AFFILIATE TERMS AND CONDITIONS
The Company hereby appoints the Affiliate on a non-exclusive basis to promote the Product on the Site by permitting the Customers of the Site to view certain Content (defined below) and be redirected to the Product during the Term and in accordance with the terms and conditions of this Agreement. In this regard, the Affiliate shall have a limited, non-exclusive, non-transferable, non-assignable and revocable worldwide right to access the Product through the Link (defined below) solely during the Term and in accordance with terms and conditions of this Agreement which are as follows:
- In furtherance of the above, the Company shall provide the Affiliate with a unique link and affiliate ID at the time of the Affiliate’s registration with the Platform (“Link”) along with promotional content in the form of images, banners, text and/or such other material as may be determined by the Company (“Content”). Such Content shall be posted by the Affiliate on the Site and shall also contain the Link in a manner that permits a Customer to click on the Link and be redirected to the Product. Such Content may be used by the Affiliate on an as-is basis and solely in respect of promoting the Product.
- The Affiliate further expressly agrees and confirms that all trademarks, trade names and other intellectual property rights of the Company are the exclusive property of the Company and nothing stated herein shall be deemed to transfer/assign any rights in and to the same by the Company to the Affiliate.
- Notwithstanding anything contained herein, nothing contained in this Agreement, shall grant to the Affiliate any right, title or interest in the intellectual property rights of the Company in and to the Product including, but not limited to, the trademarks, trade names, corporate names, logos and/or titles in relation to the same and/or otherwise belonging to the Company. Such intellectual property rights and all ancillary rights in relation to the Product will solely belong to the Company and/or any parties as required by the Company for any territory in the World and in perpetuity. Notwithstanding the foregoing, the Affiliate agrees and confirms that the Company shall not own and/or control any rights in and to the logos generated by the Customers accessing the Site and any liability arising from such resulting works shall be the sole responsibility of the concerned Customer.
- Reservation of Rights: All rights not specifically and expressly granted to the Affiliate by this Agreement are reserved with the Company.
- Trade Secrets. The Affiliate, during the Term of this Agreement, may have access to and become acquainted with various trade secrets of the Company including but not limited to the Company’s prototype, code base, customer lists, sales and technical information and other confidential information as described in Section 8. All such trade secrets shall remain the exclusive property of the Company, and any use thereof by the Affiliate shall be solely in connection with the transaction contemplated by this Agreement.
- Confidentiality. “Confidential Information” includes, without limitation, any and all pricing information, business plans, sales opportunities, customer lists, technical information, information regarding the marketing or promoting of any product, business policies or practices, personnel, research, development or know-how and information received from others that a Party is obligated to treat as confidential. The Affiliate agrees that it will protect the Company’s Confidential Information from unauthorized dissemination with the same degree of care that the Company uses to protect its own like information, in no event using less than a reasonable degree of care. The Affiliate agrees not to use the Company’s Confidential for purposes other than those necessary to directly further the purposes of this Agreement.
- The Affiliate expressly acknowledges that irreparable harm will be suffered by the Company in the event of any breach or threatened breach by the Affiliate of the obligations stated herein and accordingly, the Company shall be entitled to seek, in addition to any other rights and remedies that it may have at law or equity, a temporary or permanent injunction restraining the Affiliate from engaging in or continuing any such breach hereof.
- All obligations regarding the protection of the confidentiality of the Confidential Information shall be effective in perpetuity, till such time as the Confidential Information becomes public by way of the Company voluntarily making the Confidential Information public.
- The Affiliate shall not be held liable for the disclosure of any Confidential Information under this Agreement solely in the event the communication is in response to a valid order by a court or other governmental body, or is otherwise required by law, provided however that the Affiliate will first give prompt notice (of at least 15 (fifteen) days or for such period and to the extent it is legally permitted to give) to the Company of any possible or prospective orders of disclosure to provide the Company with an opportunity to obtain an appropriate protective order and/or other relief as the compelling court or other government entity may grant. In the event the Company seeks such an order or other appropriate remedy, the Affiliate will provide such cooperation as the Company reasonably requests. The Affiliate (or its personnel and affiliates, as applicable) agree to furnish, disclose or describe only that portion of the Confidential Information which is legally required (based on the advice of its internal or external counsel).
