TERMS AND CONDITIONS
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These terms and conditions ("T&Cs") describe the terms on which the customers ("You" or "Your" or "Yourself" or "User") access and use the Application (defined hereinbelow) on the Platform (defined hereinbelow). The Platform and the Application are owned and operated by ANI Technologies Private Limited ("ANI", which expression shall, wherever the context permits, admits or requires, be deemed to mean and include its successors in interest and permitted assigns).
You acknowledge that ANI is providing you with a revocable, limited, non-exclusive and non-transferable license to use the limited features of the Application, and that ANI is not selling (in part or whole) the Application or any features or technologies contained therein.
This document is an electronic record in terms of the Information Technology Act, 2000 ("IT Act"), the rules thereunder as applicable, and the provisions pertaining to electronic records in various statutes as amended by the IT Act. This electronic record is generated by a computer system and does not require any physical or digital signatures.
PLEASE ENSURE THAT YOU READ AND UNDERSTAND ALL THESE T&Cs BEFORE YOU USE THE APPLICATION AND THE FEATURES CONTAINED THEREIN. BY CONTINUING USAGE OF THE APPLICATION, YOU ARE CONSENTING TO BE BOUND BY THESE T&CS. IF YOU FIND ANY OF THE T&CS UNACCEPTABLE, DO NOT TENDER YOUR ACCEPTANCE TO USE THE APPLICATION OR AVAIL ANY OF ITS FEATURES. YOUR AGREEMENT TO THESE T&Cs SHALL OPERATE AS A BINDING AND LEGALLY ENFORCEABLE AGREEMENT BETWEEN YOU AND ANI IN RESPECT OF THE FEATURES OFFERED/AVAILED ON THE APPLICATION USING THE PLATFORM.
ANI and You shall be individually referred to as a "Party" and collectively as "Parties", as the context may require.
1. DEFINITIONS AND INTERPRETATION
1.1. The definitions and rules of interpretation in this Clause apply in these T&Cs.
1.1.1. "Admin" means the primary Admin, or in his/her absence or in case of any escalations only, the secondary Admin, who shall be persons, appointed by You to administer and manage the Dashboard (defined hereinbelow) and its contents thereof including but not limited to the Authorized Users (defined hereinbelow). The details of the Admin shall be provided by You on the Registration Page (defined hereinbelow) of the Application (defined hereinbelow) and the Dashboard.
1.1.2. "Affiliate" of either Party means a person or entity, directly or indirectly, controlling, controlled by, or under common control with such Party. For the purposes of these T&Cs, ÔControlÕ includes the (i) right to appoint the majority of the directors, partners or other individuals exercising similar authority with respect to a person or to direct or cause the direction of the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholdersÕ agreements or voting agreements or in any other manner; or (ii) the possession, directly or indirectly, of a voting interest or shareholding in excess of 50% (fifty per cent) in a person.
1.1.3. "Agreement" shall mean the facilitation services agreement, if any, entered into by and between ANI and You.
1.1.4. "Applicable Law" shall mean the laws of the Republic of India and shall include without limitation central acts and amendments, state acts and their amendments, regulations, directions, circulars, notifications and guidelines prescribed by the instrumentalities of the union or state governments in the territory of India, or any similar form of decision or determination by, or any interpretation, policy or administration, having the force of law of any of the foregoing, of any government, statutory authority, tribunal, board, court having jurisdiction over the matter in question, whether in effect as of the date of accepting these T&Cs or at any time thereafter.
1.1.5. "Application" shall mean the functionality ÔOla CorporateÕ available on the Platform (defined hereinbelow), enabling the offer of Services by ANI to You .
1.1.6. "Authorized User Groups" means such Authorized Users as may be grouped together by the Admin for the purposes of utilization of the Services by the Authorized Users of such Authorized User Groups.
1.1.7. "Authorized User Groups Service Range" shall mean the range of services/options on the the Authorized Users of the Authorized User Groups, which shall be determined by You and set by the Admin on the Dashboard.
1.1.8. "Authorized Users" shall mean Your employees, agents, independent contractors who are authorized by You, to use the Services. The details of the Authorized Users shall be provided by You on the Dashboard.
1.1.9. "Authorized User Groups Usage Limit" shall mean the usage limit within the Customer Usage Limit as may be determined by You and set by the Admin on the Dashboard for each Authorized User Group, beyond which the Services may not be availed by the Authorized Users of the concerned Authorized User Group.
1.1.10. "Authorized Users Usage Limit" shall mean the usage limit within the Customer Usage Limit (defined hereinbelow) as may be determined by You and set by the Admin on the Dashboard for Authorized Users, beyond which the Services may not be availed by the concerned Authorized Users.
1.1.11. "Authorized Users Service Range" shall mean the range of services/options on the as may be offered Authorized Users, which shall be determined by You and set by the Admin on the Dashboard.
1.1.12. "Auto-Debit" shall have the meaning set forth in Clause 13.6;
1.1.13. "Bank Guarantee" shall have the meaning set forth in Clause 13.6;
1.1.14. "Confidential Information" shall mean any data or information, oral or written, treated as confidential by a Party and relates to the PartyÕs past, present, or future research, development or business activities, including any unannounced products, services and software, including any information relating to services development, inventions, source and object codes, processes, plans, financial information, ANI lists, Your and Authorized User related data and information, forecasts, and projections, exchanged during the Term (defined hereinafter) of the Agreement, and such other information which ought to be regarded as Confidential Information given the nature of the information or the circumstances under which the information is disclosed.
1.1.15. "Customer Usage Limit" shall mean the mutually determined cap on the amount for the usage of the Services by You, beyond which limits the Services offered on the Application shall not be available. The Customer Usage Limit, including the Authorized Users Usage Limit and the Authorized User Groups Usage Limit, shall be specified on the Dashboard. Customer Usage Limits shall have 3 (three) variants: (i) Prepaid Account (defined hereinbelow); (ii) Postpaid Account (defined hereinbelow); and (iii) Insta Account (defined hereinbelow).
