YELLOW.AI MASTER SUBSCRIPTION AGREEMENT – INDIA

YELLOW.AI MASTER SUBSCRIPTION AGREEMENT

This Master Subscription Agreement (“MSA”) sets forth the terms and conditions under which Bitonic Technology Labs Private Limited (“Company”) will provide the products and services (the “Services”) set forth in an order form (“Order Form”) executed by Company and the entity signing the Order Form as “Customer.” This MSA, together with the Order Form (collectively, the “Agreement”) shall take effect on the Effective Date (as defined in the Order Form) and constitutes a binding agreement between Company and Customer. In the event of any conflict between this MSA and an Order Form, the terms of the Order Form will control.

Customer and Company are collectively referred to as “Parties” and individually as “Party.”

DEFINITIONS: 

“Client” shall mean an entity identified on an Order Form as being a client of Customer and who is entitled to access and use the Services for the benefit of End-Users pursuant to a valid and binding agreement between the entity and Customer (“Client Agreement”). 

“Data Protection Legislation” means any applicable law relating to the processing, privacy and use of Customer Data, as applicable to either Party or the Services, and /or any corresponding or equivalent national laws or regulations including but not limited to European Union’s general Data Privacy Regulation [Regulation (EU) 2016/679] (“GDPR”), Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); and any laws which implement any such laws; and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; all guidance, guidelines, codes of practice and codes of conduct issued by any relevant regulator, authority or body responsible for administering the Data Protection Legislation. 

“End User” shall mean a person who accesses the chatbot enabled via the Yellow Technology. 

“Force Majeure Event” means any event which is beyond the reasonable control of a Party including but not limited to an act of war, hostility, or sabotage; act of God; epidemic or pandemic; government restrictions; interruptions by third party providers; emergency maintenance.  

“Interested Persons” means employees, officers, directors, representatives, advisors of Customer, or any other person having access to the Services or Yellow Technology, through Customer and unless the context requires otherwise, the Client and End-Users. 

“Necessary Persons” in respect of a Party, means the Party and its affiliates and their respective legal counsel, insurers, auditors, and accountants. In case of Company, Necessary Persons shall also mean third parties whose services are availed for rendering the Services to Customer.  

“Yellow Technology” means all of Company’s and its licensors proprietary technology and rights that Company makes available as part of or in connection with the Services (including any and all software, software packages, hardware, products, processes, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information, and any improvements and or modifications thereto). 

1. SERVICES AND SUPPORT 

1.1 Subject to the terms and conditions of this MSA, Company hereby grants to Customer and its Clients (where agreed) the non-exclusive, non-transferable, non-sublicensable, non-assignable, limited right to access and use the Services and Yellow Technology in accordance with this MSA and the terms of all applicable Order Forms. Company retains all rights in the Services and Yellow Technology that are not expressly granted to Customer.

1.2 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions. Company shall use commercially reasonable means to resume any Services which may have been suspended, restricted, or impaired, on account of occurrence of any Force Majeure Event. Suspension of any Services or non-performance by Company for reasons attributable to a Force Majeure Event shall not be considered as a breach on the part of Company. However, Company shall use reasonable efforts to provide advance written notice (email sufficient) at least 24 hours prior to any scheduled service disruption.

1.3 Company will provide remote implementation and professional services to Customer during Business Days in accordance with a mutually executed statement of work (“SOW”). For the purpose of this MSA, “Business Day” shall means shall the week starting from Monday to Friday between 9:00 am to 18:00 pm and shall exclude any Government holidays or any other holidays as determined by the Company.   

1.4 Company may, in its sole discretion, make any changes to the Yellow Technology that it deems necessary or useful to comply with applicable law or maintain or enhance: (a) the quality or delivery of the Services, (b) the competitive strength of, or market for, the Services, (c) Yellow Technology’s cost efficiency or performance.

1.5 Company shall take all steps to ensure compliance with the Privacy Policy in respect of Customer Data. The Privacy Policy may be accessed at https://yellow.ai/privacy-policy.  

1.6 Clients shall be entitled to access and use the Services, provided that Customer shall disclose the identity of its Clients to Company in the respective Order Form, and that each Client who avails the Services may do so further to allocation of a separate unique account and credentials and payment by Customer of any applicable fees for such Client’s access and use in accordance with the Order Form.  Clients shall be required to be subject to licensing terms with Customer in order to have access to the Services, and such licensing terms shall be at least as protective of Company’s intellectual property as the provisions contained in this Agreement.  Customer shall be fully responsible for the use of the Services by its Clients as if Customer were using the Services itself. 

