installation of the Updates. The Parties hereby agree that Mobisy shall not be responsible or liable, in any manner whatsoever, for any deficiency in the performance of its obligations hereunder on account of Customer’s failure to install or implement such Updates in a timely manner or otherwise co-operate with Mobisy to introduce such Updates.
  3. Notwithstanding anything contained herein, the Customer acknowledges that Mobisy shall not be bound to supplement the Services on account of any new products or services that it introduces unless a separate commercial arrangement/ Statement of Work has been agreed with the Customer and the Updates to be provided by Mobisy hereunder shall not be deemed to cover such additional products and services which are chargeable otherwise.

3.5

Customizations

  1. Mobisy may, at the written request of the Customer, undertake customization of the Software to meet specific requirements of the Customer (“Customization”). Any such request shall be governed by the Change Management Process outlined in Schedule IV of this Agreement. Upon receipt of a duly submitted change request from the Customer in accordance with the Change Management Process. Mobisy shall evaluate the technical feasibility of undertaking such Customizations including any clarifications required, and identify potential solution options. a.
  2. In the event, Mobisy agrees to implement the proposed customizations, the Parties shall mutually agree on the scope of work, timelines, and applicable fees by executing a Statement of Work.
  3. The provisions of this Agreement, including in respect of Intellectual Property Rights, shall continue to apply mutatis mutandis to the Customizations.

3.6

Security: Mobisy shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data consistent with generally accepted industry standards and Applicable Laws.

4.

DUTIES AND OBLIGATIONS OF THE CUSTOMER

4.1

Without prejudice to the terms of this Agreement, the Customer shall, at its sole cost and expense, undertake the following obligations during the Term of the Agreement:

  1. provide Mobisy with timely access to personnel, systems, infrastructure, and information, as may be reasonably required by Mobisy, to perform its obligations under the Agreement;
  2. shall ensure that it is and the Users are, at all times: (i) in compliance with the provisions of this Agreement; (ii) operate the Customer Bizom Account in accordance with the instructions issued by Mobisy, from time to time; and (iii) adhere to Mobisy’s policies; and (iv) comply with the Applicable Laws;
  3. ensure that its internal systems and technical infrastructure are free from any bugs or virus and otherwise ensure that such system and infrastructure meet the minimum technical and compatibility requirements, as communicated by Mobisy from time to time;
  4. not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that: (i) is unlawful, defamatory, obscene or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; (vi) or is otherwise illegal or causes damage or injury to any person or property;
  5. furnish accurate, complete, up-to date and verifiable information forming part of the Customer Data. It is hereby clarified that the Customer shall be solely responsible for the legality, reliability, integrity, accuracy, quality of the data and content input into the Software by the Customer or its Users. It is hereby further clarified that the Customer shall be solely responsible for ensuring compliance with the Applicable Laws in respect of the Customer Data;
  6. use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Mobisy promptly of any such unauthorized access or use;
  7. appoint a competent single point of contact to co-ordinate with Mobisy for the implementation of Services under this Agreement;
  8. maintain the confidentiality and security of all access credentials and use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Software and, in the event of any such unauthorised access or use comes to its knowledge, promptly notify Mobisy. The Customer shall be responsible for any unauthorized use arising from its systems or personnel;
  9. promptly notify Mobisy of any actual or suspected breach, issue, or incident relating to the Software, Services, or security thereof;
  10. ensure its personnel are adequately trained to use the Software and Services;
  11. maintain high professional standards to ensure a good reputation within the industry;
  12. undertake back-up of such data, at such frequency and intervals, as may be determined by the Customer; and
  13. maintain all necessary licenses, consents, and permissions necessary for Mobisy, its contractors and agents to perform their obligations under this Agreement, including without limitation, the Services.

5.

PRICING AND COMMERCIALS

5.1

The Customer shall be liable to pay the fees for availing the Services, in accordance with the terms of this Agreement. The SaaS Services Fee and the Professional Services shall be payable in the manner prescribed under the Order Form. Mobisy shall raise invoices for the fees payable to it in accordance with the terms of this Clause and all such invoices shall be issued in compliance with applicable Goods and Services Tax (GST) laws and other Applicable Laws.

5.2

Invoicing and Payment

5.1.2

If the Customer’s internal process requires a Purchase Order (“PO”) before invoicing, the Customer shall issue the PO immediately upon Mobisy’s engagement for the Services, and for subsequent billing cycles, within five (5) Business Days from the start of each billing cycle as specified in Schedule I or the relevant Statement of Work.

5.2.2

If the Customer does not issue a PO within s (5) days of the prescribed timeline, Mobisy may raise the invoice without waiting for the PO, and all payment timelines shall continue to run as if the PO had been issued on time.Where no PO is required under the Customer’s internal policy, Mobisy may issue invoices directly in accordance with the agreed billing cycle.

