THIS SERVICE AGREEMENT (the “Agreement”) is made as on this ___ day of ________ (the “Effective Date”)
BY AND BETWEEN
DIGITALKITES PTE. LIMITED, a company incorporated under the provisions of the Singapore laws and having its registered office at 3 Shenton Way, #10-05, Shenton House, Singapore - 068805, represented by its Authorized Signatory, Mr. Dinesh Ganti, (hereinafter referred to as “Digitalkites”), which expression shall, unless repugnant to or inconsistent with the subject or context thereof, include, its successors and permitted assigns) of the FIRST PART;
___________________, a company registered under the Companies Act, 1956/2013 [CIN: __________] and having its registered office at ________________, represented by its ________________], (hereinafter referred to as “Client”), which expression shall, unless repugnant to or inconsistent with the subject or context thereof, include, its successors and permitted assigns) of the OTHER PART.
Digitalkites and the Client shall hereinafter, where the context so permits, be collectively referred to as the “Parties” and individually as the “Party”.
- Digitalkites is inter-alia engaged in the business of providing digital marketing and data services via access and use of its platforms and/or website/application as well as any other media form, media channel, mobile website related links, or otherwise connected thereto of Digitalkites (collectively the "Site"), namely Audience Play (defined hereinafter) and Audience Prime (defined hereinafter) described hereunder (Collectively, “Digitalkites Software”).
- Client inter-alia is engaged in the business of ______________________
- Client desires to secure certain services from Digitalkites with respect to its business and operations by relying on Digitalkites representations.
- Based on the mutual representations, the Client and Digitalkites has agreed to grant the license and the Parties are now desirous of entering into this Agreement for availing the Data Services set out in this Agreement on the terms and conditions as agreed hereunder.
NOW THEREFORE, in consideration of the premises and the covenants and agreements herein contained, the Parties agree as follows:
1. DEFINITIONS AND INTERPRETATIONS
In this Agreement, unless the context requires otherwise, the following terms and expressions shall have the meanings set forth below:
- "Affiliate" shall mean, with respect to any entity, which, directly or indirectly, controls, is controlled, by or is under common control with, whether control be exercised individually or in concert with any other entity.
- “Agreement” shall mean this Service Agreement along with all schedules and/or annexure(s), if any, attached hereto.
- “Applicable Law” shall mean any applicable constitution, treaty, statute, rule, regulation, ordinance, order, directive, code, judgment, award, permit, license, authorization, directive requirement, agreement with, or by a government authority that are applicable to the Parties, in particular, any applicable law relating to the processing, privacy, and use of Personal Data, 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.
- "Audience Data" means data owned / controlled by the Client and provided by Client through Digitalkites Software to facilitate Digitalkites's Processing Activities for monetization purposes hereunder, including but not limited to the Digital Identifiers or any other form making the data anonymous in nature. Audience Data includes Digital Identifiers and Attributes of such Digital Identifiers captured by the Client.
- “Attributes” means the segregated Audience Data of the Data Subjects identifying the distinctiveness based on the purchasing behavior, preferences, favorites, profile of users, and choices.
- "Confidential Information" means any of the Parties' or Parties' Affiliates' proprietary information, Audience Data, 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. All the information, data, financial records, etc. shall be considered to be Confidential Information hereunder (a) if Parties has marked them as such, or (b) if Parties, electronically, orally or in writing, has advised of their confidential nature, or (c) if, due to their character or nature, a reasonable person in a like position and under like circumstances would treat them as confidential.
- "Client" means a Digitalkites client such as advertiser, publisher or any another company utilizing the services of Digitalkites.
- “Central Map” means the consolidated identifiers in digital format maintained, owned processed by Digitalkites including Digital Identifiers provided by Client and should be construed as central database of Digitalkites. Attributes are excluded and not maintained under the Central Map.
- "Data Services" means services that Digitalkites provides or intends to provide to Client using Digitalkites Software.
- "Data Subjects" means the individuals whose information shall be provided by the Client and is forming part of Audience Data.
- “Digital Identifiers” means email ID(s) and mobile numbers, hashed email ids or hashed mobile numbers, cookies, advertising ids etc. excluding the Attributes, which is forming part of Audience Data shared by Client.
- “Deduced Identifiers” means the Digital Identifiers which were inferred, connected in the Central Map using proprietary processing of Digitalkites Software.
- “Intellectual Property” means and includes patents, trademarks, service marks, trade names, registered designs, copyrights, rights of privacy and publicity and other forms of intellectual or industrial property, know how, confidential or secret processes, trade secrets, any other protected rights or assets and any licenses and permissions in connection therewith, in each and any part of the territory and whether or not registered or registrable and for the full period thereof, and all extensions and renewals thereof, and all applications for registration in connection with the foregoing.
- “Intellectual Property Rights” means all rights, benefits, title or interests in or to any Intellectual Property as per the terms set out in this Agreement, anywhere in the world whether or not such Intellectual Property Rights are currently registered or recognized.
- “Net Data Revenue” means the revenue generated in a month by Digitalkites through the processing and use of the Audience Data net after exclusion of applicable taxes payable by Digitalkites.
- "Rendering Anonymous" 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.
- "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 Personal Data is the subject of the breach.
- “Profile” means the profile of a user i.e. Data Subjects.
- "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.
- "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.
- "Subcontractor" means any third-party company that Digitalkites would engage to provide the Data Services as defined under this Agreement.
- “Tax” and, collectively “Taxes” shall mean any and all foreign, central, state, municipal and local (or equivalent) taxes of any country, assessments and other governmental charges, customs duties, duties, impositions and liabilities, including taxes based upon or measured by gross receipts, income, profits sales, service, use and occupation, and value added, ad valorem, stamp duty, stamp transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts.
- The terms "Personal Data," "Data Subject," "Data Controller," "Data Processor," "Data Protection Impact Assessment," and "Supervisory Authority" have the meaning as defined in the Applicable Laws.
- “Warranties” shall mean the representations and warranties set out in this Agreement.
In this Agreement:
- Words denoting any gender shall be deemed to include all other genders;
- Words importing the singular shall include the plural and vice versa, where the context so requires;
- The terms “hereof”, “herein”, “hereby”, “hereto” and other derivatives or similar words, refer to this entire Agreement or specified articles/sections/clauses of this Agreement, as the case may be;
- Reference to the term “Schedule” or “Annexure” shall be a reference to the specified Article or Schedule or Annexure of this Agreement;
- The term “directly or indirectly” means directly or indirectly through one or more intermediary persons or through contractual or other legal arrangements, and “direct or indirect” shall have correlative meanings;
- All headings and sub-headings of articles and/or schedules, and use of bold typeface are for convenience only and shall not affect the construction or interpretation of any provision of this Agreement;
- Reference to the word “include” or “including” shall be construed without limitation;
- The Schedules/ Annexure(s) hereto shall constitute an integral part of this Agreement;
- Terms defined in this Agreement shall include their correlative terms;
- Reference to days, months and years are to calendar days, calendar months and calendar years, respectively, unless defined otherwise or inconsistent with the context or meaning thereof.
