This Master End-User License and Subscription Services Agreement (“Agreement”) is entered between Gale Creative Agency Private Limited having its registered office at No. 3/1, Ground Floor, JP Techno Park, Miller Tank Bund Road, Vasanth Nagar, Bangalore – 560 052, Karnataka, together with its affiliates, (“Company/We/Our/Us”) and 

the Users (“You/Your/User”) who have subscribed to the Subscription Plan (defined below) and avail the Services (defined below) available on the Markey Platform (defined below).

We and You hereto shall collectively be referred to as the “Parties” and individually as a “Party”.

By Accepting this Agreement, You also acknowledge that You have fully read and understood Our Terms of Use and Privacy Policy, which are available at https://www.markey.ai/terms-of-use  and https://www.markey.ai/privacy-policy/  respectively, and agree to comply with the same when availing the Services through our Platform.

Notwithstanding anything to the contrary set forth in this Agreement, the Parties hereby agree that Our Terms of Use is incorporated herein by reference, shall remain in full force and effect, and shall not be superseded by this Agreement; provided, however, that in the event of any conflict between any terms set forth in this Agreement and the Terms of Use, the applicable terms in this Agreement shall prevail to the extent of such conflict.

WHEREAS

1. We are engaged in the business of providing cloud based automated digital marketing solutions through the Platform to Our users or clients and such other services as agreed between Us and Our users or clients from time to time.
2. Pursuant to the above, You are desirous of availing the Our Services as per the terms and conditions set out in this Agreement.
3. Based on the representations and warranties provided by either Party, You have agreed to avail the Our Services and We had agreed to render the Services subject to the terms and conditions herein.
4. In addition to this Agreement, You shall also abide by the terms and conditions of Our Terms of Use and Privacy Policy.

1. DEFINITIONS AND INTERPRETATION

• Definitions: When used in this Agreement, the capitalized terms listed in this clause 1 shall have the meaning as provided below. Other capitalized terms used in this Agreement shall have the meaning respectively assigned to them elsewhere in this Agreement or in the Terms of Use.
  • “Account” means any accounts created by You or on Your behalf for access and use of the Services.
  • “Confidential Information” means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third-party without a breach of such third-party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
  • “Content” means content uploaded by You into the Services for processing, storage, or hosting, but does not include (a) Third-Party Content, or (b) Account Information. For purposes of this definition, “content” means any data, including all text, sound, video, or image files, and Software (including machine images).
  • “Data” means all electronic data, text, messages, or other materials, including without limitation, Your Personal Data, Your Content, submitted to the Services by You through Your Account in connection with the use of the Services.
  • “Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by Us to You through the Services or otherwise.
  • “Intellectual Property Rights” shall mean all intellectual and industrial property rights including without limitation, trademarks, service marks, trade names, trade dress, logos, copyrights, rights of authorship, inventions, mask work rights, moral rights, patents, rights of inventorship, all applications, registrations and renewals in connection with any of the above; database rights, know-how, trade secrets, formulas, pattern, method, technique, rights of publicity, privacy anywhere in the world, whether registered or unregistered.
  • “Personal Data” means any information relating to an identified or identifiable natural person that is submitted by You to the Services as part of Your Data.
  • “Platform” means cloud-based automated digital marketing platform of Us operated through the website https://markey.ai owned by Us.
  • “Process” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
  • “Sensitive Personal Information” means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person’s sex life or sexual orientation. It also includes information about an individual’s criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws.
  • “Services” means the automated digital marketing services rendered by Us through the Platform and any new services that We may introduce from time to time as a service to which You may subscribe to, andany updates, modifications, or improvements thereto.
  • “Software” means any software provided by Us (either by download or access through the internet) that allows You to use any functionality in connection with the Services.
  • “Subscription Fees” means applicable fee associated with Your Account and use of the Services.
  • “Subscription Plan” means the pricing plan and any limitations for the Services that You have subscribed to.
  • “Subscription Term” means the period during which You have agreed to subscribe to the Services as mentioned in a relevant Subscription Plan or as mutually agreed between the Parties.
  • “Third-Party Content” means content (including open-source software) provided by a third party that interoperates with the Services, but that is not part of the Services. Third-Party Content is used at Your option and is subject to the third-party terms accompanying the Third-Party Content. Third-Party Content is not licensed by Us. We and Our suppliers may provide links to Third-Party Content through the Services, a marketplace, or otherwise. As an example, Third-Party Content may include an application that is listed on a marketplace or in a catalog.
  • “Third-Party Services” mean third-party application(s) or service(s) integrating with the Services enabled through the Services.
  • “Update” means any revisions made to the Services by Us (i) to improve upon re repair existing features and operations within the Services; (ii) to ensure compatibility with new releases of existing systems, or (iii) to comply with the applicable laws, regulations, industry standards or market practice. Updates primarily include patches, “bug fixes” and any other modification designed to address problems with the Services.
• Interpretation In this Agreement, except to the extent that the context otherwise requires:
  • References to any document or Agreement including this Agreement shall be deemed to include any references to such documents or Agreements as amended, supplemented, or replaced from time to time in accordance with its terms and conditions (where applicable) subject to compliance with the requirements set forth therein.
  • References to a statute, ordinance or other law shall be deemed to include regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them.
  • Clause, sub-clauses, Annexure and Exhibit references refer to clause and sub-clauses of, annexure and exhibits to, this Agreement.
  • The terms defined in this Agreement include the plural as well as the singular and the derivatives of such terms and words importing a gender include every gender.
  • Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular clause, sub-clauses or other subdivision.
  • The words “include” and “including” shall not be construed as terms of limitation.
  • The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year.
  • Where two or more parties are included in any expression, all covenants, Agreements, terms, conditions and restrictions shall be binding on and applicable to them jointly and each of them severally, and shall also be binding on and applicable to their personal representatives or successors in title (as appropriate) and permitted assigns respectively jointly and severally.
  • Contra Proferentem rule shall not apply and accordingly, none of the provisions hereof shall be construed against or interpreted to the disadvantage of the party responsible for the drafting or preparation of such provision.
  • Capitalised words used but not defined herein shall have the meaning set forth in the Terms of Use.

