THESE TERMS OF SERVICE (the “TOS”) governs how you (“Customer”) may use the Software-as-a-service products and other services provided by Mehery SocCom Pvt Ltd, (“Company”) and its affiliates. Customer and Company are each a “Party” and collectively the “Parties”.

By registering or using our Services you agree to be bound by the TOS. If you are using the Services or the Websites on behalf of an organization, you are agreeing to these TOS for that organization (in which event, “you”, “your” or “Customer” will refer to that organization) and representing to the Company that you have the authority to bind that organization to the TOS unless that organization has a separate written contract in effect with us (an “Agreement”), in which event the terms of the Agreement will govern your use of the Services; provided that if there is any conflict between the TOS and an Agreement, the provisions of the Agreement shall prevail.

IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES.

We may, in our sole discretion, modify the Terms of Service via email or by posting notice on any part of the Services or the on Website. The “Last Updated” date at the top the TOS indicates when the latest modifications were made to the TOS. By continuing to access and use the Service, you agree to any such modifications. In addition, when using particular services or features, you may be subject to any posted guidelines or policies applicable to such services or features that may be posted from time to time, including but not limited to the Privacy Policy.

If you have any comments or questions regarding the TOS, or wish to report any violation of the TOS, you may contact us at legal@mehery.com

1.      DEFINITIONS AND INTERPRETATION

1.1 Definitions

In these Terms and Conditions, the following expressions shall, unless where the context otherwise requires, have meaning hereby respectively assigned to them:

1.1.1 “Bankruptcy Event” means any of the following events with respect to a Party: a Party is to be dissolved or liquidated, makes an assignment for the benefit of creditor, files a petition relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts (or consents to or fails to contest in a timely manner any such petition filed against it), is adjudicated insolvent or bankrupt, petitions or applies to any tribunal for any receiver or trustee, commences any proceeding relating to itself under any bankruptcy or similar law of any jurisdiction, has commenced against it any such proceeding which remains un-dismissed for a period of forty-five (45) days, consents to, approves of, or acquiesces in any such proceeding, or any receiver of or trustee for such Party or any substantial part of the property of such Party is appointed, or takes any corporate action for the purposes of effecting any of the foregoing;

1.1.2 “Business Day” shall mean any day other than a Saturday, Sunday and a Gazette holiday declared by the Central Government of India;

1.1.3 “Confidential Information” means any information pursuant to these TOS or the data pertaining to the business of either Party, which is communicated to the other Party, orally or in writing or by electronic mail or in any other tangible or machine-readable form, directly or indirectly, by one Party. For the purpose of these TOS, the term Confidential Information shall include any and all information, ideas, plans, content, knowledge, know how, concepts, market survey, budgets, cost sheets, estimates, techniques, including without limitation to matter, materials, things, performance, literary content, audio, visual, audio-visual, pictures, drawings, photographs, any medium of communication, creatives, designs, computer programs, algorithms, advertisements, floppies, transparencies, presentations, and all other information and data pertaining to the Services to be rendered by the Service Provider;

1.1.4 “Effective Date” is the date on which you sign up for the Services online, or as per the date mentioned in the Agreement, if there is a separate Agreement between yourselves and the Company.

1.1.5 “Intellectual Property Rights” or “IP” means the rights in patents, patent applications, and patent disclosures, together with all re-issuances, continuations, continuations-in-part, revisions, extensions and re-examinations thereof; designs, present and future copyrights, all copyrightable works, all copyrights and all applications, know-how, proprietary processes, inventions, formulae, algorithms, models and methodologies, rights of privacy, know-how and trade marks (whether registered or not) all license agreements relating to any of the foregoing, and general intangibles of like nature, together with all goodwill related to the foregoing including application to register any of the aforementioned rights registrations and renewals in connection therewith moral rights, trademarks, service marks, logos, trade names and corporate names, together with all adaptations, deprivations and combinations thereof, including all goodwill associated therewith and all applications, registrations and renewals in connection therewith: database rights (including rights to extract information from databases) all other proprietary rights of whatsoever description whether or not protected and whether or not capable of protection, and semi-conductor topography rights in each case whether registered or not (including applications for registration), confidential, technical or commercial information, know-how, trade secrets, inventions or any similar rights or forms of protection, all copies and tangible embodiments thereof regardless of form and medium existing anywhere in the world;

1.1.6 “Law” or “Laws” means in relation to the obligations of the Parties under these TOS, any statute, laws, regulation, ordinance, rule, judgment, order, decree, clearance, approval, directive, guideline, code, standard, manual, policy, requirement, or other government restriction or any similar form of decision, or determination by any government authority, whether in effect as of the Effective Date or thereafter, and in case as amended from time to time;

1.1.7 “Messages” shall mean communication with the WhatsApp Business API and shall constitute both Session Messages and Template Messages as defined by Facebook.