- CONSIDERATION AND PAYMENT TERMS:
- In lieu of the services offered by the Affiliate including promoting the Product, the Affiliate shall be entitled to receive a fee equivalent to a certain percentage of the Net Price (defined below) as shall be mutually agreed to by the Parties and recorded in writing (emails permitted) (“Fee”). “Net Price” shall refer to the price at which a Customer purchases a logo made through the Product (which will be determined by the number of unique downloads requested via the Affiliate’s Link/credentials) less any and all payment gateway charges, payment gateway cross currency conversion charges and any other costs and/or expenses incurred by the Company in connection with such transaction by the Customer. The Affiliate further acknowledges and agrees that the Company shall be at liberty to determine such price at which a logo is sold and the Company may further modify the amount(s) payable per logo sold through the use of the Product, at the Company’s discretion, and in this regard, the Parties further agree and confirm that the aforesaid Fee shall only be applicable on logos that are successfully purchased (and for which no refund request is received) by Customers who have been redirected to the Product through the Affiliate’s Link.
- The Affiliate may, at the end of each calendar month, view a report within the control panel access granted to the Affiliate, which report shall indicate the number of logos sold to Customers in the preceding month and the Affiliate shall thereafter submit a valid tax invoice to the Affiliate in connection with the Fees along with applicable taxes such as GST, VAT, etc, as applicable, payable for that particular month and the Company shall make payment of the same within a period of 45 (forty-five) days from the date of receipt of a complete and valid invoice. The Company shall be entitled to withhold tax deducted at source from the payment of such Fee, in accordance with the provisions of applicable law and shall further be entitled to deduct any expenses and/or charges it incurs for making any payment to the Affiliate.
- The Company shall be entitled to a refund of any portion of the Fee already paid to the Affiliate in the event a Customer commits a fraud, performs a chargeback, requests for a refund of payment made or is terminated by the Company for violating the Company’s terms and conditions.
- Taxes. The Affiliate shall assume full responsibility for the proper reporting and payment of all national, state and municipal taxes, contributions and/or other laws or regulations, with respect to the performance by the Affiliate and its employees and agents of this Agreement and/or the receipt by the Affiliate of the Fee.
- The Affiliate represents and warrants that:
- It has the full power and authority to enter into, and fully perform its obligations under this Agreement and that its performance under this Agreement will not violate the rights of any third party.
- The Affiliate shall comply with any and all laws, rules and/or regulations (and all changes thereto) (collectively, “Laws”) applicable to the Site and the performance of its obligations hereunder and the Affiliate shall obtain and maintain all permits, licenses, and consents required in connection therewith. Without limiting the foregoing, the Affiliate shall, in performing its obligations and exercising its rights under this Agreement, comply with all applicable data privacy Laws. Further, the Affiliate acknowledges that the Site shall be hosted entirely on the servers of the Affiliate and the Affiliate shall be solely liable for any and all activities that transpire on the Site.
- The Affiliate represents and warrants that the Affiliate shall be solely responsible for any and all claims and/or actions that may arise out of, or in connection with, any events that transpire on the Site including any claims made by the Customers accessing the Site.
- The Affiliate represents and warrants to the Company that the Affiliate shall employ adequate security systems and procedures to prevent theft, piracy, copying or duplication or unauthorized use or exhibition of any materials in relation to the Product. The Affiliate agrees and acknowledges that the Company may at any time appoint any representative to visit the Affiliate’s premises for the purpose of viewing the operation of such security systems and procedures and to assure proper utilization of the Product.
