READ THESE TERMS CAREFULLY BEFORE EXECUTING AN ORDER FORM FOR ACCESSING THE SERVICES. BY EXECUTING THE ORDER 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.
RIGHT OF USE
- Rights Grant. Subject to the limitations laid down in this Agreement, Vizury grants Customer a subscription, software as a service (‘SaaS’), nonexclusive and non-transferable right to access and operate the Services (“Use”) and solely to perform those functions described in the Order Form during the Subscription Term (defined hereinafter).
- Use. Customer shall have a limited right to Use the Services solely for its internal purposes. Customer may avail the features described in the Order Form through the Use of the Services. 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 Services.
- Restrictions on Use. In no event, Customer shall or permit or cause others to (i) disassemble, decompile, or reverse engineer the Services or any software or data provided with the Services (“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 Services;(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 Services; (iv) use or access the Services to build or support, and/or assist a third party in building or supporting products or services competitive to the Services or (v) interfere with or disrupt the integrity or performance of the Service or breach or circumvent any security or authentication measures.
- If agreed under the Order Form, prior to the Subscription Term, Customer shall have trial access to the Services only for evaluation purposes (“Trial”). Trial will commence from the later of the Trial Period Start Date mentioned in the Order Form or the date of receipt of Trial fees and shall extend for a period (“Trial Period”) as set out in the Order Form.
- At least ten (10) business days prior to the end of the Trial Period, Customer shall notify Vizury if it desires to purchase Subscription Services (defined hereinafter) and shall pay the applicable subscription fees by the end of the Trial Period. Customer’s access to the Services shall be temporarily disabled till the receipt of such fees. If such payment is not received by Vizury within thirty (30) days’ after the end of the Trial Period (“Cooling-off Period”), notwithstanding Section 11, the Order Form shall terminate and Customer data on-boarded on to the Software shall be deleted
- Commencement of Services. Vizury shall provide Customer on-boarding Services to on-board the Customer data and the right to Use (“Subscription Services”) upon receipt of applicable fees by Vizury in accordance with this Agreement and Order Form.
- Service Limits. The limits that apply to the Subscription Services will be specified in the Order Form. Customer shall be responsible for additional fees if such limits are exceeded. All such fees will be based on Vizury reported numbers. Customer may not downgrade the Subscription Services during the Subscription Term and in order to avoid additional charges, Customer should purchase the appropriate tier of Subscription Services for Customer’s anticipated needs. If Customer desires to subscribe to additional functionality as part of the Subscription Services, the parties shall execute a new Order Form capturing the terms and conditions of such subscription.
- Service Availability. The Customer acknowledges that the Services 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 Services. Vizury disclaims any and all liability resulting from or related to such events.
- Professional Services. Customer may procure certain professional Services from Vizury such as in relation to operating the Services, developing creatives, analytics services etc. The scope of such Services shall be as set out in the Order Form
- Third Parties. Vizury shall have the right to use third parties (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Section, all references to Vizury or its employees shall be deemed to include such Subcontractors.
- Third Party Products. If Customer opts to use any third party products with the Service 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.
- On-boarding Fees. Vizury will invoice Customer for on-boarding fees upon execution of the Order Form. Fees for the on-boarding will be payable in advance of commencement of the on-boarding Services.
- Trial Fees. Vizury will invoice Customer for Trial fees upon execution of the Order Form. Fees for Trial will be payable in advance of the Trial Period.
- Subscription Fees. Vizury will invoice Customer for Subscription Services upon execution of the Order Form or if Trial Period is applicable, no more than thirty (30) days before the expiry of such Trial Period. For any subsequent billing period/renewal periods, Vizury will invoice no more than thirty (30) before the commencement of such billing period/ renewal period. Fees for Subscription Services will be payable in advance of the Subscription Term (as defined in the Order Form) or the next billing period/ renewal period thereof.
- Training Fees. Vizury will invoice Customer for training fees at the beginning of the following month.
- Big Data Discovery Analytics. Vizury will invoice Customer for the Big Data Discovery Analytics fees at the beginning of the following month. All fees will be based on Vizury reported numbers.
- Marketing Activation Feature Fees.If Customer opts for any Marketing Activation Feature such as programmatic media buying, emails, web push notifications, mobile push notifications, site notifications, text messages, website banner personalization etc under the Order Form, Vizury will invoice Customer for the fees at the beginning of the following month. All fees will be based on Vizury reported numbers.
- Other Professional Services. If any professional Services are agreed to be provided in an Order Form, Vizury will invoice Customer for the fees at the beginning of the following month at the rates set out in the Order Form.
- Timesheet. Calculations of efforts undertaken towards on-boarding Services (Section 4.1), training Services (Section 4.4) and other professional Services (Section 4.7) will be based on the timesheets submitted by Vizury on a monthly basis. Customer shall acknowledge the same within three (3) business days. If no response is received from Customer, the timesheet will be deemed accepted. If Customer raises a dispute in good faith, the parties shall resolve such disputes within seven (7) business days.
