Terms & Conditions
These terms and conditions (“T&Cs”) apply to Your access to, and use of the Application (defined hereinbelow). The Application is operated by EsMe and its subsidiaries, associates, licensees, and affiliated companies (“EsMe”).
You acknowledge that EsMe is providing you with a revocabale license to use limited features of the Application and is not selling the Application or any features or technologies contained therein.
By continuing usage of the Application, You are consenting to be bound by these T&Cs. PLEASE ENSURE THAT YOU READ AND UNDERSTAND ALL THESE T&Cs BEFORE YOU USE THE APPLICATION AND FEATURES CONTAINED THEREIN. 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 USING THE MOBILE APPLICATION.
All of the defined and capitalized terms in these T&Cs will have the meaning assigned to them here below:
- “Account” refers to the User’s account on the mobile application esme enabling the use of the Application by the User
- “Application” shall mean the mobile application “EsMe” and shall mean and include any updates provided by EsMe from time to time.
- “Registration Data” shall mean and may include the present, valid, true and accurate name, Email ID, age and such other information as may be required by EsMe from time to time, provided by the Users at the time of registration on the mobile application EsMe or otherwise
- “User” shall mean persons who have created an Account and use the Application.
- "You", “Your" or “Yourself” shall mean reference to the User accessing the Application
1.1 Where used in this, the following capitalised words and phrases shall have the meaning given to them below:
“Documentation” means (i) the online documents, user guides and specifications that described the permitted usage and functionality of the OnDemand Services, as set out at as may be updated by us from time to time; (ii) the Support Policy; and (iii) the AUP;
“End Users” means (i) your employees and agents that access and use the OnDemand Services on your behalf; and (ii) your customers and such other entities that you allow to access and use your User Content and/or the OnDemand Services;
“Force Majeure Event” means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including without limitation war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. A Force Majeure Event does not include, without limitation, inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party;
“Hosting Partner” means the third party supplier or third party suppliers that EsMe has selected to host the OnDemand Services on its behalf.;
“OnDemand Service” means the EsMe OnDemand Service provided by EsMe to you as identified in the Order and as further described in the Documentation; and
“Term” means the collective reference to the entire duration of this Agreement covering as applicable and unless terminated earlier in accordance with its terms: (i) the period between the Commencement Date and the Service Activation Date; (ii) the Initial Period; and (iii) thereafter each Renewal Period.
“Third Party Services” means any online or offline product, service, software provided by you or third party, which interoperates with the OnDemand Service.
1.2 Where capitalised words and phrases are used in this OTC but not defined, such capitalised words and phrases shall be given the meaning ascribed to them in the relevant part of this Agreement.
2. AGREEMENT STRUCTURE
2.1. You may purchase the OnDemand Services, governed by the Agreement by executing a written Order, that is also executed by us. EsMe shall be free to accept or decline each Order in its own discretion.
2.2. In addition to the terms set out in these OTC, the following are expressly incorporated into this Agreement (and each Order entered pursuant to this OTC) by reference:
2.2.1 The EsMe General Terms and Conditions of Trading, (“GTCs”), subject to clause 2.3 below;
2.2.2 The EsMe Acceptable Use Policy, as the same may be amended reasonably by us from time to time, (“AUP”);
2.2.3 The EsMe OnDemand Support Policy (“Support Policy”);
2.2.4 The EsMe Data Processing Terms, as the same may be amended reasonably by us from time to time, a current copy of which is located at https://onapp.com/legal/onapp-data-processing-terms/ (“DPA”); and
2.2.5 The EsMe Information and Security Policy, as the same may be amended reasonably by us from time to time.
2.3 Where the GTCs are incorporated into this OTC as described in clause 2.2, the following variations to GTCs shall apply:
2.3.1 all references to “EsMe Services” and “EsMe Software” in the GTCs shall be interpreted as being references to the OnDemand Services;
2.3.2 clause 2 of the GTCs (Commencement and Duration and Termination) shall not apply; and
2.3.3 clause 3 of the GTCs (Fees) shall not apply.
