LICENSE AGREEMENT

  • License Agreement

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE LINK PREVIOUSLY SHOWN, YOU (HEREINAFTER REFERRED TO AS THE “CLIENT”) AGREE TO ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE CLIENT AGREES THAT THIS AGREEMENT IS AS LEGALLY BINDING AND ENFORCEABLE AS ANY OTHER WRITTEN NEGOTIATED AGREEMENT SIGNED BY THE CLIENT. THIS AGREEMENT IS ENFORCEABLE AGAINST THE CLIENT. IF THE CLIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE CLIENT SHALL CHOOSE TO NOT USE THE APPLICATION. This agreement shall also govern the Client’s use of any additional application/software made available subsequent to the effective date of this agreement. Such application/software shall reference the terms of this agreement. The Addendum to be found at the end of this Agreement shall also form a part thereof in the case of subscriptions to our “FOAPS WhatsApp Ordering application”. The application is hereby only LICENSED, and NOT SOLD, in accordance with the terms of this agreement. The application may cause Client’s Computer/System to automatically connect to the internet. The application shall also require activation and registration. 

1. DEFINITIONS: 

    1. “Addendum” means the namesake appendix to be found at the end of this Agreement.

    2. “Application” means either the FOAPS Receiver or the FOAPS WhatsApp Ordering, as the case may be.

    3. “Business Day” means every day of the week except a Saturday, Sunday and any other public holiday declared to be as such by the Government of Kerala and the Government of India.

    4. “Client” means you and any legal entity that has obtained a subscription to an application and on whose behalf, it is used.

    5. “Computer” means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, including without limitation desktop computers, laptops, tablets, mobile devices, telecommunication devices, Internet-connected devices, and hardware products capable of operating a wide variety of productivity, entertainment, or other software applications.

    6. “Customer” means a customer of the Client and shall include but not be limited to any individual/entity who orders and purchases any product sold by you using the FOAPS WhatsApp Ordering bot.

    7. “FOAPS Receiver” means the restaurant order management application as described in https://foaps.co/order-management/.

    8. “FOAPS WhatsApp Ordering” means the application named “FOAPS WhatsApp Ordering” as defined and described in the Addendum hereto.

    9. “Intellectual Property” means and includes both collectively or individually, the following universal and intangible legal rights, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (i) patents, patent disclosures, patent rights, know-how, including any and all divisions, re-issues, re-examinations, utility, model and design patents/ rights or any extensions thereof; (ii) software codes, internet domain names, trademarks, service marks, trade names, logos and corporate names; (iii) rights associated with works of authorships, including without limitation, copyrights, moral rights, copyright applications, copyright registrations; (iv) rights relating to the protection of trade secrets and confidential information; (v) all other intellectual property rights anywhere in the world including rights of privacy and publicity, whether or not requiring registration and whether or not such registration has been obtained; (vi) goodwill symbolized by or associated with any of the foregoing rights; and (vii) proprietary information, proprietary processes, software, technical information, data, databases (including but not limited to data or information of the Users, sales data, etc.), process technology, plans, formulae, algorithms and blue prints.

    10. “Order” means a paid purchase of products sold by you, made by your customer using the FOAPS WhatsApp Ordering bot.

    11. “Parties” means us and you/Client.

    12. “Services” means and includes those services provided by us as part of the “FOAPS Receiver” or “FOAPS WhatsApp Ordering” subscription as the case maybe, and described in the Addendum hereto.

    13. “We/Us/Service Provider” means Lasper Technologies Private Limited, a Private Limited Company registered under the provisions of the Companies Act, 2013 with its registered office at 36/1353, Swaraj Enclave, VI Pady, AIMS-Ponekkara P.O, Edappally, Kochi, Kerala – 682041, and its successors, executors or permitted assigns whenever relevant. The word “our” hereafter shall refer to anything and everything owned by us.

    14. “You” means the Client.

2. VALIDITY: The validity of this agreement and the subscription shall depend on the application and the payment plan chosen by the Client. 

3. RENEWAL: This agreement shall auto renew itself and therefore be deemed to have been renewed upon expiry of its validity as the case maybe, notwithstanding any alterations made to any of the clauses herein, unless expressly declined or terminated by either us or you.

