These Terms and Conditions include and incorporate the Service Order Form as well executed between Client and Haptik. By using the Services of Haptik, the Client agrees to be bound by these Terms and Conditions.
1. “TnC’s” shall mean the Terms and Conditions, Service Level Agreement (SLA), Service Order Form and the Haptik’s Statement of Work (SOW) including any Annexure’s attached hereto and links mentioned herewith. Any conflict between the documents shall be resolved by reading the documents in the order mentioned above
2. “Business Day” shall mean Monday through Friday, excluding public holidays.
3. “Commencement Date” shall have the meaning set forth in Section 1 (A) hereof.
4. “Confidential Information” shall have the meaning set forth in Section 11 hereof.
5. “Fees” shall have the meaning set forth in Section 2 (A) hereof.
6. “Force Majeure” shall have the meaning set forth in Section 9(A) hereof.
7. “Saas” shall mean software as a service.
8. “Update” means the modifications or revisions made to the Feature: (i) to improve upon or repair existing features and operations within the Feature; (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
9. “Privacy Laws & Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person and shall include any data and information which is classified as ‘personal data’ under applicable law which is explained in detail in the link mention herein. Based on the applicability the Client shall refer to the relevant link incorporated by reference herein; CCPA Data Privacy Annexure https://www.haptik.ai/ccpa-data-privacy-annexure and https://www.haptik.ai/gdpr-data-protection-privacy
10. “Service(s)” shall have the meaning set forth in Section 1 hereof.
11. “User” shall mean a Client customer who utilizes the Solution application by sending messages to the chatbot facility and receives responses to his/her queries
12. “User Data” includes generic chat data (conversational data) and information about Client and about User including information provided by either in connection with the Service including use of Client’s systems (Client User Data) and Haptik services and any Personal Data.
A. Services. Haptik and Client hereby agree that, commencing as of Commencement Date and continuing during the term of these TnC’s, Client shall utilize Haptik as the provider of the services to Client set forth on Annexure A attached hereto and incorporated herein by reference (the "Services") in exchange for the fees set forth below, subject to the terms set forth in these TnC’s
B. Subscription of the Services. Without limiting any other obligation hereunder regarding the provision of the Services, Haptik agrees that it shall provide the Services in accordance with specifications, milestones, procedures and protocols set forth in the link mentioned herein Haptik's SLA and Haptik's Support.
C. Additional Services. From time to time during the Initial Term or any Renewal Term of these TnC’s, Client may request that Haptik provide additional services to Client. Haptik is under no obligation to provide such services. In the event Haptik agrees to provide such additional services, the parties shall execute a written amendment to these TnC’s as set forth in Section 16(E) below and such amendment will be incorporated into these TnC’s.
A. Fees for Services: In consideration for the Services, Client shall pay Haptik quarterly/annually the Subscription fees and expenses set forth in the Service Order Form and Annexure A during the 1st year. An escalation of 10% per year on the Subscription fee will follow for every subsequent year from the previous year.
B. Haptik shall invoice Client for a Subscription fees at the beginning of each quarter/year. Client shall pay the invoice to Haptik within thirty (30) days from the date of receipt of the invoice. All amounts not paid within thirty (30) days of Client’s receipt of invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by the law in India, if less).
A. Unless terminated earlier as provided herein, the term of these TnC’s shall commence on the Commencement Date and continue for thirty-six (36) months following the Commencement Date (the "Initial Term"). These TnC’s will automatically renew at the end of each term for a further term of 12 months unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term.
B. Both Parties acknowledge that the Client shall not enforce its right to terminate for convenience within one (1) year from the Commencement Date (“Lock-In Period”). Upon expiry of the Lock-In Period, Client may terminate this Agreement, at any time, by giving Haptik thirty (30) days prior written notice. The notice shall specify the date on which termination shall become effective.
C. In addition to the expiration provisions set forth in Section 3(A), these TnC’s may be terminated:
A. Haptik hereby represents, warrants, and covenants to Client as follows:
a. Haptik has the full right and authority to enter into these TnC’s.
b. Haptik retains the right to engage with a third party and /or assign its rights and obligations herein for consideration but shall keep Client informed in the event of all anticipated or impending changes in the future likely to impact the Haptik’s rendering of Services, including all news and information of any impending mergers, acquisition, take overs, assignments, and the like. Company shall not be held liable in any way for the Client directly onboarding the third party on rendering of the Services under these TnC’s. It shall be the responsibility of the Company to monitor the performance delivery of any third-party vendors in case of assignment of services. The Client shall hold the Company responsible only in case of default on the part of the third party initiated by the Company in case of faulty/non-performance/breach of any the terms and conditions of the Contract.