- The Company retains the right to investigate and/or verify the Affiliate’s account and the Affiliate’s Customer related information available with/submitted to the Company and the Affiliate undertakes to cooperate with the Company in relation to the same i.e., the Affiliate will provide to the Company any and all documentation required for such investigation and also provide any further assistance and/or information required by the Company for the same.
- The Affiliate represents and warrants that the Affiliate shall not publicly imply or make statements, written or oral, or allow others to publicly imply or make statements on their behalf, containing disparaging or derogatory/libelous reference to the Company and/or the Product.
- The Affiliate agrees and confirms that it shall not offer Customers any terms for the Product that are contrary to the terms provided to the Affiliate by the Company and shall not make any representations or warranties concerning the Product to the Customers unless so authorized in writing in advance by the Company.
- DISCLAIMER; LIMITATION ON LIABILITY:
OUR PLATFORM, THE END PRODUCTS, SERVICES AND MATERIALS, AND/OR ANY OTHER CONTENT OR PRODUCT, ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU AGREE THAT YOUR USE OF THE PLATFORM AND/OR SERVICES INCLUDING THE RESULTANT USE BY A CUSTOMER SHALL BE AT YOURS/THE CUSTOMERS SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PLATFORM, END PRODUCTS, CONTENT, SERVICES AND YOURS/THE CUSTOMERS USE THEREOF. WE AND OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS MAKE NO WARRANTIES OR REPRESENTATIONS WHATSOEVER REGARDING THE ACCURACY OF CONTENT OR DESIGNS. ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, NON-INFRINGEMENT, PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOURS/THE CUSTOMERS ACCESS TO AND USE OF THE PLATFORM, CONTENT, END PRODUCTS, SERVICES AND WILL NOT, IN ANY EVENT, DIRECTLY OR INDIRECTLY BE HELD AGAINST US, OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS. WE AND OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS WILL NOT BE LIABLE TO YOU/ANY CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY USE OF THE PLATFORM, END PRODUCTS, CONTENT AND/OR SERVICES AND/OR UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR OTHER INFORMATION STORED THEREIN. WE AND OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS SHALL NOT BE HELD ACCOUNTABLE FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR PLATFORM, NOR FOR ANY BUGS, VIRUSES OR TROJAN HORSES THAT MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY, NOR FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT NOR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM AND/OR THE SERVICES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT WE AND OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS ARE NOT LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU/THE CUSTOMER. WE AND OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS WILL NOT BE IN ANY WAY RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WE AND OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS WILL NOT BEAR ANY SECURITY RISKS REGARDING BREACH OR DAMAGE TO ANY USER CONTENT. WE AND OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY USING OUR PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE DO NOT MAKE ANY REPRESENTATIONS THAT OUR PLATFORM IS APPROPRIATE OR AVAILABLE FOR USE IN ALL LOCATIONS. THOSE WHO ACCESS OR USE THE PLATFORM AND/OR THE SERVICES FROM JURISDICTIONS PROHIBITING SUCH USE DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH THE LOCAL LAW. NEITHER US NOR OUR LICENSORS/TRANSFERORS/ASSIGNORS/PROVIDERS AND/OR THIRD PARTY CONTENT PROVIDERS ARE LIABLE FOR ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH USE OF THE PLATFORM, SERVICES AND/OR THE END PRODUCTS AND/OR THE CONTENT (INCLUDING THE USE OF THE BRANDING PRODUCTS AND LOGOS). YOURS/THE CUSTOMERS SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE PLATFORM, THE SERVICES AND OUR CONTENT.
- In no event will, the Company and/or its affiliates be liable to You/the Customers and/or the third party(ies) for any damages whatsoever, including without limitation, indirect, incidental, special, punitive or consequential damages, or lost profits, arising out of, or in connection with, Yours/your Customers use of the Services and/or the Platform, whether the damages are foreseeable, and/or whether or not the Company has been advised of the possibility of such damages in advance. If You/the Customers are dissatisfied with the Services and/or the Platform, yours/their sole and exclusive remedy is to discontinue using the Platform.