The Agreement (“Term”) shall be deemed effective from the Effective Date and remain in effect, unless terminated earlier by the Parties in accordance with terms and conditions of this Agreement.
3. SCOPE OF SERVICES
Subject to the terms and conditions herein, Digitalkites agrees to provide Data Services to the Client through products built, structured, managed and operated on Digitalkites Software developed by Digitalkites. The products provided and Data Services catered to the Client by Digitalkites enables a specialised, unique, and efficient methodology of marketing and advertising; namely:
Audience Play – “Audience Management Suite that allows segmentation, enrichment, retargeting, monetization, consent management, and several other features for Publishers / Data Owners shall be used in campaigns by Digitalkites for monetization, wherein the revenue generated through the campaigns by Digitalkites shall be shared with Client as per the structure discussed further in the Agreement. Client understands and hereby agrees that Digital Identifiers shall be included in the Central Map for rendering the Services by Digitalkites”;
Audience Prime – “Multi Channel Targeting Platform for brands and agencies that allows CRM onboarding and access to a niche audience marketplace using Central Map to the extent required, for which Client agrees to pay to Digitalkites”.
(Collectively, “Digitalkites Software”), as set out in Schedule A – Digitalkites Software.
- Digitalkites shall provide, the services through Digitalkites’ Software, which shall include:
- data segmentation
- data monetisation on Audience Prime or other supported platforms,
- data enrichment
- reporting and payment support
- finding the match and converting cookie IDs to device IDs/ Ad IDs to extent possible
- Audience Prime as a targeting platform to run campaigns on channels such as programmatic, email, SMS, other similar services, functions, responsibilities that are inherently or necessarily part of the services or that are reasonably required for the purpose performance of such services).
4. GRANT OF LICENCES
Digitalkites Software and Documentation License Grant
- Digitalkites grants to Client, a non-exclusive, non-sub-license, non-transferable and revocable licence of the Digitalkites Software during the Term solely for the purpose of enabling the Client to use and enjoy the benefits of the Data Services. The Client will not (a) sell, rent, lend, lease, or distribute the license granted to use the Digitalkites Software herein to any third party, or (b) reverse engineer, de-compile or disassemble the software installed for the functioning of the Digitalkites Software.
- Digitalkites retains ownership of: (i) Digitalkite’s Software, (ii) Deduced Identifiers; (iii) Central Map; and (iv) any and all Intellectual Property rights, title and interests related to the Digitalkites Software.
- Notwithstanding anything contained herein to the contrary, Digitalkites shall also have rights, title, and interest of ownership in and to Deduced Identifiers including all Intellectual Property Rights.
All amounts due under this Agreement shall be payable by the Parties in accordance with the Payment Terms set forth on Schedule B (“Service Fee”) annexed hereto, which by this reference is made a part hereof. For greater certainty, all payments shall be paid as per mutually agreed terms between the Parties.
6. REPRESENTATION AND WARRANTIES
- Each Party hereby represent and warrant that:
- It is duly incorporated under the law and it has the full power, right and authority to execute this Agreement and perform its obligations.
- It obtained all necessary approvals, consents, sanctions or authorizations required to enter into this Agreement and no other approvals, consents, sanctions or authorizations of any regulatory authority or any other person are required to be obtained by it for the execution, delivery and performance of this Agreement.
- The execution, delivery and performance of this Agreement 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.
- It has not filed or taken any corporate action or taken any steps nor has initiated any legal proceeding or been made a party or sought to be made a party to any legal proceedings for its winding up, bankruptcy, liquidation, insolvency, dissolution or reorganization.
- No action, consent, or approval of, or registration or filing with or any other action by any governmental authority is or will be required in connection with this Agreement.
- Digitalkites further represents and warrants that it shall:
- Digitalkites in lieu of the use of Digitalkites Software warrants that it shall:
- not use and/or Process any information that is or includes prohibited data in any unlawful manner,
- the supply of Digitalkites Software, and Data Services, and the use of the Digitalkites Software, and Data Services, does not and will not contravene any laws and infringe the rights of a third party (including any Intellectual Property Rights and moral rights);
- contains, transmits, introduce, or activates any Harmful Code (defined hereinafter) in the production system of Client.
- In relation to Data Services, it shall not
- knowingly use the Audience Data or any other information provided by Client hereunder to re‐identify individuals without obtaining such Data Subject’s express opt‐in consent,
- knowingly attempt to merge Audience Data provided by Client with personally identifiable information or personal data held by Third-Party without obtaining express opt‐in consent from Data Subjects except the process of merging the Digital Identifiers in the Central Map;
- provide the Data Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any third party, or that violates any Applicable Law;
- receive, store, and collect from the Client strictly Confidential Data (pursuant to the Confidentiality clause in the Agreement),
- disclose any Audience Data to third parties except (a) as required in providing the Data Services to the Client; (b) the rendering of services by Digitalkites using Central Map to Client or anyone at any point of time; or (c) as otherwise mentioned in the Agreement, and
- use the Personal Data for any purpose other than to perform its obligations under this Agreement. It shall ensure that all Audience Data it receives, stores, and collects from the Client is processed in accordance with this Agreement or as otherwise instructed in writing from time to time by the Client.
- For the purpose of this Agreement,
- “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm(s), malware or other malicious computer code(s), the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (iii) prevent Client from accessing or using the Digitalkites’ Software and Services as intended by this Agreement.
- “Prohibited Data” shall mean any names, addresses, phone numbers, e‐mail addresses, social security numbers, or other information, in an un-hashed form, which could be used by Digitalkites to identify a user personally.
- Client further represents and warrants to Digitalkites that:
- Client shall not provide any Audience Data that qualifies as Prohibited Data.
- It shall not use the Digitalkites Software in a manner that (1) infringes or violates the Intellectual Property Rights of Digitalkites or rights of any Third Party (2) violates any law or regulation, (3) is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable, (4) attempts, in any manner, to obtain the password, account, or other security information from any other clients of Digitalkites, (5) violates the security of any computer network, or cracks any passwords, or security encryption codes.
- All registration information submitted herein will be true, accurate, current, and complete to its best knowledge as on Effective Date and any changes post Effective Data shall be intimated to Digitalkites.
- It will maintain the accuracy of such information and promptly update such registration information, as necessary.
- It shall take all commercially reasonable actions and precautions to prevent the introduction and proliferation, and reduce the effects, of any malicious Code into the Digitalkites Software.
- Has necessary approvals with respect to Audience Data, as required for Digitalkites to render Data Services including the necessary processing of the Audience Data.
- Confirms the understanding that Digital Identifiers shall be included in Central Map of Digitalkites, a mandatory requirement for rendering Data Services.
7. PROHIBITED USE
- Both Digitalkites and the Client shall not use, copy or distribute the license granted herein except as expressly described in this Agreement or permitted in writing signed by an authorized representative of Digitalkites and the Client.