1.1.8 “Person” means any legal and/or natural and/or juristic person including an individual, company, association, corporation, sole proprietorship, partnership, trust, /unincorporated entity or other entity/organization, including a government or political sub-division, or agency or instrumentality thereof;

1.1.9 “Promotional Messages” means messages which are promotional in nature and are mainly used to promote brands, provide new offers, educate customers and or such other marketing or promotional activity;

1.1.10 “Session Messages”, are a combination of inbound and outbound messages that comprise Customer initiated communication, BOT responses and Agent responses;

1.1.11 “Services” means the services provided by MeherY to Customer as more particularly set out in Schedule – I;

1.1.12 “Term” means the term as provided in Clause 3;

1.1.13 “Transactional Messages” means a message pertaining to a specific transaction between customer and its subscribers and such messages contain text which communicates details about a transaction, service, product, offer, that which has been solicited by a subscriber with customer.

1.1.14 “Two-way Session Messages” are calculated as Sum of inbound and outbound messages, divided by a factor of 2

1.2          Interpretation

In these TOS, unless the context otherwise requires,

1.2.1 any reference to the singular shall include the plural and vice-versa;

1.2.2 the Recitals and Schedules shall form part of these TOS

1.2.3 headings to Clauses and Schedules are for convenience only and do not affect the interpretation of these TOS;

1.2.4 the words “include” and “including” shall be construed as being by way of illustration or emphasis only, and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding words;

1.2.5 Unless the context otherwise requires, words importing the singular include the plural and vice versa, and pronouns importing a gender include each of the masculine, feminine and neuter genders;

1.2.6 The terms “hereof”, “herein”, “hereby”, “hereto” and derivative or similar words refer to this entire TOS or specified Clauses of these TOS, as the case may be;

1.2.7 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 these TOS) for the time being in force and to all statutory instruments or orders made pursuant to such statutory provisions;

1.2.8 The words “directly or indirectly” mean directly or indirectly through one or more intermediary Persons or through contractual or other legal arrangements, and “direct or indirect” shall have the correlative meanings;

1.2.9 References to the knowledge, information, belief or awareness of any Person shall be deemed to include the knowledge, information, belief or awareness of such Person after examining all information and making all due diligence inquiries and investigations which would be expected or required from a person of ordinary prudence;

2. SERVICES

During the Term of these TOS and any extension to the same, MeherY shall provide the following services to Customer more particularly set out in schedule – I

3. TERM

These TOS shall be valid for a period as defined by the License procured by the Customer from the “Effective Date” as mentioned hereinabove. It shall be continuously and automatically renewed for further periods of the same Term or a different Term (only if modified by the Customer), unless terminated by either party under clause 9 of the TOS.

Either Party has the right to terminate the TOS at the end of each Term, by giving a notice of 30 days before the date of expiry of the then current Term of the TOS.

4. FEES AND PAYMENT TERMS

4.1 Customer shall pay to MeherY the contracted fees (the “Fees”) as set out in Schedule – II. The Fees shall be exclusive of tax, and the tax applied, shall be as per the applicable tax laws, at the time of raising the Invoice.

4.2 All Message charges shall be pre-paid by the Customer. An invoice is issued at the end of each month, balancing the actual usage against the existing prepaid credit plus charging a new prepayment for the next month. Upon expiry of the credits, the services shall stop until the credit is re-instated by the Customer. Applicable only if Messages are used.

4.3 The prepayment must cover the estimated fees for all Messages sent by all WABA numbers under this contract for one (1) month. The prepayment is updated on a monthly basis and is calculated as follows:

Last month’s total Message cost multiplied with factor 1.3 rounded to the next US$ 150. Minimum prepayment is US$ 300. This is applicable only if Messages are used.

4.4 MeherY reserves the right to adjust the Fees, not more than once per year. Such increases will be announced with at least six-weeks’ notice in writing or text form. If Customer does not agree with a Fee adjustment, Customer may terminate the TOS to the day of the increased prices becoming effective.

