This Advertiser T&C ("Agreement") is entered by and between you and the Advertiser or entity that you represent (hereinafter referred to as "Advertiser", "You" or "Your") along with its affiliates and our entity, details of which are incorporated in the respective Insertion Order along with its affiliates, group Companies (hereinafter referred to as "Company")

INTERPRETATION

Unless the context otherwise requires, this Agreement shall be construed as follows: -

  1. In this Agreement, each of the aforesaid shall be individually referred to as a "Party" and collectively referred to as the "Parties".

  2. The title of each paragraph is written only for the convenience of reading and does not have any legal or contractual obligations.

  3. Any reference to a "person" includes any natural person, partnership, firm, company, governmental authority, joint venture, association or other entity (whether or not having separate legal personality).

  4. The words "include" and "including" shall not be construed as terms of limitation.

  5. References to any statute or provision include a reference to that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated and to all statutory instruments made pursuant to it.

  6. Words denoting the singular shall include the plural and vice versa.

  1. DEFINITIONS

    1. "Ads" means all text, images, links, web pages, signs, banners, audio, video, visual works, or any other content owned by or licensed to Advertiser for the purpose of promotion and display on the Inventory (as defined herein), including any Proprietary Rights contained therein, including any content to which the Ads direct end users (such as landing pages) along with the related URLs and redirects all related content, materials and metadata submitted by Advertiser to Company.

    2. "Affiliate"- means any entity that controls, is controlled by, or subject to common control with a party. The term "control", including the terms "controlling", controlled by" and "under common control with", means the possession, direct or indirect, of the power to direct or cause the direction of management and policies through the ownership of voting shares.

    3. “Applicable Laws"- means all applicable laws, codes, ordinances, orders, rules, and regulations of local, state, and federal governments and agencies, including without limitation the California Consumer Privacy Act and the General Data Protection Regulation of the European Union (GDPR).

    4. "Campaign Data" shall mean data regarding a campaign gathered during delivery of Ads pursuant to the Agreement (e.g., number of impressions, interactions, and header information), as well as any data that identifies or allows identification of Publisher, Publisher's site, app, brand, content, context, or users as such, and any details set forth herein (including on the Insertion Order, if applicable) including pricing information, placement and targeting information.

    5. "Confidential Information" shall mean any non-public, proprietary, confidential and/or trade secret information of a Party hereof, whether furnished before or after the Effective Date (as set forth in the Insertion Order), and furnished in any tangible form, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, Advertiser list, developments, business partners or other information disclosed by a Party (the "Disclosing Party") to the other Party (the "Receiving Party") either directly or indirectly in writing. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a Protective Order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate it was disclosed by the a third party without any obligations of confidentiality.

    6. Effective Date- The Date as set forth in the MSA/ IO or the date where the Advertiser starts to avail services of the Company.

    7. "Insertion Order (IO)" means a schedule or other document entered into or accepted by Company and Advertiser that incorporates this Agreement.

    8. "Objectionable Content" shall mean content that is, promotes or contains links to content that is (i) pornographic, sexually explicit, obscene or adult content, (ii) harassing, threatening, abusive, offensive, violent, shocking, racist, or any content that promotes hatred or intolerance against others; (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) infringes upon the Proprietary Rights or other right of any third party, including privacy or publicity rights; (vi) offers or disseminates any counterfeit or fraudulent goods (such as replicas or knockoffs), or services, schemes, investment opportunities or promotions or advice not permitted by law; (vii) containing misleading, deceptive or unrealistic promotions (such as by portraying nonexistent functionality (such as a non-operable “play” or “close” button), making false statements or claims, falsely implying affiliation with, or endorsement by another organization or service, misleading or tricking the user into interacting with the Ads, or impersonating system or browser warnings or error messages); (viii) promoting the use of drugs and drug paraphernalia, illegal substances or dangerous products (such as firearms or explosives), tobacco or alcohol products; (ix) harmful to Company’s or any other party’s systems and networks, including any Malicious Code; (x) facilitating illegal activity under applicable law or regulations; (xi) offering little or non-unique value to end users, or is focused primarily on traffic generation; (xii) directed to children under the age of 16; or (xiii) does not comply with the Store Policies.