1.1.16. "Customer Data" shall mean the data provided by You and the Authorized Users for the purpose of using the Services and/or the data generated and recorded by ANI pursuant to Your and the Authorized UserÕs use of the Services.
1.1.17. "Dashboard" shall mean the electronic interface made accessible to You to administer and manage the utilization of the Services by You and the Authorized Users. The Dashboard shall be managed by the Admin.
1.1.18. "Insta Account" is a variant of the Customer Usage Limit and means a customer account for which the commercial arrangements shall inter alia be in terms of Clause 13.8.
1.1.19. "Maintenance Window" shall mean those intervals of time as may be intimated to You wherein routine checks and other procedures may be carried out by ANI during which time the Services may not be available or may not be delivered at expected levels and during which time ANI shall not be liable for complaints raised by You and/or the Authorized Users;
1.1.20. "Notice" shall have the meaning set forth in Clause 13.6, for purposes of use in Clause 13 only;
1.1.21. "Person" shall mean any natural person, firm, corporation, company, voluntary association, partnership, joint venture, trust, incorporated organization, unincorporated organization or any other entity.
1.1.22. "Platform" shall mean the technology platform "Olacabs", available at www.olacabs.com, and the entire back end software designed, developed and controlled by ANI and used by You/ Authorized Users for availing the Services.
1.1.23. "Postpaid Account" is a variant of the Customer Usage Limit and means a customer account for which the commercial arrangements shall inter alia be in terms of Clause 13.5, 13.6 and 13.7.
1.1.24. "Prepaid Account" is a variant of the Customer Usage Limit and means a customer account for which the commercial arrangements shall inter alia be in terms of Clause 13.3 and 13.4.
1.1.25. "Registration Page" shall mean the start-up page accessible on the wherein You show Your interest and intent to register for access and use of the . You shall feed all necessary data, as requested by ANI on the Registration Page.
"Services" shall mean the facilitation services provided by ANI to You as is more particularly detailed in Clause 3 (Services).
1.1.26. "Term" shall mean the term of these T&Cs as set out in Clause 16 (Term and Termination).
1.1.28. "Transport Service Providers" shall mean such transport service providers, including but not limited to taxi operators, registering on the Platform to list their vehicles for providing transportation service.
1.1.29. "Virus" shall mean any specific thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data, in whole or part or otherwise); or adversely affect the user experience, including worms, rojan horses, viruses and other similar things or devices.
1.2. In the interpretation of these T&Cs, unless the context otherwise requires:
1.2.1. The singular of a word shall include the plural and vice versa, and in particular (but without limiting the generality of the foregoing), any word or expression defined in the singular has the corresponding meaning when used in the plural;
1.2.2. The words in the masculine gender shall include the feminine and neuter and vice versa;
1.2.3. Any references to a clause, sub-clause, paragraph, sub-paragraph shall only be a reference to a clause, sub-clause, paragraph, sub-paragraph as contained in these T&Cs;
1.2.4. The phrase "directly" or "indirectly" shall mean and include any act of either Party on behalf of or through the use of any other Person, including without limitation any employee, agent, independent contractor or Affiliate of a Party;
1.2.5. All section/ clause headings used in these T&Cs are for reference and convenience only and shall not in any way be conclusive on matters of interpretation of the body of the T&Cs;
1.2.6. Unless expressly stated otherwise, the word "including" shall mean including but not limited to and whenever a PartyÕs consent is required in terms of these T&Cs, such Party may grant or withhold its consent or approval at its sole and absolute discretion;
1.2.7. References, if any, made to any statute shall be construed as including all statutory provisions consolidating, amending or replacing such statute; and
1.2.8. The terms "hereof", "hereby", "hereto", "hereunder" and similar terms shall refer to these T&Cs as a whole.
1.3. A copy of these T&Cs, as updated from time to time, shall be available on the Dashboard.
2. ENGAGEMENT OF ANI
2.1. You hereby appoint ANI to provide Services to You, and ANI accepts the said appointment and agrees to render the Services to You during the Term of these T&Cs and in accordance with the terms and conditions set forth herein.
3.1. ANI shall provide the Services to You and the Authorized Users in the following manner:
(i) On receipt of the details of the Authorized Users from You, ANI shall grant to You and the Authorized Users a limited, non-exclusive, non-transferable right to use the Application within the Platform and the Dashboard for their non-commercial use, in compliance with the terms of this Agreement; and
(ii) ANI shall create a Dashboard and provide access to the Dashboard to an Admin appointed by You for the purposes of administering and managing inter alia the Customer Usage Limit, the Authorized Users, the Authorized Users Usage Limit, the Authorized Users Service Range, the Authorized User Groups, the Authorized User Groups Usage Limit, the Authorized User Groups Service Range and matters connected therewith.
3.2. You acknowledge that by virtue of providing the mobile numbers of the Authorized Users, you have obtained the consent of the Authorized Users to be on-boarded with ANI for the use of the Services.
3.3. ANI will enable You and Your Authorized Users to connect with the Transport Service Providers who are offering their transportation services on the Platform using the Application.
3.4. The access to the Application will enable easier payment and settlement mechanisms between You (on behalf of Your Authorized Users), ANI and the Transport Service Providers.
3.5. You have the option to request ANI to send You information regarding services provided by ANI, no additional costs. If You require ANI to provide You information regarding its services, click "Yes" on the option to request for information on the Application. If You click "Yes", ANI shall provide the above information to You by way of an SMS or email to Your registered mobile number/ registered email address. To discontinue receiving such information, You may, at any point of time, email ANI at firstname.lastname@example.org, requesting that the provision of such information be discontinued. Such discontinuation shall take effect within 7 (seven) days from receipt of a request from You.
