Terms of Use
These Terms of Use (“Agreement”) are entered into between Affle (India) Limited or its’ affiliate for its Vizury Engage360 Software (“Vizury”) AND the entity (“Customer”) that execute Vizury approved ordering document (“Licensing Form /s”) that references this Agreement. This Agreement shall govern the provision of certain software subscription and related Services (“Services”) offered by Vizury that are described in this Agreement and the applicable Licensing Form.
READ THESE TERMS CAREFULLY BEFORE EXECUTING A LICENSING FORM FOR ACCESSING THE LICENSE. BY EXECUTING THE LICENSING FORM REFERENCING THIS AGREEMENT, THE INDIVIDUAL AND CUSTOMER ENTITY THAT HE/SHE REPRESENTS AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Vizury may periodically update these terms and Customer will be notified of such changes through email. The updated terms shall be applicable from the date of such notification.
1. RIGHT OF USE
1.1 Rights Grant. Subject to the limitations laid down in this Agreement, Vizury grants Customer a Licence, nonexclusive and non-transferable right to access and operate the Software (“Use”) and solely to perform those functions described in the Licensing Form during the License Term (defined hereinafter).
1.2 Use. Customer shall have a limited right to Use the Software solely for its internal purposes. Customer may avail the features described in the Licensing Form through the Use of the Software. The Customer hereby acknowledges that the features are self-driven, i.e. the Customer can use the on-boarded data to avail the features. Customer shall be responsible for maintaining the security of Customer’s account access passwords. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Softwares.
1.3 Restrictions on Use. In no event, Customer shall or permit or cause others to (i) disassemble, decompile, or reverse engineer the Softwares or any software or data provided with the Softwares (“Software”) or to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (ii) license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or Service bureau use, or otherwise commercially exploit or make available the Softwares; (iii) allow any website, that is not fully owned by Customer, to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web site that provides direct or indirect access to the Softwares; (iv) use or access the Softwares to build or support, and/or assist a third party in building or supporting products or Softwares competitive to the Softwares or (v) interfere with or disrupt the integrity or performance of the Softwareor breach or circumvent any security or authentication measures.
2. TRIAL
2.1 If agreed under the Licensing Form , prior to the Subscription Term, Customer shall have trial access to the Softwares only for evaluation purposes (“Trial”). Trial will commence from the Trial Period Start Date mentioned in the Licensing Form and shall extend for a period (“Trial Period”) as set out in the Licensing Form .
3. LICENCE
3.1 Commencement of License. Vizury shall provide Customer the right to Use (“Subscription license”) after the end of the Trial Period if Customer desires to purchase the same in accordance with this Agreement and Licensing Form.
3.2 License Limits. The limits that apply to the license Subscription will be specified in the Licensing Form. Customer shall be responsible for any additional fees for incremental usage. All such incremental fees shall be based on Vizury report. Customer may not downgrade the license Subscription services during the License Term and in order to avoid incremental usage charges. If Customer desires to license to additional functionality as part of the Subscription, the parties shall execute a new Licensing Form capturing the terms and conditions of such subscription.
3.3 Software Availability. The Customer acknowledges that the software may be taken down for scheduled updates. Customer acknowledges that internet Services provided or controlled by third parties controls the flow of data to or from Vizury’s network and other portions of the internet. Such actions or inactions of such third parties may disrupt Customer’s connections to the internet (or portions thereof) that may impair availability of the Softwares. Vizury disclaims any and all liability resulting from or related to such events.
3.4 Third Parties. Vizury shall have the right to use third parties (“Subcontractors”) in performance of its obligations and Softwares hereunder and, for purposes of this Section, all references to Vizury or its employees shall be deemed to include such Subcontractors.
3.5 Third Party Products. If Customer opts to use any third party products with the software or Customer data, Vizury is not responsible for the performance of such products or any usage, transmission, disclosure, modification or deletion of Customer data resulting from access by such third party product.