2. CONDITIONS FOR SERVICES 

2.1 Customer agrees and acknowledges that the following are a prerequisite for access to the Services:

(i) Customer shall obtain and maintain equipment and ancillary services needed to connect to, access or otherwise use the Services, including but not limited to modems, hardware, servers, software, operating systems, networking, web servers and other similar or dissimilar infrastructure.  

(ii) Customer shall make available resources, including but not limited to, personnel and information, as may be reasonably required for using the Services. 

(iii) The third-party services set forth in the applicable Order Form shall be provided without modification on an “as available” basis and subject to approval of such third party and Customer agrees to adhere to any relevant terms and conditions issued by such third party. Unless otherwise agreed in writing with Company or such third party, Customer further agrees that it shall not be authorized to resell such third party business solutions or services and that it shall adhere to the such third party’s policies (as may be modified from time to time).

(iv) If WhatsApp Business Solutions are part of the Services, as opted in the applicable Order Form, Customer agrees that it shall not be authorized to resell WhatsApp Business Solution unless agreed by WhatsApp in writing. Customers also agree to adhere to the WhatsApp Business Solution Terms as available on https://www.whatsapp.com/legal/business-solution-terms. 

(v) Advertisement platform bots, WhatsApp bots, GenAI Services (defined below), and other third-party services incorporated into or provided as part of the Services are governed by third party policies, such as applicable policies of Microsoft, Google, Meta, etc. These policies may be subject to change anytime at the discretion of such third parties. Customer agrees to always adhere to these third party policies.  Company may terminate any applicable Order Form immediately, if any third party service provider terminates or suspends or refuses to provide any third-party services required for the Services or Customer fails to comply with any applicable third party policies.

(vi) Customer shall not: 

a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source-code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, or the Yellow Technology,  

b) modify, translate, or create derivative works based on the Yellow Technology (except to the extent expressly permitted by Company in writing or authorized within the Services), 

c) use the Services or Yellow Technology for time sharing or service bureau purposes, except for the benefit of Clients, 

d) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or Yellow Technology to any third party (other than Clients), 

e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels in the Services, or the Yellow Technology, 

f) misrepresent or mask the origin of any data, content, or other information it receives,

g) use the Services, or Yellow Technology in a manner which violates the rights of other individuals,  or to knowingly send or store infringing, unsolicited, spam, offensive, obscene, threatening, harmful, libelous, abusive or which otherwise is of criminal or unethical nature according to applicable law

h) use the Yellow Technology or Services in any manner that is contrary to applicable law, including, without limitation, the unlawful usage of data, and transmitting information or data that is unlawful, 

i) endanger, interfere, compromise, or circumvent the privacy, use and/or security of the Services, or the Yellow Technology, including, but not limited to, submitting data or content that may contain viruses or other harmful components,

j) breach any duty toward, or rights of, any person including, but not limited to, rights of publicity or privacy, or take actions that can otherwise result in consumer fraud, product liability, tort, breach of contract, injury, or damage or harm of any kind to any person, 

k) use the Services or Yellow Technology for any purpose other than as permitted in the Agreement, 

or  

l) allow or encourage anyone else to commit any of the actions listed herein.

(vii) Customer shall not, by any act of omission or commission, attributable to itself or the Interested Persons, permit breach of the Privacy Policy by itself or any Interested Person.

(viii) Customer shall ensure: the security of Customer account credentials (including but not limited to, administrative and user passwords) and files; the authorized use of Customer accounts; and report suspected security breach to Company with respect to Customer account.

(ix) Customer has the authority to procure and process, itself or through a third party, Customer Data in accordance with applicable law, and Customer’s instructions regarding the processing of Customer Data shall comply with Data Protection Legislation. 

(x) If Customer or its third-party service provider processes any credit card information using the Service, Customer will (and will ensure that its service provider, if any): (a) comply with the Payment Card Industry Data Security Standard (“PCI DSS”); (b) implement and maintain reasonable security measures to protect all cardholder data in their possession or control; and (c) not take any action in connection with using the Services that places Company in non-compliance with the PCI DSS (for example, storing any cardholder data in any custom fields of the Services). 

(xi) All information, data, text, software, graphics, commentary, video, messages, content, or any other materials submitted by Customer in the course of using the Services, is the property of Customer. Customer is solely responsible for such data collected, submitted, and generated by the Services. Company is not responsible for the way Customer uses the Services or data. 