- Client shall use the Digitalkites Software or any other Intellectual Property of Digitalkites strictly in accordance with the terms and conditions provided hereto and Client shall not:
- modify, reverse engineer, derive source code, create derivative works of, disassemble or decompile Digitalkites Software or in any way, attempt to discover or reproduce the source code, techniques, formats, concepts, methods, ideas or information contained in Digitalkites Software;
- export Digitalkites Software or any portion thereof to any person or entity in violation of any Applicable Law;
- distribute copies of the Digitalkites Software and/or electronically transfer the Digitalkites Software from one computer to another over a network;
- sell, lend, lease, rent or license the Site, software or any portion thereof;
- use the Digitalkites Software to develop an application or software having the same primary function as Digitalkites Software; and/or
- use the Digitalkites Software for creating/ developing or structuring a software that is, directly or indirectly, similar, or competitive with or in any way a substitute for any services offered by Digitalkites.
8. RIGHTS AND OBLIGATIONS OF THE PARTIES
- The Parties shall be solely responsible for compliance with the Applicable Laws for purpose of the Agreement.
- The Parties shall not make any representation or do any act, which may be taken to indicate that it has any right to lend on behalf of other Party, has any right, title or interest in or to the business of the other Party or other Party’s Intellectual Property Rights.
- The Parties shall not do, cause or authorize to be done anything, which will or may impair, damage or be detrimental to the rights, reputation and goodwill associated with the other Party, business of the other Party and/or or the Intellectual Property Rights of the other Party.
- The Parties agrees that the Personal Data, Audience Data and Confidential Information shall be collected, processed, handled, stored, transferred and disclosed by each Party in compliance with Rules and any Applicable Laws and related rights in accordance with this Agreement.
9. DATA SUBJECT REQUESTS
- Parties 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 and possible, Data Subjects shall be provided with a clear and unambiguous option to opt out of interest-based advertising.
- 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 forthwith, and the other Party shall use commercially reasonable efforts to facilitate necessary actions to the extent it is permitted under Data Protection Laws.
- Digitalkites will promptly address any Data Subject Requests addressed to Digitalkites. Digitalkites will erase the data in case Data Subjects submit their Digital Identifiers for the deletion of the associated Data. Notwithstanding the generality of the foregoing, Digitalkites will provide a written notice to the Client for the requests received from the Data Subjects and/or the Client in regard to the erasure of the Personal Data.
- If in compliance with a Data Subject Requests either Party was required to rectify, erase, stop or restrict the processing of Data, the recipient of the Data Subjects Request/or either Party shall promptly notify and assist the other Party 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.
10. INFORMATION SECURITY
- Each Party agrees that it shall handle the 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, anonymizing 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"). For the purpose of this Agreement “Authorized Users” means an individual authorized or permitted by Digitalkites to use and access the Audience Data for providing the Services to Client in accordance with the terms and conditions of the Agreement.
- 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.
- Digitalkites shall ensure that to whom it makes available the Audience Data of the Client as permitted herein are subject to the security and privacy obligations substantially similar to the obligations in this section.
11. INTERNATIONAL DATA TRANSFERS
When Digitalkites transfers any 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.
12. INTELLECTUAL PROPERTY
- Each Party shall remain the sole owner of its respective Intellectual Property Rights. Client shall have all the rights, tittle and interests in and over all Intellectual Property Rights over the Audience Data except the Digital Identifiers mapped through Central Map and Digitalkites shall have all the rights, title and interests in and over all Intellectual Property Rights of the Digitalkites Software and any modifications to the Digitalkites Software. Nothing in this Agreement grants to Digitalkites, or any third‐ party, the right to use the Audience Data for any reason other than as expressly described in this Agreement. Digitalkites shall not export or share Audience Data (other than Digital Identifiers under Central Map) with any third‐parties without obtaining the prior written consent of Client or its authorized representatives.
- Digitalkites may use Audience Data for the purposes of developing statistical and analytical models in accordance with the terms and conditions of this Agreement. Except to the extent otherwise agreed in this Agreement, 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.
- Digitalkites may use know-how acquired, principles learned or developed, or experience gained during the performance of its obligations for its own purposes, without any reference to or use of the Confidential Information of Client including, without limitation, Audience Data.
- Nothing herein, unless stated otherwise, shall be implied or construed as an assignment of any Intellectual Property belonging to either Party.
- Client undertakes not to copy, alter, adapt, translate, develop, decompile, license, sub-license, reverse engineer, create derivative works from or resell any, documentation, software developed by Digitalkites, unless expressly authorized in writing to do so by Digitalkites or by relevant law.
- Any documentation created and shared by Digitalkites with Client hereunder constitute Intellectual Property owned by Digitalkites and shall not be distributed to any third party without the express prior written authorization of Digitalkites nor to any party which has not executed a non-disclosure agreement in a form reasonably acceptable to Digitalkites.
- Neither Digitalkites nor Client shall infringe, misappropriate, dilute or otherwise violate Intellectual Property of each other and any 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.
- Client hereby undertakes that Digital Identifiers processed, deduced, mapped with the Digital Identifiers of other clients in the Central Map, shall be remained under Central Map and shall be treated as the property of Digitalkites (“Processed Audience Data”). For greater certainty, Digitalkites shall return or delete all the Audience Data supplied by the Client to the extent possible, except for the Deduced Identifier i.e. Digital Identifier mappings that were deduced with the help of other clients / proprietary processing / algorithms etc.
13. CONFIDENTIAL INFORMATION
- The Party receiving (“Receiving Party”) Confidential Information from the Party disclosing (“Disclosing Party”) shall not use any Confidential Information for any purpose except as expressly authorized under this Agreement or otherwise in writing by the Disclosing Party. The Receiving Party shall not copy, reprint, duplicate, or recreate in whole or in part, alone or in combination with anything else, the Confidential Information, or shall not commercially use or disclose the Confidential Information or any materials derived therefrom to any other person or entity, or shall not remove the Confidential Information or any results or any materials derived therefrom, without the prior express written consent of the Disclosing Party. The Receiving Party shall not disclose the Confidential Information to any third party and shall protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care.
- The Receiving Party shall at all times during the continuance of this Agreement and thereafter keep confidential the Confidential Information and not use it for any purpose other than the performance of its obligations under this Agreement. The Receiving Party shall ensure that it fully complies with all Applicable Laws, including but not limited to the specific provisions of the Rules as well as the Information Technology Act, 2000 dealing with data protection and privacy. The Receiving Party shall take all reasonable precautions to preserve the integrity and prevent any corruption or loss, damage or destruction of the Personal Data.
- The Receiving Party may disclose the Confidential Information to its representatives and /or employees to such an extent only as is necessary for the purposes contemplated by this Agreement, so long as similar confidentiality obligations are imposed on such representatives and/or employees.
- However, the obligations of confidentiality as mentioned above shall not apply to any information that:
- Was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party;
- Was in possession of the Receiving Party prior to the time it was received from the Disclosing Party or came in Receiving Party’s possession thereafter, in each case lawfully obtained from a source other than the Disclosing Party and not subject to any obligation of confidentiality or restriction on use;
- Is disclosed with the prior written approval of the Disclosing Party;
- Was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party and by employees of the Receiving Party who have not had access to the Confidential Information, as demonstrated by files created at the time of such independent development;
- Becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement.