3.6. ANI may from time to time, introduce new features/ functionalities in the Dashboard/ Application, and ANI reserves the right to charge You a fee with respect to the use of such features/ functionalities.
4. THIRD PARTY PROVIDERS
4.1. Transport Service Providers interested in offering transportation services have been on-boarded to ANIÕs Platform.
4.2. You acknowledge that the Services provided by ANI only enable or assist You to connect with the Transport Service Providers offering their transportation services on the Platform, and this is done at Your own risk. For clarity, the Parties understand that the Transport Service Providers are third parties and the relationship between them and ANI is on a principal-to-principal basis.
5. SERVICE COVENANTS
5.1. ANI shall use commercially reasonable efforts to provide the Services.
5.2. The manner and means by which ANI chooses to complete the Services under these T&Cs is in ANIÕs sole discretion. ANI shall at any time, modify the Services or any components or features thereof without prior notice to You. ANI shall however take commercially reasonable measures to intimate You of any such changes, or ensure the availability of such modification details on the Platform, where possible; and the continued use of the Platform/ Services by You shall constitute an acceptance of such modified terms. ANI shall, to the extent possible, use commercially reasonable endeavors to make the Services available 24 (twenty four) hours a day, 7 (seven) days a week, except for: (i) any planned maintenance of the Platform or other components of the Service carried out during the Maintenance Window, or (ii) an unscheduled maintenance ANI shall take reasonable endeavors to give You at least 2 (two) hoursÕ notice in advance.
5.3. Notwithstanding anything contained anywhere else in these T&Cs, ANI:
5.3.1. Does not warrant that Your use of the Platform or Services will be uninterrupted or error-free;
5.3.2. Does not warrant that the information on the Platform or the Dashboard is complete, true, accurate or non-misleading;
5.3.3. Does not warrant the Platform or the Services made available to You; the servers; or electronic communication sent from ANI are free of Viruses or other harmful components;
5.3.4. Is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data, including Customer Data, over communications networks and facilities, including telecommunication links and the internet, and You acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of the Service;
5.3.5. Does not warrant the uninterrupted and perpetual availability of the Transport Service Providers on the Platform; and
5.3.6. Is not responsible for any delays, delivery failures, breach of Applicable Laws, or any other loss or damage resulting from the services offered by the Transport Service Providers.
5.4. The Parties hereby acknowledge and agree that ANI may from time to time under these T&Cs, communicate with You via the registered electronic mail or telephone or other such modes of communication regarding the Services and issues related thereto.
5.5. ANI may engage subcontractors to assist with the performance of the Services.
5.6. The Services shall be rendered by ANI on a non-exclusive basis and nothing in these T&Cs shall prohibit ANI from rendering the same or similar services to other Persons, including Your competitors.
5.7. ANI may, at its sole discretion, modify the Services in order to comply with the Applicable Law. In this regard, ANI may notify You within 48 (forty eight) hours of notice of the Applicable Law requiring such modification where possible, after which You shall extend full co-operation to ANI in ensuring that the scope of Services is suitably modified to meet the requirements of the Applicable Law.
6.1. You and Your Authorized UserÕs use of the Application are subject to the terms and conditions of these T&Cs.
6.3. ANI may require You, the Admin and the Authorized Users to create a user account, including a user name and password or other login credentials ("Login Credentials") to access and use the Application. You are solely responsible for maintaining the confidentiality and security of the Login Credentials. You are responsible for all acts and omissions of the Admin and the Authorized Users in relation to the use or misuse of such Login Credentials.
6.4. You shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, You shall promptly notify ANI in writing. ANI shall not be liable for any damages and losses whatsoever suffered by You as a result of Your failure to comply with Your obligations under these T&Cs or as a result of any negligence or misconduct by You or Your Authorized Users.
6.5. You shall not copy, reproduce, modify or create any derivative works, enhancements, adaptations or translations, frame, mirror, republish, download, transmit, or distribute all or any portions of the Platform or the Application or any contents thereof, in any form or media or by any means.
6.6. You shall not attempt to register any copyrights, trademarks, names, or logos used or associated with the Services and the Platform/ Application.
6.7. You shall not attempt to decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Services or the Platform/ Application is run or provided.
6.8. You shall not:
6.8.1 explicitly or implicitly, represent to any party in any manner that compromises or creates doubts over the ownership and consequent rights of ANI over any intellectual property relating to the Services or the Platform/ Application;
6.8.2 challenge (directly or indirectly), during the Term and anytime thereafter, the validity, enforceability or ownership of the Platform/ Application or aid any third party in doing so;
6.8.3 during the Term and at any time thereafter, use the Services or the Platform/ Application or any materials incidental thereto, including, any software or technical know-how, to develop services, software, hardware or firmware that is competitive with the Platform/ Application of ANI;
6.8.4 use the Service to access, alter or destroy any information of another customer of ANI by any malicious means or device;
6.8.5 use the Service to introduce a Virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of ANIs or another partyÕs computer, property or information;
6.8.6 use the Service with the intent to damage, disable, overburden or impair any server or network(s) connected to any ANI server or interfere with any other partyÕs use and enjoyment of the Service;
6.8.7 obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service;
6.8.8 use the Service to defraud, defame, abuse, harass, stalk, threaten or infringe the rights of privacy or other intellectual property rights (including copyright) of others or otherwise violate any Applicable Law;
6.8.9 circumvent or modify any security technologies included as part of the Service including without limitation the security features included by ANI on the Platform; and
6.8.10 Perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan (including without limitation by use of any tool designed to automatically emulate the actions of a human user in connection with such testing) on the Service.