(xiI) Without prejudice to the generality of other provisions contained in the Order Form, for Customers availing voicebot, the following additional provisions shall apply

a) The Customer undertakes responsibility in respect of users (being employees or Client of the Customer mentioned in the Order Form in whose name the phone connection(s) is procured, particularly in respect of bonafide use, users’ identity and traceability in the event of any security verification conducted by any relevant agencies (foreign or Indian)/authority, and compliance with all regulatory and legal requirements and directions/guidelines from any competent authority, in respect of use of the phone connections. 

b) The Customer undertakes responsibility in respect of compliance with all ‘know-your-customer’ requirement from time to time, including compliance with all regulatory and legal requirements and directions/guidelines from any competent authority, in this regard.

c) The Customer shall at all times ensure that the database of its users made available to the Company is updated in all respects in accordance with the National Do Not Call Register. The Customer acknowledges that making unsolicited commercial communications whether directly or indirectly to any subscriber whose telephone number appears on the National Do Not Call Register is not permitted, unless the Customer has obtained irrevocable consent from the subscriber for such communication. 

d) The Customer shall ensure that the content / information will not contain any material which is improper, immoral, unlawful, obscene, offensive or defamatory or enrages the public sentiment, or constitutes an Unfair Trade Practice or violates any other legislation or policy for the time being in force, or is made to give negative publicity of Company or any of its product.

e) The Customer shall at all times extend co-operation to the third-party service provider(s) in respect of any enquiry or investigation in relation to use or users of the phone connection. The Customer shall email a soft copy of all information available as soon as requested by Company (no more than 24 hours) and provide hard copy thereof within 48 hours from such request.

f) The Customer agrees that it shall furnish information and all documents, from time to time, including any undertaking or declaration as may be required by third-party service provider(s) for the benefit of such service provider(s) in respect of services availed.

g) The Customer undertakes to indemnify and hold harmless the third-party service provider(s) , Company and their respective affiliates, directors, officers, employees, and agents from and against any third party claim, suit, demand, loss, damage, expense (including reasonable attorneys’ fees and costs), fine, penalty, regulatory assessment or liability that may arise in relation to any breach of this sub clause 2.1(xii) by the Customer.

2.2 Voice and Text Services:

(a) In connection with outbound calling and sending short message services (“SMS”) /multimedia messaging messages (“MMS”) through the Services (“Voice and Text Services”), Company disclaims any liability with regards to (i) third-party wireless service providers (“Carriers”) or (ii) third-party intermediaries that transmit calls and SMS/MMS messages between Providers (as defined below) and Carriers (“Aggregators”), including regarding system capacity, message throughput, or actual delivery to an End User’s device. In addition, Carriers and/or Aggregators may charge additional per-message fees for SMS/MMS messages. Company will invoice Customers monthly in arrears for such fees, if any. 

(b) THE PARTIES AGREE THAT: (I) IF THE VOICE AND TEXT SERVICES DELIVERY PROVIDER USED BY COMPANY (“PROVIDER”) SEEKS INDEMNIFICATION FROM COMPANY  FOR DAMAGES OR FINES ARISING FROM CUSTOMER’S USE OF THE VOICE AND TEXT SERVICES IN VIOLATION OF THE APPLICABLE LAW (A “CLAIM”), THEN CUSTOMER WILL INDEMNIFY COMPANY  FOR SUCH CLAIM; AND (II) IF SUCH CLAIM IS NOT SUBJECT TO ANY LIMITATION OF LIABILITY BETWEEN COMPANY AND THE PROVIDER, THEN CUSTOMER’S INDEMNIFICATION OBLIGATIONS TO COMPANY WITH RESPECT TO SUCH CLAIM SHALL ALSO NOT BE SUBJECT TO ANY LIMITATION OF LIABILITY.

(c) While certain features of the Voice and Text Services may be used to support Customer’s compliance efforts, Customer acknowledges that no features or functionality of the Voice and Text Services are intended to be relied upon as a compliance tool. All such features are made available without any warranties and/or commitments of fitness for such Customer’s compliance purposes. Company shall not be liable for any breach of Customer’s contractual, legal, regulatory, or any other compliance obligations in connection with the use of the Voice and Text Services.

