Digitalkites shall prepare and provide Client with reports documenting the use of Audience Data and the resulting Net Data Revenue generated through such use. Reports are to be provided within 60 (sixty) working days after the end of each calendar month. Such reports shall include at least: (i) the Net Data Revenue amount; (ii) the period during which Audience Data has been used; and (iii) purposes for which Audience Data has been used. In the event Digitalkites is unable to acquire the usage information from a participating Customer in a timely manner, an initial usage report may be provided with subsequent reporting provided when available. Furthermore, Digitalkites shall provide Client with real-time access to additional usage data regarding Audience Data and related metrics to the extent regularly generated by Digitalkites, whether through access to a dashboard, by provision of reports or other reasonable means. Client will have the right to retain and use all such data and information both during and after expiration or termination of this Agreement to the extent such data or information does not include confidential or proprietary information of Digitalkites.
- 3. The Client will not (a) sell, rent, lend, lease, or distribute the license granted to use the Site herein or any Intellectual Property of Digitalkites to any entity or third party; or (b) reverse engineer, de-compile or disassemble the software installed for the functioning of the Site.
- 4. Digitalkites retains ownership of the (i) Site, (ii) software and (iii) any and all Intellectual Property rights, title and interests related to the Site, including without limitation any copyrights, trademarks, patents, trade secrets or any other rights in respect to the Site.
5. Eligibility to Use
- 5.1 For availing the facilities provided from Site, the Client shall comply with the eligibility criteria before using the facilities provided by the Site. The use of the Site is available to an individual/person who can form legally binding contracts as per local laws or under Indian Contract Act, 1872. Persons who are "incompetent to contract" within the meaning of respective local laws including minors, un-discharged insolvents etc. are not eligible to register on the Site or use the Services. As a minor if the person wishes to use the Site, the person shall be registered by a legal guardian or parents on the Site. Generally, a person who has attained the age of (18) eighteen years is not considered a minor. However, we advise to check your local laws to comply with the provisions. If brought to the attention of Digitalkites that the Client registered on the Site is incompetent to contract, the Client's access to the Site shall be disabled by Digitalkites.
- 5.2 Digitalkites reserves rights to reject or grant access to a new user or terminate the access of existing users, at any time without prior intimation and without cause.
- 6.1 The Client shall be required to register on Site to avail Services, the option of registration is available exclusively to the person who meets or fulfills the eligibility criteria as specified herein.
- 6.2 The registration process enables the Client to access the Services or use the Services. The Client shall be required to register on the Site by providing username, email address, name, cellphone number, password, et al. The Client shall be requested to upload or provide an identify proof at the time of registration or thereafter in order to comply with the legal provisions of the respective jurisdiction.
- 6.3 The Client shall be responsible for maintaining the confidentiality of its username/ display name and password and for all activities that occur under/ from the Client's account. The Client agrees and acknowledges that it will provide accurate, complete and updated information in order to register on the Site to use the Services.
- 7.1 In consideration of the Audience Data provided hereunder by the Client, Digitalkites shall pay 60% of the profits earned from the processing of such Audience Data or such consideration as shall be determined according to Exhibit B enclosed herein. For the sake of clarity such consideration shall be paid upon realisation of amounts by Digitalkites or as mutually agreed by and between the parties.
8. Representations and Warranties
- 8.1 Digitalkites hereby represents and warrants that:
- 8.1.1 It is dully incorporated under the laws of India and it has the full power, right and authority to execute this agreement and perform its obligations.
- 8.1.3 The Site and all Services made available to the Client through this Site are provided on "as is" basis without any representations or warranties except otherwise provided in writing.
- 8.1.4 Notwithstanding anything contained herein to the contrary, Digitalkites does not represent and warrant to the safety, effectiveness, adequacy, accuracy, availability, or legality of any of the information contained or displayed on the Site or offered through the Site.
- 8.1.5 The execution, delivery and performance of this arrangement does not constitute a breach of applicable laws, its charter documents or any agreement, arrangement or understanding, oral or written, entered into by it with any third party.