4. SUBSCRIPTION FEE: The Client shall pay us the subscription fee as stated in https://foaps.co/pricing/, in the case of a subscription to our “FOAPS Receiver” application and the subscription fees as stated in the Addendum hereto in the case of a subscription to our “FOAPS WhatsApp Ordering application”, in the manner and at times stated therein. All statutory taxes applicable to the subscription fee shall also be paid by the Client additionally. The subscription fee for FOAPS WhatsApp Ordering shall cover a subscription of the FOAPS Receiver application valid for as long as the FOAPS WhatsApp Ordering subscription is valid by itself. 

5. ALTERATION OF SUBSCRIPTION FEE AND VALIDITY OF SUBSCRIPTION: We reserve the exclusive right to alter the costs and the validities of a subscription to our applications as and when a renewal or revival of this agreement as the case maybe, is contemplated and finalized.
 

6. REPRESENTATIONS: You hereby represent and affirm that you possess all right, power, and authority necessary to enter into this agreement and to perform the obligations consented to thereunder. You also hereby represent and affirm that you shall comply with all applicable laws, regulations and other requirements mandated by a quasi-judicial/governmental authority while undertaking your respective obligations under this agreement.

7. PARTIES TO TRANSACTIONS: All individuals/entities who interact with and use the FOAPS WhatsApp Ordering bot to place an order for a product sold by you, shall be deemed to be your customers only. All orders placed with and payments made to you by any customer using the FOAPS WhatsApp Ordering bot shall be deemed to be a transaction entered into and executed by and between such customer and you only. We are only a facilitator of any transaction entered into and executed by and between a customer and you over the FOAPS WhatsApp Ordering bot. Such transactions shall therefore absolutely not bind us or affect any of our rights as guaranteed under this Agreement. 

8. AGENCY: Our role in the process of arranging for and assigning a delivery executive who will be tasked with the delivery of those orders placed by your customers via FOAPS WhatsApp Ordering bot, shall be limited to that of your agent. That is to say that we shall not be liable for any action, inaction, omission, negligence, laxity, deficiency in service and misconduct of the delivery executive, his/her employer or the entity he/she may be contractually obliged to work for. We shall also be deemed to be acting as your agent, while redirecting your customers using the FOAPS WhatsApp Ordering bot, to the authorized payment gateway and while initially accepting payments made by your customers for orders placed by them thereby. We shall be an agent of yours during and for the purpose of negotiations and liaisons with a delivery service, as more elaborately stated in clause No.10 as well.

9. SETTLEMENT OF AMOUNTS: FOAPS WhatsApp Ordering shall show and we shall receive from your customer in respect of every order placed therein, an amount inclusive of the;

i. Amount payable by the customer post discounts if any, of products sold by you, all taxes and cess (including but not limited to SGST, CGST and IGST) applicable thereof,

ii. Delivery charges payable to the delivery service chosen by you.

All amounts received by us via the authorized payment gateway shall be transferred over to your preferred bank account within T+3 Business Days post the deduction/retention of handling charges (payment collection + payment settlement charges), the quantum of which shall depend and vary based on the payment gateway used to receive the amounts and the delivery charges payable to the delivery service chosen by you, in respect of the orders in question.

10. RESOLUTION AND REDRESSAL OF CUSTOMER GRIEVANCES: Any grievance of your customers traceable to the quality, quantity or packaging of your products ordered via FOAPS WhatsApp Ordering, shall be resolved and redressed by you directly and individually. Any grievance of your customers traceable to the delivery of your products ordered via FOAPS WhatsApp Ordering, shall be conveyed to us within thirty minutes from when the grievance was originally raised by your customer. We shall thereafter attempt to negotiate and liaison with the concerned delivery service on your behalf in the capacity of your agent and try to secure for you, the best possible outcome/resolution. We shall however not be able to guarantee an outcome desired by you or your customer through such negotiation and liaison, as the resolution and redressal of all grievances traceable to the delivery of your products ordered via FOAPS WhatsApp Ordering, is ultimately subject to the terms contained in https://porter.in/terms-of-service.