5.2.3

Each invoice shall be payable within the period mentioned in Order form (“Due Date”). Any delay, internal approval, or administrative requirement of the Customer shall not extend or postpone the Due Date.

5.2.4

If the Customer disputes any part of an invoice, it shall notify Mobisy in writing within three (3) days of receipt, clearly stating the disputed amount and reasons. All undisputed amounts must still be paid by the Due Date. If no dispute is raised within the said period, the invoice shall be deemed accepted in full.

5.2.5

Any undisputed amount remaining unpaid fifteen (15) days after the Due Date shall attract interest at eighteen percent (18%) per annum, calculated from the Due Date until actual payment (“Late Charges”).

5.2.6

In the event, the Customer fails to pay the undisputed amounts within [15 (fifteen)] days from the Due Date, such unpaid amounts shall be subject to a late charge of 18% (eighteen percent) per annum, calculated from the Due date until the date of actual payment (“Late Charges”). It is hereby clarified that Mobisy shall be entitled to recover from the Customer, the costs and expenses incurred in connection with collecting Late Charges (including without limitation costs of proceedings and reasonable attorneys’ fees).

5.2.7

Without prejudice to the aforesaid, in the event the Customer fails to pay the undisputed amount for an aggregate period of [2 (two) months], Mobisy shall be entitled to suspend the Services, without requirement of any prior notice in this regard, and the provisions of Clause 6.3 shall apply. In the event that such suspension of Services lasts for more than 30 (thirty) days, Mobisy shall have the unilateral right to forthwith terminate this Agreement and the provisions of Clause 7 shall apply.

5.3

The fees set forth in the Order form have been mutually agreed based on the scope and commercial terms specified therein. Any changes to these agreed terms including but not limited to changes in billing cycle, modification of scope, or payment terms may result in a re-negotiation of the applicable fees and commercial terms.

5.4

The Customer acknowledges that Mobisy has agreed to provide Services to the Customer based on the aggregate of all the amounts payable to it under this Agreement (including any deferred payment and future license fees) and the payment schedule shall not be construed in any manner as adversely impacting this understanding. The Customer further acknowledges that:

  1. all payment obligations under this Agreement are non-cancellable;
  2. payments made hereunder are non-refundable; and
  3. all payments due under this Agreement shall, without prejudice to the other rights that Mobisy may have, be recoverable as amounts due and payable to it.

5.5

The Parties agree that the SaaS Service Fees shall become due and payable upon Activation, and such fees shall not be based on actual usage of the Software or System. Mobisy may, at its sole discretion and subject to a 30 (thirty) days’ advance written notice to the Customer, increase or add new fees and charges payable under this Agreement. The Customer shall, within 7 (seven) days of receipt of notice under this Clause, convey its acceptance or denial of the revised fees and charges. In the event, the Customer fails to respond to the notice within the agreed timelines, the increased fee and expenses shall be deemed accepted by the Customer.

5.6

Any payments received from the Customer shall, unless otherwise agreed in writing by the Parties, be applied, in the first instance, towards settlement of earlier outstanding amounts due and payable under this Agreement.

5.7

Taxes:

  1. Each Party shall be solely liable for the payment of all central, state and local levies, taxes, duties, fines and penalties (including without limitation goods and service tax, sales taxes, value added taxes, excise duties and customs duties, if any), by whatever name called, as may become due and payable in relation to the supply of Services hereunder, and submission of statutory returns/statements as per the Applicable Laws.
  2. All the payments under this Agreement shall be made post deduction of any other taxes required to be withheld under the Applicable Laws, provided however that, subject to Applicable Laws, Mobisy shall be entitled to claim credit for such deductions.

5.8

Without prejudice to the other terms of this Agreement, the Customer may choose to increase the number of Licenses or opt for additional services on such terms as may be mutually agreed between the Parties.

5.9

Without prejudice to the aforesaid, the Customer further understands that in the event it fails to pay the undisputed amounts within [15 fifteen)] days of Due Date, Mobisy may, at its sole discretion, display a message on the Customer Bizom Account reminding the Customer to pay such amounts within the agreed timelines (“Reminder Message”). The Customer hereby irrevocably waives any and all rights, claims, and remedies, whether under contract, Applicable Law, tort (including defamation), or equity, in respect of or arising out of the Reminder Message.

5.10

The Customer shall not be entitled to withhold or set-off any amounts payable under this Agreement against any claims or liabilities it may have against Mobisy unless such set-off is agreed to in writing by the Parties.

6.

LICENSE; LIMITS ON USE

6.1

Limited License to Customer: Mobisy hereby grants the Customer a personal, non-exclusive, non-transferable, non-sublicensable, non-assignable, limited, revocable license during the Term of this Agreement, to use of Mobisy’s applicable Intellectual Property and access and use the Software in accordance with the Agreement.