- If any time during the Agreement, either Party receives a request pursuant to law or to the order or requirement of a court, administrative agency, or other governmental body; provided to disclose all or part of the Disclosing Party’s Confidential Information, however, that the Receiving Party shall provide prompt notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. Thereupon, the Receiving Party may disclose the specified required Confidential Information only to an authorized person, entity or agency to the extent required by law or regulation, subject to maximum available confidentiality restrictions.
- Notwithstanding the foregoing, each Party shall ensure that the collection, storage and sharing of any Personal Data and Audience Data is as per the Applicable Laws.
- The Receiving Party acknowledges that the disclosure of any Confidential Information (except under the conditions mentioned above) in breach of the terms of this Section may cause the Disclosing Party irreparable injury and damages that may be difficult to ascertain. Therefore, the Receiving Party, upon a disclosure or threatened disclosure of any Confidential Information, will be entitled to injunctive relief including, but not limited to, a preliminary injunction upon an ex-parte application by the Disclosing Party to protect and recover its Confidential Information, and the Receiving Party will not object to the entry of an injunction or other equitable relief against the Disclosing Party on the basis of an adequate remedy at law, lack of irreparable harm or any other reason. Without limiting the foregoing, the Receiving Party will advise the Disclosing Party immediately in the event that it learns or has reason to believe that any person or entity that has had access to Confidential Information, directly or indirectly, through the Receiving Party, has violated or intends to violate the terms of this Agreement. This provision will not in any way limit such other remedies as may be available to the Disclosing Party, whether under this Agreement, at law, or in equity.
- 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)
- The confidentiality obligations under this Section apply to all Confidential Information disclosed during the Term of the Agreement and shall remain in force after the expiration or termination of the Agreement for a period of 3 (three) years from the date of Termination. The Receiving Party further agrees, upon termination or expiry for whatever cause of this Agreement, to forthwith return all Confidential Information including without limited to data, documents and any materials received from the Disclosing Party in connection with this Agreement and certify the same in writing to the Disclosing Party.
- Any authority to disclosure or usage of the Confidential Data as agreed under the terms of this Agreement shall have overriding effect on the terms of this clause to the extent contradictory.
14. DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, DIGITALKITES DOES NOT GUARANTEE THAT THE DIGITALKITES SOFTWARE OR SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED. DIGITALKITES SOFTWARE OR SERVICES, ARE PROVIDED BY DIGITALKITES “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ANY WARRANTY THAT DIGITALKITES SOFTWARE OR SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION, OR THAT DIGITALKITES SOFTWARE OR SERVICES WILL MEET THE CLIENT’S REQUIREMENTS, AND ANY WARRANTIES IMPLIED BY LAW, BY THE COURSE OF DEALING BETWEEN THE PARTIES, OR OTHERWISE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. DIGITALKITES 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.
15. CONTRACTUAL AND REGULATORY COMPLIANCE
- The Parties agree and acknowledge that the Client shall act 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 their respective obligations under Applicable Laws. To the extent that the Audience Data requires access to or the processing of any Personal Data by Digitalkites in accordance with the terms and conditions of this Agreement, such activities shall be subject in addition to the provisions of Schedule C – Data Processing Agreement.
- Digitalkites shall intimate the Client with a reasonable prior notice, if it judiciously believes that such processing of Audience Data may infringe any Applicable Laws, pose a risk of liability or harm to Data Subjects, Digitalkites, or any of Digitalkites's agents. The Client upon review of the notice and the reasons stated therein, will modify the provision of Audience Data as soon as possible to make it compliant and eliminate the risk of liability and harm.
16. TRANSPARENCY AND DATA SUBJECT CHOICE
- Subject to terms and conditions herein, Client will 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.
17. RELATIONSHIP BETWEEN PARTIES
a. The relationship between the Parties and shall, within the context of this Agreement, be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Each Party shall, at all times during the term of this Agreement, perform the duties and responsibilities herein without any control by the other Party. Neither Party is an agent of the other Party and is not authorized to make any representation, contract, or contract commitment on behalf of the other Party.
18. SPECIFIC PERFORMANCE
In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Parties shall have the right to specific performance and injunctive or other equitable relief of its rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agrees that the remedies at law for any breach or threatened breach, including monetary damages, may be inadequate compensation for any loss to the other Party and that any defense in any action for specific performance that a remedy at law would be adequate is waived.
- Either Party may terminate the Agreement with notice on the happening of the following events:
- if the other Party materially breaches any of its obligations hereunder and such breach remains not rectified for a period of 30 (thirty) days or such longer period as reasonably required to cure, after the date the non-breaching party provides written notice of such breach; or
- the commission or omission by either Party of any act which brings disrupt to or is not in the best business interest of the other Party;
- assignment by the either Party of its obligation hereunder to any other third party without taking prior consent of other Party;
- either Party’s principal officer/s or director/s is convicted by a competent court for a criminal offence involving moral turpitude;
- if the performance of obligations under this Agreement by either party results into breach of any regulatory, legal, or ethical requirement.
- Either Party may terminate this Agreement for convenience (with or without cause), at any time upon 60 (sixty) days’ prior written notice to the other Party.
- Either Party may terminate the Agreement if either Party 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.
- Consequences of Termination:
- Upon termination or expiration of this Agreement, all rights, licenses and authorization granted by either Party hereunder shall terminate forthwith, and Digitalkites shall cease using and distributing Audience Data (other than Digital Identifiers included in Central Map), within a period of (30) days from the date of termination notice and the Client shall cease to use and access the Digitalkites Software immediately.
- In case of termination or expiry of this Agreement, the Service Fee which are due and payable (pursuant to Schedule B – Earnings Table – Digitalkites has to pay the Client) for the business activities carried out in furtherance of this Agreement , shall be paid by Digitalkites within seven (7) days from the date of termination.
- Similarly, in case of termination or expiry of this Agreement, the Service Fee which are due and payable (pursuant to Schedule B – Spends Table – Client has to pay Digitalkites) for the business activities carried out in the furtherance of this Agreement, shall be paid Client within seven (7) days from the date of termination.
- Notwithstanding the termination or expiry of this Agreement, the Parties hereby acknowledge and agree that, Parties shall remain fully liable and responsible to make the payment of Service Fee as set out in Schedule B. This provision shall survive the termination/expiry of this Agreement.
- Parties hereby understand that the Digital Identifiers included in the Central Map shall remain even after returning the Audience Data owing to the processing methodology of the Digitalkites Software and such data cannot be removed from the Central Map. Parties thereby agree that Digital Identifiers provided by the Client and subsequently included in the Central Map by Digitalkites shall remain under Central Map even after termination of the Agreement. However, no Attributes shall be included in the Central Map.
- The expiration or the termination of agreement would in no way prejudice the rights of the Parties and any provision hereof and shall remain in full force and effect as a result of its surviving nature, shall be enforceable notwithstanding such expiry or termination.