4.5 MeherY will send invoices to the Customer for the Fees, as detailed in Schedule – II of these TOS.

4.6 Customer shall verify the invoices from MeherY and thereafter pay such valid invoices within ten (10) Days of receiving the said notice. Invoices will be raised and shall be delivered by e-mail.  Customer shall notify MeherY of any discrepancy in the invoice within 7 days of receipt of the same; thereafter queries shall not be entertained.

Failure to raise a discrepancy in accordance with the terms of this Clause will create an irrefutable presumption of the correctness of the charges mentioned in the invoice, absent manifest error, and the Customer will have lost its right to raise dispute on that invoice thereafter.

In the event that there is a discrepancy raised by the Customer, and such discrepancy is not considered valid by Mehry and the same is communicated by the latter to the former, then 85% of the amount so disputed shall be payable as per the payment terms of this contract, while efforts are being made to reconcile this discrepancy.

4.7 Notwithstanding anything contained herein, MeherY shall be free to suspend, disconnect the Services without any liability, whatsoever, to the Customer, in the event of any default by the Customer in one or more of such payments without prejudice to its rights under the Applicable Laws.

4.8 MeherY confirms that it is a tax resident of India, and its Permanent Account Number is AALCM2125L.

4.9 Without derogation from any right or remedies available to MeherY under any applicable Law, MeherY may charge, and Customer shall pay interest on any sums which are overdue after a period of fifteen (15) Business Days from the receipt of a valid invoice, at the rate of 12% per annum from the due date, until the date of payment in full.

4.10 MeherY acknowledges and agrees that the Fees constitute the total consideration for MeherY’s performance and its obligations under these TOS.

5. MEHERY’S OBLIGATIONS

During the Term, MeherY shall:

5.1 Provide Services in an efficient and timely manner;

5.1 Fully adhere at all times to all notifications, guidelines and regulations as issued by applicable regulatory authority.

5.3 Ensure readiness and uptime of the Platform; and

5.4 Ensure that response times of the applications are within the expected levels to enable the synchronous response mechanism.

6. CUSTOMER’S OBLIGATIONS

During the Term, Customer hereby undertakes that:

6.1 the content / information in the Message/ conversation messages, as the case may be delivered by MeherY will not infringe the copyright or other rights including right to privacy / publicity or be defamatory or libelous of any third party;

6.2 the content / information will comply with all applicable laws including but not limited to TRAI, Information Technology Act, and other applicable ordinances, rules, regulations and guidelines in effect as notified by the Government of India from time to time;

6.3 no advertising, solicitations, marketing, or promotional content of any kind will be sent via Digital Messaging unless the same is allowed under the applicable law for the time being in force.

6.4 the content / information will not contain any material which is obscene, offensive 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;

6.5 it has taken or will take all necessary steps to ensure that nothing is or will be contained in the Content/Information which might make its transmission illegal or actionable for any reason as per any applicable laws.

6.6 provide brand logo image (350 x 350 pixels) and business profile details to feature in the WhatsApp Business account of the Customer, any other such material requested by Mehry, which improves authenticity of the message as originating from the customer’s brand

6.7 to comply with the terms & conditions/use policies of WhatsApp during the use /sending messages through WhatsApp from time to time. The said policies can be accessed at the URL’S given below. The content of these URL’s may undergo a change from time to time in line with the policies of Facebook and WhatsApp.

https://www.whatsapp.com/legal#key-updates . https://www.whatsapp.com/legal/business-solution-terms  https://developers.facebook.com/docs/whatsapp/guides  https://www.whatsapp.com/legal/business-solution-policy

7. WARRANTIES, REPRESENTATIONS AND COVENANTS

7.1 MeherY and Customer warrant, represent and covenant to each other that:

7.2It has the full right, capacity and authority to execute, deliver and perform these TOS;

7.3 Nothing in these TOS or otherwise shall entitle either Party to make any representations or warranties on behalf of the other Party or enter into contracts or arrangements on behalf of the other Party, and Parties assumes no liability and responsibility for any representation made by each other to any third party, except as otherwise specifically agreed by Parties under these TOS;