6.2

Limits on Use of Software: The Customer shall not, and shall cause its Users not to: (a) create or enable the creation of derivative works, modifications, or adaptations of the Software, or recompile, reverse engineer, decompile, disassemble or otherwise attempt to obtain, discover or derive the source code or non-public APIs or algorithms of the Software, or the underlying ideas or trade secrets therein; (b) use any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the Services or Software or portions or content thereof (except as made available by Mobisy as features of the Services); (c) distribute, license, sub-license, rent, or otherwise transfer, whether or not for the benefit of any third party, the Software or its associated functionalities, unless specifically authorized; (d) interfere with the functionality of the Services or Software or otherwise use in ways that would reasonably likely to disrupt or pose a security risk to Mobisy or to any other customers or vendors of Mobisy, including by: (i) uploading, storing, e-mailing, posting, linking or otherwise transmitting, distributing, publishing or disseminating any material that contains software viruses, trojan horses, worms, time bombs, or any other computer code, file or program designed to interrupt, destroy or limit the functionality of the System; (ii) modifying the Software, or interfering or attempting to interfere with the proper operation of the Services or the use of the Services by third parties, including through the use of any device, software or routine; or (iii) using the System to disrupt the servers or networks connected thereto; (iv) violating (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, laws regarding the transmission to or receipt from the System of technical data or software exported from the India, and all local laws and regulations regarding online conduct and acceptable content; (v) copying or using the Software or any Intellectual Property Rights thereto for any reason other than expressly set forth in this Agreement; (vi) encumbering, sublicensing, renting, loaning, leasing, time-sharing or otherwise using the Software in any service bureau arrangement or otherwise for the benefit of any third party; or (vii) removing or altering any of Mobisy’s trademarks or trade names, from the Software.

6.3

Suspension of Services:

(a)

Without prejudice to other terms of this Agreement, Mobisy reserves the right to temporarily restrict or suspend access to the SaaS Services/Professional Services, in whole or in part, at any time, if in Mobisy’s sole determination, the following circumstances occur (“Suspension”):

  1. If the Customer fails to pay the undisputed amounts for an aggregate period of [2 (two) months], in accordance with terms of Clause 5 hereof;
  2. Without prejudice to the aforesaid, if the Customer is in material breach of the terms of this Agreement and fails to cure such breach within 15 days of receipt of written notice from Mobisy in this regard;
  3. If such a suspension is required under the Applicable Law or instructions issued by a Governmental Authority, or to prevent liability to any third party;
  4. If Mobisy determines, at its sole discretion, that the Customer’s use of the Services poses a security risk, violates Applicable Laws or the terms of this Agreement or creates an Excess Burden on Mobisy’s systems or may otherwise cause harm to Mobisy, its customers, or any third party;
  5. In the event of a Force Majeure event;
  6. Conduct of scheduled or unscheduled maintenance or Upgrades, (each, a “Suspension Event”).

(b)

Upon suspension of Services under this Clause 6.3, Mobisy shall provide a written notice to the Customer within 12 (twelve) hours of such suspension. It is hereby clarified that the Customer shall remain liable for all applicable fees incurred prior to and during the period of Suspension. Mobisy hereby covenants to resume the Services, as soon as may be reasonably practicable, after the relevant Suspension Event is remedied or ceases to exist.

(c)

The Parties agree that the exercise of rights of Suspension under this Clause are without prejudice to Mobisy’s right to terminate this Agreement in accordance with the terms hereof.

7.

TERMINATION

7.1

Mobisy’s Right to Terminate: Mobisy may terminate this Agreement by serving 30 (thirty) days prior notice to the Customer in case of the following events:

  1. If the Customer fails to pay the undisputed amounts within 15 days of the Due Date, in accordance with terms of Clause 5 hereof;
  2. Filing of an application for bankruptcy or insolvency against the Customer either voluntarily or by any other person;
  3. breach of the terms and conditions of this Agreement, provided that the breach remains unremedied for a period of 30 days from the date of notice of such breach;
  4. If it is alleged that or if any of the partners/directors or officers or employees of the Customer are found guilty of any offence of corruption or moral turpitude or any other conduct which Mobisy in its sole and absolute discretion, believes to be prejudicial to Mobisy’s interests; and/or
  5. at its will, as determined in its sole discretion.

7.2

Customer’s Right to Terminate: The Customer may also terminate this Agreement in case of the following events:

  1. by serving a 30 (thirty) days prior notice to Mobisy, in the event Mobisy fails to provide the Services, in accordance with the terms of this Agreement, and such failure remains uncured for a period of 30 (thirty) days’ pursuant to receipt of notice from Customer in this regard; and
  2. at its will, without any cause, by providing 60 (sixty) days’ notice to Mobisy.

7.3

For the purpose of this Agreement, the effective date of termination shall be the day following the expiry of the relevant notice period set out in this Clause 7, or such earlier date, as may be mutually agreed in writing by the Parties.

8.