The Parties hereby agrees and undertakes to indemnify and keep indemnified the other Party including its representatives against all claims, demands, damages, penalties, costs or expenses of any kind (“Claims”) which may arise against or be incurred by the other Party to the extent of direct and actual loss and/or damages adjudicated by the competent court of law, (a) as a result of any wrongful, fraudulent or misleading act of the Party; (b) any act, omission or commission, negligence or failure to comply with its obligations under this Agreement; and (c) breach of representations and warranties.
21. LIMITATION OF LIABILITY
- 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 damages, howsoever caused and whether such losses or damage were foreseen, foreseeable, known or otherwise: (i) loss of revenue; (ii) loss of 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.
- Nothing in this Section excludes or limits either Party's liability for: (i) fraud, fraudulent misrepresentation or gross negligence, (ii) breach of Confidentiality, (iii) obligations under Indemnity, (iv) payment of sums properly due and owing to the other in the course of normal performance of the Agreement, (v) Security Breach, (vi) matters that cannot be excluded or limited under Applicable Law.
- Notwithstanding the above, in no event shall either Party’s total aggregate liability for all Claims (including attorneys’ fees and costs of defense for indemnification) arising out of this Agreement exceed the Service Fee received by Client from Digitalkites under this Agreement in the last two (2) months prior to the effective date of the notice of any such Claim. This provision applies regardless of how the liability arose or the theory of liability, including without limitation contract or tort (including products liability, strict liability, negligence, and misrepresentation).
22. COOPERATION AND AUDIT
- a. Each 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. Both the Parties shall promptly notify such contact person along with respective contact details in their respective privacy policies.
- Both the Parties will cooperate fully with any reasonable request for information from either Party related to the collection, use and processing of Audience Data. Each 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.
- To the extent permitted by law, either Party shall promptly notify the other Party if it receives notice of any claim or complaint in connection with Applicable Laws by any Data Subject or Supervisory Authority in relation to Personal Data processed in accordance with this Agreement. Upon reasonable notice, either Party will assist and support the other Party in the event of an investigation by a Supervisory Authority, if and to the extent that the investigation relates to the use of Audience Data hereunder by that Party. Nothing herein will require the Parties to disclose any information that is not linked with the fulfillment of the obligations under the Agreement.
23. NON-COMPETE AND NON-SOLICIT
- During the term of this Agreement and for a period of one (1) year thereafter, Party will not do anything to compete with the other Party’s present or contemplated business, nor will it plan or organize any competitive business activity.
- During the term and for a period of one (1) year thereafter, without the other Party’s express written consent, directly or indirectly, solicit or encourage any employee, agent, independent contractor, supplier, customer, consultant or any other person to terminate or alter relationship with the other Party.
- Assignment and Subcontracting: The Parties shall not assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Parties. Such consent shall not be delayed or withheld unreasonably. Client agrees that Digitalkites may engage Subcontractors for the processing of Audience Data within and outside India with the prior written consent of Client, which shall not be unreasonably delayed or withheld. Digitalkites shall remain fully liable for all acts and omissions of, and any breaches of these terms by its Affiliates and Subcontractors as approved by Client.
- Governing Law and Jurisdiction: This Agreement is/shall be governed by the laws of India and the courts at Hyderabad shall have exclusive jurisdiction relating to any matter/issue under or pursuant to the Agreement. Notwithstanding anything to the contrary, if any dispute/disagreement/differences (“Dispute”) arise between the Parties during the subsistence of this Agreement and/or thereafter, in connection with, inter alia, the validity, interpretation, implementation and/or alleged breach of any provision of this Agreement, jurisdiction or existence/appointment of the arbitrator or of any nature whatsoever, then, the Dispute shall be referred to a sole arbitrator who shall be appointed mutually by the Parties. It is expressly agreed that in any circumstance, the appointment of the sole arbitrator as aforesaid shall be and shall always deemed to be the sole means for securing the appointment/nomination of the sole arbitrator, without recourse to any other alternative mode of appointment of the sole arbitrator. The place of the arbitration shall be Hyderabad and the arbitration proceedings shall be governed by the Indian Arbitration & Conciliation Act, 1996 (or any statutory re-enactment thereof, for the time being in force) and shall be in the English language. The award shall be binding on the Parties subject to the Applicable Laws in force and the award shall be enforceable in any competent court of law.
- Severability: If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions thereof or the whole of this Agreement, but such term or provision will be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent of the agreements of the Parties herein set forth.
- Publicity: Notwithstanding anything contained herein to the contrary, Digitalkites and its Affiliates may use Client's name and/or logo for the purposes of promoting the partnership in marketing and sales materials, with the prior consent of the Client. Similarly, Client may use and disclose Digitalkites's name and trademark in its commercial materials with Digitalkites's prior written consent.
- 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, the Parties shall work together to modify the provisions and to amend this Agreement or take such other steps to remain compliant with Applicable Laws in the form of mutually agreed addendum signed by both the Parties.
- Force Majeure: If at any time during the existence of this contract, either Party is unable to perform whole or in part any obligation under this Agreement, due to war, military operations of any character, sabotage, floods, explosions and any other matter beyond the human control/capability, then the any obligation under this Agreement shall not consider the breach of any of the provisions hereunder and neither Party will be responsible for any failure. If the cause of the delay continues for a period of more than fifteen (15) day’s the Party not claiming Force Majeure may terminate this Agreement by written notice to the other Party without penalty. Provided no effect of such act shall fall on the payment obligation and other payment related obligations of Digitalkites as mentioned under heading ‘Consequences of Termination’.
- Notice: All notices and communications with respect to this Agreement shall be addressed to a Party at the address set forth above, or to a substitute address given by proper notice. Notices shall be in writing, in the English language, and may be delivered in person, by overnight courier, by registered or certified mail, return receipt requested or by facsimile or email with proof of receipt and shall be deemed received upon the earlier of actual receipt or three (3) days after sending by courier, mail or electronically.
- Entire Agreement: This Agreement along with its Schedules constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings, or other agreements, whether oral or written, relating to the subject matter of this Agreement.
- Survival: The indemnity obligations, confidentiality obligations, representations, warranties of the Parties contained in this Agreement pursuant to this Agreement hereto shall survive and shall remain in full force and effect, regardless of any termination of this Agreement.
- Amendment: This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties hereto.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed the day and year first above written.
SCHEDULE A – DIGITALKITES SOFTWARE
FEATURES OF AUDIENCEPLAY.
As part of AudiencePlay, Digitalkites offers Client the ability to collect data, segment it using Digitalkites Software and use those segments for targeting and monetization. Digitalkites may choose to aggregate this data with or without other data sources in order to provide onboarding, targeting, enrichment solutions etc. and thus attempting to maximize the revenue opportunity for the Client.
TERMS AND CONDITIONS
By signing up with AudiencePlay it is implicitly understood that Client has Audience Data that it wishes to monetize and/or activate, and Digitalkites wishes to process and use such Audience Data for the provision of Data Services in accordance with this Agreement.
Reporting: Digitalkites shall prepare and provide Client with reports via Dashboard documenting the use of Audience Data and the resulting Net Data Revenue generated (if applicable) 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; (iii) purposes for which Audience Data has been used and (iv) other fields including but not limiting to Audience name, impressions, revenue, audience, platform, CPM (Cost per Thousand Impressions), duration in line with the Audience name. In the event Digitalkites is unable to acquire the usage information from a participating client in a timely manner, an initial usage report may be provided with subsequent reporting provided when available.