- 8.1.6 TThe Client understands and agrees that the content of the Site does not contain or constitute representations to be reasonably relied upon and agrees not to hold Digitalkites liable from any errors, omissions, or misrepresentations contained within the Site's content.
- 8.2 The Client hereby represents and warrants that:
- 8.2.1 It shall not use the Site in a manner that (i) infringes or violates the intellectual property rights or any other rights of any third party (ii) violates any law or regulation, (iii) is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable, (iv) attempts, in any manner, to obtain the password, account, or other security information from any other client, (v) violates the security of any computer network, or cracks any passwords, or security encryption codes;
- 8.2.2 All registration information submitted herein will be true, accurate, current, and complete;
- 8.2.3 It will maintain the accuracy of such information and promptly update such registration information as necessary;
- 8.2.5 It will not access the Site through automated or non-human means, whether through a script or otherwise.
9. Third Party Software
- 9.1 Digitalkites makes no warranty of any kind to Client or any third party with respect to any third-party software used by the Client in conjunction with the Services. The Client shall solely and exclusively be responsible for all licenses and costs for all third-party software. All integration and use of and problems caused by or resulting from the Client's use of any third-party software in conjunction with the Services is the sole and exclusive responsibility of the Client, and Digitalkites shall have no responsibility or liability with respect thereto.
10. Disclaimer of Warranties
- 10.1 Except as expressly set forth herein, the Services are provided "AS IS" and "AS AVAILABLE" and without warranty of any kind. The Client agrees that the use of the Services is at its own risk. DIGITALKITES MAKES NO WARRANTIES OF ANY KIND TO THE CLIENT OR ANY THIRD PARTY WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OPERABILITY OR NONINFRINGEMENT, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY DIGITALKITES AND WAIVED BY THE CLIENT. FOR EXAMPLE, DIGITALKITE DOES NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE OPERATION OF THE SERVICES, THE OUTPUT OF THE SERVICES, OR THE RESULTS FROM THE SERVICES.
11. Site Management
- 11.1 Digitalkites hold and reserve the right, but not the obligation, to:
- c) In Digitalkites's sole discretion, without limitation notice or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and
- d) Manage the Site in a manner designed to protect its rights and property and facilitate the proper functioning of the Site.
12. Customer Care
- 12.1 The Client can contact Digitalkites Customer Care for any information or help on firstname.lastname@example.org. Digitalkites will definitely to the best of its abilities try resolving your quer(y/ies).
TERMS OF SERVICE
These Terms and Conditions of Service ("Terms of Service") constitute a legally binding agreement between the Client and Digitalkites. The Client shall be required to read and accept these Terms and Conditions for availing the Services.
- 1.1 "Affiliate" means, with respect to either party, that party and its subsidiaries, holding/parent companies as well as subsidiaries of its holding/parent companies. For the avoidance of doubt and notwithstanding anything to the contrary, Way2Online Interactive India Private Limited and its strategic business units.
- 1.2 "Applicable Laws" means the legislation as well as the enactment or orders of any competent government body that are applicable to the parties; in particular, any applicable law relating to the processing, privacy, and use of Personal Data, as applicable to Digitalkites and/or to Client including, without limitation (i) any corresponding national Laws regarding data protection; (ii) any judicial or administrative interpretation of such laws, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority; (iii) any other applicable laws, rules, and regulations, including, without limitation, industry self-regulations.
- 1.3 "Audience Data" means certain data owned / controlled by the Client that the Client provides to Digitalkites to facilitate Digitalkites's Processing Activities for monetization purposes hereunder, including but not limited to the data in hash format, email ID(s) and mobile numbers of the Data Subjects, etc.
- 1.4 "Confidential Information" means any of the parties' or parties' affiliates' proprietary information, technical data, trade secrets or know-how, including, but not limited to research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, costs, pricing, pricing methodology or other business information.
- 1.5 "Customer" means a Digitalkites customer such as advertiser, publisher or any another company utilizing Audience Data to enhance services provided to their clients that obtains Data Services.
- 1.6 "Data Attribute" means an Audience Data attribute corresponding to one or more data categories.