    9. "Malicious Code" shall mean viruses, worms, malware, spyware, adware, time bombs, Trojan horses, drive-by download applications or other harmful or malicious code, files, scripts, agents or programs, including code that: (i) is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network, or (ii) materially interferes with or disrupts the end users’ web or mobile navigation or intervenes with the end users' control over the operating system, browser settings, browser functionality or webpage's display.

    10. "Payment Model" shall mean any of the following: (i) cost per installation ("CPI") model; (ii) cost per thousand impressions ("CPM") model; (iii) cost per action ("CPA") model; or (iv) cost per click ("CPC") model.

    11. "Proprietary Rights" shall mean all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered: marks, trademarks, service marks, trade names, trade dress and associated logos, domain names and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and Confidential Information; (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).

    12. “Service Fee” shall mean the fee payable by the Company to the Publisher in relation to the specific services provided by the Publisher as per terms of this Agreement.

    13. “Services” shall mean services as per the Annexure I and/or as discussed between the Parties mutually in writing from time to time (emails permitted).

  1. LICENSE AND SERVICE

    1. Advertiser hereby grants to Company and its affiliates a worldwide, non-exclusive, royalty-free right and license to use, serve, copy, reproduce, distribute, and display, in any known medium or hereafter developed, the Creative and/or Ads, on any online properties (“Inventory” or “Placements”) made available by Company’s publishers (“Publishers”), and promote the Ad Campaign(s), subject to this Agreement and/or (if applicable) the Insertion Order (the “Service”).

    2. In the event the Parties have entered into an Insertion Order, the Parties acknowledge that such Insertion Order/ MSA may set forth the details of the Ad Campaign, including the type and quantity of ad placements, the rate price per ad placement, the daily budget target allotted to the campaign, etc., and which shall incorporate by reference these Advertiser Terms.

    3. Company and its affiliates may make available to Advertiser certain features to assist Advertiser with the generation, selection, and optimization of users’ targeting decisions (“Targeting”). Advertiser hereby acknowledges that the Advertiser is solely responsible for the Ads (including any content made available thereof) and for the Targeting.

  1. PAYMENTS

    1. Advertiser shall pay all charges incurred in connection with the Service by Company, in accordance with the rates communicated to the Advertisers, which shall be based on the Payment Model agreed upon between the Parties. Company may determine a minimum rate which can be changed by Company from time to time.

    2. All charges as reflected in the invoice shall be calculated solely based on Company’s measurements and applicable billing metrics; Company shall track, manage and report such measurements in good faith to Advertiser.

    3. Company will bill for all charges and fees at the end of the month or week (as agreed) or upon completion for usage of services whichever comes earlier. Company will submit an invoice to the Advertiser through e-mail or mailing address indicated on the Insertion order or Agreement.

    4. The Advertiser alone shall bear any and all wire transfer fees and processing fees related to its payment (e.g. bank fees, PayPal, credit card, etc.). Payment will be made in the currency specified in the invoice. Where applicable the Advertiser shall bear the processing fees.

    5. Advertiser shall submit to Company any disputes relating to the measurement or calculation of any User Action, in writing or by email specifying the reason for such objection, including providing reasonable proof, within seven (7) days as of the occurrence of said User Action. If no such dispute has been made within the foregoing time period, the User Action shall be deemed as accepted by Advertiser and billed accordingly. Any portion of a charge not disputed in good faith must be paid in full, and Company will not process or accept any refunds and/or chargebacks related to disputes that were not raised with the seven (7) days as of the occurrence of any User Action.

    6. Without concrete and specific proof of fraudulent activity by one of the Publishers through the Service, Company shall not be liable to reimburse any fees, any complaint in regards to low retention rates for the Service and other performance indicators will not serve as proof of fraud and as such Company shall not be obliged to reimburse any fees.

    7. Advertiser will have no right to setoff, withhold or otherwise deduct any amount owed to Company hereunder (and accordingly transfer to Company when due any such amount whether in dispute or not) against any amount owed or claimed to be owed by Company to Advertiser (under any theory of liability).

    8. All charges due to Company under this Agreement will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT and GST) (collectively, “Taxes”). Advertiser will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Company’s net income.