B. Client hereby represents, warrants and covenants to Haptik as follows:
a. Client has the full right and authority to enter into these TnC’s.
b. Client is not and shall not be required to give any notice to or obtain any consent from any person in connection with the execution and delivery of these TnC’s or the consummation or performance of any of its obligations hereunder.
c. These TnC’s and the obligations contemplated hereunder do not violate any contract or other agreement Client has entered into with third parties.
d. Client will use commercially reasonable efforts to cooperate with Haptik and will provide Haptik access to written descriptions of Client's products and service offerings and other information reasonably requested by Haptik as is necessary to provide the Services.
e. Client agrees that it shall provide all the User data and all User, system and business information as required and outlined by Company, including all static data like general queries, FAQs, etc. and all dynamic data requiring technical integration with Client systems like real time status, such as report status or User identity etc. at least 15 days before development and post its implementation shall provide such data as may be required from time to time for the better performance of the facility. It is further clarified that, Client shall be responsible to share with the Company, its typical and pre-defined responses to its Users, which shall be shared through its application.
C. Haptik and Client hereby represents, warrants, and covenants to each other as follows:
a. Both Parties shall take all reasonable measures to ensure that the information transmitted to or from the Company servers with respect to the Services are secure and shall not authorize any third person to have any unauthorized access to the Company servers. Any party may authorize any of its authorized person to use the Services only with the prior written consent of the other party. Client must require such person to apply/follow reasonable security measures as would have been followed by Client itself.
b. Both parties shall ensure that all necessary approvals, licenses from concerned authority(i.e.) within or outside the territory for availing the Services to be provided by Company have been identified and taken as per the responsibilities assigned to both the parties.
c. No party shall at any time post the execution of these TnC’s and the commencement of the Services, supplement, modify, substitute, or alter the scope of the Services, without prior written consent of the other party.
Except as expressly set forth herein, both parties hereby disclaim all warranties to each other and all third parties, express, implied, statutory, or otherwise, with respect to the services, (and all components thereof) including but not limited to implied warranties of merchantability and fitness for particular purpose. These limitations shall apply notwithstanding any failure of essential purpose.
A. The relationship created hereunder between Haptik, and Client shall be solely that of independent contractors entering into an agreement. No representations or assertions shall be made, or actions taken by either party that could imply or establish any agency, joint venture, partnership, employment, or trust relationship between the parties with respect to the subject matter of these TnC’s.
B. Neither Haptik nor Client shall have any authority or power whatsoever to enter into any agreement, contract, or commitment on behalf of the other, or to create any liability or obligation whatsoever on behalf of the other, to any person or entity.
C. Haptik reserves the right to subcontract with third parties with respect to the provision of all or part of the obligations and duties of Haptik arising pursuant to these TnC’s. Haptik shall be responsible for all payments to, as well as the direction and control of the work to be performed by, its subcontractors, if any.
A. Each party hereto agrees that it shall indemnify and hold the other party, and any of the other party's respective affiliate companies, officers, directors, agents and employees (the “Indemnified Party"), free and harmless from and against any and all costs, obligations, liabilities, judgments, damages and expenses (including reasonable attorneys' fees and costs) (collectively, "Losses") arising out of or related to claims or proceedings incurred or brought against the Indemnified Party that arise as a result of the following (the party to whom indemnification is sought hereunder is referred to as the "Indemnifying Party'):
In no event will either party be liable to the other party for any indirect, incidental, consequential, special, or exemplary, lost revenue, punitive damages (even if such party has been advised of the possibility of such damages) arising from any provision of these TnC’s issued hereunder.
Without prejudice to the foregoing, the maximum aggregate liability of the Company to the Client and of the Client to the Company under these TnC’s whether arising from contract, indemnity, tort or otherwise, shall be limited to the amount of monthly Fees paid by the Client to the Company in the twelve (12) months preceding the date on which the claim arose.
The Company shall and will not be liable for (i) any loss including, but not limited to, loss of use, loss of goodwill, loss of data, whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, or (ii) damage caused by viruses or other technologically harmful material that may infect Client’s computer equipment, computer programs, data or other proprietary material loss of business or anticipated savings, due to the services provided herein except to the extent caused by the Company’s gross negligence or willful misconduct.