4. PAYMENT
4.1 Subscription Fees. Vizury will invoice Customer for Licence Subscription upon execution of the Licensing Form. For any increment billing period/renewal periods, Vizury will invoice for the same and such invoices shall will be payable within 30 days.
4.2 Marketing Activation Feature Fees. If Customer opts for licence of software Vizury will invoice Customer for the fees at the end of the month. All fees will be based on Vizury’s report. The report is available for access to the customer throughout the licence period.
4.3 Fee Adjustments. Customer shall be required to pay additional charges as per the rates set out in the Licensing Form if fee adjustments are necessitated as per Section 3.2 above. Vizury will invoice Customer at the close of the Month for which the additional charges pertain.
4.4 Payment Obligations. All fees payable shall be specified in the Licensing Form. Subject to the terms of this Section, all invoices shall be payable by Customer within thirty (30) days of the invoice date. In addition to other rights and remedies available to Vizury under the law, Vizury shall have the right to suspend the Software or terminate the Agreement in the event of Customer’s failure to pay any undisputed invoice within the due date. Any late payment shall be subject to costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
4.5 Payment Dispute. In the event Customer disputes any amounts stated in an invoice from Vizury, Customer must notify Vizury in writing of such disputed amounts within seven (7) business days after receipt of the applicable invoice. Such notice shall contain the amount disputed and the basis for Customer’s objection. The parties will work together in good faith to resolve the dispute as soon as reasonably practicable. Customer shall promptly pay the undisputed portion of the amounts.
4.6 Taxes. All amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Vizury and hold Vizury harmless for all sales, use, VAT, excise, property or other taxes or levies which Vizury is required to collect or remit to applicable tax authorities. Customer shall not withhold any taxes at the time of payment upon Vizury providing its tax residency certificate or a nil/lower withholding tax certificate, as applicable.
5. OWNERSHIP
5.1 Reservation of Rights. By agreeing to this Agreement, Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Softwares provided to Customer. Vizury shall own all right, title, and interest in Softwares and Software, subject to any limitations associated with intellectual property rights of third parties. Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements and other contributions provided by Customer regarding the Services and Software shall be owned by Vizury and Customer hereby agrees to assign any such rights to Vizury. Nothing in this Agreement shall preclude Vizury from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Vizury in the performance of Softwares hereunder. Vizury reserves all rights not specifically granted herein.
5.2 Trademark. Affle owns all rights in trademarks and logos contained in the Softwares or its websites. Customer shall not have a right to use them in any manner without prior written consent of Vizury.
5.3 Customer Data. As between the parties, Customer owns and retain all rights to the data and advertising materials provided to Vizury. Customer grants Vizury a non-exclusive, worldwide, royalty-free license to use, copy and display Customer data to the extent necessary to provide the Softwares and reports to Customer. Vizury may use Customer data in an anonymized and aggregated form in order to identify industry level insights.
6. CONFIDENTIALITY
6.1 Definition. “Confidential Information” includes all information disclosed by either party, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. All Confidential Information shared in tangible form shall be marked as “Confidential” or the like or if orally disclosed shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed Vizury Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by Vizury; (ii) the, written, oral and visual information relating to the Software.
6.2 Exceptions. Confidentiality obligations will not apply to any material or information that:
is or becomes a part of the public domain through no act or omission by the receiving party;
is independently developed by the other party without use of the disclosing party’s Confidential Information;
is rightfully obtained from a third party without any obligation of confidentiality.
Neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized government agency. The Receiving party shall give prompt written notice to the disclosing party such that the disclosing party may seek a protective order and minimize the required disclosure. The parties shall cooperate fully in seeking such protective order.
6.3 Non-Disclosure. Each party shall take reasonable measures, but no less than those steps used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information. Both parties agreeto keep all Confidential Information belonging to the other party strictly confidential. and to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
6.4 Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party irreparable loss and injury. Accordingly, such party shall be entitled to obtain injunctive relief, in addition to any other remedies available at law or in equity.