2.4. Unless the Order specifically states otherwise, if there is an inconsistency between any of the documents comprising the Agreement, the following, descending order of precedence shall apply: (i) the Order; (ii) this OTC; (iii) the GTCs; (iv) the InfoSec Policy; (v) the AUP; (vi) the DPA; and (v) the Support Policy.
3. TERM AND FEES
3.1 This Agreement shall become legally binding on the date of the last signature of the Order (“Commencement Date”). Your first invoice will be issued on the Commencement Date and we will prepare and configure your OnDemand Service once you have paid this first invoice in accordance with this Agreement. The date the OnDemand Services are made available for your use is the “Service Activation Date”, and we will confirm the Service Activation Date to you in writing. We target the Service Activation Date to be within 72 hours of our receipt of Fees from you in full in respect of the first invoice. Following the occurrence of the Service Activation Date and, unless earlier lawfully terminated, the Order shall thereafter continue for a period of one month (or such other term set out in the Order) from the Service Activation Date (“Initial Period”), and, unless written notice of non-renewal is provided in accordance with clause 2, shall automatically renew for further one month periods or as otherwise stated on the applicable Order (“Renewal Term”). When fully executed, each Order shall constitute a separate Agreement independent of any other Agreements created by any other Orders.
3.2 Without limiting any other right either of us may have under the Agreement, either of us may terminate this Agreement for convenience at the end of the then-current billing month by giving the other party written notice at least 7 days prior to the expiry of the relevant billing month. If such notice is not received by OnApp at least 7 days prior to the expiry of the then-current billing month, we will invoice, and you agree to pay for the next billing month and a further Renewal Term will apply as described in clause 1. You will be invoiced for Renewal Terms 7 days prior to the commencement of that Renewal Term
3.3 As consideration for the supply of the OnDemand Services by or on behalf of EsMe you shall pay EsMe the agreed fees in accordance with the applicable Order at the times and in the manner specified in it (“Fees”). Fees for OnDemand Services are payable by you in advance unless otherwise stated on the Order. Where additional usage charges apply as described in this Agreement (e.g. additional bandwidth charges), the same will be invoiced to you monthly in arrears as part of your next invoice for the OnDemand Service (or upon expiry or termination of this Agreement, a further final invoice). You agree to pay the undisputed portion of any disputed invoice pending resolution of any dispute. A dispute over one invoice shall not entitle you to delay or dispute payment in respect of another invoice or EsMe service or Agreement. The Fees owed to EsMe by you shall not be contingent upon your ability to collect any amounts from your own customers.
3.4 Except where agreed otherwise in an Order, we may amend the Fees applicable to your Order on 90 days’ written notice. Following expiry of such notice, EsMe may then amend its Fees effective upon the next renewal of an expiring of the Initial Period or the current Renewal Term (as applicable).
3.5 In the event that we terminate an Agreement for your breach or insolvency we shall be entitled to invoice immediately for all the minimum Fees that would have been payable during the then remaining balance of the period of each Order that forms part of that Agreement.
3.6 All amounts payable by you are exclusive of all sales taxes, use, excise, import or export, value added, governmental permit fees, license fees, and customs. If you are legally obliged under applicable tax law to withhold any amount of any payment to EsMe, then the amount of the payment to EsMe shall be automatically increased to totally offset such tax, so that the amount actually remitted to EsMe, net of all taxes, equals the amount invoiced or otherwise due. You will promptly furnish OnApp with the official receipt of payment of these taxes to the appropriate taxing authority. You shall provide EsMe with a certificate of exemption acceptable to an applicable taxing authority, where required.