- 1.7 "Data Services" means services that Digitalkites provides or intends to provide to Customers using Digitalkites's proprietary technology and Audience Data, such as data onboarding, data matching and activation or similar services for companies in other industries (e.g. financial and insurances services).
- 1.8 "Data Subjects" means the individuals whose personal information shall be provided by the Client to Digitalkites for processing and providing the Services to the Customers.
- 1.9 "Force Majeure" means any event beyond the reasonable control of either party including, among other things, unpredictable adverse weather conditions, war, acts of God, acts of terrorism, floods, earthquakes or civil disturbance (but excluding labor disputes, strikes, industrial action or lockouts by the Party seeking to rely on Force Majeure).
- 1.10 "Intellectual Property" means any rights in or in relation to including but not limited to any patent, copyright, database in relation to software, utility model, trade mark, water mark, logo, brand name, service mark (all of which whether registered or not), trade secrets and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and existing anywhere in the world.
- 1.11 "Launch Date" means the later of (i) the date on which Digitalkites starts monetizing Audience Data by providing Data Services.
- 1.12 "Processing Activities" means transfer, transformation, encryption, aggregation and/or any other processing activity with respect to Audience Data and Third-Party Data necessary for the provision of Data Services.
- 1.13 "Rendering Pseudonymous" means replacing unique identifying characteristics of an individual in a Profile, such as a name or phone number, with a non-personal data label, such as a hashed number, in order to preclude identification of the individual or to render such identification impossible without a disproportionate amount of effort.
- 1.14 "Security Breach" means any security breach relating to (i) any Personal Data elements contained in Audience Data leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Audience Data; or (ii) Audience Data, other than any Personal Data elements within it, reasonably determined by either Party to be sufficiently serious or substantial to give rise to a material risk of litigation by the individuals whose Data is the subject of the breach.
- 1.15 "Personal Data" means data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic or biometric data uniquely Identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation or other categories of information designated as sensitive under Applicable Laws.
- 1.16 "Subcontractor" means any third-party company that Digitalkites would engage to provide the Data Services as defined under this Agreement.
- 1.17 "Third party data" means the offline data received by Digitalkites from a customer, which may be combined or incorporated with the Audience Data and processed by Digitalkites, for the purposes of the Data Services.
- 1.18 The terms "Personal Data," "Data Subject," "Data Controller," "Data Processor," "Data Protection Impact Assessment," "Supervisory Authority" have the meaning as defined in the Applicable Laws.
2. License Grant to Audience Data
- 2.1 Client hereby grants a non- exclusive, non – revocable, sub- license right to Digitalkites to allow Digitalkites to use and provide Data Services, (except as set forth in the termination provisions), worldwide license to access, process and use Audience Data, including the rights to: (i) collect, receive, assemble, compile, analyze, modify and transform Audience Data; (ii) associate, match and combine Audience Data with other offline data, which includes Third Party Data; and (iii) transmit and distribute Audience Data to Customers as necessary for the provision of Data Services.
3. Data Services
- 3.1 Digitalkites aggregates Audience Data from multiple Clients and performs Processing Activities to onboard the offline data from customers.
- 3.2 Digitalkites shares anonymous data with Customers within and outside India for the purposes of the provision of Data Services.
- 3.3 In the event that there is a change in Applicable Laws that would, in the reasonable opinion of Digitalkites, require changes to the Processing Activities, Digitalkites reserves the right to make such changes.
- 3.4 Client agrees that Digitalkites may add any Data Service not yet described as part of this Agreement but similar to Data Services provided hereunder. The specifics of any offered additional service may be agreed between the parties as an addendum of these Terms of Services. For the sake of clarity such addendum shall be published on the Site and be executed by accepting such terms through the Site.
- 3.5 Notwithstanding anything contained herein to the contrary, Digitalkites for the purpose of rendering comprehensive services shall collaborate with various partners (third-party) (hereinafter referred to as "Partners"). Such comprehensive services shall involve monetization of inventory including but not limited to combine a particular advertising slot/ad- placements on the websites/apps with a segment ("Deal"). Without limiting the generality of the foregoing, Deal shall be pushed by brands for digital campaigns on Digitalkites platform or on any Partner's platforms.