(d) Company will indemnify Customer for any third-party legal proceedings related to Company’s ’s failure to obtain appropriate rights and consents to use third-party data and content, including Company’s voice library. This includes liability, expenses, claims, losses, damages, judgments, fines, litigation costs, and legal fees, to the extent permitted by applicable law. Subject to the foregoing, Company shall not be liable for any damages or infringements related to voice content or voices generated by Customer or for Customer. Customer shall indemnify Company from all possible claims related to harms or damages caused by the voice content or voices generated by Customer’s use of the Services. Additionally, Customer guarantees that:

i.  It shall receive all necessary permissions and releases from actors to instantly clone their voice;

ii.  It shall receive all necessary permissions and releases from actors to professionally clone their voice (if such service is used).

2.3 Some of the tools and utilities provided as part of the Services or made available for download use artificial intelligence and machine learning (collectively, “AI”) to allow Customer, its employees and agents, or its customers and other end-users to submit text and other materials (a “Prompt”) and receive AI-generated results (“Output”) via various interfaces including APIs, chat bots, and web portals (collectively, the “GenAI Services”). Some of the GenAI Services may be integrated into Customer application or software environments through interfaces that allow users to submit Prompts and receive Outputs. The Company is constantly working to improve the AI features of our Services to make them more accurate, reliable, safe, and beneficial. Given the probabilistic nature of AI, use of the GenAI Services may result in incorrect Output that does not accurately reflect real people, places, or facts. The GenAI Services may generate responses by reading a user’s request and then predicting the next most likely words that might appear in response. In some cases, the most likely next words may not be the most factually accurate ones. For these reasons, the Customer should not rely on the factual accuracy of Output from the GenAI Services. Customer should evaluate the accuracy of any Output as appropriate for Customer’s use case, including by using human review of the Output. Where human review is not possible or practical, Customer is responsible for providing appropriate notice to its users, including end users accessing AI through Customer platform, that is sufficient for them to understand the limitations of any AI features being used, including, but not limited to, that users should not rely on factual assertions in Outputs without independently fact checking their accuracy and that users may be exposed to content they may find offensive, inappropriate, or objectionable. Customer is solely responsible for the actions it takes using the GenAI Services, including for ensuring that its use of the Output does not violate any applicable law or these Terms. Customer agrees that it is using the GenAI Services at its own risk.

The Company does not make any assurances with regard to the accuracy of the results or output, including the Output from the GenAI Services, that derives from such use of any such tools and utilities.

2.4 NOTWITHSTANDING ANYTHING CONTAINED IN THE AGREEMENT, CUSTOMER HEREBY AGREES AND UNDERSTANDS THAT THE SERVICES AND YELLOW TECHNOLOGY ARE PROVIDED “AS IS”. UNLESS EXPRESSLY SPECIFIED IN THE AGREEMENT, COMPANY DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT IN RELATION TO THE SERVICES OR THE YELLOW TECHNOLOGY. 

3. INTELLECTUAL PROPERTY  

3.1 Customer acknowledges and agrees that Company or its affiliates own all intellectual property rights: (i) in the Yellow Technology and any other intangible assets (irrespective of form, shape and manner of origin), including but not limited to any work that Company may carry out for Customer in connection with Services or in any manner in relation to or incidental to the Agreement; and (ii) all Company marks, logos, signs, symbols, and trademarks used by Company within its scope of business activity.

3.2 Company shall own and retain all right, title and interest in: (a) the Services and Yellow Technology, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all Intellectual Property Rights related to any of the foregoing.

3.3 Where a unique container is created specifically for Customer, any development related to the features and services for such a unique container along with design documentations and custom code created specifically only for Customer shall be owned by Customer, unless otherwise agreed by the Parties. The foregoing shall not in any manner dilute the provisions of Clauses 3.1 and 3.2.

4. CONFIDENTIALITY 

4.1 “Confidential Information” shall include all information disclosed by one Party (“Disclosing Party”) related to its products, services and/or business including but not limited to business plans, processes, financial information, pricing, software, know-how, trade secrets, practices, methods, inventions, improvements, disclosures, marketing strategies, projections, operations, sales estimates and any other proprietary and/or confidential information, to the other Party (“Receiving Party”), whether provided in writing or electronically or by other means, and is treated as confidential or secret by the Disclosing Party including, but not limited to, the terms and conditions of the Order Form and this MSA. ‘Confidential Information’ does not include does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

4.2 Ownership of Confidential Information: Each Party, in relation to the other Party, retains all rights in its Confidential Information.