2. SERVICES

• You shall access and use the Platform for availing the Services during the Subscription Term, pursuant to the terms of this Agreement. The Services can be used by You only after choosing the Subscription Plans offered by Us and paying the respective Subscription Fee for it.
• Acceptable Use and Access of Platform: You shall comply to the terms and conditions set forth in clause 7 of Our Terms of Use while accessing and using the Platform and availing the Services
• The Services shall include all Updates as are released by Us from time to time. The Updates to the Services are also subject to this Agreement and We reserve the right to deploy Updates at any time. The terms pertaining to Updates shall be mutually agreed between the Parties from time to time.
• The Services may temporarily be unavailable due to scheduled downtime for the maintenance in which case We shall use commercially reasonable endeavours to notify you in advance.
• Add-on Services: For this purpose, You shall comply in accordance with the terms of clause 2 of the Our Terms of Use.

3. GRANT OF RIGHTS

• We shall grant to You a non-exclusive, non-assignable, revocable, non-transferable, royalty-free, limited worldwide license to use and access the Services through the Platform for its business or domestic requirement, in accordance with the terms contained in this Agreement.
• You understand and agree that the Services or any portions thereof are the property owned by Us and accordingly We shall own all pre-existing Intellectual Property Rights pertaining thereto.
• You agree to comply in all respects with the confidentiality, ownership, and use provisions contained in the Terms of Use and this Agreement regarding the Services.