CONSEQUENCES OF TERMINATION

8.1

Upon termination of this Agreement:

  1. Mobisy shall disable access to the Software and Services as of effective date of termination and the Customer shall immediately cease the use of the Software, License, and Systems provided by Mobisy to Customer in terms of this Agreement;
  2. The Customer shall be entitled to pay any unpaid fees, as payable under the terms of this Agreement, as of and up to the effective date of termination of this Agreement;
  3. Each Party shall immediately return to the other Party or at the other Party’s written request, securely destroy all Confidential Information of the other Party in its possession or control, including, but not limited to all copies of the Software, Intellectual Property, documentation and related materials, except that the Receiving Party may retain information as may be required under Applicable Laws provided that the Receiving Party shall disclose the information being retained by it under this Clause; or (b) an archival copy or back up files of the Confidential Information. Any such retained Confidential Information shall, however, remain subject to the confidentiality obligations prescribed under this Agreement.

8.2

Upon receiving a written request from the Customer, within 30 (thirty) days of termination of this Agreement and subject to receipt of all outstanding dues from the Customer, Mobisy shall make available to the Customer, facility to download the Customer Data. After such 30 (thirty) days’ period, Mobisy shall be under no obligation to maintain or provide any Customer Data.

8.3

The Customer acknowledges that certain data may remain in storage systems or media that are not easily removed and agrees that Mobisy shall have no obligation to remove or destroy such data during or after any Term, provided that such data remains subject to confidentiality obligations prescribed under this Agreement. The Customer shall be entitled to request for a return/destruction of such data within a period of 30 (thirty) days from the date of termination, and such return/destruction shall solely be at the cost of the Customer.

8.4

Survival: All rights and obligations of each Party shall extinguish upon the termination of this Agreement provided that the termination of this Agreement shall in no event terminate or prejudice any provision which by its nature is intended to survive termination, including: the provisions of Clause 4 (Duties and Obligations of the Customer), Clause 5 (Pricing and Commercials), Clause 7 (Termination); Clause 8 (Consequences of Termination), Clause 9 (Representations and Warranties), Clause 13 (Privacy and Confidentiality), Clause 14 (Intellectual Property Rights), Clause 15 (Governing Law), Clause 16 (Dispute Resolution and Arbitration), and Clause 19 (Miscellaneous). Any provision and obligation of the Parties relating to or governing their acts, which expressly or by its nature survives such termination, shall be enforceable with full force and effect notwithstanding such termination, until it is satisfied or by its nature expires. It is hereby further clarified that the expiry or termination of this Agreement, for any reason whatsoever, shall not affect any rights and obligations accrued before the date of termination or expiry or expressed or intended to continue in force after and despite expiry or termination.

9.

REPRESENTATION AND WARRANTIES

9.1

The Customer hereby represents and warrants that:

  1. it has reasonably sufficient security practices, control processes and checks, prescribed under Applicable Laws or otherwise considered necessary under good industry practice, in respect of collection and sharing of data;
  2. the data provided by the Customer is not and shall not be corrupted or otherwise adversely impact Mobisy’s ability to provide the Services hereunder or cause Excess Burden;
  3. Customer represents and warrants that its data does not breach the Applicable Laws, or codes nor does its data infringe the Intellectual Property Rights of any third party; and
  4. to the extent that the data contains Personal Data and Sensitive Personal Information, it has obtained the necessary consents in order to transfer or permit access to this data in accordance with applicable privacy and data protection laws;
  5. it owns or otherwise has the valid right, by contract or otherwise to deliver to Mobisy the Customer Data and Mobisy is entitled to use the Customer Data as contemplated by this Agreement and such use will not result in violation of any Applicable Law or the proprietary rights of any third party, including patents, copyrights, trade secrets, or any license, sub-license, covenant or contract with any third party.
  6. It has reviewed and understood the features and functionality of the Software and Services to be provided hereunder.

9.2

Without prejudice to the provisions of Clause 9.1, each Party represents and warrants that:

  1. it has the requisite power and authority to execute, deliver and perform its obligations under this Agreement and further, that it has been fully authorized by all requisite corporate actions to do so;
  2. it has all necessary statutory and regulatory permissions, approvals, licenses and permits, as prescribed under the Applicable Laws, for running and operating its establishment and conducting its business;
  3. this Agreement when executed and delivered by will constitute a valid and legally binding obligations of the Party, in accordance with its terms;
  4. it will provide such co-operation as the other Party reasonably requests in order to give full effect to the provisions of this Agreement;
  5. the execution and performance of this Agreement by either of the Parties does not and shall not (a) violate or conflict with any provision of or result in any breach or default under any agreement, instrument, regulation, license or authorization binding upon it; (b) contravene the provisions of Applicable Law;
  6. it has not entered into any contract or agreement, or executed any document whatsoever, with any other person, firm, association, corporation or entity that will, in any manner, prevent it from performing its obligations under this Agreement;
  7. there are no pending litigations, actions, suits or proceedings against it or affecting any of its assets and there has been no event or occurrence which, in each case, has an adverse effect on its ability to perform his obligations hereunder.
  8. Mobisy is not responsible for any corruption or loss of any data if such corruption or loss is due to an act or omission by Customer, its personnel or any authorised persons.
  9. the Customer shall, at all times, be and remain the data fiduciary and Mobisy will be the data processor.