- 3.6 Subject to clause 3.5, for the purchase of Audiences by brands, Digitalkites shall drop cookies of Digitalkites platform including its Partners platform. For providing such services hereunder, Digitalkites shall incorporate pixels, scripts, code and other related services of the Partners for the ecosystem of targeting to function properly.
4. Audience Data Provision
- 4.1 Client shall render Digitalkites reasonable assistance to ensure the provision / access to and use of the required Audience Data hereunder.
- 4.2 Client shall provide updates of Audience Data on a regular basis with the frequency as may be separately agreed by the parties.
- 4.3 Client shall ensure that Audience Data or any other information provided to Digitalkites does not include or contain, or will not include or contain, any viruses, "trojan horses" or other harmful code of any kind or nature whatsoever.
- 4.4 Client shall render any Personal Data being part of the shared Audience Data pseudonymous in such a way that Digitalkites is in no position to determine Data Subjects behind the provided data without a disproportionate amount of effort. Client shall not provide any Personal Data to Digitalkites before it is rendered pseudonymous to Digitalkites's reasonable satisfaction. In the event of the Client opting to provide Personal Data of Data Subjects to include email IDs and mobile numbers, the above-mentioned restriction shall not be applicable. The Parties herein agree, the Client shall not provide any data that should not be provided in accordance with Applicable Laws.
- 4.5 Each party will bear its own costs in connection with the provision and processing of Audience Data. All required technical measures are to be completed by the Launch Date set forth in the applicable Exhibit A or as may be agreed separately.
5. Contractual and Regulatory Compliance
- 5.1 Client shall ensure that the disclosure, transfer of Audience Data to and the use of Audience Data by Digitalkites for the provision of Data Services do not infringe any Applicable Laws and are not in breach of Client's contractual obligations toward third parties. Client hereby agrees and acknowledges that it will acquire/generate the Audience Data lawfully and legally and it has all appropriate licenses, registrations and consents under Applicable Laws and applicable self-regulatory rules required to allow the Client and Digitalkites to legitimately process the Audience Data in accordance with the terms provided herein. If required by Applicable Laws, Client shall conduct a data protection impact assessment, taking into account the type of Processing Activities, context and purposes of the processing to assess whether the use of Audience Data hereunder is likely to result in a high risk to the rights and freedoms of Data Subjects. Upon Digitalkites's request, Client shall promptly provide to Digitalkites the documented results of such assessment.
- 5.2 The parties agree and acknowledge that the Client shall acts as a Data Controller with respect to the Audience Data and Digitalkites shall act as a Data Processor and both the parties shall comply with all the Applicable Laws.
- 5.3 Digitalkites at its sole discretion, may refuse to receive and use of any Audience Data if it reasonably believes that such processing of Audience Data may infringe any Applicable Laws, pose a risk of liability or harm to Data Subjects, Digitalkites, any of Digitalkites's agents or Customers. The Client shall modify the provision of Audience Data as soon as possible to make it compliant and eliminate the risk of liability and harm.
6. Transparency and Data Subject Choice
- 6.1 Client shall provide the Data Subject with sufficient notice including information regarding the purposes for which Audience Data is collected and processed and the legal basis for the processing. In particular, the Client shall ensure that all Data Subjects are properly informed about Digitalkites´s Processing Activities. If Client does not collect Data directly from Data Subjects, Client shall ensure that third parties from which it obtains Data, shall provide sufficient notice subject to all Applicable Laws and requirements substantially similar to the ones hereunder at the time data is collected from the Data Subjects.
- 6.3 Subject to section 9 below, Client shall inform the Data Subjects that any of the Processing Activities of Personal Data of Data Subjects may take place outside India as per the engagement of affiliates.
- 6.4 Client shall ensure that, before providing Audience Data to Digitalkites, Client has obtained the valid consent of all Data Subjects for processing of Audience Data as far as and in the way required by Applicable Laws. Client shall document and maintain records of the obtained consents for processing as required by the Applicable Laws. If Client does not collect Audience Data directly from Data Subjects, Client shall ensure that the third parties from which it obtains Audience Data, comply with substantially similar requirements as described in this clause.