6.9. The rights provided under these T&Cs are granted to You only, and shall not be considered to be granted to any of Your Affiliate(s). In the event ANI agrees to grant Services to Your affiliates, the Parties shall agree to the details of the same in writing.
7. YOUR OBLIGATIONS
7.1. You shall provide ANI with:
7.1.1. All necessary co-operation in relation to these T&Cs; and
7.1.2. All necessary access to such information as may be required by ANI in order to provide the Services, including but not limited to Customer Data, security and access information;
7.2. You shall comply with all Applicable Laws with respect to Your activities, whether under these T&Cs or otherwise;
7.3. You shall perform all Your responsibilities as set out in these T&Cs in a timely and efficient manner;
7.4. You shall ensure that the Admin and Authorized Users use the Services in accordance with these T&Cs and Applicable Laws and You shall be solely responsible for any Admin or Authorized User's breach thereof;
7.6. You shall obtain and maintain all necessary consents, and permissions, if any, necessary for You to avail of the Services under these T&Cs; and
7.7. You shall be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to ANIs data centers, and for all problems, conditions, delays, delivery failures and all other losses or damages arising from or relating to Your network connections or telecommunications links or those caused by the internet.
8. CUSTOMER DATA
8.1. You shall own all right, title and interest in and to all of the Customer Data. However, ANI may use and process the Customer Data for the purposes of these T&Cs, on the terms and conditions set out hereunder.
8.2. ANI may process any Customer Data on Your behalf when performing its obligations under these T&Cs and the Parties record their intention that You shall be the data controller and ANI shall be a data processor and in any such case:
8.2.1. You acknowledge and agree that the Customer Data may be transferred or stored in a server outside India and that such transfer is necessary to avail the Services under these T&Cs;
8.2.2. You shall ensure that You are entitled to disclose, transfer the relevant Customer Data to ANI so that ANI may lawfully use, process and transfer the Customer Data in accordance with these T&Cs on Your behalf;
8.2.3. You shall solely be responsible for any non-compliances with Applicable Laws in relation to such Customer Data. In this regard, You acknowledge that by virtue of providing the mobile numbers of the Authorized Users to ANI, You authorize ANI to on-board such Authorized Users on the Platform, and ANI shall not have to obtain any further consent from the Authorized Users for such purpose; and
8.2.4. ANI shall, in processing Customer Data, comply with Applicable Law to take commercially reasonable technical and organizational measures against unauthorized or unlawful processing of the Customer Data or its accidental loss, destruction or damage;
8.4. ANI shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted and authorized by ANI to perform services related to Customer Data maintenance and back-up).
8.5. ANI will not be liable to You in the event that the use of commercially reasonable administrative, physical and technical safeguards (including firewalls, encryption or other similar technology or techniques) fails to prevent unauthorized third party access to the Customer Data.
8.6. Nothing in these T&Cs will constitute a representation or warranty by ANI that Customer Data storage or transmission will be inaccessible to unauthorized third parties. Liability for ANIs failure to maintain or protect Customer Data is limited by the Limitation of Liability clause contained herein below.
9. OWNERSHIP OVER INTELLECTUAL PROPERTY
9.1. You acknowledge and agree that ANI owns all intellectual property rights in the Services and the Platform/ Application. Except as expressly stated herein, these T&Cs do not grant You/ Your Authorized Users any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services and the Platform/ Application.
9.2. You acknowledge and agree that all know-how and intellectual property developed as a result of any work done in relation to the Platform/ Application or any customizations thereto, shall be exclusively and absolutely owned by ANI, free and clear of any encumbrance of any nature.
10.1. Each Party may be given access to the Confidential Information of the other Party in order to perform its obligations under these T&Cs. A Party's Confidential Information shall not be deemed to include information that :
10.1.1. Is or becomes publicly known, other than through any act or omission of the receiving Party;
10.1.2. Was in the receiving Party's lawful possession before the disclosure, as evidenced in writing;
10.1.3. Is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
10.1.4. Is independently developed by the receiving Party, which independent development can be shown by written evidence; or
10.1.5. Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body, subject to Clause 10.2 below.
10.2. Each Party shall hold the other's Confidential Information in confidence and, unless required by law, shall not make the other's Confidential Information available to any third party (except as provided in Clause 10.3 below), or use the other's Confidential Information for any purpose other than the implementation of these T&Cs. In the event of a disclosure required by law, the receiving Party shall promptly notify the disclosing Party of such requirementwhere not legally prohibited, to allow intervention (and shall cooperate with the disclosing Party, at the disclosing PartyÕs expense, to the extent possible) to contest or minimize the scope of the disclosure (including by making an application for a protective order).
10.3. Each Party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is disclosed to its employees, subcontractors, agents or representatives on a need to know basis, and such employees, subcontractors, agents or representatives shall be bound to maintain the confidentiality of such Confidential Information on terms similar to those set out in these T&Cs, and not misuse such Confidential Information.
10.4. Each Party shall be responsible for any breach of the confidentiality obligations under these T&Cs by its employees, subcontractors, agents or representatives and agrees to indemnify the other Party for any loss or damage on account thereof. Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party for no fault attributable to such Party.
10.5. ANI acknowledges that the Customer Data is Your Confidential Information.
10.6. No Party shall make, or permit any Person to make, any public announcement concerning these T&Cs without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority, any court or other authority of competent jurisdiction, subject to the provisions of Clause 10.2 above. Notwithstanding this, ANI may disclose the existence of this arrangement for marketing, promotional or other purposes as it deems fit.
10.7. The Parties agree and understand that the terms of this Clause 10 shall survive the termination of the arrangements between You and ANI.