    9. If Advertiser is required by any law or regulation to make any withholding or deduction from fees payable to Company on account of any Taxes, Advertiser shall, together with the relevant payment, pay such additional amount and will ensure that Company receives an amount equal to the sum it would have received if no such withholding or deduction had been required. Upon Advertiser’s request, Company shall provide it with such available information and documents as reasonably necessary for obtaining an exemption from the withholding or deduction of amounts or for a refund of the amounts withheld or to be withheld by Advertiser on the account of taxes, duties or levies under any applicable tax jurisdiction.

    10. Advertiser shall be responsible for any fees and/or charges that Company may levy upon Advertiser because of late or delinquent payments resulting from invalid payment authorization.

  1. INTELLECTUAL PROPERTY

    1. The Company shall own and retain all rights, title and interest with regards to all the Intellectual Property already existing and belonging to the Company.

    2. The Advertiser hereto further undertake the following:

      1. Not to use the Intellectual Property in any manner other than as expressly permitted with the prior written permission of the Company.

      2. Not to cause or permit anything that may damage or endanger the Intellectual Property of the Company associated with its business or assist or allow others to do so.

      3. To notify the Company of any suspected or threatened infringement of the Intellectual Property of the other Party, and to take such reasonable action as the other Party shall direct in relation to such infringement.

      4. During and after the term of this Agreement, the Advertiser shall not directly or indirectly contest the validity of, or the Company’s ownership of the Intellectual Property, nor take any other action which may in any manner jeopardize the Company’s right or interest therein.

      5. The use of the Intellectual Property of the Company pursuant to this Agreement does not give the Advertiser any ownership right or interest or any other interest in or to the Intellectual Property of the Company. Any and all goodwill arising from the Advertiser’s use of the Intellectual Property of the Company shall inure solely and exclusively for the benefit of the Company of the said Intellectual Property, and upon expiration or termination of this Agreement, no monetary amount shall be assigned as attributable to any goodwill associated with the Advertiser’s use.

  1. ADVERTISING MATERIAL

    1. The Advertiser hereby confers the Company with the limited, non-transferable, non-exclusive rights during the term of this Agreement to display the trademarks, business name, icons, logos, Advertising Materials provided by the Advertiser for the purpose of this Agreement.

    2. The Advertiser shall ensure that any and all Advertising Materials provided by the Advertiser shall be their original works and/or works with rights/license vested in the Advertiser. The Advertiser shall ensure to procure adequate licenses, authorizations, permissions etc. as required from time to time in relation to the Advertising Materials of third parties which are submitted by the Advertiser to the Company to avail.

    3. As the owner or lawful licensee of the Advertising Material, the Advertiser shall provide the Company with authentic, lawful and valid business license or other licenses, documentary evidence and other materials for Company to perform this Agreement. If the Advertiser refuses to provide the above licenses and documents, or such licenses or documents provided by the Advertiser do not conform to laws and regulations or are in disputes, to the extent that Company is unable to perform the obligations under this Agreement, the Advertiser is obliged to undertake all the adverse effect and liabilities.

    4. The Advertiser guarantees that the Advertising Materials in the target market shall not be objectionable content and shall not violate applicable laws, regulations, ordinances or rules (prevailing in the place of operation, including but not limited to laws, regulations, ordinances or provisions on regulating Internet websites, Internet information, online games,) and unfair competition).

    5. The Advertiser hereby guarantees that the Advertising Materials or contents delivered to Company would neither carry any virus (including but not limited to worm and Trojan Horse) and other software which may influence the operation of mobile terminals or infringe the end user’s rights.

    6. If the end user’s information needs to be collected for the purpose of distributing Advertising Materials, the Advertiser shall guarantee that such information’s collection, management and use completely conform to relevant provisions on data security and meet various requirements stated in Applicable Laws and regulations on the protection of personal data and privacy.

    7. The Advertiser warranties that for the use of others’ name, portrait or image in any form (including picture, video and text etc.) in the campaign under the Agreement, legal license must be obtained without infringing any third party’s rights and interests. For any dispute resulting from violation against the above provisions, the Advertiser shall assume corresponding liabilities for breach of the Agreement.