7. Data Subject Requests
- 7.1 Client shall ensure that Data Subjects are granted an easy and available at any time mechanism to opt out, to ask for access, rectification, erasure, restriction, portability or to exercise any other rights under Applicable Laws with respect to their Personal Data ("Data Subject Requests"). Where applicable, Data Subjects shall be provided with a clear and unambiguous option to opt out of interest-based advertising.
- 7.2 The Parties will cooperate with each other in the fulfillment of their respective obligations related to Data Subject requests. If either Party receives a Data Subject request, such party shall inform the other party, and the other party shall use commercially reasonable efforts to facilitate necessary actions to the extent it is permitted under Data Protection Laws.
- 7.3 Digitalkites will promptly address any Data Subject requests addressed to Digitalkites. Digitalkites will erase the Data in case Data Subjects submit their Ad ID for the deletion of the associated Data.
- 7.4 If in compliance with a Data Subject request Client was required to rectify, erase, stop or restrict the processing of Data, Client shall promptly notify and assist Digitalkites to rectify, erase, stop or restrict the processing of Data of the respective Data Subjects. This shall not affect the lawfulness of the processing activities, if any, conducted before the respective Data Subject requests. Digitalkites imposes similar obligations on its Customers.
8. Information Security
- 8.1 Each party agrees that it shall handle all Audience Data with utmost care. Taking into account the nature of and risks associated with the type of Audience Data shared or used in connection with the Processing Activities, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it), each party shall have in place appropriate technical and organizational measures to protect the Audience Data including (i) implementing and maintaining industry standard organizational and information security measures; and (ii) effectively restricting access to Audience Data only to authorized users on a need to know basis ("Authorized Users").
- 8.2 In case of a Security Breach that is likely to result in a risk to the rights and freedoms of Data Subjects, either party shall without undue delay on becoming aware, notify the other party of the Security Breach. Each party shall promptly provide all information in its possession including: (i) the possible cause of the Security Breach; (ii) the categories of Personal Data involved; (iii) the likely consequences of the Security Breach; (iv) any measures taken to mitigate any damage from the Security Breach, provided that, (without prejudice to the above obligations) if the party cannot provide all these details, it shall provide the other party with reasons for the delay and when it expects to be able to provide the relevant details.
- 8.3 Either Party shall ensure that any Authorized Users it makes Audience Data available to as permitted herein are subject to the security and privacy obligations substantially similar to the obligations in this section.
9. International Data Transfers
When Digitalkites transfers any hashed Personal Data outside of India, Digitalkites will ensure that (i) appropriate safeguards are provided in relation to the transfer; (ii) the Data Subject whose Personal Data is processed for purposes of the Data Services have enforceable rights and effective legal remedies; (iii) it complies with its obligations under Applicable Laws by providing an adequate level of protection to any Personal Data that is transferred.
10. Cooperation and Audit
- 10.1 Either party shall appoint a data protection officer if required by Applicable Laws or another contact person with respect to data protection issues in connection with the Agreement. Client shall promptly notify such contact person along with respective contact details to the other party.
- 10.2 Client will cooperate fully with any reasonable request for information from Digitalkites or Customers related to the collection, use and processing of Data.
- 10.3 Either party will inform the other party if, in such party's reasonable opinion, the other party infringes Applicable Laws. Nothing herein constitutes an obligation of either party to provide legal advice to the other party.
11. Intellectual Property Rights
- 11.1 Each party shall remain the sole owner of its respective Intellectual Property Rights.
- 11.2 Digitalkites may use Audience Data for the purposes of developing statistical and analytical models. Unless otherwise agreed, Digitalkites shall own all rights, title and interests in and to all Intellectual Property developed by Digitalkites during the term of the Agreement, including, but not limited to, such statistical and analytical models. Without prejudice to the Client's rights to the Audience Data, Digitalkites shall own all rights, title and interests in and to all Intellectual Property arising from the application of such models, such as derivative databases created by Digitalkites, and such Intellectual Property shall not be deemed to constitute Audience Data.
- 11.3 Digitalkites may use know-how acquired, principles learned or developed, or experience gained during the performance of its obligations for its own purposes.