- Digitalkites shares anonymous data with clients/platforms within and outside India for the purposes of the provision of Data Services.
- 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 with prior intimation to the Client.
- For providing such services hereunder, Digitalkites shall incorporate pixels, scripts, code, IP, Digital Identifiers, time stamp, user agent, Attributes provided by Clients and other related services for the ecosystem of targeting to function properly.
- Client agrees that Digitalkites may add any Data Service not yet described as part of this Agreement but similar to Data Services provided hereunder by providing those additional features within the platform with the prior consent of the Client.
AUDIENCE DATA PROVISION
- Client shall render Digitalkites reasonable assistance to ensure the provision / access to and use of the required Audience Data hereunder.
- Client shall provide updates of Audience Data (if any) on a regular basis with the frequency as may be separately agreed by the Parties.
- 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.
- Client shall not provide any Personal Data to Digitalkites before it is rendered anonymous. The Parties herein agree, the Parties shall not process any data that should not process any data that should not be process any data that should not be processed in accordance with Applicable Laws.
- Client shall be required to register on the AudiencePlay platform to avail the services. The registration process enables the Client to access or use of the services. Client shall be required to register by providing username, email address, name, cellphone number, password, et al.
- 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. Client agrees and acknowledges that it will provide accurate, complete and updated information in order to register on the AudiencePlay platform to use the Services to the best of its knowledge as on Effective Date.
- Client further covenants that if any information is found untrue, inaccurate or incomplete or Digitalkites identifies reasonable grounds to suspect that such information is untrue, inaccurate, not current, incomplete, or not in line with this Agreement, Digitalkites shall intimate Client by a written notice of such dispute and Client shall forthwith take reasonable efforts to cure such dispute failing which Digitalkites have the right to forthwith suspend or terminate or block access of the Client to its account and refuse to provide the access to the platform.
LICENSE GRANT TO DIGITALKITES
Client hereby grants a non- exclusive, revocable, non-sub-license right to Digitalkites to allow Digitalkites to access, process Audience Data and provide Data Services in accordance with the terms and conditions of this Agreement, including the rights to: (i) collect, receive, assemble, compile, analyze, modify and transform Audience Data; (ii) transmit and distribute Audience Data to Digitalkites customer as necessary for the provision of Data Services, subject to prior written consent of the Client.
“Multi Channel Targeting Platform for brands and agencies that allows CRM onboarding and access to a niche audience marketplace”, using Central Map to the extent required, for which Client agrees to pay to Digitalkites.
FEATURES OF AUDIENCEPRIME
As part of AudiencePrime, Digitalkites offers the ability to obtain several targeting options, features like onboarding, enabling Client to target or prospect their potential audience traits and other similar services in addition to the scope of Data Services as defined in Clause 3 of the Agreement.
TERMS AND CONDITIONS
- Client shall be required to register on the AudiencePrime platform to avail the services. The registration process enables the Client to access or use of the services. Client shall be required to register by providing username, email address, name, cellphone number, password, et al.
- 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. Client agrees and acknowledges that it will provide accurate, complete and updated information in order to register on the AudiencePrime platform to use the Services to the best of its knowledge as on Effective Date.
- Client further covenants that if any information is found untrue, inaccurate or incomplete or Digitalkites identifies reasonable grounds to suspect that such information is untrue, inaccurate, not current, incomplete, or not in line with this Agreement, Digitalkites shall intimate Client by a written notice of such dispute and Client shall forthwith take reasonable efforts to cure such dispute failing which Digitalkites have the right to forthwith suspend or terminate or block access of the Client to its account and refuse to provide the access to the platform.
LICENSE TO CLIENT
- Subject to the provisions of the Term of Use, Digitalkites hereby grants the Client a limited, non-exclusive, non-transferable, worldwide license, solely for the purpose of enabling Client to use and enjoy the benefits of services of AudiencePrime. Client shall use the Digitalkites Software in executable format for its own use and shall not translate or modify the Digitalkites Software or any other Intellectual Property of Digitalkites.
- Client agrees and acknowledges that it shall not transfer or sublicense the license granted hereunder to any third party, in whole or in part, or in any form whatsoever, whether modified or unmodified. Client will not (a) sell, rent, lend, lease, or distribute the license granted 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 Digitalkites Software.
- Digitalkites retains ownership of the (i) the Digitalkites Software; and (iii) any and all Intellectual Property rights, title and interests related to the Digitalkites Software, including without limitation any copyrights, trademarks, patents, trade secrets or any other rights or license granted herein.
LICENSE TO DIGITALKITES
- Client grants Digitalkites a limited, worldwide, non-transferable, non-exclusive, non-sub licensable, revocable license to access and process, Client’s Audience Data solely in order to enable to use the services of Audience Prime, in accordance with the terms and conditions of this Agreement. Digitalkites shall have the right to aggregate and anonymize Client data and to publish such aggregated and anonymized (non-personally identifiable) data or benchmark studies.
- Digitalkites may use Client’s name in any of their client lists and testimonials with the prior consent of the Client.
SCHEDULE B – PAYMENT TERMS
Earnings Table - DigitalKites has to pay the Client
Monetizing segments onto the audience marketplace either under their own Brand Logo or under 'AudienceX'.
Revenue Share: 50% - 50% in favor of the Client - For purchases on AudiencePrime or Facebook
*CPM of the segment will be marked up by 20% when exported to other programmatic DSPs such as Google 360 as part of export Fees to be paid to partners/DSPs
For e.g. if the CPM of a Segment is entered as 1$ , it will be exposed to brands and agencies as 1.2$ for Google 360
Monetizing segments via Enrichment Reports
Revenue Share: 50%- 50% in favor of the Client
Revenue earned due to contribution of hashed email/mobile to cookie/advertising ids map
Revenue Share: 50% - 50% in favor of the Client
- Digitalkites shall provide Client with reasonable access to its online dashboard (“Dashboard”) which shall be used for monthly calculations of the payment for data usage to be made by Digitalkites to Client.
- The Dashboard shall, on the 7th of every calendar month, reflect the amounts payable by Digitalkites to Client for two calendar months prior and Digitalkites shall make the payment in respect of Services on or before the same date of that month. (For illustrative purpose, the amounts payable by Digitalkites to Client for the month of April shall be reflected in the Dashboard on 7th June and the payment shall be made on or before 7th June).
- The data obtained from such Dashboard shall be relied upon unless more than a 2% margin error or problem is detected by Client.
- If any payment due hereunder, is delayed for any reason, which is not paid by the Digitalkites from and after the date on which same is due, Digitalkites shall be liable to pay an interest rate of 18% (Eighteen Percent) per annum on the unpaid amount (Late Fee). Such Late Fee shall be calculated from the due date of invoice till the date of actual payment paid by Digitalkites.
- In an event there is difference between the numbers visible on Dashboard and calculated by Client of more than 2%, the Parties shall mutually discuss and resolve the issue.