7.4 Customer confirms that there are no legal, quasi-legal, administrative, arbitration, mediation, conciliation or other proceedings, claims, actions, governmental investigations, orders, judgments or decrees of any nature made, existing, or pending or, to the best knowledge of the Customer, against it which may prejudicially affect the payment obligation, of or enforceability, of these TOS or any obligation, act, omission or transactions contemplated hereunder;

7.5 Each Party represents, warrants and undertakes throughout the Term that it will comply with, and shall continue to comply with, all Applicable Laws and regulations as may be applicable to its obligations hereunder;

7.6 Financial Capacity: The Parties have sufficient financial resources for fulfilling all its monetary obligations under these TOS;

7.7 No Conflicts: The execution, delivery and performance by each Party of these TOS and the consummation by each Party of the transaction contemplated hereby will not violate, conflict with or result in breach by either Party of (i) any provisions of such Party’s documents of incorporation; (ii) any provision of any TOS to which such Party is a party or any other legal obligation by which such Party is bound; (iii) any law or order of any governmental authority applicable to such Party; or (iv) requirement of any material order, consent, clearance, approval or authorization of or filing with any governmental authority;

7.8 Valid and Binding Obligations: These TOS constitutes its valid and binding obligations, enforceable against the Parties in accordance with their terms, except to the extent that enforcement may be limited by applicable bankruptcy, insolvency or other laws of general application affecting creditors’ rights or the application of equitable principles;

7.9 Each of the representations and warranties shall be construed as a separate representation. Warranty, covenant or undertaking, as the case may be, and shall not be limited by the terms of any other representation or warranty or by any other term of these TOS. Each of the representations and warranties shall be valid for the entire term;

7.10 In connection with these TOS as well as all transactions contemplated by these TOS, the Customer agrees to execute and deliver such additional documents and to perform such additional actions as may be necessary and appropriate or requested by the MeherY;

7.11 Except for the foregoing, the Parties make no express or implied warranty or condition under these TOS;

8. CONFIDENTIAL INFORMATION

During the tenure of these TOS the Parties shall share information that is indicated as Confidential Information to each other.   The Parties shall protect Confidential Information of the other party and shall not use such Confidential Information for use other than as required under these TOS. The Confidential Information shall exclude:  all information that (a) is available in public domain through no act or omission of the recipient; (b) is disclosed to a third party by the disclosing party without restrictions on disclosure or use; (c) is rightfully acquired by the recipient from a third party without breach of any legal or contractual obligation; (d) is developed without breach of a duty of confidentiality independently of and without access to any Confidential Information of the disclosing party; or (e) was lawfully in the recipient’s possession before receipt from the disclosing party as evidenced in writing; or (f) Notwithstanding anything in the foregoing to the contrary, the Receiving Party may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that the Receiving Party promptly notifies, to the extent practicable, the Disclosing Party in writing of such demand for disclosure so that the Disclosing Party, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided that the Receiving Party will disclose only that portion of the requested Confidential Information that, in the written opinion of its legal counsel, it is required to disclose.  The Receiving Party agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, the Disclosing Party with respect to any such request for a protective order or other relief.  Notwithstanding the foregoing, if the Disclosing Party is unable to obtain or does not seek a protective order and the Receiving Party is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.

9. TERMINATION

9.1 Either Party may terminate these TOS by giving a prior written notice to the other Party:

9.2 Forthwith upon the occurrence of a liquidation, bankruptcy, appointment of liquidator, passing of resolution for dissolution with respect to the other Party and shall terminate the TOS with immediate effect; or

9.3 if the other Party commits a material or persistent breach of these TOS which it cannot remedy or which it fails to remedy within thirty (30) Business Days of receiving a prior written notice requiring it to do so; or

9.4 If any representations or warranties provided by either party are found to be false or incorrect;

9.5 If either, advertently or inadvertently, disregards or violates any applicable laws or conditions of any applicable license;

9.6 If either party suffers any material adverse changes or adverse effect which is likely to hinder performance either party’s obligation under these TOS;

9.7 Without prejudice to other rights available to MeherY under these TOS, MeherY reserves the right terminate the TOS with immediate effect in following events:

9.7.1 any misuse of services provided by MeherY

9.7.2 any illegal and unlawful content is sent by customer using MeherY’s platform.