A. Neither party shall be liable for any failure of or delay in the performance of these TnC’s for the period that such failure or delay is caused by or due to acts of God, public enemy, war, strikes or labor disputes, floods, fires, accidents, acts of terrorism, inability to obtain sufficient labor, or any legislative, administrative or executive law, order, or requisition of the federal government or any state or municipal government or any subdivision, department or office thereof, or any other cause beyond the parties' reasonable control, including, without limitation, any power outages, loss of telephone or Internet connectivity or similar occurrences that might result from the acts or omissions of third party providers (each a "Force Majeure"), it being understood that lack of financial resources shall not to be deemed a cause beyond a party's control. Each party shall notify the other party promptly of the occurrence of any Force Majeure and carry out these TnC’s as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure shall not extend the term of these TnC’s.
A. All computer software developed and/or utilized by Haptik in conjunction with Haptik's provision of the Services, whether or not Client has been charged for such software, and all updates, modifications, enhancements and derivative works of such software and all copies thereof shall be and remain owned by and the sole property of Haptik; provided, however, that software provided to Haptik by Client and developed for Client by a third party, where title to such software vests in Client or is licensed to Client, shall remain the property of Client.
B. Client may be required to transmit electronic data to Haptik in connection with Haptik's provision of Services hereunder. Client shall be responsible for the accuracy of, and shall maintain proper backup of, all data and source material sent to Haptik, whether electronically or by the delivery of media. Haptik shall have no liability for damages resulting or claimed to have resulted from erroneous or incomplete completion, processing or transmission of information or data. If any data or media furnished by Client is damaged due to Haptik's equipment or processes, Client shall replace such data or media at its own expense. If Client furnishes data or media that is in unsatisfactory condition for processing or which contains incorrect, incomplete or corrupt data, Client shall be required to pay for any Services supplied by Haptik relating to such data or media.
A. The term "Confidential Information” shall mean trade secrets, confidential commercial information, and any other information, knowledge, or data not generally known or available to the public, possessed by or pertaining to the party including, without limitation: (i) information concerning or relating to the services provided by or for the party and the methodology of providing such services, including, without limitation, technical data, know-how, business methods, database tools and techniques, technical and business plans, specifications, drawings, computer programs and programming techniques, network configurations, facilities deployment information, procedures and personal information, (ii) information about the party's products or services, including technical data, know-how, product designs or formulations, (iii) marketing information, including advertising or promotional programs, sales strategies, pricing, or pricing strategies, (iv) information concerning the party's sources of supply, (v) information about the party's employees, consultants, independent contractors or customers, (vi) financial information concerning the party, its affiliates or any of their respective customers, (vii) any similar information about or involving customers of the other party, including any personal information over which such customers have control, (viii) any similar information belonging to a person other than the other party, but to which the other party has had access by reason of its relationship with such person, (ix) any User Data and Personal Data , and (x) the terms set forth in these TnC’s. Notwithstanding the foregoing, Confidential Information shall not include: (1) information which is in the possession of the receiving party at the time of its disclosure as shown by the files and records of the receiving party prior to the time of its disclosure, (2) information which is part of the public knowledge or literature (other than as a result of improper action or inaction of the receiving party), and (3) information received from a third party, provided that the source of such information was not bound by any confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to the other party with respect to such information.
C. Haptik shall comply with mutually agreed state, federal or international law applicable to the protection and security of User Data and Personal Data provided to Haptik by Client. Client and Haptik shall each be responsible for any breach of these TnC’s by their respective Agents (including Agents who, subsequent to the first date of disclosure of Confidential Information hereunder, become former Agents). Moreover, Client and Haptik shall take all reasonably necessary measures to restrain their respective Agents (and former Agents) from unauthorized disclosure or use of the Confidential Information. The term "Agents” means, collectively, the respective directors, officers, managers, partners, employees, controlling persons, attorneys, affiliates, subsidiaries, agents, professional advisors, subcontractors, vendors, successors and assigns of Client or Haptik. Without limiting any of the foregoing, Haptik acknowledges and agrees that the term Confidential Information shall at all times include any of Client's User Data and Personal Data, customer sensitive information, including without limitation any customer credit information, billing information, personal and financial data or other information pertaining to Client's customers.
D. Haptik shall collaborate on security monitoring, security compliance, back-up data retrieval and processing, and incident response. Haptik agrees to provide Client with all information reasonably requested by Client regarding the ability of any subcontractor of Haptik to protect Confidential Information provided by Client hereunder, including, without limitation, documentation relating to any and all security protocols and other measures intended to protect such Confidential Information. Haptik shall provide the requested information within 90 days.