- Except as otherwise required by applicable law, any claim or cause of action arising out of or relating to Your use of the Services and/or the Platform and/or our relationship with You, must be brought within 30 (thirty) days of the occurrence of the event giving rise to the claim or cause of action, or the same will be deemed to be forever barred.
- We and/or Our affiliates shall, under no circumstances whatsoever, be liable for any delay and/or default in performance under this Agreement caused by an event beyond our reasonable control, including but not limited to, war, accident, act of god, industrial action, embargo or a delay, failure or default by you, your wireless carrier, or any other supplier of goods or services to us or to you.
- Without limiting the generality of the foregoing, We may provide and/or make available and/or otherwise reproduce third party content and/or part thereof on the Platform and/or may provide links to web pages and content of third parties as part of the Services to those interested in such third party content. We do not monitor or have any control over any third-party content or third-party web sites. We do not endorse or adopt any third-party content and make no guarantee whatsoever as to its accuracy, reliability or completeness. We do not represent or warrant the accuracy of any information contained therein, and we undertake no responsibility to update or review any third-party content. You use such third-party content contained therein solely and entirely at your own risk.
- The Company reserves the right, in the event You breach the terms stipulated herein, to suspend and/or terminate Your access to the Platform, with or without notice to You. Similarly, the Company also reserves the right to refrain from providing the Product to a Customer, with or without notice to You. Any suspected illegal, fraudulent or abusive activity may be grounds for terminating Your access and/or your Customer’s access, as the case may be, to the Platform.
- Without prejudice to the foregoing, the Company may also terminate or suspend (temporarily or permanently) all or a portion of Your account or access to the Services, with or without any reason. Except as may be set forth in any of the terms applicable to a particular Service, termination of Your account may include: (a) removal of access to all offerings within the Platform or with respect to the Services; (b) barring You from further use or access of the Platform or of any of the Services and/or the End Product(s).
- Once terminated or suspended (temporarily or permanently), You shall not be entitled to continue to use the Platform under the same account, a different Account or re-register under a new account and Your right to procure the Services on the Platform shall immediately cease and the Company reserves the right to remove or delete Your information that is available with the Company, including, but not limited to, Your login and account information. Upon termination or suspension of these Terms, the Company shall have no obligation to maintain or provide any of Your data and may thereafter, unless legally prohibited, delete all Your data in its systems or otherwise in its possession or under its control, including but not limited to Your personal information, log-in ID and password, order details (including any prescriptions uploaded) and all related information, files and materials associated with or inside Your account (or any part thereof).
- The Company reserves the right, at its sole discretion, to pursue all of its legal remedies, including but not limited to deletion of Your account from the Platform and/or modification of Your ability to access the Platform / Services upon any breach by You of these Terms or if the Company is unable to verify or authenticate any information that You submit to the Company and/or the Platform, or if You fail to provide (or after providing such consent, later revoke) the consents necessary or desirable for the Company to be able to provide/offer the Services on the Platform to You. The right to terminate/suspend the account is in addition to, and without prejudice to, the Company’s right to initiate action against You in accordance with applicable law.
- Any suspension, termination, or cancellation will not affect Your obligations to the Company under the Terms which by their nature are intended to survive such suspension, termination, or cancellation. For example, but not by way of limitation, upon any such suspension, termination, or cancellation the provisions of clause 12 (Disclaimer; Limitation of Liability), clause 18 (Indemnity), clause 20 (Ownership of Intellectual Property Rights), and clause 21 (Applicable Law and Dispute Settlement) shall survive and remain in full force.
- Notwithstanding any such termination/suspension, the Company may, at its sole discretion, retain such information collected from You through the Platform and/or the Services provided therein for as long as necessary, depending on the type of information, purposes, means and modes of usage of such information; and according to any other rules and/or applicable laws.