- 11.4 Nothing herein, unless stated otherwise, shall be implied or construed as an assignment of any Intellectual Property belonging to either party.
- 11.5 Client undertakes not to copy, alter, adapt, translate, develop, decompile, license, sub-license, reverse engineer, create derivative works from or resell any, documentation, software and materials produced by Digitalkites, unless expressly authorized in writing to do so by Digitalkites or by relevant law.
- 11.7 Neither Digitalkites nor Client shall infringe, misappropriate, dilute or otherwise violate Intellectual Property of a third party. In the event any claim or dispute arises in relation to the Intellectual Property utilized for the purposes of this Agreement, Digitalkites will take reasonable steps to modify its technology and related Data Services to make them non-infringing, while not degrading performance or functionality in any respect.
- 11.8 The Client hereby undertakes that any Audience Data which will be processed and mapped with the Audience Data of other partners hereunder by Digitalkites, shall be treated as the property of Digitalkites. For the sake of clarity Digitalkites shall return or delete all the unprocessed Audience Data supplied by the Client provided that it shall not be mapped with the Audience Data of other partners. Upon amalgamation of the Audience Data with other available inputs, the information shall be sorted in a format separate from that shared by the Client and thereby shall be treated as the Intellectual Property of Digitalkites.
- 12.1 For the purposes of this section 12, the party or its Affiliates disclosing the Confidential Information is referred to as the "disclosing party" and the party receiving the Confidential Information is referred to as the "receiving party."
- 12.2 Confidential Information does not include information:
- 12.2.1 that is known to the receiving party at the time of disclosure, as evidenced by written records of the receiving party;
- 12.2.2 that has become publicly known and made generally available through no wrongful act of either party;
- 12.2.3 that is identified by the disclosing party in writing as no longer proprietary or confidential;
- 12.2.4 cthat is independently developed by the receiving party without use or reference to the Confidential Information of disclosing party;
- 12.2.5 to the extent it is required to be disclosed pursuant to a court order or applicable law, provided (to the extent permitted by law) prior written notice is given to disclosing party of such required disclosure to the extent legally practicable; or
- 12.2.6 that has been rightfully received (not under conditions of confidentiality) by the receiving party from a third party who is authorized to make such disclosure.
- 12.3 The exceptions in clause 12.2 above shall not apply to Personal Data.
- 12.4 The parties shall hold each other's Confidential Information in confidence, exercising the same degree of care as with respect to their own confidential information, but in no event less than a reasonable degree of care. The parties shall not use each other's Confidential Information for any purpose whatsoever other than as specified in the Agreement to perform their respective obligation hereunder.
- 12.6 Notwithstanding the above, to the extent Digitalkites contracts with subcontractors, Client agrees that Digitalkites may disclose certain Confidential Information to such subcontractors to the extent such disclosure is required for the monetization of Audience Data provided that such subcontractors are bound by obligations of confidentiality with respect to such Confidential Information at least as protective as those contained herein (and receiving party remains liable to disclosing party for such Subcontractors’ compliance with such confidentiality terms).
- 12.7 Upon request of the disclosing party and upon termination of this Agreement, each party shall, at the option of the disclosing party, promptly return or destroy all of the Confidential Information in its possession or control relating to the other party, and provide to the other party an officer's certification within thirty (30) days thereafter stating that such return or destruction has been completed.
- 12.8 The confidentiality obligations under this section 12 apply to all Confidential Information disclosed prior or during the term of the Agreement and shall remain in force after the termination of the Agreement.
- 12.9 For the avoidance of doubt, the terms of this Agreement are deemed Confidential Information of both parties.
13. Term and Termination
- 13.1 This Agreement shall commence on the Effective Date and shall remain in effect unless terminated earlier under the terms of the Agreement.
- 13.2 Either party may terminate the Agreement for cause:
- 13.2.1 if the other party materially breaches any of its obligations hereunder and such breach remains not rectified for a period of 30 (thirty) days after the date the non-breaching party provides written notice of such breach; or
- 13.2.2 if a competent public authority instructs the respective party in writing to terminate this Agreement, or Client's licenses or registrations mentioned herein issued to Client are cancelled or revoked.