11. REPRESENTATIONS AND WARRANTIES
11.1. You represent and warrant that:
11.1.1. You are an entity legally incorporated in accordance with the Applicable Laws;
11.1.2. You have full right, power, authority, and capacity to accept these T&Cs and perform Your obligations hereunder and that no further approvals are required as of the date of using the Application;
11.1.3. You are not subject to any contract or agreement that would be breached by Your accepting or performing obligations under these T&Cs or that are otherwise inconsistent with these T&Cs;
11.1.4. There are no pending or threatened legal proceedings against You before any judicial or quasi-judicial forum whatsoever that may affect Your performance hereunder;
11.1.5. You shall comply with all Applicable Laws in the performance of Your obligations hereunder, including privacy and data protection laws, rules, and regulations that are applicable now or that may become applicable in the future;
11.1.6. You shall permit only the Authorized Users to use the Services as per these T&Cs, and shall not permit any other Person to use such Services, in contravention of these T&Cs;
11.1.7. No order has been made and no resolution has been passed for winding up, for a provisional liquidator to be appointed and no petition has been presented and no meeting has been convened for winding up. No receiver has been appointed with respect to You, for any or all of Your assets. You are neither insolvent nor unable to pay Your debts as they fall due; and
11.1.8. You shall at all times comply with (and shall ensure that Your Authorized Users comply with) the terms set forth in these T&Cs.
12.1. THE SERVICE IS PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. ANI DISCLAIMS AND MAKES NO ADDITIONAL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE PLATFORM OR THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COMPLETENESS. THE SERVICE IS NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. WITHOUT LIMITING THE FOREGOING, ANI MAKES NO WARRANTY THAT (I) THE QUALITY OF THE WILL MEET YOUR EXPECTATIONS; OR THAT (II) ANY ERRORS OR DEFECTS IN THE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ANI OR THROUGH OR FROM USE OF THE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12.2. ANI HAS ENDEAVORED TO ENSURE THAT ALL THE INFORMATION ON THE IS CORRECT, BUT ANI NEITHER WARRANTS NOR MAKES ANY REPRESENTATIONS REGARDING THE QUALITY, ACCURACY OR COMPLETENESS OF ANY DATA OR INFORMATION. ANI SHALL NOT BE RESPONSIBLE FOR THE DELAY OR INABILITY TO USE THE OR RELATED FUNCTIONALITIES, THE PROVISION OF OR FAILURE TO PROVIDE FUNCTIONALITIES, OR FOR ANY INFORMATION, SOFTWARE, FUNCTIONALITIES AND RELATED GRAPHICS OBTAINED THROUGH THE , OR OTHERWISE ARISING OUT OF THE USE OF THE , WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE IS DONE ENTIRELY AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
13. COMMERCIAL TERMS
13.1. Your selection of the Customer Usage Limit on the Dashboard Agreement shall determine the commercial arrangement between ANI and You.
13.2. The rates (exclusive of applicable taxes) applicable for availing the services from ANI and the Transport Service Provider at any point of time shall be as set out in https://www.olacabs.com/fares from time to time.
13.3. The Customer Usage Limit has 3 (three) variants: (i) Prepaid Account (ii) Postpaid Account (iii) Insta Account.
13.4. In the event You opt for the Prepaid Account, You shall make the payment, in advance, to ANI through the payment options specified on the Dashboard. Such a payment shall be first made within a period of 90 (ninety) days of the acceptance of these T&Cs, and You may thereafter recharge the Prepaid Account as required. The creation of a Prepaid Account is subject to a minimum prepayment of an amount of INR 5,000/- (Indian Rupees Five Thousand Only), which shall be maintained at all times during the Term, but is not subject to any upper cap ("Prepaid Amount"). The Prepaid Amount so determined to be paid by You shall be specified on the Dashboard.
13.5. The payables for the services of the Transportation Service Providers and ANI as a result of use of the Services by the Authorized Users shall be debited from the Prepaid Amount. No Services shall be provided to any Authorized User on the insufficiency of the Prepaid Amount. In the case of a Prepaid Account, no payment shall be charged to Your Authorized Users.
13.6. In the event You opt for the Postpaid Account, You shall make payments: (i) for the utilization of the services of the Transportation Service Providers, against the invoice/ debit note raised by ANI on behalf of the Transportation Service Providers; and (ii) for the utilization of the Services of ANI, against the invoice raised by ANI. Such invoices & debit notes shall be issued on the 16th of every month, and again on the 1st of the following month, in relation to the services availed by You and Your Authorized Users for the immediately preceding 15 (fifteen) daysÕ period. All invoices & debit notes shall be inclusive of the applicable taxes and shall beissued in the electronic format to Your email address as maybe notified by You to ANI as per these T&Cs. You must make payments, in arrears, within 15 (fifteen) days from the date of such invoices/debit notes. This amount shall be payable into the bank account of ANI as notified to You in writing or through any other payment options as displayed on the Dashboard. You shall be given a grace period of 5 (five) days from the date on which such payments were due, to make such payments, and a failure to make the necessary payments within the said grace period would result in a material breach of these T&Cs and, notwithstanding any other rights available to ANI, ANI may discontinue Your (including Your Authorized UserÕs) access to and use of the Application. In addition, delayed payments shall be subject to interest at the rate of 5% (five percent) per month calculated from the date on which the amount was due till the date of actual payment, and such other penalties as may be specified on the Dashboard and in the Agreement.