4.3 Protection of Confidential Information: The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to Necessary Persons and persons within its organisation who need access for purposes consistent with the Order Form and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective than those set out in this MSA. Neither Party will disclose the terms of the Order Form to any third party other than Necessary Persons without the other Party’s prior written consent, provided that a Party that makes any such disclosure will remain responsible for such Party’s compliance with this covenant. Notwithstanding the foregoing, Company may disclose the terms of the Order Form to a subcontractor to the extent relevant for performance by Company pursuant to the Order Form. The foregoing shall not restrict Company from citing the general description of Services and approximate transaction value for its business development, including participation in tenders.

4.4 Compelled Disclosure: The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, then it will provide the Disclosing Party with a prompt written notice, unless it is legally prohibited from doing, so the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this MSA. 

5. CUSTOMER DATA & DATA 

5.1 Customer shall have sole responsibility for the accuracy, quality, and legality of personal
data of End Users provided by Customer to Company to enable the provision of the Services
(“Customer Data”) and the means by which Customer acquired Customer Data. If Customer is
using the GenAI Services, the Services may send applicable portions of the Customer content,
including Customer Data in an anonymised form or as-is based on its requirements, to other
applications or websites, including to third-party AI providers which are authorized by the
Customer for the scope of its engagement with the Company. By using the GenAI Services,
Customer authorizes and instructs the Company to send its content to the applicable third-party
AI provider, which will be handled in accordance with its terms once your content flows out of
our environment. Company is not responsible for Customer content after it has been provided to
a third-party AI provider since we will not have control over their environment. Customer shall:
(i) as required by applicable law, provide notice to its Clients, the End-Users and agents, as well
as obtain consent (if required) for processing and transferring their personal data to Company
and its third-party service providers, and (ii) use, and ensure that the Interested Persons use,
the Services only in compliance with applicable law and the Agreement.

5.2 Company agrees and acknowledges that it is processing Customer Data on behalf of Customer and acting as “Data Processors” or “Business Associates” for Customer under the Agreement as per the applicability of Data Protection Legislation.

5.3 Company is dedicated to providing data protection and to promote compliance with the Data Protection Legislation. Company is dedicated to implementing and maintaining reasonable administrative, physical, and technical safeguards that are designed to prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any Customer Data, as may be held or accessed by Company. Company will endeavor to notify Customer without undue delay following discovery of any suspected breach or compromise of the security, confidentiality, or integrity of any Customer Data, within 48 hours.

5.4 Customer shall comply with Data Protection Legislation in the course of utilising the Services and any observation or breach of data protection by Customer shall be reportable via [email protected]. Customer hereby acknowledges and agrees that it will be responsible and Company hereby disclaims any liability arising from Customer’s  account and/or use of the Services, including but not limited to any security incidents attributable to Customer, including unauthorized access, fraudulent activities.

5.5 Company shall not sell, rent, or lease Customer Data to any third party. Company will not share Customer Data with third parties, except as contemplated under this MSA and in order to provide, secure, and support the Services.

5.6 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data relating to the provision, use and performance of the Services (including, without limitation, information concerning Customer Data and data derived therefrom). Company will be free (during and after the term hereof) to use such data: (a) to enhance the Services, (b) for development, diagnostic and corrective purposes in connection with the Services in order to provide better support to Customer, and (c) to utilize within the platform in aggregate or other de-identified form in connection with Customer’s business. Company agrees not to use Customer Data for the benefit of any third party.

5.7 Customer understands and acknowledges that certain risks are inherent in the transmission of information over the internet. By accepting this MSA, Customer has chosen to use the security measures deployed by Company. Company has obtained third-party security certifications and audits, such as ISO/IEC 27001:2013 and ISO/IEC 27018:2019. Further information on security measures deployed by Company may be accessed at https://yellow.ai/platform/enterprise-grade-security/

5.8 Company provides the possibility to store data in various locations such as India, Middle East, Asia, Indonesia, Singapore, USA and European Union as per Customer’s legal, regulatory and contractual requirements. Customer may denote the desired location of hosted data at the time of execution of the Agreement. If such a choice is not being made by Customer, the Customer Data shall be assigned to the data centers located in India by default or as required by applicable law.

6. PAYMENT AND BILLING TERMS 

6.1 Customer shall pay all Service Charges to Company as set forth in the Order Form and as per the payment term specified in the Order Form. The Customer hereby agrees and acknowledges that except for revision of invoices on account of incorrect amount billed, the Customer shall be liable to make the payment from the original date of invoice. Services Charges shall be in the currency mentioned in the Order Form and non-refundable. Customer agrees that it is obligated to pay, and Company is authorized to receive payment for all Service Charges due and payable pursuant to the Order Form through bank transfer to Company’s designated bank account.