9.3

Except as provided in this Agreement there are no other express or implied warranties, representations, undertakings or conditions.

10.

INDEMNITY

10.1

The Customer agrees to indemnify and hold harmless Mobisy, its Affiliates, and its and their respective partners, members, directors, officers, and representatives from any and all Losses arising from or in connection with: (i) processing or use by the Customer of the Software or Services provided hereunder; (ii) any breach by the Customer of its obligations under this Agreement, including a fraud or wilful misconduct, or gross negligence by the Customer; and/or (iii) the Customer’s violation of any Applicable Law or third party rights (including Intellectual Property Rights), excluding to the extent arising from Mobisy’s wilful misconduct (each, a “Customer Indemnity Event”).

10.2

Mobisy shall indemnify the Customer, in accordance with the provisions of this Clause, against the Losses incurred by the Customer on account of the Software infringing any Intellectual Property Rights of a third party(“Mobisy Indemnity Event”).

10.3

Indemnification Procedure:

  1. The Indemnified Party shall promptly notify the Indemnifying Party of the occurrence of an Indemnity Event, or any claim, suit or proceeding (actual or threatened) (“Claim”) for which indemnification is sought under the provisions of this Clause. Such notice shall be given, and not later than 30 (thirty) days of occurrence of any Indemnity Event or a Claim having arisen and shall specify, in reasonable detail, the nature of Claim, quantum of amounts claimed, and other relevant information known to the Indemnified Party (“Indemnification Notice”).
  2. Any failure by the Indemnified Party to provide Indemnification Notice, as required by this Clause shall not excuse the Indemnifying Party of its indemnification obligations under this Agreement except to the extent that such failure materially prejudices the Indemnified Party’s ability to defend a Claim.
  3. The Indemnifying Party shall have the right, at its own expense, to assume and control the defense of the Claim with counsel of its choice and the Indemnified Party shall have the right to participate (without prejudice to the rights of the Indemnifying Party) in such defense of any Claim at its own expense.
  4. The Indemnifying Party shall have full control of any such Claim, proceeding or suit and the authority to settle or otherwise dispose of any such suit or threatened suit, and to appeal any adverse judgment that may be entered, except that it may not settle the matter in a manner that imposes any material duty or restriction on the Indemnified Party without its consent, which consent shall not to be unreasonably withheld unless such settlement: (i) includes an unconditional release of the Indemnified Party from all liability in respect of such Claim; and (ii) does not impose any obligation or liability on the Indemnified Party (financial or otherwise) or include any admission of wrongdoing.
  5. If the Indemnifying Party fails to or cannot assume defence of Claim in accordance with this Clause, the Indemnified Party may assume defence of such Claim (at the cost and expense of the Indemnifying Party).In such event, the Indemnified Party shall keep the Indemnifying Party reasonably informed of material developments and shall not settle, compromise, or admit liability in connection with such Claim without the Indemnifying Party’s prior written consent, such consent not to be unreasonably withheld, delayed, or conditioned. The Indemnifying Party shall remain liable for all Losses arising from such Claim, subject to the terms of this Agreement..
  6. Each Party shall co-operate fully with the other in connection with the defense, negotiation, or settlement of any Claim, including making available any relevant documents and information, as may be necessary.

10.4

The indemnification rights of the Indemnified Party under this Clause 10 are without prejudice to, independent of, and in addition to, such other rights and remedies they may have under Applicable Law or in equity or otherwise, including the right to seek damages, specific performance, rescission, restitution or other injunctive relief, none of which rights or remedies shall be affected or diminished hereby.

10.5

All disputes and differences arising between the Indemnifying Party and the Indemnified Party under this Clause 10, shall be resolved by arbitration in accordance with Clause 16.

11.

LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY (OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS OR AGENTS, AFFILIATES) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWIL OR REPUTATION, OR COSTS OF PROCURING SUBSTITUTE SAAS SERVICES OR PROFESSIONAL SERVICES (IF APPLICABLE)) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE ARISING OUT OF OR RELATING TO THE SOFTWARE, THE SAAS SERVICES, PROFESSIONAL SERVICES (IF APPLICABLE), THE SYSTEM, THIS AGREEMENT OR ITS TERMINATION, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. FURTHER, THE SOLE LIABILITY OF MOBISY (AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES AND AGENTS, AND AFFILIATES THEREOF) TO THE CUSTOMER FOR DAMAGES FOR ANY AND ALL CLAIMS, REGARDLESS OF THE FORM OF ACTION  SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO MOBISY DURING THE 6 (SIX) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

12.