E. The Company strongly recommends the Client should obtain cyber-insurance to protect itself from cyberattacks and risks relating to information technology infrastructure including, but not limited to, data breaches and network security failures. The Company if required will provide assistance to Client to remediate, manage and respond to such cyberattack and bill client at service provider’s current standard services rates.
F. In the event that a party becomes aware of any misuse or misappropriation of Confidential Information of the other party, such party shall promptly notify the other party of such misuse or misappropriation within 24 hrs. of being aware. The parties agree to use commercially reasonable efforts to cooperate with any investigation by the other party, its Agents, regulators, or investigators with respect to any actual or suspected misuse or misappropriation of, or security breach related to, Confidential Information.
G. The parties agree that they would be irreparably injured by a breach of this Section 11 by the other party or its Agents and that the other party shall be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Section 11. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 11 by either party or their Agents.
H. All intellectual property rights in the logos, brands and trademarks of the parties used in furtherance of these TnC’s shall vest with the respective parties. Unless specified to the contrary, nothing in these TnC’s shall be interpreted as giving either party any rights in the other party’s intellectual property rights.
I. Client acknowledges that Haptik shall have the exclusive ownership of the fundamental core software and technology that drives “Haptik Enterprise Solutions” including the software’s used in building and developing the automated chat application, the icon, the chat button, chat window and the design of the chat. Client agrees that it shall not perform any reverse engineering, modification to gain access or knowledge to Haptik’s proprietary software or build any software with similar features or create any competition to “Haptik Enterprise Solutions”.
J. Haptik hereby acknowledges that the Services developed and built for the Client as end-to-end solution and shall belong to the Client and shall include generic chat data (conversational data) and information about Client and about Users to Client’s platform (client User Data) and the widget and its contents. All Client User Data generated on Haptik’s platform is sole property of Client and Haptik has no ownership rights in any Client User Data. Client User Data includes, without limitation, all individually identifiable information about visitors to Client’s platform, including statistical, demographic, and psychographic information.
K. Solely as necessary for Haptik to provide its services to Client, Client grants to Haptik a limited license to use Client User Data to perform its obligations to Client. Additionally, Haptik will treat all Client User Data as confidential, proprietary information of Client, and will protect the confidentiality of Client User Data with at least the same degree of care that Haptik uses to protect its own proprietary information, but with no less than reasonable care, including, without limitation, as may be required to transfer, store and administer such information in accordance with all applicable laws, rules and regulations.
L. All conversational User Data is to be owned by Client. Conversational data includes, without limitation, all generic questions and answers about the client’s products, general greetings (like hello, goodbye, etc.) and any other data that does not collect any individually identifiable information about Client User Data. Haptik has the unlimited right at their sole discretion to use the conversational data in aggregate format for further enhancements to its technology and analysis, Haptik enterprise solutions, machine learning algorithms or any other purpose as desired by Haptik.
M. However, Parties agree that all designs, formats, content, structure adopted by Haptik in the applications, including the widget, which constitutes Haptik’s standard formats and structures and are generally associated with Haptik and its trademarks, brand image and copyrights shall belong solely to Haptik and which Haptik shall have the right to replicate for other Clients.
If there is any controversy, dispute or claim arising out of or relating to interpretation or breach of these TnC’s, the parties will endeavor to settle it promptly. If such a dispute cannot be resolved, the parties will promptly initiate and participate in good faith mediation of the dispute, with the mediator to be selected jointly by the parties or, if the parties cannot agree upon a mediator, then by a mediator to be selected jointly by two mediators selected by the parties. If the dispute is not resolved through mediation, the parties will promptly submit such dispute to binding arbitration in accordance with the Arbitration and Conciliation Act, 1996, India Code with one arbitrator to be jointly selected by the parties. Judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Nothing shall prevent either party from directly seeking injunctive or other equitable relief from any court of competent jurisdiction in situations where (i) the matter concerns the use of Confidential Information or (ii) damages would not adequately compensate for an alleged breach of these TnC’s.
Provided that neither party is in breach of these TnC’s , both parties agree to act as a customer reference for the other in regard to the subject matter of these TnC’s during the term hereof. The written consent of the other party shall be obtained before that party is used as a reference in any press release. Additionally, subject to the foregoing consent requirement, Client hereby grants to Haptik a limited, revocable, non-exclusive license to use Client's trademarks and service marks for such press release purposes provided that Client shall have the right to review and approve the manner and medium of use in advance and that any such use is otherwise lawful. Other than as contemplated by these TnC’s, Haptik shall not make any other use of Client's trademarks or service marks or other intellectual property of Client. Client represents and warrants to Haptik that it is authorized to grant the aforementioned license.