6.2 The Service Charges set forth in the Order Form do not include foreign or domestic taxes, withholding taxes, duties, charges, assessments, or fees. Customer shall be responsible for payment of all sales and use taxes or similar charges relating to Customer’s purchase and use of the Services. Company shall bill Customer for applicable taxes at the time of raising each invoice.

6.3 Company reserves the right to revise the Platform Charges and the Subscription Charges, upon any change in fee, costs and/or expense imposed on Company by any third party service provider as agreed in the Order Form, by issuing a prior notice of no less than 45 days to Customer via email.

6.4 Company reserves the right to revise Platform Charges for any auto-renewal term by issuing a prior notice of no less than 45 days to Customer via email. If revision of Platform Charges for any renewal term is not acceptable to Customer, either Party may issue notice under Clause 7.1 for termination.

6.5 If Customer requires that a purchase order (“PO”) be issued before making payment under an Order Form or SOW, Customer must provide to Company such valid PO conforming to the applicable Order Form or SOW in time for Customer to meet its payment obligations. The terms and conditions of any PO (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) will have no effect on the rights or obligations of the Parties, regardless of any failure by Company to object to such terms and conditions.

6.6 If Customer fails to make the payment within 15 days of intimation of delay in payment, Company reserves the right to immediately suspend the Services and an interest of 12% per annum shall be applicable on the outstanding amount from such date up to the date of actual payment.

6.7 Company shall be entitled to assign its rights to receive payments under the Agreement to a bank or a financial institution.  

6.8 In case of any disputes with regard to the invoice, Customer must contact Company at [email protected] within 10 days of receipt of invoice in which the error appeared, in order to receive an adjustment, if applicable.

7. TERM AND TERMINATION 

7.1 The Agreement shall come into effect on and from the Effective Date and remain valid for the duration as set forth in the Order Form (“Service Term”). The Agreement shall be automatically renewed annually for subsequent renewal terms of 12 months each (“Renewal Term”). Either Party may discontinue any subsequent Renewal Term, by issuing at least 30 days written notice prior to the expiry of the subsisting Service Term or Renewal Term, as the case may be to the other Party (a “Elected Termination”). For avoidance of doubt, Elected Termination will not have any adverse effect on the subsisting Service Term or Renewal Term, as the case may be and associated payment obligations.

7.2 If the Go-Live Date (where applicable) exceeds beyond 8 weeks from the Effective Date (“Default Start Date“) for reasons attributable to the Customer, such Default Start Date shall be considered as the Go-Live Date and all applicable charges shall become payable by the Customer on such date.

7.3   Either Party may terminate this MSA, which will automatically result in termination of the Order Form and SOW, in the event of any material breach of the terms of the Agreement by the other Party: (i) immediately upon notice if such material breach cannot be remedied; or (ii) 30 days following written notice to the other Party if such material breach is capable of being remedied (including failure of Customer to pay any Fees in accordance with this MSA and the Order Form) and the breaching Party has failed to rectify the same within such 30 day period.

7.4 Either Party may terminate the Agreement or suspend the Services with immediate effect upon the happening of any of the insolvency events such as bankruptcy, appointment of receiver, administrator, liquidator, winding up, dissolution or any other analogous event, affecting itself or the other Party. 

7.5 Company  may immediately suspend your right and license to use any or all Services upon notice, if we have reason to believe that (i) there is an increase in your use of the Services for which there is reason to believe such traffic or activity is fraudulent, abusive, harmful, threatening, defamatory, offensive and/or negatively impacting the operating capability of the Service; (ii) Company determines, in its sole discretion, that the  provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.  Company shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service suspension. To the extent we are able, we will endeavor to provide you notice of any Service suspension and to post updates regarding resumption of Services following any such suspension.

7.6 Upon expiration or earlier termination of the Agreement;

(i) Customer shall immediately discontinue use of and access to the Yellow Technology and the Services.

(ii) Customer shall be liable to pay in full for the Services (including Third-party Fees ) up to and including the last day on which the Services are provided including work in progress for which instructions have been provided by Customer. Further, if Customer terminates this MSA for reasons other than that mentioned in Clause 7.3 and Clause 7.4 above, Customer shall continue to be liable to pay Service Charge for the remainder of the Service Term. For avoidance of doubt, Fees paid in advance shall not be liable for any refund or adjustment. 