11. CONFIDENTIALITY: All information/data fed into our applications by you and your customers (including personal addresses and locations exchanged with FOAPS WhatsApp Ordering bot by your customers), shall thereafter be used by us for the purpose of improving the quality of any of our products and enhancing your customers’ experience (by automatically loading, suggesting and selecting such personal addresses and locations of customers who may choose to order from a different client of ours). The same shall be construed and handled as Confidential Information. You hereby agree that “confidential information” in the context of this agreement shall include all information that is classified and specifically referred to as such by either us or you or by the Parties mutually. You and we agree that each other shall hold and use any such information that they may come to possess only confidentially and as permitted by the Parties mutually. The Parties shall be obliged to disclose confidential information in each other’s possession to a third party only upon being instructed/permitted to do so by either, a court of law or any quasi-judicial authority exercising specific powers under a law.

12. INTELLECTUAL PROPERTY: The Parties agree that all the intellectual property already developed and/or owned by both you and us as on the date of this Agreement shall continue to vest with ourselves. The Parties hereby agree and understand that neither shall use the name, brand name, logo, wordmark, trademark, service marks, etc. belonging to either, for any purpose whatsoever without the prior written consent of the owner or any other person empowered/authorized in that regard by each. Nothing contained herein shall authorize the Parties to use, apply, invade, exploit or infringe each other’s intellectual property rights, without prior consent of the owner.

13. INDEMNITY: The Parties agree to indemnify and hold harmless ourselves, each other’s affiliates, directors, officers, agents, representatives and employees, from and against any and all claims, suits, liabilities, judgments, losses and damages arising out of or in connection with any claim or suit or demand, in relation to;

i. the breach of any obligations, representations, warranties and covenants under this Agreement by you or us, 

ii. any act of willful misconduct or negligence by you or us or each other’s representatives,

iii. any breach of the provisions of the confidentiality clause,
and
iv. any breach of applicable laws.

The Parties acknowledge that damages alone shall not constitute an adequate remedy for any breach of the provisions of this Agreement and either shall without prejudice to any and all other rights or remedies available hereunder or in law, be entitled to seek remedies of injunction, specific performance and other equitable relief against the same. Such obligation to indemnify shall survive termination or expiration of this agreement. The Parties hereby undertake to indemnify, defend, and hold harmless, each other and their affiliates, directors, officers, employees, representatives, and advisors against any tax liability incurred by either on account of a refusal/failure to pay taxes under this Agreement.

14. LIMITATION OF LIABILITY: We shall not be liable for any loss/damages occasioned to the Client on account of any interruptions or technical glitches that could arise in the operation of both FOAPS Receiver and FOAPS WhatsApp Ordering, but are not attributable to us. We shall under such circumstances wholeheartedly engage in all attempts to restore normal operations at the earliest. In no event or under any circumstance shall either of us be liable to the other in contract, tort or otherwise for indirect, special, incidental, exemplary, punitive, or consequential damages of any kind whatsoever even if advised of the possibility of such damages. Your aggregate liability and ours, under this Agreement shall not under any circumstance exceed the subscription fee paid hereby, except in the case of damages occasioned to each other due to fraud, willful misconduct, gross negligence, refusal/failure to pay remuneration and breach of the provisions of the confidentiality clause.

15. DISCLAIMER OF LIABILITY: The Parties shall not be liable to each other for any loss suffered by either on account of failure to undertake and fulfill the respective obligations under this agreement, if such failure is a direct consequence of or has been occasioned by any force majeure event, including but not limited to acts of God, personnel strikes, war, terrorism, governmental decrees or controls, insurrections, epidemics, pandemics, COVID-19, fire, accident, explosion, or any other circumstance beyond the reasonable control of either.

16. ASSIGNMENT: You shall not assign or transfer all or any of its rights and obligations arising out of this agreement in favour of a third party without first securing our written consent in advance.

17. TERMINATION: This agreement may be terminated by way of mutual consent expressed in writing by both. The Parties are also at liberty to unilaterally terminate this agreement on grounds of inability to continue or violation of/unacceptable deviation from any of the clauses in the agreement (that remains undone/uncured within seven days from the first intimation thereof), by serving upon each other a minimum of thirty days’ notice regarding the respective intent to terminate the agreement under this clause, in writing.

18. NOTICES: Any notice or communication envisaged under this agreement and required to furnished in writing shall be duly addressed to the authorized signatories of the Parties and served at each other’s respective address as mentioned earlier, through E-mail, Registered Post with Acknowledgement Due, Speed Post Due, Courier and/or fax or to such other address as may be specified by either from time to time.