- 13.3 Either party may terminate this Agreement for convenience (with or without cause), at any time upon sixty (60) days’ prior written notice to the other party.
- 13.4 Either party may terminate the Agreement if Client becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, has a trustee or receiver appointed for it, becomes the subject of any voluntary or involuntary insolvency or dissolution, bankruptcy or reorganization proceeding, which, in the case of any involuntary proceeding, is not dismissed within 60 (sixty) days’ after it is commenced, or discontinues its business.
- 13.5 Termination of the Agreement howsoever arising shall be without prejudice to any accrued rights and remedies of either party and any rights or obligations that would by their nature or context be intended to survive the expiration or termination of Agreement, including obligations with respect to confidentiality, Intellectual Property rights, Governing Law and Jurisdiction.
- 13.6 Upon any expiration or termination of this Agreement, all licenses to Audience Data hereunder shall terminate, and Digitalkites shall cease using and distributing Audience Data, except that Customers that have already received Audience Data prior to such expiration or termination may continue to retain and use such Audience Data, consistent with this Agreement and in accordance with the applicable agreements between Digitalkites and such Customer. Subject to the above, Digitalkites establishes internal rules related to the retention, review and deletion of Audience Data and shall contractually obligate Customers to comply with a reasonable storage period and deletion obligations (unless longer storage period of any data is required by the Applicable Laws). For the avoidance of doubt, Digitalkites may retain certain parts of Audience Data supplied herein by the Client which were inferred at its end due to proprietary maps/logic /combining with the audience data of the other partners. Pursuant to Clause 11.8, Digitalkites shall delete or return the primary data provided or contributed by the Client in accordance with the terms of this Agreement.
14. Liability and Disclaimers
- 14.1 To the maximum extent permitted by law, under no circumstances shall either party be liable, whether in contract, tort (including negligence), or breach of a statutory duty, or in any other way for any of the following losses or damage, howsoever caused and whether such losses or damage were foreseen, foreseeable, known or otherwise: (i) loss of revenue; (ii) loss of actual or anticipated profits; (iii) loss of the use of money; (iv) loss of anticipated savings; (v) loss of business; (vi) loss of opportunity; (vii) loss of goodwill; (viii) loss of reputation; (ix) loss of contracts; (x) advertising costs incurred to restrict damage caused to the other party or the other party´s Affiliate's goodwill or reputation; (xi) any indirect, special or consequential loss or damages of any kind.
- 14.2 Nothing in this section excludes or limits either party's liability for: (i) fraud, fraudulent misrepresentation or gross negligence, (ii) breach of section 12 (Confidentiality), (iii) obligations under section 15 (Indemnity), (iv) payment of sums properly due and owing to the other in the course of normal performance of the Agreement, (v) matters that cannot be excluded or limited under applicable law.
- 14.3 The affected party shall promptly, and in any case within 3 (three) days or as soon as reasonably possible, notify the other party of the nature and anticipated duration of a Force Majeure event and thereupon shall be excused from performing such obligation for so long as the event of Force Majeure continues and shall use all reasonable endeavors to resume performance of the obligation as soon as reasonably possible. The corresponding obligation of the party not affected by Force Majeure shall be suspended to the same extent as those of the party first affected by such Force Majeure event.
- 14.4 If any Force Majeure event lasts for a period exceeding 90 (ninety) days, and the parties fail to mutually agree as to the way forward within such time period, then either party may terminate the Agreement by written notice to the other party, unless otherwise agreed in writing.
- 15.1 Client hereby agrees to indemnify, defend, and hold Digitalkites harmless from all Claims brought against Digitalkites, its Affiliates, agents and representatives, along with any directly resulting losses, expenses, damages, costs (including, without limitation, reasonable attorneys’ fees and administrative fines) or liabilities from such Claim, which claim arises out of Client’ alleged breach of any term, condition, representation or warranty , including but not limited to any claims by Data Subjects regarding collection, processing, transfer and/or use of Audience Data.