4. REGISTRATION AND MAINTENANCE OF ACCOUNT

• Registration:
  • To use the Services on the Platform, You will need to create an Account and Brand on the Platform and become a registered Account holder of the Platform by registering as prompted in the Platform’s relevant registration form (“Registration Data“) whereby You will generate a password and username (“Login Credentials”) upon completing the registration process. We may also provide You an option to login to the Platform through Our integrated third-party (eg., Google or Facebook), in which case You shall also be subject to relevant third-party terms and conditions applicable to such account.
  • As the creator of the Account, You represent and warrant that You are a duly authorized representative and signatory of the Account entity, Brands and Products named in the Account and that the information provided is correct, complete, and not misleading. The entity named in the Account accepts this Agreement hereby. You shall inform Us promptly of any changes to the information provided by You, by updating the details, for effective communication. You acknowledge that if any Registration Data provided by it is untrue, inaccurate, not current, or incomplete, We reserve the right to indefinitely suspend or terminate or block access of Your Account on the Platform.
  • While creating the Account, You agree: (a) to restrict access by any other person or entity other than the authorised representatives from Your organisation to Your password or other login information; (b) to not knowingly use the name or email of any other person without authorization; (c) to not use an email or profile name that is profane, offensive, or otherwise inappropriate; (d) to not allow any third party to use Your login information, Registration Data or Account; and (e) to notify Us of any activities in Your Account even if such activities are not committed by the You.
  • We may modify or add to the Registration Data information fields required to create an Account from time to time. You agree to promptly complete any such additional or modified information fields when and as requested by us. In some cases, You will also need to update the Account and/or operating system settings to allow Us to access Your other details including but limited to the address book/contacts and enable the geolocation and camera/microphone functions. Your registration with Us is subject to Our confirmation and will become valid when We either confirm Your registration or activate the Account.
  • We will have the right to use Registration Data in connection with servicing and operating the Platform and in other manners as set forth in more detail in the Agreement, Terms of Use and Privacy Policy.
• Usage of Account: Your access and use of the Services is restricted to the specified number of individual users based on the number of licenses purchased by the Account owner. 
• Password & Security: You must keep the Login Credentials confidential and must not disclose it or share it with anyone. You are responsible for preventing unauthorised use of the Login Credentials. If in any circumstance, You believe that there has been a breach of security such as disclosure, theft, or unauthorised use of Your ID, You must notify Us immediately. If We reasonably believe that Your ID is being used in any way which is not permitted by Agreement and/or Terms of Use, We reserve the right to suspend access rights immediately on giving notice to You and to block access from Your ID until the issues has been resolved.
• Third Party Communications: While registering the Account in the Platform, You provide us with Your contact details including Your email address. You hereby affirmatively consent to the use of Your email address for notifications from Us regarding important service announcements and other administrative communications related to Your use of the Platform, as well as certain marketing and other advertising communications from Us and from Our third-party advertising partners. You may opt out of receipt of certain notifications; however, there are certain services and administrative notification which You cannot opt out the receipt of it. If You do not wish to receive such notifications related to the Platform, Your only way to opt out of such messages is to stop using and delete the Platform. We disclaim liability for any communications directed to You from any third party directly or indirectly in connection with the Platform that You may receive and any actions You may take or refrain from taking as a result of any such third-party communications and assumes no responsibility for verifying, and makes no representations or warranties regarding, the identity or trustworthiness of the source or content of any such third-party communications

• Termination to Platform Access & Deletion of Account: For this purpose, You shall comply in accordance with the terms of clause 5 of the Terms of Use.
• Your Consent: You are acknowledging and giving Your full and unconditional consent to: (a) Your Account Information being permanently retained on a computer database that shall be maintained, owned, and controlled by Us; (b) Your Account Information being shared with any other third-party entity that enters into a commercial relationship with Us; (c) Your Account Information being shared in its original form, or as part of or aggregated form, with other third-party entities; (d) Your Account Information being shared with Our partners, licensors and affiliates; (e) Receiving links to third-party websites and services, which have entered into a commercial relationship with Us (collectively, “Third-Party Links”) and (f) Receive from Us Telephone calls, text messages, emails regarding the Services, including promotional calls and messages regarding the Services, and updates to Our products, provided You shall provide Your email address, mobile number (“Mobile Contact Number”) or any other contact information while creating an Account or interacting with Us.