The Customer shall not interfere with Haptik’s relationship with, or endeavor to entice away from Haptik, any person (Employees, Directors and any other person employed by Haptik) at any time and shall not directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of Haptik; or (ii) hire, on behalf of the Customer or any other person or entity, any person who has left the employment within the three (3) months period following the termination of that person’s employment with Haptik.
The Parties shall each do all that is necessary and within their respective power and control to ensure that it will not at any time offer, promise, give or receive any improper financial payment and/or other improper advantage to or from any person, customer, or supplier (whether a public official or otherwise) with the intention of influencing them and obtaining an advantage in the conduct of its business.
A. All notices, demands, requests, approvals, consents or other communications to be given or delivered under these TnC’s will be in writing and will be deemed to have been given (1) when delivered in person or by courier or confirmed facsimile; (2) upon confirmation of receipt when sent by certified mail, return receipt requested; or (3) five (5) days after deposit in the mail, as the case may be to the addresses indicated below (or to such other addresses as a party may designate from time to time by written notice to the other party).
B. Either party may change the address for notice by providing the other party with ten (10) days’ prior written notice of the new address.
If to Haptik:
Jio Haptik Technologies Limited
A - 801, Cello Triumph, I.B. Patel Road,
Off Western Express Highway,
Goregaon (E), Mumbai 400 063
Attn: Ajay Lulla
If to Client:
Attn: Legal Department
C. Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive the termination of these TnC’s.
D. These TnC’s shall be governed, enforced and interpreted in accordance with the laws of India and will be litigated exclusively in the courts of Mumbai, India (“Applicable Law”). In the event any provision of these TnC’s is held to be unenforceable or invalid under Applicable Law, such provision will be ineffective only to the extent of such unenforceability or invalidity, without invalidating the remainder of such provision or the remaining provisions of these TnC’s .
E. These TnC’s may be amended, provided that any such amendment will be binding upon any party hereto only if such amendment is set forth in a writing executed by such party. No course of dealing between or among any persons having any interest in these TnC’s will be deemed effective to modify or amend any part of these TnC’s or any rights or obligations of any person under or by reason of these TnC’s.
F. Any provision of these TnC’s may be waived, provided that any such waiver will be binding upon any party hereto only if such waiver is set forth in a writing executed by such party. The waiver of any default, or the remedying of any default in any manner, shall not operate as a waiver of any other prior or subsequent default. No extension of time for the performance of any obligation or act shall be deemed to be an extension of time for the performance of any other obligation or act hereunder. No delay or omission by a party to exercise rights hereunder shall impair any such rights or shall be construed to be a waiver of any such default or any acquiescence therein.
G. The Client shall have the right to audit the Company once in a year by providing a thirty- (30) days written notice, during the Term of these TnC’s restricted to the Services provided to the Client hereunder, and the cost of such audit shall be borne by the Client or by any third party appointed by the Client for the purpose of such audit shall also be borne by the Client.
H. These TnC’s and any related documents delivered concurrently herewith including the links mentioned herein and Annexures attached herewith, contain the complete TnC’s between the parties relating to the Services and supersede any prior understandings, agreements, or representations by or between the parties, written or oral, which may be related to the subject matter hereof in any way.
I. Section headings contained in these TnC’s are inserted for convenience of reference only, shall not be deemed to be a part of these TnC’s for any purpose, and shall not in any way define or affect the meaning, construction, or scope of any of the provisions hereof.
J. The laws of the India will govern all questions concerning the construction, validity, and interpretation of these TnC’s and the performance of the obligations imposed by these TnC’s.
K. These TnC’s and any interest hereunder shall inure to the benefit of and be binding upon the parties and their respective successors, affiliates, legal representatives and permitted assigns. Except as otherwise stated in these TnC’s, neither party may assign or delegate these TnC’s without the other party's prior written consent provided that, either party may freely assign its rights under these TnC’s to any of its affiliates or to a successor in interest in the event of a transfer of its business upon ten (10) days’ prior written notice to the other party which consent shall not be unreasonably withheld. Any attempt to assign, delegate or otherwise transfer these TnC’s in violation of this Section is voidable by the other party. Notwithstanding the foregoing, these TnC’s is made solely for the benefit of Client and Haptik and their respective successors, affiliates, legal representatives and permitted assigns, and no other person shall have any right, benefit, or interest under or because of these TnC’s, including, without limitation, any employee, customer, subcontractor or Agent of either Client or Haptik.
These TnC’s may be signed in any number of counterparts.