- Upon termination of this Agreement, all rights of the Affiliate under this Agreement shall cease immediately.
- In the event this Agreement is terminated for any reason whatsoever, the rights and/or appointment of the Affiliate to promote the Product on its Site and/or use the Content and/or otherwise in any manner associate with the Company and/or the Platform shall immediately terminate and the Affiliate shall discontinue its use (if any) of the name, logotype, trademarks, slogans and other intellectual property and Confidential Information of the Company and the Product. In addition, the Affiliate shall return to the Company or destroy all of the Company’s catalogs, literature and other material in connection with the Company or the Product then in possession of the Affiliate.
- INDEMNITY: You hereby agree to indemnify us, defend us and hold us harmless and our licensors/assignors/providers and each of our and their respective officers, directors, employees, agents, affiliates, subsidiaries, successors and assigns from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys' fees, costs, penalties, interest and disbursements) resulting from any claim (including third party claims), suit, action or proceeding against us or our related parties, with respect to or relating to your use of the Services, or Platform and/or any violation by You of the provisions of these terms. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You agree, undertake and confirm to cooperate with us in asserting any available defenses.
- OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS: The Services, the Platform, and all information and/or content that you see, hear, or otherwise experience on the Platform (collectively, “Works”) are protected by the Indian and International copyright, trademark and other laws. You will not acquire any intellectual property rights in and to the Platform and/or element thereof by Your use of the Services or the Platform. For the sake of brevity, it is expressly clarified herein that copying any such protected works from the Platform for any purpose, whether commercial or otherwise (save and except as may be expressly permitted hereunder), shall be a violation of the Company’s intellectual property rights and the Company reserves all its rights and remedies in law in relation to such violation.
- APPLICABLE LAW AND JURISDICTION: Any dispute, claim or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement, or Your use of the Platform or the Services or information to which it gives access, shall be governed by and construed in accordance with the laws of India. You consent to the jurisdiction of the courts of Mumbai, for any and all disputes arising under or in connection with this Agreement.
- SEVERABILITY: Should one or more provisions of this Agreement be found to be unlawful, void or unenforceable, such provision(s) shall be deemed severable and will not affect the validity and/or enforceability of the remaining provisions of the Agreement, which will remain in full force and effect.
- FEEDBACK: We welcome and encourage you to provide feedback, comments, and suggestions for improvements of the Platform (“Feedback”). You may submit Feedback by emailing us at [•]. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control in relation to the Feedback to use, reproduce, view, communicate to the public by any means, print, copy, edit, translate, perform and display (publicly or otherwise), distribute, redistribute, modify, adapt, make, sell, offer to sell, transmit, license, transfer, stream, broadcast, create derivative works from, and otherwise use and exploit the Feedback for any purpose.
- Relationship of the Parties: You acknowledge and agree that nothing in this Agreement, including, but not limited to, registration with our Platform, constitutes an agency agreement or creates or acknowledges a principal-agent relationship between You and Us or makes Us partners, joint venturers or otherwise participants in a joint undertaking.
- Notices: Notices by You to us hereunder shall be invalid unless made in writing to the mailing address listed on the Platform. Notices by Us to You may be made in any manner We deem appropriate in our sole discretion.
- Assignment and Delegation: You must not transfer Your account or assign any of Your rights or delegate any of Your duties under this Agreement without Our prior written approval. We may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
- Confidentiality: You must keep any information you obtain relating to our software confidential and will not use such information for any purpose that is not specifically provided for in this Agreement or authorized by us in writing.
- No Waiver: Our failure or delay to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect our right to later enforce or exercise it.
- Contact Information: If you have any questions about these Terms or your account, you may contact us by email at [•].
- Headings: The headings used in this Agreement are intended for convenience of reference only and in no way define, limit or describe the scope or substance of any of its provisions.
- Prevailing Language: The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.