WARRANTY

EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, THE SYSTEM, THE SAAS SERVICES, THE PROFESSIONAL SERVICES, AND ANY SOFTWARE ARE PROVIDED BY MOBISY “AS IS” AND “AS AVAILABLE”. MOBISY, ITS AFFILIATES, AND ANY THIRD-PARTY PROVIDERS SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE WARRANTIES ARISING FROM THE COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MOBISY MAKES NO REPRESENTATION OR WARRANTY (I) AS TO THE SYSTEM OR THE SERVICES; (II) AS TO THE RESULTS TO BE ATTAINED BY CUSTOMER OR ANY THIRD PARTY FROM THE SERVICES OR FROM ACCESS TO OR USE OF THE SYSTEM; (III) AS TO THE LIFE OF ANY URL USED IN THE SYSTEM; (IV) THAT ACCESS TO THE HOSTING SITE OR THE SERVICES WILL BE UNINTERRUPTED, SECURE, COMPLETE, ACCURATE OR ERROR-FREE; OR (V) THAT ALL USES THAT CAN BE MADE OF THE SYSTEM OR SERVICES COMPLY WITH APPLICABLE LAW. THE CUSTOMER ACKNOWLEDGES THAT CERTAIN SOFTWARE AND EQUIPMENT USED BY IT MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OF THE SYSTEM AND HEREBY WAIVES ALL RIGHTS AND REMEDIES UNDER APPLICABLE LAW, IN EQUITY OR OTHERWISE, IN RESPECT OF ANY SUCH DEFICIENCY IN THE SYSTEM.

13.

PRIVACY AND CONFIDENTIALITY

13.1

The Parties agree to treat all information and facts relating to the transaction contemplated herein which may come to their knowledge during the Term of this Agreement as confidential and not to disclose in any manner whatsoever any Confidential Information to any Person directly or indirectly or use the same or permit the same to be used for any purpose other than the transactions contemplated herein, unless it has been previously agreed by the Parties.

Provided however that the Confidential Information shall not include information which:

  1. at or prior to the time of disclosure by the Disclosing Party was known to the Receiving Party through lawful and independent means; or
  2. at or after the time of disclosure by the Disclosing Party becomes generally available to the public through no act or omission on the Receiving Party’s part; or
  3. is developed by the Receiving Party independent of any Confidential Information it receives from the Disclosing Party; or
  4. the Receiving Party receives from a third party and that such party is free to disclose without breach of any legal obligation to keep such information confidential.

13.2

Notwithstanding anything contained in this Clause 13 (Privacy and Confidentiality), the Parties may disclose any Confidential Information:

  1. to their Affiliates and its Affiliate’s respective directors, employees, professional advisors, consultants, shareholders, investors, potential investors, lenders or potential lenders for refinancing, solely for the purpose of effecting the transactions contemplated under this Agreement; or
  2. with the written consent of the other Party to this Agreement; or
  3. to the extent that such disclosure is required under Applicable Laws or by a Government Authority, provided that the Disclosing Party shall give prior written notification to the other Party of any such requirement and the contents of such proposed disclosure and, to the extent possible, agree to the contents of the proposed disclosure with the Disclosing Party before it is made; or
  4. for the purpose of any dispute resolution or any other judicial or regulatory proceedings and examinations.

13.3

Notwithstanding anything contained under this Agreement, the Customer agrees that Mobisy may, subject to Applicable Laws, access, store, process, use, or disclose the Customer Data and Confidential Information to perform the Services, address or resolve technical issues, or at the Customer’s request in connection with support-related matters. The Customer also consents to Mobisy using anonymized Customer Data and Confidential Information for research, analytics, marketing initiatives and promotional messages to distributors and retailers of the Customers and to improve its Software, Systems and Services.

13.4

The Customer explicitly consents to receiving promotional communications related to complementary services, add-on products, and other offerings designed to enhance the Customer’s experience with the Software and Services. The Customer may opt-out of receiving promotional communications at any time by contacting Mobisy’s support team. Further, the Customer agrees that Mobisy may devise a case study of the Customer’s use of the Services as mentioned under this Agreement as a part of its sales.

13.5

The Customer agrees that it shall not make any statements, disparaging remarks or divulge any Confidential Information provided under this Agreement to any Person except with a prior written consent of Mobisy or as permitted under this Agreement. The Customer acknowledges that it understands the critical nature of this obligation and the potential damage it may cause to Mobisy and agrees to take active measures to prevent any unauthorised disclosure of such information.

13.6

Without prejudice to the provisions of the Applicable Laws, the Parties hereby agree that the provisions of this Clause 13 shall survive for a period of 2 (two) years after termination of this Agreement.

14.

INTELLECTUAL PROPERTY RIGHTS

14.1

All Intellectual Property Rights belonging to a Party or a third-party prior to the execution of this Agreement shall remain vested in that party. Nothing in this Agreement shall be construed as transferring any ownership of such pre-existing rights.