(iii) Company shall provide a one-time data export of all the data of Customer available in the servers of Company in JSON format. Upon completion of the data export, such data and the account of Customer will be deleted from Company’s systems. If Customer does not opt for data export, Company shall delete such Customer Data from its servers after 30 days of termination in accordance with Company’s data retention policy.

(iv) All clauses of the Agreement which by their nature should survive termination will survive termination, including without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 

8. REPRESENTATIONS AND WARRANTIES 

8.1 Each Party represents and warrants to the other Party as below: 

(i) It is competent to enter the Agreement and execution of the Agreement binds the Party to perform in terms hereof.

(ii) Execution and performance in terms hereof is not in violation of any law, contract, order, or judgement by which such Party may be bound.

8.2 Customer represents and warrants to Company that it shall promptly communicate with Company if, at any time, it becomes aware of any occurrence causing any of its representations, warranties or covenants to become untrue.

9. INDEMNIFICATION 

9.1 By Company: Company shall defend and hold harmless Customer, its affected directors, officers, employees and its affiliates, from and against any and all losses, damages, demands, claims, actions, liabilities, fines, penalties, and related expenses (including reasonable legal fees) asserted by a third party based on an allegation that use of Services in accordance with the Agreement infringes a patent or copyright in India; if (a) any aspect of the Services is found by a court, or in Company’s reasonable opinion is likely to be found by a court, to infringe upon a third party intellectual property right, or (b) the continued use of the Services is enjoined (“Indemnity Event”). If an Indemnity Event arises, Customer shall promptly inform Company, and Company shall be entitled to, at its own expense: (i) obtain for Customer the right to continue using the Services in accordance with the Agreement; (ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non-infringing functional equivalent. If, after reasonable efforts, Company determines in good faith that options (i), (ii) and (iii) are not feasible, Company will remove the infringing item(s) from the Services and refund to Customer on a pro rata basis any Fees paid by Customer for such infringing element(s) that are unused as of the removal date.

Company will have no obligation to indemnify, nor liability, for any claim under this Clause 9 to the extent arising from: (i) any third-party services, (ii) the combination, operation or use of the Services with any product, device, software or service not supplied or authorized in writing by Company to the extent the combination creates the infringement; (iii) the unauthorized alteration or modification by Customer, or its Clients of the Services, (iv) Company’s compliance with Customer or its Client’s designs, specifications, requests, or instructions in providing Services to the extent the claim is based on such compliance, or (v) workflows, analytic applications, algorithms or other applications or programming built by Customer or created by or on behalf of Customer without Company’s approval.

9.2 By Customer: Customer will defend Company, affected directors, officers, employees and its affiliates from and against any claims asserted by a third party based on: (i) a breach by Customer of the obligations as envisaged in Clause 2 of this MSA; and (ii) access of Services and use of Yellow Technologies by Customer, its Clients or the End-User in a manner which is contradictory to the Agreement and applicable law. Customer will also indemnify Company, affected directors, officers, employees, representatives of itself or its affiliates by paying all damages, costs and expenses (including reasonable legal fees and costs) finally awarded by a court of competent jurisdiction or agreed in a written settlement agreement signed by Customer, arising out of the third party claims described in this Clause. 

9.3 Requirements for Indemnification: Each Party’s entitlement to indemnity shall be subject to: (a) prompt notice in writing of the claim to the other Party; and (b) allowing the other Party to take charge and full control of the claim. Where a Party wishes to claim indemnity from the other Party, it shall not negotiate, initiate or participate in any discussion with third party(ies) or enter into any settlement in respect of such claim without the express written consent of the other Party.

9.4 In no event shall either Party or its directors, officers, employees, or affiliates be liable to the other Party or its directors, officers, employees, affiliates for (a) for error or interruption of use; for loss, inaccuracy or corruption of data; for cost of procurement of substitute goods, services or technology; or (b) any loss of profits, revenue, opportunities, goodwill, or any indirect, consequential, incidental, special or punitive damages of any kind (even if advised of the same, except in respect of third party services availed for rendering Services), arising out of or in any way based on contract, tort, statute, equity, or any other legal theory.

10. LIMITATIONS OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, BUT ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE FEES AS MAY BE DUE TO COMPANY UNDER THE ORDER FORM AND SOW, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING FROM OR RELATING TO THE AGREEMENT WILL NOT EXCEED THE FEES ACTUALLY PAID BY AND DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

11. MARKETING ALLIANCE 

11.1 Parties may jointly announce via press release(s)/note(s)/social media release(s) to the mainlines, technology and industry-specific media, mentioning about the Services being provided by Company. The content, date, and format of the same shall be mutually agreed between the Parties. Further, based on mutual agreement, Customer may also provide Company with testimonial(s) regarding the Services.