6.5 Validity. The term of this clause shall be effective during the validity of the Agreement and 6 months thereafter.
7. WARRANTY
7.1 Authorized Representative. Customer and Vizury warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
7.2 Vizury’s Warranty.
the Subscription Service will perform materially in accordance with the applicable documentation.
All Service performed hereunder shall be performed in a workmanlike and professional manner.
Vizury will not make any changes to, or tamper with data, or share any data provided by Customer, in any manner whatsoever, unless authorized in writing by the Customer and/or to provide the Service opted for by the Customer;
7.3 Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties in this Agreement will be void if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of Vizury.
7.4 For any breach of the Service warranty, Customer’s exclusive remedy shall be the correction of the deficient service that caused the breach of warranty.
7.5 If Customer is given Trial access, notwithstanding Section 7, during the Trial Period, the Softwareand services are provided “as-is” without any warranty or liability.
7.6 Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 7 OF THIS AGREEMENT, ANY AND ALL OF SOFTWARE, SOFTWARES, CONFIDENTIAL INFORMATION AND ANY OTHER TECHNOLOGY OR MATERIALS PROVIDED BY VIZURY TO THE CUSTOMER ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 7 OF THIS AGREEMENT, VIZURY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
7.7 Based on Softwares opted for by the Customer, (a) Vizury’s Software may use third party platforms (“Exchanges”), which provides ad inventory, on whose property the Customer’s advertisements have to be displayed and such Exchanges may reject or remove a specific Customer advertisement or target at any time for any or no reason. Vizury shall not be responsible and held liable for such removal of advertisements by Exchanges and (b) If an Exchange suspends Vizury’s ability to utilize its Service at any time without notice to Vizury, Vizury will make commercially reasonable efforts to inform the Customer of such suspension. Vizury shall not be held liable if an Exchange has suspended Vizury’s ability to avail such Exchange Services.
7.8 Customer’s Warranty. Customer represents and warrants that (a) the data, advertising materials and advertisements provided to Vizury in Using the the Softwares are not false, harmful, threatening, abusive, libellous, invasive of another party’s privacy, unethical, and are in compliance with Vizury’s ad-policy guidelines located at http://www1.Vizury.com/website/in/ad-policy-guidelines/ (b) it will be responsible for the accuracy, quality and legality of data and the means by which Customer acquired such data (c) it will be responsible for ensuring that its’ users have consented to the collection and handling of their data for the purpose of this Agreement (d) it will ensure that advertisements sent Using the marketing activitation features of the Softwares contain effective unsubscribe and ‘opt-out’ options for users and that the same are tracked and acted upon by Customer in a timely manner (e) it will ensure that emails sent Using the Softwares are not unsolicited or sent to email addresses that are purchased or rented (f) it will comply with all applicable laws while performing under this Agreement, including with respect to privacy laws (g) it will maintain a back-up of all the data and content provided to Vizury and (h) it is solely and exclusively responsible for all third party software that Customer uses in conjunction with the Services and Vizury shall have no responsibility or liability with respect thereto.
7.9 In any instance of non-compliance with Section 7.8 (a) by the Customer, Vizury shall immediately bring to the notice of the Customer and instruct the Customer to review the concerned product feed of the Customer in question and take necessary steps to adhere to the ad-policy guidelines. The Customer shall within twenty-four (24) hours of receiving such instruction, take requisite action to comply with this requirement. If the Customer does not comply to the request within the stipulated time, then Vizury reserves the right to switch-off certain sensitive inventory sources, for campaigns pertaining to the Customer. In case of repeated defaults of non-compliance by the Customer, Vizury shall reserve the right to stop all campaigns of the Customer; till such time that the Customer complies with the ad-policy guidelines.