3.7 All payments made by you must be received by EsMe in cleared funds by the due date set out in the relevant Order for which purpose time shall be of the essence. No payments due to EsMe shall be subject to any setoff, counterclaim, withholding or deduction except as is mandatory under applicable law and subject to the other provisions of the applicable Agreement. EsMe shall be entitled to set off and cross-collateralise between each of your balances if more than one. If you do not pay the invoices when due, EsMe may charge interest at one percent (1%) per month on the unpaid balance between the date due and the date paid.
4.1 Your OnDemand Service will be identified in the relevant Order. You may, at any time, add the units of OnDemand Service set out in the Order by agreeing the relevant change with your EsMe account manager. Any resulting change to your fees will be pro-rated for the remainder of the relevant billing month and will then take effect in full from the start of your next billing month.
4.2 Subject to the terms of this Agreement, we shall:
4.2.1 provide the OnDemand Service to you (and your authorised users set out in the Order) on the terms of this Agreement;
4.2.2 materially comply with the Documentation in performing our obligations under this Agreement; and
4.2.3 if set out in the Order, provide the support services described in the relevant Order.
4.3 You may, at any time, request different EsMe services, including Professional Services, which will be subject to different terms and additional charges.
4.4 Without requiring your written consent, EsMe may change, discontinue, or remove the Documentation and/or OnDemand Services (or any part thereof) or change or remove features or functionality from time to time provided that such alterations do not materially diminish the functionality of your ordered OnDemand Services. EsMe will notify you of any material change to, or discontinuation of, the OnDemand Services.
5. LICENCE AND RESTRICTIONS
5.1 EsMe hereby grants you a limited, non-transferable, non-exclusive, non-sublicensable licence for the Term to use the OnDemand Services and the Documentation for (i) your internal business purposes; (ii) for providing services to your End Users; and (iii) (where applicable) for such other purposes described in the Order, subject in each case to the terms of this Agreement.
5.2 You shall ensure that all you:
5.2.1 use the OnDemand Services in accordance with the Documentation and the terms of this Agreement;
5.2.2 keep confidential and not share with any party (other than your employees and agents) any login details, password or other form of access credentials (“Access Credentials”) that it is provided to facilitate your direct access to the OnDemand Services;
5.2.3 maintain reasonable security measures to prevent unauthorised access to the OnDemand Services via your Access Credentials; and
5.2.4 notify EsMe immediately in the event you are aware of or suspect any unauthorised access to the OnDemand Services.
5.3 You shall be responsible for all acts and omissions of your End Users during their use of the OnDemand Services, and any such act or omission that would breach the terms of this Agreement had the same been undertaken by you, shall be deemed to be a breach by you of the relevant provision(s) of this Agreement.
5.4 You shall use due care and diligence to avoid introducing any software virus or other contaminant (including any bugs, worms, logic bombs, trojan horses or any other self propagating or other such program) that may infect or cause damage to the OnDemand Services, or EsMe’s systems or otherwise disrupt the provision of the OnDemand Services.
5.5 We reserve the right to monitor usage of your Access Credentials during the Term for the purpose of ensuring compliance with this Agreement. If any such monitoring reveals that any Access Credentials have been used in breach of this agreement, we may immediately:
5.5.1 disable your access to the OnDemand Services; and/or
5.5.2 invoice you for the additional Fees that would have been payable under the Order had such usage been authorised in accordance with the terms of this Agreement.
5.6 Except as expressly permitted by an applicable Agreement, you shall not: (i) attempt to copy, modify, create derivative works from, republish, display, make available by any means, or distribute all or any portion of the OnDemand Services and/or related Documentation (as applicable) in any form or media; (ii) compile, disassemble, reverse engineer or otherwise reduce to human-readable form all or any part of the OnDemand Services, except as permitted by applicable law; (ii) access all or any part of the OnDemand Services in order to build a product or service which uses or competes with it; or (iv) save as expressly permitted otherwise by the Agreement, license, sell, rent, lease, novate, assign or otherwise transfer any OnDemand Services and/or their related documentation, and or your rights in respect of them, to any third party.