    8. Except as otherwise agreed in this Agreement, the Advertiser is required to comply with the Company’s platform rules and the requirements as updated from time to time by the Company (emails permitted).

  1. WARRANTIES

    1. Mutual Warranties. Each Party represents and warrants that:

      1. it is duly organized under applicable law and has sufficient authority to enter into this Agreement and that,

      2. the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.

    2. Company Warranties, Company represents and warrants that the Service:

      1. does not, to the best of its knowledge, infringe the intellectual property rights of any third party.

      2. comply with all applicable law and regulations.

      3. does not to the best of its knowledge contain any Malicious Code.

    3. The Company reserves the right, in its sole discretion and without liability, to reject or remove any Ads or Creative from the Service. Advertiser acknowledges that any campaign may be terminated or suspended, whether by Company or its Publishers, at any time and without notice to Advertiser. Advertiser hereby acknowledges that Company is providing the Service as an intermediary between Advertisers and Publishers and as such Company shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties (including with respect to the content of the Creative or Ads, or the Inventory).

    4. Advertiser Warranties

      1. Advertiser represents and warrants that the Creative does not contain any Objectionable Content. The Ads or any material and content (including, but not limited to, text, graphics, images, photographs, sounds, etc.) shall not be illegal or objectionable (for example, materials that may be considered obscene, pornographic or defamatory) and Malicious.

      2. The Advertiser is responsible for the content of any Creative, including with respect to complying with applicable laws and regulatory guidelines, including age-gating where necessary, as well as any additional guidelines issued by Company.

      3. It is properly licensed and obtained sufficient rights to submit the Creative pursuant to this Agreement;

      4. It shall submit the Creative in accordance with any technical specifications provided by Company;

      5. It complies with, and shall continue to comply with, all applicable laws and regulations for the performances under this Agreement including but not limited to applicable Data Protection laws such as GDPR and CCPA, applicable Trade Laws, Anti Bribery and Corruption Laws;

      6. The Ad will not infringe or violate the rights of any third party or violate Legal Requirements;

      7. Any information the Advertiser provides Company (including contact information or payment information) will at all times be complete and accurate, and will be maintained up-to-date at all times;

      8. It shall make available to Company, upon request, with any information relating to the Ad Campaign, and shall ensure that the distribution or promotion of the Ads is in compliance with the Campaign Conditions.

    5. Advertiser further represents and warrants that it will not:

      1. promote any mobile applications (“Application”) which are not available for download on the applicable Store. Upon removal of an Application from the Store, Advertiser shall promptly inform Company of such occurrence and immediately cease to run the Ad Campaign associated with such Application.

      2. Use the Service to syndicate, mediate or broker campaigns or the distribution of Ads through other third parties or affiliates, without the express written approval of Company, except where the Advertiser has entered into a direct relationship with the third party or affiliate wherefrom the Ads are sourced.

      3. Copy, decompile, disassemble, adapt, translate, create derivatives works of, reverse engineer or attempt to find the underlying source code of, the Service;

      4. Modify, change, edit, amend, truncate, alter, disable, bypass or reorder any aspect of the Service or the Inventory, or in any other way manipulate the Service in any way;

      5. Sell, re-sell, lease, rent, sublicense, distribute, display or make any other use of Service or the Inventory, except as expressly permitted hereunder;

      6. Remove or obscure any credits, watermarks, tradenames, trademarks, logos, service marks or copyright notices set on the Ads;

      7. Use the Service to create (or facilitate the creation of) any product or service that is competitive with the Service;

      8. Copy, crawl, index, cache or store any information derived by Company, except as expressly permitted hereunder, or otherwise use robots, spiders, scraping or other technology to access or use the Service to obtain any information beyond what Company provides Advertiser under the Agreement.

      9. Engage in any action or practice that disparages or devalues Company, or the reliability, reputation or goodwill of Company or its affiliates, or engage in any action or practice that might impede the performance, reliability or quality of the Service.

    6. To the extent any of the restrictions set forth above are not enforceable under applicable law, Advertiser shall inform Company in writing prior to engaging in any of the applicable activities.