14.2

Mobisy shall retain all rights, title and interest in and to the Software, Intellectual Property, whether existing as on the date of this Agreement or thereafter, Software or any product or service it may customize for the Customer under this Agreement and/ or any enhancements, improvements, modification, customization of any or all Intellectual Property Rights and derivative works thereof, whether or not such works, customisations, modifications, as the case may be are created or undertaken specifically at the Customer’s request or otherwise.

14.3

All Intellectual Property Rights resulting in any developments, deliverables, or materials created or authored, provided by Mobisy under the terms of this Agreement will vest with Mobisy and remain its sole and exclusive property.

14.4

Without prejudice to the terms of this Agreement, the Customer undertakes that it shall:

  1. not assign, license, sub-license, assign, or otherwise transfer the Software or any Intellectual Property in relation thereto;
  2. not reverse-engineer, decompile, or disassemble any equipment, hardware or software provided or disclosed to it or undertake any derivative works in relation to such equipment, hardware or software; and
  3. not remove, overprint, deface, copy, modify any notice of copyright, trademark, logo, legend or other notice of ownership in respect of Mobisy’s Intellectual Property, reproduce, distribute, or otherwise undertake any actions that violate the provisions of this Clause 14.

14.5

The Parties further acknowledge that except as expressly provided herein, this Agreement does not transfer to the Customer any right, title or interest in, and the Customer does not and shall not acquire any rights, whether express or implied, in the Intellectual Property Rights in the Software or Services (including any Professional Services). The Customer further undertakes that it shall not take any actions to oppose or otherwise interfere with the exercise of Mobisy’s Intellectual Property Rights including in respect of issuance of any patents or take any action to challenge the validity of any issued patents relating to any of the foregoing.

15.

GOVERNING LAW AND JURISDICTION

15.1

This Agreement shall be governed by and construed in accordance with laws of India and subject to the provisions of Clause 16 below, the courts in Bengaluru, Karnataka shall have exclusive jurisdiction.

16.

DISPUTE RESOLUTION AND ARBITRATION

16.1

All or any disputes or differences whatsoever arising between the Parties out of or about this Agreement (“Dispute”) shall be attempted to be settled amicably. If, however, the Parties are not able to resolve such disputes amicably within a period of 30 (thirty) days of commencement of such amicable settlement between the Parties, then such Dispute shall be referred to the arbitration before a single arbitrator appointed mutually by both the Parties.

16.2

The place of arbitration will be India, with the venue of such arbitration at Bangalore and the arbitration shall be conducted under the provisions of and in accordance with the rules of the Arbitration and Conciliation Act, 1996 together with its amendments, any statutory modification or re-enactment thereof for the time being in force. The arbitration proceeding shall be conducted in English language.

16.3

In the event the Parties are unable to jointly decide on an arbitrator within 30 (thirty) days of the request for arbitration, such sole arbitrator shall be appointed as per Arbitration and Conciliation Act, 1996.

16.4

The decision of such arbitration shall be binding and conclusive upon the Parties and may be enforced in any court of competent jurisdiction. The Parties to the arbitration shall equally share the costs and expenses of any such arbitration, unless the tribunal determines otherwise. All arbitration proceedings shall be conducted in English.

17.

NOTICES

Any notice to be provided by either Party shall be in writing, signed by an authorized officer, delivered personally or by registered post or email or through any other electronic form to the addresses set out below or to such other address as may be notified for the purpose by the Parties from time to time. Notices shall be deemed to have been delivered: (i) 3 (three) days following dispatch by registered post; (ii) at the time so delivered, if delivered personally; (iii) at the time when such electronic message enters into such receiving Party’s computer or any other electronic device, as the case may be, if delivered by e-mail or through any other electronic form. If the notices are sent by email, the same can be sent to the email address indicated herein or such other email address as may be intimated for such service of notice.

For Mobisy:

Name of Company: Mobisy Technologies Private Limited

Address: Sri Arunachaleshwara Building, 3rd Floor, Sy. No. 75/1, Bellandur Main Road, Bengaluru – 560103

Email ID: legal@mobisy.com

18.

FORCE MAJEURE

18.1

Neither Party shall be liable to the other Party for failure to perform or for delay in the performance of their respective obligations under this Agreement to the extent such failure or delay results from causes beyond their reasonable control, including, without limitation, acts of God, fires, explosions, wars or other hostilities, revolutions, strikes, labour unrest, earthquakes, floods, global pandemics, epidemics or quarantine restrictions, lack of materials, unforeseeable governmental restrictions or controls, or transportation embargoes or interruptions, or other events beyond the reasonable control of the concerned Party (“Force Majeure Event”), provided, however, that payment of invoices due and owing hereunder shall not be excused by reason of a Force Majeure Event affecting the Customer. It is expressly understood and agreed that for the purpose of provision of Services, “conditions beyond reasonable control” or “Force Majeure Event” shall include any break-down, non-availability/partial availability of data or any technical errors in the Software or Services; or for any other reason whatsoever, which may in any way prevent, restrict or interfere with or otherwise adversely affect, the provision of the Services by Mobisy as required herein. It is further agreed and understood by the Parties that in the event of disagreement as to what would constitute “conditions beyond reasonable control”, the Parties shall resolve such disagreement through mutual discussions in good faith.