9.8 Refunds

9.8.1 There will be no refunds due to Customer for Mehery Services

9.8.2 For WhatsApp messaging based charges, in case there is an unutilized amount (difference between amount paid to Mehery as advance and the cost of the utilized WhatsApp based messaging services), the same shall be adjusted against any pending amounts from the Customer and after such adjustments, the balance due shall be refunded to the Customer within 30 days of the termination of the Services.

10. CONSEQUENCE OF TERMINATION

10.1 If these TOS is terminated pursuant to Clause 9 above:

10.1.1 MeherY shall immediately suspend rendering the Services to Customer after the notice period. In cases pursuant to law the suspension will be immediate.

10.1.2 Each Party shall return to the other within seven (7) Business Days after termination of these TOS or destroy (at that Party’s request) all confidential or proprietary information supplied pursuant to these TOS and will certify, if required, the destruction of the confidential proprietary information, including the Software copies, if any, thereof;

10.2 Customer shall settle all the valid invoices pending bills immediately.

10.3 Termination or expiry of these TOS does not affect the rights, liabilities or obligations of any Party which have arisen on or before termination or which are expressly or impliedly to survive termination or expiry or the right to claim damages for breach of these TOS.

10.4 Notwithstanding anything contained herein, clause 10.2 and 10.3 shall survive the termination of these TOS.

11. INDEMNITY AND LIMITATION OF LIABILITY

11.1 Under no circumstances shall either Party be liable for special, indirect, exemplary, incidental and/or consequential damages, including but not limited to loss of business profits, business interruption, loss of business information or other pecuniary loss, even if the Party has been advised of the possibility of such damages.

11.2 Either Party shall indemnify, defend and hold the other party and their respective officers, directors, and employees, harmless from and against all claims, damages, liabilities, costs, losses and expenses, including reasonable attorneys’ fees and expenses incurred directly due to:

(i) Breach of any of the terms/obligations of these TOS by the other party.

(ii) any of the representations and warranties being declared false by any court of competent jurisdiction;

(iii) any claim or action initiated by any third party relating to actual or alleged breach / default / violation or omission by either party of compliance of any laws, rules, regulations, notifications, terms, policies applicable for the promotion of any of its Products, sending SMS through digital channel;

(iv) Infringement by either party of any intellectual property rights or proprietary right of any third party or any data provided by the customer infringes or causes infringement of copyright, trademark, patent or any other similar intellectual property rights of a third party except to the extent of infringement.

11.3 The aggregate liability of either Party to the other Party, if any, for any losses or damages arising out of or in connection with these TOS, whether the claim is in contract, tort or otherwise, whether there is a major or minor breach of the terms, or there is a major or minor falsity in the representations made herein, shall be only to the extent of actual amount incurred subject to the maximum of last actual monthly billing by MeherY to Customer under these TOS for such Service except in case of breach of applicable laws or breach of confidentiality obligations detailed herein.

Provided that, this clause shall not apply to damages suffered as a consequence of the reasons mentioned in 11.2 (ii) (iv)(v)(vi)

11.4 Notwithstanding with anything mentioned in this contract, Customer shall be solely and exclusively responsible for the content of all messages and database transmitted by means of MeherY’s Service and will fully adhere to all notifications, guidelines and regulations as issued by WhatsApp/TRAI or any other regulator, judicial authority and/or linked digital channel platform from time to time. Customer shall indemnify and hold harmless MeherY and its respective officers, directors, and employees, harmless from and against all claims, damages, liabilities, costs, losses, penalties and expenses, including reasonable attorneys’ fees and expenses incurred thereto.

11.5 In the event that there is a loss, hack, misuse, destruction or theft of data, whether confidential or not, and such has occurred notwithstanding reasonable care, caution, skill, implementation of technical and organizational measures taken by Mehry, then Mehry shall not be held liable for any damages as a consequence of the same. And such an event shall not be considered as a breach of a contractual obligation.

12. Data Protection:

12.1 In the course of implementation of these TOS, MeherY may obtain access to Personal Data of the Customer’s Customer. Such data will be considered Confidential Information of Customer at all times. MeherY shall protect the same and shall be bound in accordance with Confidentiality provision.

12.2 Data received from the Customer shall be considered as confidential information at all times and MeherY and its representatives shall protect the same and shall be bound in accordance with the confidentiality provision.