You may also permit auto deductions ("Auto-Debit") of the amount payable by You to ANI in case of a Postpaid Account. The Auto-Debit could be either: (i) on a [monthly/ fortnightly/ weekly] basis, as agreed by the Parties, from Your bank account, for which You shall issue necessary instructions to its bank in this regard; or (ii) from Your or Your Authorized UserÕs corporate bank account, based on Your credit card or debit card details or Your Authorized UserÕs corporate credit/ debit cards, stored with a third party payment gateway service provider engaged by ANI. Such an Auto-Debit in terms of sub-clause (i) and (ii) above, may be set-up and deductible on a [weekly, fortnightly or monthly] basis (as agreed by the Parties), or once the invoice raised on You reaches a pre-defined limit, whichever occurs first (the details of which shall be provided on the Dashboard). If You elect the Postpaid Account, [You shall procure a bank guarantee in favour of ANI for an amount as maybe intimated by ANI to You ("Bank Guarantee") from a scheduled commercial bank, as security for the payment of moneys owed to ANI under the Postpaid Account, which shall be valid for the Term and for a period of 6 (six) monthsÕ thereafter. You must provide such Bank Guarantee to ANI within a period of 15 (fifteen) days of receipt of intimation from ANI in this regard, in a manner acceptable to ANI, and the Bank Guarantee must subsist at all times during the Term. Where You and Your Authorized UserÕs also register one or more corporate credit/ debit cards for use in relation to a Postpaid Account, the Parties agree that the Auto-Debit will first be made from the Authorized UserÕs corporate bank account or corporate credit/debit cards, if any; failing which, the Auto-Debit will be made directly from Your bank account or credit/debit cards. In the event the Auto-Debit from the corporate accounts or debit/credit cards of both You and Your Authorized User(s) fails, a notice would be sent to You and/or Your Authorized User by way of notification on the Dashboard, or by way of email to Your registered email address ("Notice") demanding the outstanding payments within 7 (seven) working days from the date of issue of such Notice. In the event You fail to make the payment, in whole or part, within the period stipulated in the Notice, ANI shall have the right to invoke and enforce the Bank Guarantee on the expiry of the said period stipulated in the Notice, to the extent of the outstanding amounts payable to ANI. Where ANI invokes and enforces the Bank Guarantee, in whole or in part, You shall, within a period of 7 (seven) daysÕ of such enforcement, provide ANI with a fresh Bank Guarantee in such a manner as to ensure that the Bank Guarantee provided by You to ANI at all times amounts to such amounts as intimated by ANI in terms of this Clause.] OR [You shall be required to provide ANI with an interest free refundable security deposit of such amount as may be communicated by ANI to You ("Security Deposit"). The Parties will mutually agree to the terms and conditions of the Security Deposit and may mutually agree to modify these terms as and when required. You understand that such Security Deposit shall be provided to ensure performance of Your obligations under this Agreement. ANI shall be under no obligation to perform the Services until receipt of such Security Deposit. On the expiry/ termination of this Agreement, the Security Deposit shall be refunded by ANI to You within a period of 60 (sixty) daysÕ, after deducting such amounts as maybe due and payable to ANI under these terms.]
13.7. Where the Customer opts for a Postpaid Account, the Parties shall mutually agree and determine a credit limit that shall be applicable to the Customer/ Authorized Users, and notwithstanding any other provision of this Agreement, the Facilitator shall not be obliged to provide the Services to the Customer in the event that the use of the Services by the Customer and/or its Authorized Users exceeds the value of this credit limit.
13.8. In the event You opt for an Insta Account, ANI will not raise any invoice/debit note on You and You shall not be required to make payments to ANI. The Authorized User shall make payments for the utilization of the services of the Transportation Service Providers and ANI, to ANI, using the Platform as and when it avails of a transportation service, or directly to the Transport Service Provider, when any Authorized User makes any payments in cash. Where payments are made to the Transport Service Providers, the payments shall be settled between ANI and the Transport Service Provider as per their agreed terms. Where payments are made to ANI, ANI will settle amounts due to the Transport Service Providers as per their agreed terms. You may reimburse Your Authorized Users based on Your internal arrangement with such Authorized Users, at Your discretion.
13.10. The sub-usage limits, including but not limited to the Authorized UserÕs Usage Limit, shall be determined at Your sole discretion and shall accordingly be set up on the Dashboard by Your Admin.
13.11. Special offers with respect to the payables for the services of the Transportation Service Providers and ANI may also be provided to You and Your Authorized Users by ANI at its discretion and on notification to You.
13.12. All disputes between the Parties pertaining to payables under these T&Cs shall be settled on a case-to-case basis by ANI by following the process as prescribed in Clause 27 (Arbitration) below. In the event ANI is liable to make refunds in any such matter, the refund process shall be independent of the amount payable by You for the Customer Usage Limit.
13.13. TDS clause: TDS as defined under Income Tax Act, 1961 shall be deductible only on OLA convenience fee payouts and not on driver re-imbursements.
13.14. GST clause: For all billings from July 2017 onwards, all billings will be made under applicable GST rules and acts. ANI will treat billings as a sale to registered person only for Clients who share their GSTINs with us. In all cases otherwise, ANI shall treat the sales as supplies made to an unregistered persons.
Clients will report the services provided by ANI & TSP in their GSTR 2 and any other relevant return with respect to applicable taxes. All invoices that will be raised on the client will be reported by ANI in the month in where invoices were raised.
14.1. You shall defend, indemnify and hold harmless ANI, its Affiliates, and their officers, directors, shareholders, employees, assignees, representatives, associates, subcontractors and subsidiaries against any and all direct and actual losses, damages, loss of reputation, loss of goodwill, liabilities, fines, penalties, fees, costs, amounts and expenses (including without limitation attorneysÕ fees), claims, actions, suits, judgments, orders, litigations, enforcements and/or proceedings, incurred or sustained by ANI in connection with or as a consequence of:
(i) A breach of any of the provisions of these T&Cs by You and/or Your Authorized Users;
(ii) A breach of any representations, covenants or warranties contained herein by You and/or Your Authorized Users;
(iii) Unauthorized use or infringement of ANIs intellectual property right (whether such intellectual property is registered or not);
(iv) Any damage, unauthorized use or loss of information, including Confidential Information, shared by ANI;
(v) Fraud, misconduct or negligence due to any act or omission by You and/or Your Authorized Users;
(vi) Your failure to abide by the Applicable Law during the Term of these T&Cs; and
(vii) A breach of any terms, conditions and obligation under any other contract with a third party, which has an impact on ANI or the Services provided by ANI.