18.2

The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall immediately notify in writing to the other Party of the occurrence of the Force Majeure Event and describe the Force Majeure Event in reasonable detail.

18.3

If such Force Majeure Event subsists for a period of 30 (thirty) days, then the non-affected Party shall be entitled to terminate this Agreement upon prior notice of 7 (seven) days to the affected Party. Notwithstanding such termination, the Customer shall remain liable for the fees accrued for the Services rendered up to the effective date of termination and such undue amounts shall be paid by the Customer within 30 (thirty) days of receiving the termination notice from Mobisy.

19.

MISCELLANEOUS

19.1

Affiliates as Parties to the Agreement: During the Term of this Agreement, any Affiliate of the Customer may, in addition to or as a replacement of the existing Customer, become a party to this Agreement to avail the Services provided by Mobisy hereunder, subject to: (a) the prior written consent of Mobisy; and (b) the execution of the Order Form. The Parties agree that pursuant to the execution of the Order Form, such Affiliate shall be bound by the terms and conditions of this Agreement as if it were an original party hereto.

19.2

Specific Performance: Each Party acknowledges that violation of the provisions of this Agreement may cause the other Party hereto and/or its respective Affiliates irreparable injury not fully compensable by monetary damages and for which such other Party and/or its respective Affiliates will not have an adequate remedy under Applicable Law. Accordingly, each Party shall be entitled to seek injunctive relief, specific performance or other equitable relief as may be necessary to enjoin, prevent or curtail any breach thereof, threatened or actual. The foregoing shall be in addition to, and not in lieu of, and without prejudice to or limitation on, any other rights or remedies the Parties may have under this Agreement, under Applicable Law or in equity, including the right to seek preliminary injunctive relief for violations of provisions of this Agreement other than those listed above.

19.3

Severability: If any provision(s) of this Agreement should be illegal or unenforceable in any respect, the legality and enforceability of the remaining provisions contained in it shall not be affected and the Parties shall make a good faith effort to replace any invalid or unenforceable provision with a valid and enforceable one such that the objectives contemplated by the Parties when entering this Agreement may be maintained.

19.4

Further Acts: Each Party shall without further consideration sign, execute and deliver any document and shall perform any other act which may be necessary or desirable to give full effect to this Agreement and each of the transactions contemplated under this Agreement. Without limiting the generality of the foregoing, if any approval of any Governmental Authority is required for any of the arrangements under this Agreement to be effected, each Party will use all reasonable efforts to obtain such approval.

19.5

Entire Agreement: This Agreement sets forth the entire understanding between the Parties and supersedes all prior agreements, arrangements and understandings relating to the subject matter hereof between the Parties.

19.6

Amendment and Waiver: Any provision of this Agreement may be amended or waived if, and only if such amendment or waiver is in writing and signed, in the case of an amendment by each Party, or in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided under Applicable Law.

19.7

Remedies: Without prejudice to the other terms of this Agreement, neither this Agreement nor any provision hereof is intended to confer upon any Person other than the Parties to this Agreement any rights or remedies hereunder.

19.8

Headings: The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.

19.9

Assignment: Neither Party may assign, in whole or in part, the benefits or obligations of this Agreement to any other person without the prior written consent of the other Party and such consent not to be unreasonably withheld. Provided that Mobisy may assign any of its obligations hereunder to any of its Affiliates without the prior consent of the Customer.

19.10

Agency: Nothing in this Agreement shall create or be deemed to create a relationship of master-servant and/or principal-agent between Mobisy and the Customer. It is expressly agreed by the Parties that Mobisy shall not be liable or responsible in any manner nor be liable to pay any monetary compensation including but not limited to payment of salaries, wages, remuneration, perquisites or other payment to any personnel of the Customer.

19.11

Execution and Counterparts: This Agreement may be executed in any number of counterparts, including electronic form, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. The execution may be effected by electronic signature or by transmission of a signed counterpart via email (PDF, JPEG, or other agreed format), and such delivery shall be deemed effective as delivery of a manually executed original. Each Party agrees that electronic signatures have the same legal effect as handwritten signatures for the purposes of validity, enforceability, and admissibility. Each Party shall ensure compliance with applicable stamp duty requirements under the Applicable Laws.

19.12

Conflict: In case of any conflict or inconsistency between the Agreement and the Annexures or Schedules or Exhibits, the terms of the Agreement shall prevail over the details mentioned in the Annexures or Schedules.

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