    7. Advertiser acknowledges and agrees that at any time during the term of the Agreement, if Company believes, in its reasonable discretion, that Advertiser or anyone on its behalf is engaged in any conduct or activity which is prohibited under this Agreement, Company or any of its Publishers reserve the right without prior notice to Advertiser to (i) remove or reject and Ads and/or Creative, or suspend or terminate any Ad Campaign, or take any measures needed to prevent or correct such conduct or activity from being used in connection with the Service, without any liability to Advertiser whatsoever as a result of any of the foregoing actions taken by Company or its Publishers.

  1. CONFIDENTIALITY

    1. During the course of services, parties have or shall receive, or access to records and information of confidential and proprietary nature to Disclosing Party. The Receiving Party acknowledges and agrees that such information is an asset of Disclosing Party, is not generally known to the trade, is of a confidential nature and, must be kept strictly confidential and used only in the performance of Receiving Party duties under this Agreement. The Receiving Party agrees that it will not use, disclose, communicate, copy or permit the use or disclosure of any such information to any third party in any manner whatsoever except for the purpose of this agreement or as otherwise directed by written consent of Disclosing Party. The Receiving Party shall disclose only such information to employees who “need to know” the Confidential Information in connection with the Agreement and only after such employees have been informed of the confidential nature of the information and have agreed to be bound by a similar binding obligation of confidentiality and non-disclosure. The Receiving Party further agrees that the Disclosing Party Confidential Information shall remain the sole property of the Disclosing Party. No license shall be granted by the Disclosing Party to the Receiving Party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided therein.

    2. Upon termination of this Agreement or upon the request of Disclosing Party, the Receiving Party shall return to Disclosing Party all of the confidential information, and all copies or reproductions thereof, which are in Receiving Party possession or control. If the Receiving Party breaches any of its obligations with respect to confidentiality and unauthorized use of the Disclosing Party’s Confidential Information, Disclosing Party will be entitled to seek equitable and injunctive relief to protect rights and interest as-well as other remedies available to the Disclosing party under law and equity. This section shall survive the expiry or termination of this agreement for a period of 1 year post expiry or termination of this agreement.

  1. DATA PROTECTION

    1. The Advertiser shall safeguard and protect the Company’s Confidential Information  and User Data against unauthorized access, accidental loss, improper use and unlawful disclosure, as required by applicable data protection law.

    2. The Advertiser confirms that the respective services are configured or operated in a manner so that respective services and the systems as well as the Company’s or their Client’s information and data including any personal data shared or being processed or stored are secure from unauthorized access or intrusion or interference and will endeavor to ensure the same on an ongoing basis.

    3. The Advertiser confirms that it has adequate physical and cyber security measures in places where the Advertiser’s own or their Client’s data and information are accessed, processed, stored or transmitted irrespective of whether such place is housed at the Advertiser’s premises or in the premises of a third party.

    4. The Advertiser agrees that it will adopt and enforce, and agrees to require any applicable third party to adopt and enforce any information security requirement that is mutually agreed in order to facilitate reasonable security processes and procedures.

    5. The Advertiser agrees to notify the Company in the event of any material Cyber Incident or potentially material Cyber Incident and/or unintended access to the Company’s platforms. Unintended access may include compromise by a computer worm or virus, password compromise or access by an unauthorized individual or automated program.

    6. The Advertiser agrees to notify the Company promptly upon the Advertiser’s determination of the unintended access. The Advertiser will provide the Company with all reasonable assistance required to comply with applicable laws in the event of an unauthorised access. The Advertiser hereby agrees and acknowledges to indemnify and hold harmless the Company promptly and without any demur, in respect of all costs, expenses, damages and liabilities arising out of or in any manner connected with a Cyber Incident in line with this Agreement. For avoidance of any doubt if the Cyber Incident occurs at the sub-contractor of the Advertiser, then Advertiser to which the sub-contractor belongs to will be considered the defaulting Party.

    7. The Advertiser shall return or destroy, within the agreed timelines, all tangible forms of Confidential Information and data and all copies thereof, which may be or have been in its possession. In case of information / data received or stored in electronic form, the Company shall purge/delete the data from the systems where such information/data are stored.