14.2. ANI shall defend You, Your officers, directors and employees against any claim that the Services infringe any patent, copyright, trademark, database right or right of confidentiality, effective as of the date of Your use of the Application and shall indemnify You for any amounts awarded against You in the judgment or settlement of such claims, provided that:
14.2.1. ANI is given prompt written notice of any such claim;
14.2.2. ANI is given sole authority to defend and settle the claim, provided that ANI shall not enter into any arrangements, settlements or accept any liability on behalf of You without Your prior written consent;
14.2.3. You co-operate with ANI in the defense and settlement of such claim, at ANIs expense; and
14.2.4. You may participate in any such suit or proceeding through a counsel of Your choice, at Your own expense, provided that the costs associated with Your counsel shall not be deemed damages or costs for purposes of ANIs indemnity hereunder.
14.3. In the defense or settlement of any claim, ANI may procure the right for You to continue using the Services, replace or modify the Services so that they become non-infringing, or if such remedies are not reasonably available, terminate these T&Cs on the issuance of a 30 (thirty) days' written notice to You without any additional liability or obligation to pay liquidated damages or other additional costs to You.
14.4. In no event will ANI be liable for any losses arising from or in connection with these T&Cs, pursuant to any claim by You/ Your Authorized Users against ANI under any theory of liability (whether in contract, in tort, or otherwise), if such losses could have been avoided if You had used reasonable efforts to mitigate them.
14.5. Further, in no event shall ANI be liable to You to the extent that the alleged infringement is based on:
14.5.1. A modification of the Services by anyone other than ANI; or
14.5.2. You and/or Your Authorized UserÕs use of the Services in a manner contrary to the instructions given to You by ANI or the use of the Services by You in combination with any product/ equipment not permitted by ANI.
14.6. The indemnities contained herein shall continue throughout the Term of these T&Cs and shall survive the termination of the arrangements between You and ANI.
15.1. This Clause sets out the entire financial liability of ANI to You arising out of or in connection with these T&Cs.
15.2. In no event shall ANI be liable to You/ Authorized Users for any loss or damage resulting from the services offered by third parties including the Transport Service Providers or due to their failure to provide transportation services to You for any reason whatsoever.
15.3. Notwithstanding any other provision contained in these T&Cs, ANIs total aggregate liability in contract (including in respect of the indemnity), tort (including negligence or breach of statutory duty), restitution or otherwise, arising out of or in connection with the performance or contemplated performance of the terms of these T&Cs shall always be limited to INR 10,000/- (Indian Rupees Ten Thousand Only).
15.4. Notwithstanding any other provision of these T&Cs, the Parties shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, restitution or otherwise for any consequential, incidental, indirect, special, punitive or other such loss or damage, including but not limited to those such as and/or resulting from loss of profits, loss of business, business interruption, computer failure, loss of business information, depletion of goodwill, loss or corruption of data or information, however arising under these T&Cs.
16. TERM AND TERMINATION
16.1. These T&Cs shall be in force from the date of its acceptance by You on the Platform, until such time that the arrangement between the Parties is terminated under these T&Cs or the Agreement, if any, whichever is earlier ("Term").
16.2. The access to the Application may be withdrawn and ANI may terminate the arrangement under these T&Cs with You, with immediate effect, for the reasons listed below and otherwise, by providing a written notice to You:
16.2.1. If You and/or Your Authorized Users commit a material breach of any term of these T&Cs which breach is irremediable or if such breach is remediable, You fail to remedy that breach within a period of 30 (thirty) days after being notified in writing to do so;
16.2.2. If You repeatedly breach any of these T&Cs in such a manner as to reasonably justify the opinion that Your conduct is inconsistent with You having the intention or ability to give effect to these T&Cs, in the opinion of ANI;
16.2.3. You suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of Your business;
16.2.4. You file a petition for bankruptcy; file a petition seeking any reorganization, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors; or make an assignment for the benefit of creditors; or, a receiver, trustee or similar officer is appointed for Your business or property; or, any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against You;
16.2.5. You undergo a change of Control;
16.2.6. Any representations and warranties given by You in these T&Cs are found to be untrue or misleading;
16.2.7. If ANI has been unable to perform its obligations in accordance with these T&Cs for a continuous period of 30 (thirty) days as a result of a force majeure event as per Clause 17 (Force Majeure) below;
16.2.8. The provision of the Services to You is, in ANIs opinion, no longer commercially viable or is in any way detrimental to ANI, its business or the Platform; or
16.2.9. If You fail to make the payments due to ANI under these T&Cs, ANI shall have a right to terminate this arrangement and withdraw Your access to the Application, at its discretion.
16.3. Notwithstanding the above, ANI may terminate the arrangement under these T&Cs with You and withdraw access to the Application, without cause, by the issue of a 30 (thirty) daysÕ advance written notice to You.
16.4. You may stop using the Application and request termination of the arrangement under these T&Cs upon issuance of 30 (thirty) days written notice to ANI, in the event of a material breach of these T&Cs by ANI. However, these T&Cs may be terminated by You only where the breach has not been remedied by ANI within 60 (sixty) days of receipt of a written notice from You, requiring remedy of such breach.
16.5. On the withdrawal of Your access to the Application for any reason:
16.5.1. Each Party shall return and make no further use of any equipment, property, Application (including Login Credentials), Services, Confidential Information and other items (and all copies of them) belonging to or provided by the other Party;
16.5.3. You shall forthwith make payments of all pending amounts, if any, to ANI on withdrawal of Your access to the Application, and in any case within 30 (thirty) days of such withdrawal.