12.3 In relation to the foregoing, the Customer provides, Personal and/ or Transactional Data of Customers, in view thereof, MeherY shall ensure that –

(i)MeherY shall secure such Data of Customers, by implementing all reasonable technical and organizational measures in accordance with industry best practices) for preventing any unauthorized or unlawful access to, or accidental loss, damage or destruction of, such Personal  or Transactional Data. MeherY will promptly notify the customer in writing on becoming aware of any breach of the foregoing.

(ii)MeherY shall solely fulfil the purpose as mentioned under these TOS and for no other purpose. Such Representatives’ access to Personal or Transactional Data will be only on a read and process only basis and they shall not be allowed to print or download any Personal or Transactional Data.

12.4 MeherY shall comply with Applicable Laws, as a processor of Personal Data received from the customer and adhere to the requirements of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 (India), the Information Technology Act, 2000 (India) and any rules thereunder.

12.5 MeherY shall store Customer data shared with MeherY during subsistence of TOS, for the period specified under the applicable law.

12.6 MeherY shall take appropriate measures against unauthorized or unlawful access and against any resultant loss or destruction of, or damage to, such data and against accidental access or any misuse and shall immediately notify the customer when it becomes aware of breach of this clause.

13. FORCE MAJEURE

13.1 Any delay or failure by a Party to perform an obligation under these TOS shall not constitute a breach of these TOS to the extent that it is caused by a Force Majeure Event.

13.2 For the purposes of these TOS, a “Force Majeure Event” means any event including Acts of God or such other events beyond the reasonable control of the affected Party including government action, orders, terrorist activities, lightning, earthquake, tempest, cyclone, flood, volcanic eruption or fire or other casualty or accident or landslide, war or other violence or limitation/ suspension/ termination by WhatsApp of WhatsApp business solution or by operator or any cyber-attack or technological disruptions or any change in government policies directly or indirectly interrupting the performance of the affected Party in terms of these TOS and which event prevents the affected Party from performing its obligations under these TOS and which act or event is beyond the reasonable control and not arising out of the fault of the affected Party and the affected Party has been unable to overcome such act or event by the exercise of due diligence and reasonable efforts, skill and care, including through expenditure of reasonable sums of money. Upon cessation of such condition, the affected Party shall promptly resume performance hereunder. Each Party agrees to give the other Party prompt written notice of the occurrence of any such condition, the nature thereof, and the extent to which the affected Party will be unable to perform its obligations hereunder. 

13.3 In case Force Majeure Event continues for more than thirty (30) calendar days, a Party may terminate the TOS with notice to other Party.

13.4 No amounts shall be paid by Customer to MeherY for the period of Force Majeure Event.

14. PRINCIPAL TO PRINCIPAL ARRANGEMENT

The parties have signed these TOS on Principal to Principal basis and there is no partnership, agency relationship, and a party cannot bind or make contracts on behalf of other party. 

15. SEVERABILITY

The Parties agree that the covenants, obligations and restrictions in these TOS are reasonable in all circumstances. If any provision of these TOS is held to be illegal, invalid, or unenforceable under any present or future law, (i) such provision shall be fully severable; (ii) these TOS shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof; (iii) the remaining provisions of these TOS shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance here from; and (iv) in lieu of such illegal, invalid, or unenforceable provision, there shall be added a legal valid and enforceable provision as similar in terms and effect to such illegal, invalid or unenforceable provision as may be possible.

16. ARBITRATION AND GOVERNING LAW

 16.1 If any disputes, differences or questions, which may arise at any time between Customer and MeherY in connection with the validity, interpretation, construction implementation or alleged material breach of any provision of these TOS, or performance of any obligations or enforcing any rights and/or liabilities of the Parties to these TOS, the Parties hereto shall endeavor to settle such dispute amicably.

16.2 In the case of failure to resolve the dispute within 15 days, the same shall be referred to a panel of 3 arbitrators, one to be appointed by each Party, and the third to be appointed by the two selected arbitrators. The arbitration shall be conducted in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modifications or re-enactment thereof for the time being in force. The language of the arbitration shall be English. The venue of such arbitration shall be at Mumbai and the Courts at Mumbai alone shall have the jurisdiction to deal with the legal proceedings and the awards in accordance with law.

16.3 Provided that:

16.3.1 The parties are at their discretion to invoke the above said arbitration clause for resolution of disputes, party opting for an arbitration clause, hereinafter referred to as the “Initiating party” shall notify its intention to the other party in writing via letter or email, stating the details of the dispute, the prayers, and the name of the Arbitrator who they would like to appoint.