- 15.2 The above indemnification obligations are conditioned upon the party seeking indemnification hereunder providing the indemnifying party with (i) prompt written notice of the Claim for which it is seeking indemnification; (ii) sole authority to defend or settle the Claim; and (iii) reasonable cooperation and assistance in connection with the defense and settlement of the Claim at the indemnifying party's expense. Any settlements shall be subject to the indemnified party's prior consent, not to be unreasonably withheld.
- 15.3 Digitalkites makes no representations and grant no warranties, express or implied, either in fact or by operation of law, by statue or otherwise for the services rendered or cause to be rendered by Partners pursuant to clause 3.5 and 3.6, and Digitalkites specifically disclaim any other warranties, whether written or oral, or express or implied, including any warranty of quality, merchantability or fitness for a particular use or purpose or any warranty as to the validity of any patents or the non-infringement of any intellectual property rights of third parties. For greater certainty, Digitalkites shall not be liable for any damages or losses cause or to be caused to the Client due to any act or omission of the Partners.
- 17.1 Notwithstanding anything to the contrary, Client grants Digitalkites and its Affiliates the right to use Client's name and/or logo for the purposes of promoting the partnership in marketing and sales materials, including the Digitalkites website and press communications.
- 17.2 Client may use and disclose Digitalkites's name and trademark in its commercial materials with Digitalkites's prior written consent.
18. Assignment and Subcontracting
- 18.1 Neither party may transfer any of its rights or obligations under the Agreement without the prior written consent of the other party, except that a party may assign the Agreement as a whole without consent to an Affiliate, in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of such party or all or substantially all of its assets related to these Terms of Services
- 18.2 Client agrees that Digitalkites may engage Subcontractors for the processing of Audience Data within and outside India. In particular, Client agrees that Digitalkites Affiliates, may perform certain Digitalkites's obligations hereunder and/or receive access to the Audience Data, in each case solely on Digitalkites's behalf. Digitalkites shall remain fully liable for all acts and omissions of, and any breaches of these terms by its Affiliates.
- 19.1 These terms inure to the benefit of and binds Client and Digitalkites, and each of Client's and Digitalkites's respective heirs, executors, administrators, successors and permitted assigns, as applicable.
20. Independent Contractors
- 20.1 The parties are independent contractors for all purposes under this Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
21. Governing Law and Jurisdiction
- 21.1 These terms shall be interpreted, construed and governed in accordance with laws of India.
- 21.2 Any legal suit, proceeding or action of whatever nature arising out of, or related to, these terms, brought either by the Client or Digitalkites shall be commenced or prosecuted in the courts of India and the parties hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non convenience with respect to venue and jurisdiction in such court.
- 22.1 Any obligations hereunder are in addition to, and do not relieve, remove or replace, a party's obligations under Applicable Laws.
- 22.2 The parties hereby acknowledge that the state of the law with respect to behavioral advertising, mobile targeted advertising, cookies, and Personal Data regarding, but not limited to, the collection and use of Audience Data, or other activities as contemplated hereunder is in flux. Should any change in Applicable Laws render Data Services, Processing Activities or any other activities contemplated hereunder, non-compliant with Applicable Laws, the parties shall work together to modify the provision of Audience Data, amend this Agreement or take such other steps to remain compliant with Applicable Laws.
- 22.4 This Agreement, together with all of its exhibits and attachments, constitutes the entire agreement of the parties with regard to the subject matter hereof, and may only be amended by a writing executed and dated by both parties.
- 22.5 Sections 11 (Intellectual Property Rights), 12 (Confidentiality), 14 (Liability), 15 (Indemnity) and 25 (Miscellaneous) will survive the termination or expiration of these terms. Expiration or termination of these terms will not relieve either party of any obligation accruing prior to such expiration or termination.
- 22.6 This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both together shall be deemed to be one and the same Agreement. Facsimile signatures shall be accepted.
In case if you have queries, write to email@example.com
Exhibit B – Payment
Subject to terms and conditions and as mutually agreed between the Client and Digitalkites, Digitalkites agrees to pay the Client the following consideration for providing the Audience Data:
60% of Revenue Share. Payment subject to realization of funds by Digitalkites or 90 days post invoice whichever is earlier.