8. INDEMNITY
8.1 Vizury’s Indemnity. Vizury will defend Customer at its expense from any cause of action based on a claim that the Software infringes an Indian patent, copyright, or trade secret of a third party. Vizury will have sole control of the settlement, compromise, negotiation, and defense of any such action . Vizury will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Vizury in writing of, such a claim against Customer.
8.2 Customer Obligations. Customer will notify Vizury in writing immediately after Customer becomes aware of a claim or the possibility thereof and will cooperate, in good faith, in the defense of any such legal action.
8.3 No Liability. Vizury shall have no liability to indemnify Customer for any claim of infringement if (i) the Software is modified by any party other than Vizury or without the written consent of Vizury; (ii) Customer uses the Software in conjunction with data where use with such data gives rise to the infringement claim; or (iii) Customer uses the Software outside the permitted scope of this Agreement.
8.4 Remedies. If in Vizury’s opinion the Software becomes or is likely to become, the subject of a claim of infringement, Vizury may, at its option, (i) obtain the right for Customer to continue using the Software; (ii) replace or modify the Software so it is no longer infringing or (iii) if the foregoing options are not commercially reasonable, terminate the access and Use of the Software. Upon such termination, Customer shall cease access and Use of the Software and Vizury will refund to Customer, as Customer’s sole remedy for such termination, all advance subscription fees paid by Customer for the remaining term of the access. THIS SECTION 8 STATES THE ENTIRE LIABILITY OF VIZURY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SOFTWARE.
8.5 Customer’s Indemnity. Notwithstanding anything stated in this Agreement, Customer shall defend, indemnify and hold harmless Vizury, its parents, subsidiaries, affiliates, successors or assigns, and their directors, officers, employees and representatives, from and against any claims resulting or arising out of any: (i) claim that the data or advertisements provided by Customer infringe a third party’s intellectual property rights ; and (ii) unauthorized or improper use of the Services or Software in violation of this Agreement .
9. LIMITATION OF LIABILITY
EXCEPT FOR (I) EACH PARTY’S BREACH OF THE OTHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) EACH PARTY’S BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BREACH OF VIZURY’S RIGHTS IN THE SOFTWARE) (III) CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY, (A) IN NO EVENT SHALL VIZURY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES PAID BY CUSTOMER IN THE PRECEDING 1 (ONE) MONTH FOR THE SOFTWARE AND (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE.
10. SUSPENSION
10.1 In addition to suspension rights of vizury under section 4, vizury shall have the right to suspend the subscription services at any time if customer has violated the terms of this agreement.
11. TERM AND TERMINATION
11.1 Term. This Agreement shall commence on the Date mentioned in the Licensing Form and shall remain in force till the (i) end of the Trial Period or (ii) if Customer procures licence Subscription, then till end of the Subscription Term or any renewal period thereof (“Term”); unless earlier terminated or suspended as provided under this Agreement.
11.2 Subscription Term and Renewal. If Customer opts to purchase License Subscription at the end of the Trial Period, Customer shall be granted right to Use the Software at the end of the Trial Period. The right shall commence on the Subscription Term Start Date mentioned in the Licensing Form and shall extend for a period (“Subscription Term”) as set out in the Licensing Form. After the License Subscription Term, this Agreement shall automatically renew for additional periods, each equal to the shorter of the Subscription Term or twelve (12) months unless either party informs the other of its refusal no later than thirty (30) days prior to the expiry of the Subscription Term. This Agreement shall continue to govern such renewal periods subject to the renewal pricing provided for in the Licensing Form or, if not specified in the Licensing Form, as mutually agreed between the parties.
11.3 Termination for Convenience. Customer may terminate this Agreement at any time. However, the license fee for the license subscription term shall not be refunded. The customer shall be liable to pay all charges for the license period term.
11.4 Termination for Cause. Either party may terminate this Agreement and any rights granted under this Agreement immediately if the other party fails to perform a material obligation required of it hereunder and such failure is not cured within thirty (30) days’ of providing written notice or any longer period if agreed between the parties.