- The amount which will be reflected in the Dashboard shall be exclusive of all applicable taxes for this Agreement.
Spends Table - Client has to pay to DigitalKites
Onboarding offline data: (conversion of offline identifiers to online identifiers),
Client shall pay DigitalKites a fee of 0.05$ per user profile matched
|Running digital advertising campaigns
|Channels: Social and Programmatic: 15% of media spent is considered as latform fee
|Channel: Email: 0.0013$ per Email sent
|Channel: SMS: 0.0020$ per SMS sent
All charges for above services shared be deducted via Wallet while the features are being utilized within the products
SCHEDULE C – DATA PROCESSING ADDENDUM
THIS DATA PROTECTION ADDENDUM ("DPA") is entered into by and between Digitalkites (“Data Processor”) and Client (“Data Controller”) and forms part of all agreements between the parties relating to the subject matter of this Schedule C (each an “Agreement”).
The terms in this Schedule C shall only apply to the extent Data Processor collects or otherwise processes Data (including Personal Data) protected or otherwise regulated by EU Data Protection Law. Capitalized terms used in this Addendum shall have the meaning given to them in the main body of the Agreement unless otherwise defined in this Addendum.
IT IS AGREED:
- "Controller" means the entity that determines the purposes and means of the processing of Personal Data.
- "EEA” means for the purposes of this Addendum, the European Economic Area which will be deemed to include Switzerland and the United Kingdom;
- "EU Data Protection Law" means (i) the EU General Data Protection Regulation (Regulation 2016/679); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national laws made under or pursuant to (i) or (ii) (in each case, as superseded, amended or replaced).
- "Personal Data" means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable EU Data Protection Law.
- "Privacy Requirements" means all applicable international, federal, national and state data protection and privacy laws, and regulations, and industry self-regulatory rules, codes and guidelines that apply to the processing of Data (including Personal Data) that is protected by EU Data Protection Law, data protection laws of India including the Information Technology Act, 2000, as applicable to Digitalkites.
- including without limitation: (i) the rules, codes and guidelines of the European Interactive Digital Advertising Alliance (EDAA) and the Network Advertising Initiative (NAI); and (iii) EU Data Protection Law (in each case, as amended, superseded or replaced) and Information Technology Act, 2000 (of India).
- "Privacy Shield" means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017, respectively.
- "Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of July 12, 2016 (as may be amended, superseded or replaced).
- “Client Property" has the meaning given to it in the Agreement or, if not set forth in the Agreement, means the websites, mobile applications and/or other digital media properties owned or operated by the Client and accessible through the Digitalkites Data Services or via which Personal Data used in connection with the Data Services is collected.
- "Tracking Technologies" means technologies used to store or gain access to data stored on a user's device, including (as applicable), cookies, mobile SDKs, browser cache, unique identifiers, web beacons, pixels and/or similar tracking technologies.
- "Data Subject", "Processing" (and "process") shall have the meanings given to them in EU Data Protection Law.
1. Scope of processing: Parties agree that unless otherwise agreed between the Parties: (i) in connection with the Data Services, Digitalkites may collect or otherwise receive data (including Personal Data) about or related to end-users of the Client Properties (collectively, "Data"); and (ii) Digitalkites and Client use Tracking Technologies in order to collect certain Data. The Parties agree that Digitalkites may process the Data only for the purposes contemplated by the Agreement ("Permitted Purposes").
2. Relationship of the Parties: The Parties acknowledge that to the extent the Data contains Personal Data, each Party shall process such data as a separate and independent Controller only for the Permitted Purposes.
3. Obligations of Processor:
- The Processor commits to performing the Processing in accordance with the Agreement and abide by the Regulation, and to keep up-to-date regarding the development of the Regulation and related legislation relevant to the Processing covered by this Agreement.
- The Processor, including any and all persons working under the Processor’s supervision, may only Process Personal Data pursuant to the Agreement and in accordance with the instructions given by the Controller to the Processor in this DPA, the Agreement, or as otherwise received from the Controller in writing. If the Processor deems that they are lacking the instructions necessary to perform the Processing assigned to the Processor through the Agreement, the Processor shall contact the Controller without delay, in order to receive such instructions. All instructions received shall be documented by the Processor.
- In case the Processor plans to engage a sub-Processor in order to fulfill the duties of the DPA, the Processor shall obtain written authorization to do so from the Controller. If a general authorization has been obtained from the Controller, the Processor shall instead inform the Controller of the sub-processors engaged, to give the Controller opportunity to object against the choice of sub-processor. When hiring a sub-processor, the Processor shall ensure that the sub-processor only Processes Personal Data under the same terms, and to the same standard as the Processor themselves.
- The Processor shall only Process Personal Data using equipment located within the EU/EEA, including the use of cloud services. The Processor may move said equipment, or Process Personal Data using other equipment, only after receiving the Controller’s approval.
- In the case of a request for information regarding Personal Data from a Data Subject, the Swedish Data Protection Authority or another third party, the Processor shall direct the requester to the Controller. The Processor may not release Personal Data or information regarding the Data Processing without clear instructions or authorization from the Controller.
- The Processor shall without delay inform the Controller of any requests by the Swedish Data Protection Authority that relate to or could be of relevance in regard to the Processing. The Processor does not have the right to represent the Controller or act on the Controller’s behalf vis-a-vis the Swedish Data Protection Authority or any other third party.
- On discovery of a data breach, the Processor shall inform the Controller of the data breach without undue delay, but no later than 24 hours from discovery.
- The Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk to the rights and freedoms of natural persons associated with the Processing, particularly to prevent unauthorized access to, destruction of, or alteration of Personal Data. To this end, the measures in Article 32 of the Regulation and the general recommendations of the Swedish Data Protection Authority shall be taken into account.
- The Processor shall, where relevant considering the nature, scope, context and purpose of the Processing, perform a Data Protection Impact Assessment as stipulated in Article 35 of the Regulation if the processing is likely to result in a high risk to the rights and freedoms of the Data Subjects.
- The Processor shall consult with the Swedish Data Protection Authority where the Data Protection Impact Assessment indicates that the processing would result in a high risk to the rights and freedoms of the Data Subjects.
- The Controller reserves the right to, at its own expense, itself or through an intermediary, verify the Processor’s compliance with this DPA. To achieve this verification, the Processor shall provide the Controller with assistance as required.
- The Processor shall, when this DPA is terminated, transmit the Personal Data to the Controller using a technical medium chosen by the Controller. The medium chosen shall be generally available and not require special development by either the Controller or the Processor. Once the Personal Data has been transmitted, all copies of the Personal Data in the Processor’s possession shall be terminated in such a way that it cannot be recreated and remain in the Processor’s possession.
- The Processor, to an extent, shall assist the Controller in retrieving information required in order to comply with a request by either the Swedish Data Protection Agency or a Data Subject, or otherwise help the Controller ensure a Data Subject’s rights according to the Regulation.
- The Processor may under no circumstances transfer Personal Data outside of the EU/EEA without the Controller’s explicit permission.