5. SUBSCRIPTION FEE AND PAYMENT

• Subscription Fee: The Subscription Fee shall be paid by You as specified in the appropriate Subscription Plan or mutually agreed between the Parties from time to time basis. Further, You shall also be governed by the terms of subscription as stated in the Terms of Use. Unless otherwise agreed between the Parties, the Subscription Fees are due in full and payable in advance, for any plan that that You purchase, in accordance with clause 5.2, when You subscribe to the Services.
• Payment: You hereby authorize Us or Our authorized agents, as applicable, to bill You, and charge You as appropriate, upon subscribing to the Services (and any renewal thereof). Unless otherwise agreed between the Parties, the Subscription Fee shall be paid by You either on yearly basis, or quarterly basis, or monthly basis in advance for the subscription. A maximum of five (5) days grace shall be provided from the invoice date.
• You shall also acknowledge that the Subscription Plan which You choose may be updated from time to time and, it shall be Our responsibility to notify You such changes in Subscription Plan.
• We allow authorisation of payment on the Platform through the following payment services:
  • Debit/Credit Card
  • Internet Banking
• We accept following payment methods through the above-mentioned payment services:
  • Debit/Credit Card
  • Internet Banking
• Renewal: Your subscription to the Services will renew automatically unless the Account is terminated by You or by Us on account of non-payment or on account of breach of this Agreement.
• Cancellation & Refunds: The Subscription Plan subscribed by You can be canceled by You any time during the Subscription Term, and the future subscription shall stand cancelled. The Subscription Fee already paid is not refundable, unless in exceptional circumstances which could be refunded at the discretion of the Company.

• Late Payments/Non-payment of Subscription Charges: We shall notify You, if We did not receive payment towards the Subscription Fee within the due date for Your Account. Payment not realized within due date and a grace period of 5 days, shall lead to cancellation of your subscription.

• Applicable Taxes: The Subscription Fees and any other sums payable by You are exclusive of any taxes, federal, state, country, local sales/ service tax, value added tax, withholding tax, goods and services tax, etc. If any tax is applicable at the prevailing rates and such other rates as may be amended from timeto time by the relevant statutory authority, the same would be charged additionally in the invoice.

• Changes to Subscription Fee and Other Service Charges: We are entitled to review and modify the Subscription Fees and/or any charges for the Services from time to time. However such changes will not apply retrospectively, and will come into effect from the date of publishing of such changes on Our Platform. For existing subscribers, the revised Subscription Fee and Charges would not apply for the already paid subscription term and subscribed services prior to the changes coming into effect, and would apply from the next subscription renewal or service order after the changes come into effect.

6. INTELLECTUAL PROPERTY RIGHTS

• Except for the rights granted to You under clause 3 of this Agreement, all rights, title and interest in and to all Intellectual Property Rights, title and interest in or related to the Services, including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how shall belong to and remain exclusively with Us
• You own the rights to Your Data that it provides to Us. We do not claim ownership over such Data. We shall have a right and license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from You.

• We reserve the right to re-use any and all techniques and know-how gathered by Us while providing the Services to You. Further, all rights not expressly provided to You herein are reserved by Us.

