DATA PROTECTION & PRIVACY

(i) Unless explicitly stated otherwise in these Terms of Use, the Client shall be responsible to ensure that relevant consents under Applicable Data Protection Laws have been obtained from the users and/or individuals/ data subjects. The Client hereby agrees and acknowledges that the Company shall have no liability towards any users arising as a result of the collection and processing of any Personal Data by the Client.

(ii) The Client shall be responsible to maintain records of all consents collected as per the Applicable Data Protection Laws. The Client shall be liable to pay for any damages that the Company incurs due to inaccurate and/ or insufficient consents received from any users.

(iii) The Company will not use Personal Data collected on behalf of the Client, received from the Client or its authorized personnel or otherwise processed on behalf of the Client for any purpose other than as necessary for the utilization of the Solution under these Terms of Use.

(iv) The Parties shall be compliant with the provisions of Applicable Data Privacy Laws and shall undertake reasonable security practices as may be prescribed under such Applicable Data Protection Law.

(v) Cloud API: WhatsApp Infrastructure means WhatsApp Enterprise Client deployment which helps communication between users and the UPWAW platform.
- The Client hereby confirms and agrees that upon sharing the data on the WhatsApp infrastructure, all the data shared by the Client in relation to the WhatsApp messaging will now reside on Cloud API's ("Data Residence"), a Meta Product.

- It is further understood and accepted that any Client data previously routed & stored on WhatsApp infrastructure i.e. for the purpose of messaging/notification on WhatsApp, the WhatsApp infrastructure shall henceforward be migrated to the data centers which are currently located in North America and European Union via Cloud API service by Meta.

- For the purpose of the provision of services under this Agreement, the Client hereby acknowledges that for the WhatsApp infrastructure data localization is not offered by the Company for any such data shared or obtained by the Company in the process of providing the WhatsApp messaging to the Client.
 

DISCLAIMERS OF WARRANTIES

(i) To the extent permitted by the Applicable Laws from time to time, the Company disclaims any and all representations and warranties that the Solution provided under these Terms of Use shall be uninterrupted, error-free and devoid of any bugs, viruses, bots or that the Solution shall be provided as timely and/or secure and/or on uninterrupted basis.

(ii) The Company shall not be liable for any errors, omissions, interruptions, deletion of files or emails, loss of or damage to data, errors, defects, viruses, delays in operation or transmission, or any failure of performance, communication failure, data pilferage due to the use of any data or information in respect of the Solution.

INDEMNITY

(i) Client Indemnity: The Client hereby agrees to indemnify, defend and hold harmless the Company, its Affiliates, directors, officers, agents, employees from and against any and all losses, liabilities, claims, damages, demands, suits, actions, proceedings, costs and expenses, incurred or suffered by the Company, in connection with or arising out of: (a) Breach of or violation of or non-compliance with any of the obligation, warranties, representation, covenants and undertakings herein, by the Client or any of its representatives; (b) infringement of any third party’s Intellectual Property Rights for availing the Solution from the Company. (ii) Company’s Indemnity: The Company agrees to indemnify, defend and hold harmless the Client from and against any and all losses, liabilities, claims, damages, demands, suits, actions, proceedings, costs and expenses in connection with or arising out of any third party claims for providing Solution to the Client.

LIMITATION OF LIABILITY

(i) Neither Party shall be liable to the other Party for any indirect, special, incidental, punitive or consequential loss or damages of any kind, or for any loss that could have been avoided by the use of reasonable diligence, arising in connection with the Terms of Use, even if the Party responsible for the damages has been advised or should be aware of the possibility of such damages.

(ii) In no event shall the maximum aggregate liability of the Company under these Terms of Use to the Client whether arising from contract, indemnity, tort or otherwise, exceed the amount of the Fees payable by the Client to the Company in the twelve (12) months preceding the date on which the claim arose.

INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property Rights in and title to the Solution, the present or future modifications, Updates and Upgrades shall unconditionally remain under the exclusive ownership of the Company at all times. These Terms of Use does not and shall not transfer any ownership or proprietary interest in the Solution from the Company to the Client, except as may be otherwise expressly provided herein or as may be agreed in writing by and between the Parties. The Client understands and acknowledges that the License granted herein pertains to the Solution solely developed by the Company, and does not include a license to any third-party software or intellectual property. Unless otherwise expressly agreed upon, the Client shall be solely responsible for obtaining and maintaining such third-party software and Intellectual Property Rights, at its sole cost and expense. The Client shall have no rights whatsoever with respect to any other software or products developed by the Company, not expressly subscribed or licensed under these Terms of Use. In the event the Client subsequently desires to license or deal in any other manner with any other software developed by the Company, then the Parties will negotiate in good faith to determine the terms upon which such other software/ solution would be provided to the Client. The Client shall at no time, during the Term or after its termination, contest the validity or ownership of the Intellectual Property of the Company. The Client shall not use or register any trademark, design, product name or trade name which is confusingly similar to Company’s trademarks, product names or trade names. The Client agrees to promptly notify the Company of any claims, demands or notices arising in connection with the Intellectual Property of the Company. The Client shall provide necessary support, execute documents and do such acts and things as may be reasonably requested by the Company in this regard.

INDEPENDENT CONTRACTOR

The relationship between Parties shall be on principal-to-principal basis. Each Party is an independent contractor and is not a legal representative, partner or agent of the other Party. Neither Party shall have any right, power or authority, whether express or implied, to create any obligation on behalf of the other Party or bind the other Party.

GOVERNING LAW, ARBITRATION AND JURISDICTION

Any and all questions of enforceability and interpretation, which may arise under these Terms of Use, shall be determined and governed by and in accordance with the laws of UK and subject to the arbitration clause as set out below, the courts located at Mumbai shall have exclusive jurisdiction. In the event of any dispute arising out of or in relation to these Terms of Use, each Party shall make efforts to resolve the same amicably through their respective representatives/ senior management of both the parties. In case the dispute is not resolved amicably within 30 (thirty) days of arising of such dispute, then the dispute shall be referred to arbitration before a sole arbitrator appointed jointly by both Parties, in accordance with the Arbitration and Conciliation Act, 1996 and any amendments thereafter. The venue of arbitration shall be Mumbai. The language of the arbitration proceedings shall be English. Notwithstanding anything to the contrary, the Parties may agree to conduct the arbitration proceedings virtually through such video conferencing or other audio-visual means as may be mutually agreed between the Parties.

PUBLICITY

It is agreed between the Parties that the Company reserves the right to use certain details of the Client, including but not limited to the logo or name of the Client and any performance metrics obtained under these Terms of Use for its own marketing and advertising purposes. The Client hereby expressly consents to the usage of such details by the Company and provide the Company a perpetual, irrevocable, worldwide, royalty free license for the provision of such usage.

FORCE MAJEURE

Except for the duty to make payments hereunder when due, and the indemnification provisions under these Terms of Use, neither the Company nor the Client shall be liable by reason of any failure or delay in the performance of its obligations arising out of a Force Majeure Event. As used in these Terms of Use, “Force Majeure Event” shall mean: any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes (except financial) beyond the control of either Party. In the event, if one or more Force Majeure Events results in delay of 15 (fifteen) consecutive days in the performance of the obligations under these Terms of Use, the Parties shall mutually discuss to terminate these Terms of Use without any further liability. However, the Client shall be liable to pay the Company for the utilization of the Solution provided in accordance with these Terms of Use.

CONTACT DETAILS

All communications or notices permitted or required to be given or served to the Company under these Terms of Use shall be in writing, shall be addressed to the Company as per the details set out below. These details may be updated from time to time by the Company and shall also be made available on the Solution.

Email ID: info [@] upwaw.com

SURVIVAL AND SEVERABILITY

The rights and obligations arising out of these Terms of Use, which by their nature should survive or are expressly so stated herein, shall remain in full force and effect to the extent so specified, notwithstanding any expiry or termination of these Terms of Use. If any provision of these Terms of Use (or any portion thereof) is determined to be invalid or unenforceable the remaining provisions of these Terms of Use shall not be affected by such determination, shall be binding upon the parties and shall be enforceable.

WAIVER

Neither Party shall, by mere lapse of time, without giving notice thereof, be deemed to have waived any right or remedy arising hereunder or in connection with any breach or illegality involving the other Party. The waiver by either Party of any such right or remedy shall not be construed as a waiver of any other right or remedy or as a continuing waiver with respect to any similar, ongoing, or repeated circumstances.

ASSIGNMENT

The Company may assign these Terms of Use and/or part thereof at its discretion, at any time, to any of its Affiliates, group companies, holding company, subsidiary companies, third parties without any notice to the Client. However, the Client shall not assign these Terms of Use or any part thereof to any party without taking prior written consent of the Company.