16.5.4. In the event that any advance amounts paid by You to ANI is remaining with ANI as on the date of withdrawal of access to the Application, ANI shall refund such amounts to You, after making any applicable deductions of any amounts due and payable by You, within a period of 30 (thirty) days of such withdrawal of access.
16.6. Notwithstanding anything stated in these T&Cs, ANI has the right to withdraw access to the Application at its sole discretion, as it deems fit, at any time and for any reason whatsoever.
17.1. ANI has facilitated provision of insurance services for the benefit of Your Authorized Users, under ride level insurance policies ("Insurance Facility") from insurance companies and intermediaries ("Third Party"). ANI is not engaged in the insurance business and does not provide any insurance services. The relationship between the Third Party and ANI is on a principal-to-principal basis. This insurance feature shall be made available by ANI upon receiving Your express interest towards enabling this Insurance Facility for Your Authorized Users. Once You opt for the Insurance Facility on the Dashboard, You/Your Admin shall have the right to make the feature mandatory for Your Authorized Users. For clarity, the Parties understand that the option to opt-in or opt-out of the Insurance Facility is not available to Your Authorized Users. Your Authorized Users are bound by the selection made by You on the Dashboard towards all the rides availed by them through corporate Dashboard. You understand and acknowledge that by not opting to avail the Insurance Facility, all the rides taken by Your Authorized Users using corporate Dashboard will automatically have no coverage under the Insurance Facility provided by the Third party. It is to be noted that the insurance policy number, claim certificate, invoice for the insurance premium/ fee collected from You is not issued by ANI, but will be issued by the Third Party. Based on the Customer Usage Limit opted by You, ANI shall make the invoices available on Your Dashboard generated by the Third Party towards Your usage of the Insurance Facility. For clarity, it is understood by the Parties that ANI is only a facilitator of the Insurance Facility. The Insurance Facility provided by ANI shall only enable or assist You to avail the Insurance Facility through the Dashboard, and this is done at Your own risk. Any issues in receiving tax invoices or issues faced in claiming the insurance are not the responsibility of ANI. ANI disclaims any and all liability in relation to the services of the Third party. ANI shall in no event be held liable towards any damages or losses arising with respect to the insurance policies/claims and shall not be held liable towards any indemnity claims in connection with the Insurance Facility. In case of any questions/ issues please refer to the Third Party insurance policy and terms and conditions available on the Ola Application.
18.1. ANI shall have no liability to You under these T&Cs if it is prevented from or delayed in performing its obligations under these T&Cs, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of ANI or any other party), failure of a utility service or telecommunications network, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm.
19.1. No failure or delay by a Party to exercise any right or remedy provided under these T&Cs or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. Any waiver shall be effective only when in writing and signed by the Party exercising such waiver.
20.1. If any provision (or part of a provision) of these T&Cs is found by any Court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
21.1. Notwithstanding any termination of these T&Cs, Clause 10 (Confidentiality), Clause 11 (Representations and Warranties), Clause 14 (Indemnity), Clause 15 (Limitation of Liability), Clause 26 (Governing Law and Jurisdiction), Clause 27 (Arbitration), Clause 28 (Jurisdiction) and such other clauses which by their nature and context are intended by the Parties to remain binding post the termination of these T&Cs, shall survive and remain in effect in accordance with their terms.
22.3. You acknowledge and agree that by accepting these T&Cs You do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any Person relating to the subject matter of these T&Cs except as expressly set out in these T&Cs.
23.2. ANI may, at any time, freely assign, transfer, sub-contract or deal in any other manner with all or any of its rights or obligations under these T&Cs, without the requirement to intimate You or obtain Your consent.
24.1. Nothing in these T&Cs are intended to or shall operate to create a partnership between the Parties, or authorize either Party to act as an agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25.1. Except to the extent provided, these T&Cs do not confer any rights on any Person other than the Parties to these T&Cs.
26.1. All notices required to be issued by either Party to the other shall be furnished at the addresses notified by that Party on the Dashboard or in the Agreement, if any. All notices shall be provided either: (a) by a recognized courier service; or (b) by registered post acknowledgment due (RPAD); or (c) by way of email. In the event the delivery of the notice is attempted to be made at all the contact addresses provided by the party, the notice shall be deemed delivered on the third day from the date of the notice in case of delivery by courier or RPAD, or in case of any email notice, where no failed delivery message is received by the Party issuing the notice, the notice shall be deemed delivered on the third day after the email has been sent.
26.2. Either Party may change its address for receipt of notice from the other Party by delivering written notice of such change to the other Party.
27.1. These T&Cs and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of India.
28.1. The Parties shall attempt to amicably resolve any and all disputes of every kind, arising out of or related to these T&Cs through negotiation and consultation at such offices of ANI as ANI may designate. In the event the dispute is not resolved internally between the Parties after at least 30 (thirty) days of negotiation, in good faith, by the respective senior management of the Parties, the same shall be subject to binding and final arbitration in accordance with the (Indian) Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof. The place of the arbitration shall be Bengaluru, Karnataka unless otherwise mutually agreed by the Parties in writing. The arbitration proceedings shall be in English. The Parties shall be entitled to jointly appoint a sole arbitrator who shall preside over the proceedings.
29.1. Subject to Clause 27 (Arbitration) above, each Party irrevocably agrees that the Courts in Bengaluru, Karnataka shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these T&Cs or its subject matter (including non-contractual disputes or claims).
30.1 Without prejudice to any other rights or remedies that the Parties may have, the Parties agree and acknowledge that damages may not be an adequate remedy for a breach of any of these T&Cs and it is reasonable that the Parties shall be entitled to the remedies of injunction, specific performance and other equitable relief for any material breach of these T&Cs.