    8. The Advertiser acknowledges and agree to comply with any and all applicable data protection and privacy laws and regulations, including but not limited to the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the UK Data Protection Act 2018, the California Consumer Privacy Act (“CCPA”), and any other applicable data protection legislation in any relevant jurisdiction. The Advertiser shall implement and maintain appropriate technical and organizational measures to ensure the security, confidentiality, integrity, and lawful processing of all personal data collected, accessed, or otherwise processed in connection with this Agreement.

    9. The Advertiser shall not share, sell, lease, or otherwise disclose any personal data or user information derived from the Services provided as under this Agreement to any third party without the prior written consent of the Company.

    10. In the event the Advertiser becomes aware of any actual or suspected data breach, unauthorized access, or unlawful disclosure involving personal data processed in relation to this Agreement, the Advertiser shall promptly notify the Company in writing within twenty-four (24) hours of discovery and shall cooperate fully to investigate, mitigate, and remedy the breach. The Advertiser shall ensure that its employees, agents etc. who may have access to personal data are bound by confidentiality obligations no less restrictive than those set forth herein.

    11. Upon expiration or termination of this Agreement, the Advertiser shall, at the written request of the other, securely return or permanently delete all personal data received or processed under this Agreement, unless retention is required by applicable law. The obligations under this clause shall survive the termination or expiration of this Agreement.

  1. INDEMNIFICATION

    1. Company Indemnification. Company shall defend, indemnify and hold harmless Advertiser from and against any direct damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees; collectively “Damages“)) which Advertiser may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party (“Claim“) arising from: (a) any breach of Company’s obligations, representations or warranties herein; or (b) a claim that the underlying technology of the Service infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Company shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the Service not in compliance with this Agreement or applicable law, (b) the combination of the Service with any code or services not provided by Company, (c) the modification of the Service by any party other than Company.

    2. Advertiser Indemnification. Advertiser shall defend and indemnify Company (and its affiliates, officers, directors and employees) from and against any and all Damages which Company may suffer or incur in connection with any Claim arising from: (a) any breach of Advertiser’s obligations, representations or warranties herein; (b) any use of the Service in violation of any applicable law or regulations or breach of third Party IP; and (c) the Creative.

    3. The obligations of either Party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations except to the extent that the indemnifying party is materially prejudiced as a result of such failure), (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.

  1. DISCLAIMER OF WARRANTIES

    The Company makes no warranties, express, implied, statutory, or otherwise, with respect to its websites, applications, technologies, platforms etc. Used to provide the services to the Advertiser or any other accompanying material provided hereunder. The Company specifically disclaims all other warranties, express and implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and uninterrupted or error-free service, and all such warranties are hereby excluded to the fullest extent permitted by law. Except as expressly provided herein and so, the website, application, technologies, platforms etc. Are provided on an “as is”, “as available” basis. The Advertiser acknowledges and understands that the service provider makes no warranties or guarantees or commits to provide any minimum number of promotions in any manner.

  1. LIMITATION OF LIABILITY

    1. In no event shall Company, its directors, officers, affiliates or agents be liable for any consequential, indirect, special or punitive damages, arising out of or relating to the Service or the arrangements contemplated herein.

    2. Except for intentional misconduct or gross negligence, Company’s entire liability for the provision of the Service or under any provision of this Agreement shall not exceed the amount of payment received by Company from Advertiser in the one (1) month preceding the applicable claim.

  1. TERM AND TERMINATION

    1. The term of this Agreement shall commence on the Effective Date and shall continue for a period of 3 (three) years or until terminated by either Party pursuant to this Agreement (“Term”).

    2. Either Party may terminate this Agreement at any time by providing prior written notice of 30 (thirty) days to the other Party, without liability to the other Party.

    3. Upon any termination or expiration of this Agreement, Company will cease providing the Service and all licenses and rights provided herein shall be revoked.

    4. In the event of any termination any outstanding amounts due to the Company shall be paid immediately without delay to the Company.

    5. Any obligations of the Parties that by their nature are intended to survive the termination or expiration of this Agreement, including the obligations of the Parties in Clauses 3 and 5 – 15 of this Agreement, shall survive any termination thereof.

    6. Either Party may terminate this Agreement immediately if the other party materially breaches this Agreement and the non-breaching party provides the breaching party with a written notice of the breach, and the breaching party does not cure such breach within 15 (fifteen) days of the provision of such notice.