4. The Controller’s responsibilities
- The Controller is also responsible for ensuring that the Data Subjects receive the information required by the Regulation, that consent is collected in a legitimate fashion where required and that prior consultation with the Swedish Data Protection Agency takes place when necessary.
- The Controller shall, without delay, inform the Processor of changes in the Processing that affect the Processor’s duties. Furthermore, the Controller shall inform the Processor of actions taken by third parties, among others the Swedish Data Protection Agency, with regards to the Processing, if any.
- Data Controller shall be required to ensure that it is compliant and does not breach the applicable legislations by extending prohibited instructions to the Data Processor.
- d. Date Controller will reasonably assist the Data Processor with meeting the compliance obligations under the applicable Legislations, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with Supervisory Authorities under the applicable legislations.
- e. Data Controller agrees and acknowledges that it shall not publicly make any negative, disparaging, detrimental or derogatory remarks or statements (written, oral, telephonic, electronic, or by any other method) about the Data Processor related to the personal data breach, including, without limitation, any remarks or statements that could be reasonably expected to adversely affect in a material manner (i) the conduct of the Data Processor’s; or (ii) the business reputation or relationships of the Data Processor, in each case, except to the extent required by law or legal process.
- The Processor agrees not to reveal, by sharing information with a third party or in any other way, information regarding the Processing of Personal Data set out in this DPA or the main Agreement, information the Processor has received as a result of this agreement or information the Processor has received in their role as Processor. This commitment does not apply to information that the Processor is ordered to submit by a government agency, or that is otherwise required by Swedish law. This confidentiality shall extend beyond the point of termination of this agreement.
- The Processor agrees to ensure that physical persons under its supervision authorised to Process Personal Data maintain the same level of confidentiality as the Processor themselves, as stipulated by this agreement or law.
- Individuals' rights. Upon instructions from Data Controller, Data Processor to the extent possible shall fully cooperate in enabling Data Subjects: (i) to exercise all their legal rights in relation to processing of their Personal Data under applicable legislation, and (ii) to be provided with any other required information. Data Processor will inform Data Controller promptly if it receives requests directly from Data Subjects will not act on or answer them without Data Controller's prior written consent. In the event Data Controller fails to reply to the Data Subjects within five (5) days of receipt of notice from the Data Processor than the Data Processor may reply to such data subject requests.
- General assistance. Data Processor to the extent possible shall make available all relevant information and cooperate promptly and appropriately with Data Controller in order to assist Data Controller with ensuring compliance with Data Controller's data processing obligations, including in relation to security measures and security incidents, and where required for the performance of Data Controller's data protection impact assessments or to comply with prior consultation obligations towards competent authorities.
- Other requests. Data Processor shall inform Data Controller promptly, but in any event within two working days, if it receives an inquiry, subpoena or request for personal data, information, inspection or audit from a competent authority, relating to the processing (except where Data Processor is prohibited by law from making such disclosure). Thereupon, the Data Processor may disclose the specified required Personal Data only to an authorized person, entity or agency to the extent required by subpoena, law or by any government, subject to maximum available confidentiality restriction.
- Suspension. Data Controller is entitled to suspend processing if Data Processor is in breach of this DPA, the Services Agreement, or Personal Data Protection Law. If the breach is not remedied within thirty (30) days (or cannot reasonably be remedied), Data Controller will be entitled with immediate effect to terminate the Services Agreement and/or the processing of Personal Data.
- Return or deletion. Upon termination or expiry of the Service Agreement, or at any time upon Data Controller's request, Data Processor shall immediately at Data Controller’s option return all the personal data and all copies thereof to Data Controller or shall destroy all the personal data and all copies thereof and certify to Data Controller that it has done so, (except where Data Processor is prohibited by law from doing so, in which case Data Processor guarantees the continued confidentiality and security of and shall not actively process the personal data).
- Services Agreement. This DPA shall remain in effect for the same term as the Services Agreement. Data Processor's obligations under this DPA will continue to apply thereafter, for as long as Data Processor has access to or possession of any personal data controlled by Data Controller.
- If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its obligations, the parties will suspend the processing of personal data until that processing complies with the new requirements. If the parties are unable to bring the personal data processing into compliance with the applicable legislations, either Party may terminate this DPA on written notice to the other Party without any further liability.
8. Processing outside the EEA
- Safeguards by Digitalkites: Where Client’s Personal Data on which the GDPR applies is to be Processed by or on behalf of Digitalkites outside the EEA, or is to be Processed outside the EEA by any person who obtains such Client Personal Data from Digitalkites, Digitalkites shall ensure that a similar degree of protection is afforded to it as is afforded to it within the EU. Digitalkites may do this by ensuring at least one of the following safeguards is implemented:
- Such Processing takes place within a country that has been deemed to provide an adequate level of protection for Personal Data by the European Commission.
- Such Processing is done within the United States of America by a person who is a participant in the Privacy Shield and is therefore committed to comply with the Privacy Shield Principles. Digitalkites warrants that as at the Effective Date of this Agreement it is a participant in the Privacy Shield.
- Such Processing is done by a person under the terms of a form of contract approved by the European Commission which gives Personal Data the same protection it has in the EU.
- Other measures are taken so that a similar degree of protection is afforded to such Client Personal Data, as within the EU, and such Processing is lawful.
9. Standard Contractual Clauses Any transfer to Digitalkites by Client of its Personal Data under or in connection with this Agreement shall be deemed to be subject to the terms of the Standard Contractual Clauses, which are hereby incorporated by reference and deemed to be made a part of these Terms in their entirety. If and to the extent that the specific details to be completed within the Standard Contractual Clauses can be imputed from the details appearing in these Terms or elsewhere in this Agreement, they shall be so imputed. If and to the extent that the specific details to be completed within the Standard Contractual Clauses cannot be so imputed, or either Party requires them to be expressly completed, the other Party shall cooperate in completing such details to the requesting Party’s reasonable satisfaction.
10. Conflicts of Terms.
If and to the extent that the Standard Contractual Clauses (with specific details completed, as above) are inconsistent with any of these Terms, or with any other terms of this Agreement, the Standard Contractual Clauses will prevail. If and to the extent that these Terms are inconsistent with any other terms of this Agreement, these Terms will prevail.
- Severability. If any part of this DPA is found to be illegal or unenforceable, then the remainder of this DPA will be not be affected and will remain legal and enforceable to the maximum extent permitted by applicable law.
- Entire Agreement. No oral agreements, prior negotiations or drafts shall be of any effect in relation to the subject matter of this DPA, and any amendments must be in writing executed by the authorised representatives of the Parties. Data Controller may also modify the terms of this DPA: (i) where required to do so by a supervisory authority or other government or regulatory body, (ii) if necessary to comply with applicable legislations, or (iii) to implement or adhere to standard contractual clauses, approved codes of conduct or certifications, binding corporate rules, or other compliance mechanisms, which may be permitted under the legislations.
- No Waiver. A waiver or delay in enforcement by either Party of any term or condition, on one or more occasions, will not constitute a permanent waiver of the terms and conditions.
- Execution: The Parties have executed this DPA through their duly authorised representatives.