7. CONFIDENTIALITY

• You and We, each agree to retain in confidence the non-public terms in this Agreement and, all other Confidential Information and know-how disclosed pursuant to this Agreement.
• Each Party agrees to: (a) preserve and protect the confidentiality of the other Party’s Confidential Information; (b) refrain from using the other Party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees or agents as is reasonably required under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees). Notwithstanding the foregoing, either Party may disclose Confidential Information of the other Party which is not a Confidential Information. Moreover, either Party hereto may disclose any Confidential Information hereunder to such Party’s agents, attorneys and other representatives or any court of competent jurisdiction or any other Party empowered hereunder as reasonably required to resolve any dispute between the Parties hereto.
• The obligations of this clause shall be continuing and binding until the earlier of: (a) five (5) years from the date the receiving party receives the disclosing party’s Confidential Information; or (b) the date on which the disclosing party’s Confidential Information is no longer confidential other than by a breach of this Agreement; provided however that protection of trade secrets shall extend for as long as the relevant information qualifies as a trade secret under applicable laws.
• The receiving party acknowledges that any actual or threatened violation of this clause may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain, and therefore agrees that the disclosing party shall be entitled to seek injunctive relief in addition to all other remedies available at law and/or in equity.
• At any time at the request and option of the disclosing party and in the event of termination or expiration of the Agreement (or any part thereof), the receiving party shall deliver to the disclosing party in a form as specified by the disclosing party all records relating to any Confidential Information and Personal Data, which it has collected, used or disclosed in connection with this Agreement together with all documentations, books, records and evidence of any and all consents or Agreements with third parties relating to such Confidential Information and Personal Data. The receiving party shall thereafter, at its own cost and expense, promptly: (a) return to the disclosing party the Confidential Information and/or Personal Data, as applicable; or (b) destroy or permanently erase (on all forms of recordation) the Confidential Information and/or Personal Data, as applicable and, if requested by the disclosing party, and acknowledge in writing that all such Confidential Information and/or Personal Data, as applicable, has been destroyed or permanently erased, within 15 days from the date of termination or expiry of the Agreement or in accordance with such other timelines as may be mutually agreed between the Parties. Notwithstanding the foregoing, each Party may retain copies of the Confidential Information and/or Personal Data, as applicable, to the extent required to comply with applicable legal and regulatory requirements, provided, however, that such Confidential Information and/or Personal Data, as applicable, will remain subject to the terms and conditions herein.

8. TERM, TERMINATION AND SUSPENSION

• Term: The Subscription Term shall be mutually agreed between the Parties.
• Termination by You: You may terminate Your Account and subscription to the Services at any time but will remain liable for all Subscription Fees for the Subscription Term. Unless the Your Account and subscription to the Services is terminated, Your subscription to the Services will renew for a Subscription Term equivalent in length to the then expiring Subscription Term at the then prevailing Subscription Fees.
• Termination and Suspension by Us: In addition to suspension for late payment or non-payment of Subscription Fees, We may in Our discretion, suspend or terminate Your access to and use of Your Account or the Services if You violate any terms of this Agreement and/or Terms of Use. We will notify Your activities that violate this Agreement and shall provide You with a period of fifteen (15) days to cure or cease such activities (“Cure Period”). If You do not cure or cease such activities within the said Cure Period or if We believe that Your breach of this Agreement cannot be cured, Your Account shall be terminated immediately. Further, We also reserve the right to terminate Your Account immediately at any time by written notice due to business reasons which shall include discontinuation of the Service.
• Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate this Agreement without notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies) which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
• Effect of Termination of Account: Following the termination of Your Account either by You or by Us, You may request Us to reinstate Your Account within one hundred and eighty (180) days of effective termination of the Account (“Data Retention Period”). Beyond the Data Retention Period, We reserve the right to delete all Your Data in Our possession.

9. REPRESENTATIONS AND WARRANTIES

• Either Party represents, warrants, and covenants to the other Party as follows:
• It is a company, duly incorporated, organized and validly existing under the laws of its respective countries of incorporation and has full power and authority to carry on its business as now being conducted and there is no default under or in violation of any provision of its incorporation documents or any resolution adopted by its shareholders or board of directors by the execution, delivery and performance by it of the Agreement.
• The execution, delivery and performance by it of the Agreement are within its powers and have been duly authorized by all necessary corporate actions.
• As of the Effective Date, no order has been made and no resolution has been passed for the winding up of or for a provisional liquidator to be appointed in respect of it and no petition has been admitted and no meeting has been convened for its winding up; no receiver has been appointed in respect of all or any of its assets; and no distress, execution or other process has been levied on any of its assets and it is not insolvent or unable to pay its debts as they fall due to the best of its knowledge, the execution, delivery and performance of the Agreement does not constitute a breach or violation of any provision of any of its Agreements with third parties.
• You additionally represents, and warrants to Us that:
• You own or possess the necessary rights to transmit Your Data to Us and that doing so does not violate any applicable law, proprietary or privacy rights.
• You shall not avail any of the Services beyond the contemplated functionality of the Services.
• You shall not attempt to gain unauthorized access to any of the Services or any networks, servers or computer systems connected to the Services.
• You shall not avail any of the Services in a way that may damage or impair (i) the Services, or (ii) Our underlying systems and security.
• You shall not avail any of the Services in any unlawful manner, or in a manner which promotes or encourages illegal activity, including (without limitation) copyright infringement or data theft.
• You shall not use any Intellectual Property Rights whether owned by Us or other third parties, including the copyrighted content displayed on the Platform for any personal or third-party gain, without Our express consent.
• You shall not modify, adapt, translate, or reverse engineer any part of the Services (e.g., by creating a shadow site or website that mirrors the said Services, or substantially mirrors said Services).
• You shall understand and acknowledge that any calls, text messages that You receive from Us on the provided mobile contact number are not unsolicited calls or messages.
• You will not carry out any action or omit to do any action which will create liability for Us or cause Us to lose (in whole or in part) the services of Our Internet service providers (ISPs) or other partners, suppliers, contractors, vendors.