- Fee Adjustments. Customer shall be required to pay additional charges as per the rates set out in the Order Form if (a) fee adjustments are necessitated as per Section 3.2 above or (b) Vizury undertakes additional effort towards on-boarding or training Services upon prior written consent of Customer and the same is supported by timesheets submitted as per Section 4.8 above. Vizury will invoice Customer for such amounts in the beginning of the following month.
- Payment Obligations. All fees payable shall be specified in the Order Form. Once placed, Customer’s order is non-cancelable and the sums paid nonrefundable. 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 Services 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.
- 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.
- 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.
- 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 Services provided to Customer. Vizury shall own all right, title, and interest in Services 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 services hereunder. Vizury reserves all rights not specifically granted herein.
- Trademark. Vizury owns all rights in trademarks and logos contained in the Services or its websites. Customer shall not have a right to use them in any manner without prior written consent of Vizury.
- 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 Services and reports to Customer. Vizury may use Customer data in an anonymized and aggregated form in order to identify industry level insights.
- 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 Services.
- 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.
- 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.
- 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.
- 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.
- Vizury’s Warranty.
- the Subscription Services will perform materially in accordance with the applicable Documentation.
- All Services 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 Services opted for by the Customer;
- 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.
- For any breach of the services warranty, Customer’s exclusive remedy shall be the correction of the deficient services that caused the breach of warranty.
- If Customer is given Trial access, notwithstanding Section 7, during the Trial Period, the Software and Services are provided “as-is” without any warranty or liability.
- Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 7 OF THIS AGREEMENT, ANY AND ALL OF SOFTWARE, SERVICES, 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
- Based on Services 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 services 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.
- Customer’s Warranty. Customer represents and warrants that (a) the data, advertising materials and advertisements provided to Vizury in Using the Marketing Activation Features of the Services are not false, spam, 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 such data, advertising materials and advertisements (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 Services 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 comply with all applicable laws while performing under this Agreement, including with respect to privacy laws (f) it will maintain a back-up of all the data and content provided to Vizury and (g) 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.
- 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.
- Vizury’s Indemnity. Vizury will defend Customer at its expense from any cause of action based on a claim that the Software infringes a 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.
- 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.
- 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.
- 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.
- 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 porperty rights ; and (ii) unauthorized or improper use of the Services or Software in violation of this Agreement .
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 3 (THREE) MONTHS 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.
- In addition to suspension rights of Vizury under Section 2 and Section 4, Vizury shall have the right to suspend the Subscription Services at any time if Customer has violated the terms of this Agreement.
TERM AND TERMINATION
- Term. This Agreement shall commence on the Order Date mentioned in the Order Form and shall remain in force till the (i) end of the Trial Period or (ii) if Customer procures Subscription Services, then till end of the Subscription Term or any renewal period thereof (“Term”); unless earlier terminated or suspended as provided under this Agreement.
- Subscription Term and Renewal. Subject to payment of applicable fees, Customer shall be granted right to Use the Services after the completion of on-boarding Services and Trial Period, if any. The right shall commence on the later of the Subscription Term Start Date mentioned in the Order Form or the date of receipt of subscription fees by Vizury and shall extend for a period (“Subscription Term”) as set out in the Order Form. After the Subscription Term, this Agreement shall automatically renew for an additional period 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 Order Form or, if not specified in the Order Form, as mutually agreed between the parties.
- 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.
- Termination for Insolvency. Either party may terminate this Agreement on sixty (60) 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.
- Effect of Termination. Upon termination of this Agreement, (i) Customer shall clear all pending dues and cease to access the Services (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 Subscription Services after termination. If Vizury terminates this Agreement for cause, Customer will promptly pay all unpaid fees due through the end of the Term.
- 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.
- Customer shall not assign or otherwise transfer this Agreement, the Order 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.
- The provisions set forth in Sections 5 (Ownership), 6 (Confidentiality), 8 (Indemnity), 9 (Limitation of liability) and 11.5 (Effect of Termination) of this Agreement shall survive termination or expiration of this Agreement.
- Any notice required under this Agreement shall be given in writing to the addresses listed on the Order 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.
- 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.
- This Agreement together with the applicable Order Form and Statement of Work made part of the Order 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 Order Form and this Agreement, the Order Form shall take precedence to the extent the variation has been expressly agreed.
- The parties agree that this Agreement cannot be altered, amended or modified, except in writing signed by an authorized representative of each party.
- 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.
- 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).
- No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
- 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
- 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.
- 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 services 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 services.
- This Agreement shall be governed and interpreted by the laws of the India without regard to the provisions of conflicts of law. Subject to above the courts at Bangalore, India, shall have exclusive jurisdiction.
- 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.
- Customer acknowledges and agrees that it has not relied on any statement or warranty not expressly provided in this Agreement or the Order Form with respect to the Software and Services