19. WAIVER: The failure of the Parties to assert any of its rights under this Agreement, including, but not limited to, the right to terminate this Agreement in the event of breach or default either, will not be deemed to constitute a waiver by us/you of our/your right thereafter to enforce every provision hereunder. Invalidity or unenforceability of any provision of or right arising pursuant to this Agreement shall not adversely affect the validity or enforceability of the remaining obligations or provisions.

20. ARBITRATION AND JURISDICTION: Any dispute between the Parties arising out of or in connection with this agreement, its performance and termination shall first be attempted to be amicably settled by the Parties through discussion. Any dispute or difference arising out of or in connection with this agreement, its performance and termination that remains unsettled through dialogue within 30 days from the date on which a given dispute was first raised by us or you as the case maybe, shall be referred to arbitration by us or you either individually or mutually. The ensuing arbitration proceedings shall be guided by the provisions of the Arbitration and Conciliation Act, 1996 and shall be presided over by one Arbitrator to be mutually appointed by the Parties within thirty days from the date on which a given dispute is chosen to be referred to arbitration by either or the Parties mutually as the case maybe. The award so passed by such Arbitrator in those disputes referred to him/her shall be binding on all Parties to this agreement. The venue/seat of Arbitration shall be at Ernakulam. The language of arbitration shall be English. The arbitrator’s fees and all costs incurred by both parties with regard to the Arbitration shall be borne by whoever loses therein.

This contract shall be governed by the laws of the Union of India. The contract and all disputes thereof shall be subject to the exclusive jurisdiction of the Courts of Ernakulam.

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ADDENDUM

This Addendum to the License Agreement witnesseth as follows; 

  1. Introduction: 
    WhatsApp’s unparalleled reach and user base make it the ideal platform for businesses to connect with customers. As consumers increasingly use WhatsApp for communication and commerce, it is crucial for businesses to leverage this channel to stay competitive. FOAPS WhatsApp Ordering is an end-to-end WhatsApp ordering solution and application designed to streamline home delivery and takeaway services without the need for additional apps or websites. FOAPS WhatsApp Ordering is highly capable of integrating seamlessly with existing order management systems, loyalty programs, and third-party delivery partners.

  2. Key Features:

    Ordering:     Customers can easily place Home delivery and Takeaway Orders directly through your/your restaurant/your business’ WhatsApp number, providing a familiar and convenient ordering experience.

    Automated Delivery Partner Assignment: Orders are assigned to nearby delivery partners from trusted third-party delivery providers. 

    Automated Order Status Updates:     Customers receive real-time updates on their order status, enhancing satisfaction and reducing uncertainty. 

    Real-Time Order Tracking: Customers can track the real-time location of their delivery rider, providing greater transparency. 

    Integration with Existing Systems:     Seamless integration with your existing kitchen operations to ensure efficient operations. 

    Scalability:     Our solution supports growth by enabling you to scale home delivery services without the need for additional in-house delivery personnel. 

  3. Implementation Plan:

    Discovery and Planning:     Collaborate to understand your current systems and operational processes to tailor our solution to your needs.

    Integration and Testing: Integrate our solution with your systems and perform comprehensive testing to ensure smooth functionality.

    Launch and Training: Implement the WhatsApp ordering solution and provide training to your staff to ensure effective usage. 

  4. Subscription Fee: 

    Annual Fee: INR 60,000 per outlet
    Commission: 0%
    Payment handling charges (payment collection + payment settlement charges): 2.66%
    Channels Included: 3
    Unlimited Users: Yes

    Payment Settlement: T+3 Business Days post the deduction/retention of handling charges (payment collection + payment settlement charges)

    Additional Charges:     

    WhatsApp Conversation Charges: Applicable.

    Customization and Integration Charges: INR 2500 per hour for any additional customization or integration beyond the standard ordering.

    Delivery Charges: Billed based on actual costs incurred by Porter. 

  5. Payment Structure: 
    To ensure a smooth and efficient implementation of the FOAPS WhatsApp Ordering solution for you, the following payment terms will apply:

    Advance Payment: We will commence the onboarding and implementation process upon receipt of 50% of the first year’s subscription fees as an advance payment. 

    Final Payment: The remaining 50% of the first year’s subscription fees must be paid in full prior to the ordering channel going live. 

    The Annual Subscription amount has to be paid as and when the date of renewal occurs.