11.2 During the validity of this MSA, Customer authorizes Company to publicly identify Customer as a ‘customer’ and include Customer’s updated name and/or logo on Company’s website and other promotional and marketing materials including for reference purposes in proposal documents.

11.3 If during the term of the MSA, the Customer enables a successful referral of a new customer for the Company, the Company at its discretion will offer the Customer, on mutually agreed terms, participation in joint promotional activities, global marketing campaigns and stage presence with the Company’s executives for strategic events.

12. ANTI-BRIBERY 

Customer represents and warrants that neither Customer nor any of its directors, officers, employees, agents, affiliates, or any other person acting on its behalf has made, or will make, directly or indirectly, any bribes, rebates, payoffs, influence payments, kickbacks, illegal payments, illegal political contributions, or other payments, in the form of cash, gifts, or otherwise, to any official of any government or any agency or instrumentality thereof or take any other action, in violation of Anti-Bribery Laws. ‘Anti-bribery Laws’ means domestic or international anti-corruption, anti-bribery, anti-kickback, anti-fraud, anti-money laundering, antiterrorist financing, trade sanction or embargo, export control, tax, or any other similar laws and regulations in jurisdictions in which Customer is established.`

13. MISCELLANEOUS 

13.1 Severability: If any of the provisions of this MSA is found to be unenforceable or invalid, barring that particular provision, the remainder of this MSA shall remain valid and enforceable. Parties shall discuss and agree on legally valid substitute provisions with a view to preserve the commercial intent. 

13.2 Assignment:  

(i) Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) the Agreement, or any rights or obligations thereunder, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that either Party may assign or otherwise transfer the Agreement and any rights or obligations hereunder, (a) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control, or (b) to its affiliate. For avoidance of doubt, any assignment by Customer shall take effect only if the assignee is bound by all the conditions applicable to the Services procured by Customer in terms of the Agreement. 

(ii) Notwithstanding anything to the contrary in this clause, in the event of any permitted transfer by Customer under this clause to a direct competitor of Company, Company will have the right to terminate this MSA, including all associated Order Form, and in the event of such a termination, Company will promptly refund to Customer, on a pro rata basis, all Fees prepaid by Customer under the Order Form. 

13.3 Entire agreement: This MSA along with the Order Form constitutes the entire understanding between the Parties in relation to the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements and may only be modified by a document signed by authorised representative of both Parties. 

13.4 Waiver: No waiver will be implied from conduct or failure to enforce or exercise rights under this MSA, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived.

13.5 Independent status of Parties: No agency, partnership, joint venture, or employment is created as a result of this MSA, and Customer does not have any authority of any kind to bind Company in any respect whatsoever, except as expressly specified herein.  

13.6 Non-Solicitation: Customer shall not during the term of this MSA, and for a period of six months thereafter, hire, retain, or engage, or make an offer in respect of the same, to any employee of Company engaged directly in the provision of the Services to Customer.  

13.7 Notice: All notices, requests, demands and other communications given or made in accordance with the provisions of the Agreement shall be in writing by letter or email and shall be deemed to have been received by the other Party when emailed on the email address provided by such Party in the Order Form.

All notices shall be given to or made upon the respective Parties as follows:

13.8 Dispute Resolution: If there is any controversy, dispute or claim arising out of or relating to this Agreement, the Parties shall endeavour to settle it promptly, in good faith. If the dispute cannot be resolved, the Parties shall promptly initiate and participate in good faith mediation of the dispute, with the mediator to be selected jointly by the Parties. If the dispute is not resolved through mediation, the Parties shall promptly submit such dispute to binding arbitration in accordance with the Arbitration and Conciliation Act, 1996, with one arbitrator to be jointly selected by the Parties. Judgment upon the award rendered by the arbitrator may be entered in courts of competent jurisdiction in Bengaluru, India. Provided however the foregoing shall not restrict Company from seeking recourse to the competent court(s) for interim relief.

13.9 Governing Law & Jurisdiction: The Agreement shall be governed and construed in accordance with the laws of India. If there is any controversy, dispute or claim arising out of or relating to interpretation or breach of the Agreement, the courts in Bengaluru, India. shall have exclusive jurisdiction without regards to conflict of law provisions.