16.3.2 The date of receipt of ‘Arbitration Notice’ by the party receiving such notice, hereinafter referred to as “Defending Party”, shall be recorded as the date of commencement of the Arbitration Proceeding.

16.3.3 The “Defending Party” must within 15 days of receiving the ‘Arbitration Notice’ mentioned above, submit in writing the details of the Arbitrator to be appointed on their behalf.

16.3.4 If no such arbitrator is nominated by the “Defending Party” within the prescribed time, and manner, the Court shall appoint the same, on application by either party.

16.3.5 Both parties agree to appoint arbitrators who are Indian residents, above the age of 30 and Advocates by profession. To not appoint arbitrators who are indirectly or directly related to the parties or the subject matter in dispute.

16.3.6 The 2 arbitrators appointed, shall within 15 days of the second arbitrator being appointed, jointly decide on who they would want to appoint as the third and presiding arbitrator.

16.3.7 In the event that the 2 Arbitrators cannot agree upon who to appoint as the third Arbitrator, the same shall be appointed by the High Court of Mumbai, and/or any individual or committee designated by it, for this purpose, on application by either party.

16.3.8 In the event that the mandate of an Arbitrator(s) is terminated, due to his withdrawal from the office of the Arbitrator, or due to death or health reasons the proceedings shall not be repeated in front of the new Arbitrator (s), and it shall continue as if no change was made. All hearings, and procedures shall continue from where they were left off. However, if both parties agree to repeat a certain or all the proceedings, the same shall be repeated in front of the new constituted tribunal.

16.3.9 All awards passed by the prior arbitrator (s) shall continue to be binding on the parties and shall not be repealed or revoked solely due to the change in Arbitrator.

16.3.10 In the event that the mandate of the Arbitrator (s) is terminated due to the same being agreed upon by both parties, and on the grounds of a challenge made by either party, the proceedings shall be repeated in front of the new Arbitrator (s). All hearings, and procedures shall be repeated from the beginning. However, if both parties agree not to repeat a certain or all the proceedings, the same shall be not be repeated in front of the new constituted tribunal.

16.3.11 All awards passed by the prior arbitrator (s) shall be invalid and not binding on the parties and shall be repealed or revoked.

16.3.12 The rules and procedure of the technology and software industry shall govern the Arbitration hearing. The Indian Evidence Act shall govern the hearing of evidence in this Arbitration. The provisions of Arbitration and Conciliation Act of 1966 shall apply to these TOS.

16.3.13 The language of the Arbitration shall exclusively be English, and all written and oral submissions must be made in English. In the event that either party, or witness is not comfortable with this language, they shall be permitted to use a translator for the same.

16.3.14 The venue of all Arbitration Proceedings shall be decided by the Arbitrators, but will be in South Mumbai.

16.3.15 The ‘Presiding Arbitrator’ shall have the right to decide on questions of procedure, in accordance with the one laid down by these TOS.

16.3.16 Nothing contained in these TOS shall give any individual, institution or arbitrator the right to make any changes to the ‘Arbitration Agreement’ or ‘Said Agreement’.

16.3.17 The ‘Arbitration Agreement’ shall serve as a bar to any suit, judicial proceeding, judicial remedy with respect to any dispute arising out of the ‘Said Agreement’ and shall act as a complete defense for the same.

16.3.18 The ‘Arbitration Agreement’ shall be valid, even if the ‘Said Agreement’ is deemed to be null and void or void ab initio.

16.3.19 Both parties agree, not to initiate any judicial proceedings with respect to any dispute under the ‘Said Agreement’. In the event that such proceeding is initiated by either party, the other party shall have the right to apply to the court, to refer the same to Arbitration and the party making such initiation, shall be bound to compensate the other party for all costs incurred directly and indirectly for the same. Above and beyond, the former shall also be liable to pay the latter an additional 30% of the cost, to compensate for the time and effort lost as a result of the proceeding.

16.4 The provisions of this Clause shall survive termination of the TOS

16.5 These TOS and all matters relating to these TOS shall be construed and controlled by the laws of India. Subject to mutual discussion, work under these TOS shall be continued by MeherY during the arbitration proceedings, unless Customer shall order suspension thereof or any part thereof in writing

17. NOTICES

All notices and communications relating to these TOS shall be given at the following addresses:

Mehery email                   legal@mehery.com

Customer email:               An email id, validated during the registration process

18. ASSIGNMENT

Either Party shall not assign these TOS in whole or in part or any benefit of any legal or equitable interest herein without the prior written consent of the other Party (such consent shall not be unreasonably withheld or delayed).