10. DISCLAIMER OF

• EXCEPT AS EXPRESSLY SET FORTH HEREIN, BOTH PARTIES HEREBY DISCLAIM ALL WARRANTIES TO EACH OTHER AND ALL THIRD-PARTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE SERVICES, (AND ALL PORTION OR COMPONENTS THEREOF), INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
• WE DO NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED AND/OR ERROR-FREE. ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO AND ARE INTENDED SOLELY FOR THE BENEFIT OF YOU AND DO NOT EXTEND TO ANY THIRD PARTY OR TO ANY THIRD-PARTY CONTENT OR OTHER CONTENT GIVEN BY YOU TO OTHER USER OUTSIDE THIS AGREEMENT. NO WARRANTY IS GIVEN FOR ANY THIRD-PARTY SOFTWARE, CONTENT, OR TOOLS, ETC.

11. INDEMNIFICATION

• Each Party to this Agreement (hereinafter referred to as the “Indemnifying Party” as the context may so require) shall indemnify the other Party (hereinafter referred to as the “Indemnified Party” as the context may so require) and any of its directors, officers, employees and agents from and against any action or threatened action, suit or proceeding, losses, expenses, liabilities and damages that are direct in nature and those arise out of third party claims on account of the Indemnifying Party’s:
• Breach of any representations, warranties and obligations under this Agreement.
• breach of Confidentiality & Confidential Information and Personal Data Protection obligations as provided under this Agreement; or,
• gross negligence or willful misconduct resulting in the death or bodily injury of any person; or,
• damage to tangible property; or,
• infringement of a third Party’s Intellectual Property Rights.
• THE FOREGOING STATES THE ENTIRE OBLIGATION OF US WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE FOREGOING REMEDY IS GIVEN TO YOU SOLELY FOR THEIR BENEFIT AND IN LIEU OF, AND YOU DISCLAIM, ALL WARRANTIES OF NON-INFRINGEMENT.
• A Party seeking indemnification under this Agreement shall: (i) give prompt written notice to the Indemnifying Party as to the existence of the indemnifiable event, (ii) provide such information, cooperation and assistance as may reasonably be necessary for the defense of such action or claim and (iii) grant full authority to the Indemnifying Party to defend or settle such action or claim. No Party will seek a compromise or settlement of the claim without the consent of the other Party if such compromise or settlement would negatively affect the other Party. Further, the Parties expressly agree and acknowledge that either Party shall not indemnify the other Party in respect of the same claims that may arise out of the same cause of action/subject matter. All the indemnity claims as contemplated under this Agreement shall be subject to the final award or settlement as may be awarded by the court of competent jurisdiction.