11.5 Termination for Insolvency. Either party may terminate this Agreement on thirty (30) days written notice to the other party if the other party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it or is adjudicated a bankrupt concern.
11.6 Effect of Termination. Upon termination of this Agreement, (i) Customer shall clear all pending dues and cease to access the Software (ii) upon Customer’s request and subject to Customer clearing all pending dues, Vizury shall destroy Customer data within its possession. If Customer terminates this Agreement for cause, Vizury will promptly refund any prepaid but unused fees covering use of the Ssubscription Services after the end of the month in which the termination occurs. If Vizury terminates this Agreement for cause, Customer will promptly pay all unpaid fees due through the end of the Term.
11.7 Other Remedies. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued under this Agreement.
12. MISCELLANEOUS
12.1 Customer shall not assign or otherwise transfer this agreement, the licensing form or any rights granted thereunder in any manner, without the prior written consent of vizury. any assignment or transfer in violation of this section shall be null and void. vizury may assign, transfer or novate this agreement to a third party pursuant to any merger, acquisition or business transfer arrangement by written notice to customer.
12.2 The provisions set forth in sections 5 (ownership), 6 (confidentiality), 8 (indemnity), 9 (limitation of liability) and 11.6 (effect of termination) of this agreement shall survive termination or expiration of this agreement.
12.3 Any notice required under this agreement shall be given in writing to the addresses listed on the licensing form or to such other address as the parties may designate in writing and shall be deemed effective upon delivery to the party to whom addressed. any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
12.4 Neither party shall be liable to the other for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond its reasonable control that may include, but are not limited to, acts of god, floods, fires, loss of electricity or other utilities.
12.5 This agreement together with the applicable licensing form and statement of work made part of the licensing form constitutes the entire agreement between the parties regarding the subject matter thereof and supersedes all prior discussions between the parties with respect to the subject matter contained in these documents. in the event of any inconsistencies between the terms of an licensing form and this agreement, the licensing form shall take precedence to the extent the variation has been expressly agreed.
12.6 The parties agree that this agreement cannot be altered, amended or modified, except in writing signed by an authorized representative of each party.
12.7 During the term and for a period of two (2) years thereafter, customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or subcontractor of vizury without the prior written consent of vizury.
12.8 The parties agree that vizury may include customer’s name and logo on publicly displayed customer lists (including vizury’s internet web site and public advertisements).
12.9 No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
12.10 Each provision of this agreement is a separately enforceable provision. if any provision of this agreement becomes unenforceable or illegal, such provision shall be amended to the minimum extent necessary in order for this agreement to remain in effect in accordance with its terms as modified by such amendment.
12.11 Both parties are independent contractors and nothing in this agreement shall be deemed to make either party an agent, employee, partner of the other. neither party shall have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
12.12 Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of god; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. both parties will use reasonable efforts to mitigate the effect of a force majeure event. if such event continues for more than thirty (30) days, either party may cancel unperformed softwares and affected orders upon written notice. this section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or customer obligation to pay for the software and related services.
12.13 Governing law and dispute resolution: this agreement shall be governed by and construed in accordance with the laws of singapore without regard to the provisions of conflicts of law. any dispute or claim arising out of or relating to this agreement or any breach thereof shall be solely settled by arbitration in singapore in accordance with the arbitration rules of the singaporean international arbitration centre (“siac”) for the time being in force, which rules are deemed to be incorporated by reference in this section. the arbitration tribunal shall consist of one (1) arbitrator to be appointed by the chairman of siac. the language of the arbitration shall be english. subject to the above, the courts at singapore shall have exclusive jurisdiction.
12.14 The parties hereby acknowledge that the terms and language of this agreement were the result of negotiations among the parties. there shall be no presumption that any ambiguities in this agreement shall be resolved against any particular party.
12.15 Customer acknowledges and agrees that it has not relied on any statement or warranty not expressly provided in this agreement or the licensing form with respect to the software and softwares.