19. LEGAL CAPACITY OF REPRESENTATIVES

Each party represents and warrants to the other party that its representative executing these TOS on its behalf is its duly appointed and acting representative and has the legal capacity required under applicable law to enter into these TOS and bind it.

20. WAIVER

Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under these TOS shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver. No forbearance, indulgence, relaxation or inaction by any Party at any time to require performance of any of the provisions of these TOS shall in any way affect, diminish or prejudice the right of that Party to require performance of that provision. Any waiver or acquiescence by any Party of any breach of any of the provisions of these TOS shall not be construed as a waiver or acquiescence of any right under or arising out of these TOS or of the subsequent breach, or acquiescence to or recognition of rights other than as expressly stipulated in these TOS

21. ENTIRE TOS

These TOS constitutes the complete TOS between the Parties and supersedes all prior discussions, representations, proposals, agreements or understandings, written or oral, with respect to the subject matter of these TOS.

                                                                                                                                                                                           Schedule – I

Service Schedule

MeherY offers Smart Conversations Service to send rich media messages on WhatsApp, Facebook messenger, Twitter Direct Messenger and Telegram. As part of the Service, MeherY offers an integrated Agent Dashboard with a BOT, to communicate with all the messengers.

The messages exchanged using Smart Conversations Service can be in text format as well as rich media formats like pictures, videos, documents, cards, location, audio files, etc. depending on the message formats supported by the Messaging Platforms.

The behavior of the Smart Conversations Service for each social media messenger, depends on the type of the messages: transactional, customer support, or promotional and which may undergo a change from time to time.

Template messages – Specific to WhatsApp

Template Message means a message sent using a Message Template in compliance with WhatsApp terms and policies as described here https://developers.facebook.com/docs/whatsapp/api/messages/message-templates

Conversation Based messages – Specific to WhatsApp

Conversation Messages means a communication initiated by a Customer in compliance with WhatsApp terms and policies as described here https://developers.facebook.com/docs/whatsapp/pricing/conversationpricing#conversation-based-pricing and shall become effective from February 1, 2022

                                                                                                                                                                                           Schedule – II

Pricing Table – Mehery Business API

Pricing Table – Mehery Smart Conversations

                                                                                                                                                                                           Schedule – III

Service Level Agreement

Service Level Obligations

1. The target availability objective for MeherY services provided by MeherY to Customer is ninety-eight per cent (98%) per month (excluding unavailability due to scheduled maintenance). Service outage shall mean an incident when MeherY Services are unavailable for Customer Service at least sixty continuous (60) minutes in duration.
2. If the Customer wants a targeted 99.5% availability, the incremental cost is US$ 100 per month.

• MeherY Service outage shall not include any service outage or interruption resulting from maintenance action requested by or attributed to Customer, nor from scheduled or routine maintenance operations. MeherY will notify Customer in writing one (1) week in advance of a scheduled maintenance. A single maintenance period will not exceed three (3) hours.

1. MeherY Service outage shall also not include any service outage or interruption resulting from emergency or general maintenance that lasts for thirty (30) minutes or less; e.g. any unforeseen problem that occurs at third party service providers that MeherY uses for its operations (Note: This is not exhaustive list of examples that can be categorized as emergency or general maintenance). MeherY will use its best efforts to limit such occurrences and additionally undertake such short duration, general maintenance during scheduled maintenance windows.
2. Service unavailability arising out of delays in fault resolution because of delayed responses from Customer will not count while computing service availability.
3. MeherY will guarantee a network availability time of up to 98%

Service Performance Criteria

Maximum Throughput Messages: 20 messages per second

Average time to submit message to WhatsApp from MeherY servers = 1 minute or less.

Support Availability

• Email access technical support for 12 x 6
• Customer would commit to having support teams at their end to assist in diagnosing and fixing the problem

Priority Levels

Problems reported by Customer will be allocated a priority level in accordance with the severity of the problem. The priority levels are defined for all service levels as follows:

 Response and Restoration Target Time

                                                                                                                                                                                           Schedule – IV

Facebook Terms of Use

As applicable and as announced and updated by Facebook from time to time.