12. LIMITATION OF LIABILITY

• Notwithstanding anything contained elsewhere, the Parties mutually agree to waive, to the fullest extent permit by law, any claim, liability, prayer or recovery of any indirect, incidental, consequential, special, exemplary, punitive damages, losses, damages, costs or expenses or any lost profits or of contracts, lost goodwill, lost business, lost general overhead, loss of reputation, loss of market share, loss of data, loss of anticipated savings in connection with or arising out of this Agreement (even if such party has been advised of the possibility of such damages, whether based on an action or claim in contract, equity, negligence, tort or any other theory) arising from any provision for whatsoever or reason of this Agreement.
• Subject to clause 1 and in consideration for the Subscription Fees, the Parties mutually agree that Our total aggregate liability under this Agreement shall not exceed the total Subscription Fees paid by You to Us in the three (3) months immediately preceding the date under which the liability or claim for damages arose.
• The Parties agree that the Subscription Fees reflect the limitation on warranties and liability and the allocation of risk, under this Agreement. These limitations shall apply notwithstanding any failure of the essential purpose of the remedy. The Parties expressly agree that if any limitation or provision contained or expressly referred to in this clauseis held to be invalid under any applicable statute or rule of law it will to that extent be deemed omitted but if any Party becomes liable for loss or damage which would otherwise have been excluded that liability will be subject to the other limitations and provisions set out in this clause.
• It is also further expressly agreed that We shall not be liable in any manner whatsoever for any losses or damages or claims or expenses that may arise due to or in connection with the negligent acts or willful omissions committed by You.
• We will have no responsibility or liability for the accuracy of data uploaded by You, including without limitation to Your Data and any other data uploaded.
• We shall not be liable for any loss or damage which may be incurred by You as a result of: any reliance placed by You on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between You and any advertiser or sponsor whose advertising appears on the service, any changes which we may make to the Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services) the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through Your use of the Services; Your failure to provide Us with accurate account information; or Your failure to keep the password or account details secure and confidential.
• We will not be liable for damage that You could have avoided by following Our advice to apply an Update offered to You free of charge or for damage that was caused by You failing to correctly follow installation instructions or to have in place the minimum system requirements advised by Us.

13. DATA PROTECTION AND PRIVACY

• You understand and acknowledge that, in connection with the use of the Services, We may Process any Personal Data in accordance with this Agreement and Our Privacy Policy.
• We may Process Your Data to provide, maintain and improve the Services, or prevent or address any technical problems, or at the Your request in connection with support requests.
• We may perform analytics on Your Data to improve, enhance, support and operate the Services and compile statistical reports and record insights.
• You shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Information to Us for Processing.
• We shall ensure that any person We authorize to Process Your Data shall protect the Your Data in accordance with the confidentiality obligations set forth in this Agreement.
• You acknowledge and agree that We may access or disclose information about You, Your Account, Your users, including Your Data in order to (a) comply with the law or respond to lawful requests or legal process; or (b) prevent any infringement of group companies’ or Our users’ proprietary rights. Further, We may at its sole discretion refer any suspected fraudulent, abusive, or illegal activities of You to law enforcement authorities.
• We shall use appropriate technical and organizational measures to protect Your Data as specified in applicable laws. The measures used are designed to provide a level of security appropriate to the risk of Processing Your Data. We shall, without undue delay, notify You of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Your Data Processed by Us.
• We shall reasonably assist You, at Your expense, in meeting the Your obligations under applicable data protection laws.

14. GOVERNING LAW AND DISPUTE RESOLUTION

• Governing Laws: The Agreement shall be governed by and construed in accordance with the laws of India excluding its conflicts-of-laws provisions, which would refer construction hereof to the laws of another jurisdiction. Save and except the remedies of equitable relief, interim relief, or interim measures, Parties shall be bound to refer the disputes to mediation and arbitration in accordance with the provisions of the Agreement, and each party to this Agreement hereby irrevocably submits to the non-exclusive jurisdiction of the Courts at Bangalore for the purpose of seeking equitable relief, interim relief, or interim measures. It is hereby clarified that the Parties shall have the discretion to seek equitable relief, interim relief, or interim measures or enforce any award in any court of competent jurisdiction (a) before commencement of arbitral proceedings as per the provisions below, or (b) during arbitral proceedings, or (c) at any time after the making of the award by the arbitral tribunal but before it is enforced.