  1. Non- Solicitation

    1. The Advertiser agrees that during the term of this Agreement and for a period of 24 (twenty-four) months following its termination or expiration, the Advertiser shall not, directly or indirectly, solicit, induce, entice, or attempt to solicit, induce, or entice away any employee, consultant, contractor, client, advertiser, partner, or other business contact of the Company with whom the Advertiser had dealings or became aware of in connection with this Agreement, for the purpose of offering services, entering into a competing business relationship, or otherwise interfering with the Company’s business interests.

    2. The Advertiser acknowledges that any breach of this clause would cause immediate and irreparable harm to the Company, for which monetary damages alone would be inadequate, and that the Company shall be entitled to seek injunctive relief in addition to any other remedies available at law or in equity.

  1. MISCELLANEOUS

    1. The Company makes no guarantees with respect to the availability or uptime of its Service. However, the Company shall use its reasonable commercial efforts to ensure that the availability or uptime of the Service shall meet industry standards. The Company may change the method of access to the Service at any time. In the event of degradation or instability of the Service or an emergency, the Company may, in its sole discretion, temporarily suspend the Advertiser’s access to the Service.

    2. This Agreement and any amendments thereto, represent the entire and complete agreement between the Parties regarding the subject matter hereof and supersedes any and all other agreements between the Parties, whether written or oral, regarding the subject matter hereof. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Either Party may enter into this Agreement by executing any such counterpart manually or electronically (such as Adobe Sign or DocuSign) and deliver the executed counterpart by facsimile or electronic means to the other Party. The receiving Party may rely on the receipt of such document so executed and delivered as if the original had been received. The Parties agree that this Agreement, if executed in accordance with this Clause, shall be deemed to be valid, accurate and authentic, and given the same effect as, a written and signed agreement between or amongst the Parties in hard copy.

    3. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.

    4. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other in any respect. The parties will perform under this Agreement as independent contractors. This Agreement does not create a joint venture, partnership, or formal business organization of any kind. This Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective successors and assigns.

    5. Force Majeure. Either Party shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including, without limitation, fires, epidemic, Pandemic, explosions, telecommunications, Internet or network failure, results or vandalism or computer tracking hacking, storm or other natural occurrence, national emergencies, insurrections, riots, wars, strikes or other labour difficulties. The parties agree to promptly notify the other of any force majeure event that impairs the ability of the affected party to perform its obligations under this Agreement. If such force majeure event continues for a period of more than 30 (thirty) days from the date of notification of such event, either party has the right to terminate this agreement with no liability whatsoever.

    6. The failure of either Party to exercise any right provided for herein shall not be deemed a waiver of any further rights hereunder. Any waiver of any provision of this Agreement will be effective only if in writing and signed by the Party. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but shall apply solely to the instance to which such waiver is directed.

    7. Notices- The Company may provide Advertiser with notices required hereunder by contacting Advertiser at any email address Advertiser provided, including in its registration information. All notices under this Agreement must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), or by email to the other party at the address set forth in the Insertion Order.

    8. Amendments- Company may revise this Agreement from time to time, in its sole discretion, and the most current version will always be posted on Company’s website (as reflected in the “Last Revised” heading). By continuing to access or use the Service after any revisions become effective, the Advertiser agrees to be bound by the revised Agreement.

    9. Assignment- Advertiser may not assign any of its rights or obligations under this Agreement without the prior written consent of Company, except in the event of an assignment by Advertiser to a purchaser of all or substantially all of the Advertiser’s assets or share capital, in which event the Advertiser shall provide Company with written notice of the assignment. Assignment in violation of the foregoing shall be void.

    10. Governing law. This Agreement shall be governed by the laws of India, any dispute or claim arising out of or relating to this Agreement, or any breach thereof shall be solely settled by arbitration in India in accordance with the Arbitration and Conciliation Act, 1996 and Rules thereunder for the time being in force, which rules are deemed to be incorporated by reference in this Section. The arbitration tribunal shall consist of one (1) arbitrator to be appointed by the Company. The language of the arbitration shall be English. Subject to the above, the courts in Mumbai, India shall have exclusive jurisdiction.