• Mandatory Mediation: The Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be first be raised to the other parties’ relationship manager or competent authority and discussed between the two parties.
• Binding Arbitration: In the event of a dispute which is unresolved for a period of sixty (60) days after the meeting of the project managers, the Parties shall agree to resolve the controversy by final and binding arbitration through a sole arbitrator appointed by the Parties on mutual consent basis, wherein the arbitration shall be administered in accordance with Arbitration and Conciliation Act 1996 and the amendments thereon  for the time being in force, which rules are deemed to be incorporated by reference in this clause. The venue of arbitration shall be at Bangalore. The arbitration shall be conducted in English language. The costs of arbitration shall be borne as per the award. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ONLY ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT OR USING ANY SERVICES, YOU AND PLATFORM ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.

• To the extent not prohibited by applicable laws, We and You agree that written or oral statements or offers of settlement made in the course of the dispute resolution process set forth in this clause will be Confidential Information and will not be offered into evidence, disclosed, or used for any purpose other than the dispute resolution process; and will not constitute an admission or waiver of rights. We and You agree to continue performing their respective obligations under this Agreement while a dispute is being resolved.

15. MISCELLANEOUS

• Waiver: Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. Neither Party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.

• Amendment: This Agreement may not be amended or modified by the Parties in any manner, except by an instrument in writing signed on behalf of each of the parties to which such amendment or modification applies by a duly authorized officer or representative.

• Counterparts: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

• Notices: Any notice or other communication to be given hereunder will be in writing and given by facsimile, post-paid registered or certified mail return receipt requested, or electronic mail (with a copy concurrently mailed as set forth above). The date of receipt shall be deemed the date on which such notice is given. Notice hereunder will be directed to a Party at the address for such party as agreed between the Parties. Either Party may change its address for notice purposes hereof on written notice to the other Party in accordance with this clause.

• Severability: Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

• Independent Contractor: Neither Party shall, for any purpose, be deemed to be an agent of the other Party and the relationship between the Parties shall only be that of independent contractors. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
  
  
• Sub-Contracting and Assignment: Neither Party shall without the prior written consent of the other Party assign, sub-contract, transfer or part with any right or obligation under this Agreement nor any part of them nor delegate any of its responsibilities or obligations hereunder, provided always that where a Party grants such consent to the other Party to sub-contract any of its obligations under this Agreement, the other Party shall be liable for the acts and omissions of the sub-contractor, and shall ensure that such sub-contractor’s delivery in connection with this Agreement conforms to the requirements of the Agreement. Provided however that, such consent shall not be unreasonably withheld by the Parties.

• Force Majeure: In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than a payment obligation) due to any act of fire, casualty, flood, earthquake, war, lockdown, national or state wise lockdown, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this clause, and if such party shall have used its best efforts to mitigate its effects, such party shall give prompt written notice to the other party, its performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. Notwithstanding the foregoing, if such party is not able to perform within thirty (30) business days after the event giving rise to the excuse of force majeure, the other party may terminate this Agreement, without prejudice to the rights of the first party. Force majeure is not effective to delay payment for more than ten (10) business days.

• Entire Agreement: This Agreement together contains the entire Agreement of the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous Agreements or understandings, written or oral, between the parties with respect to the subject matter hereof.

• Remedies Not Exclusive: Except as expressly provided herein, no remedy specified in the Agreement is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and in addition to every other right or remedy provided herein or available at law or in equity.

• Survival: Any provision of the Agreement that contemplates performance or observance subsequent to termination or expiration of the Agreement (including Confidentiality & Confidential Information and Personal Data protection and limitation of liability) will survive termination or expiration of the Agreement, as applicable, and continue in full force and effect thereafter.
• Construction of Documents: Each Party in entering this Agreement has relied upon the advice from their own independent counsel. This Agreement was negotiated and drafted jointly by or on behalf of the Parties to this Agreement and shall not be interpreted against any Party on the basis that such Party or their attorney drafted any of its provisions.