The following capitalized terms will have the following meanings whenever used in these T&Cs:
“Aggregate Data” refers to the aggregated and anonymised data derived from the Customer Data, including by removal of Personal Data (to the extent such Customer Data contains any Personal Data);
“Audience Card” means a segment created using a specific selection of Company Data available within Near Platform;
“Company Associates” means Company’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns;
“Company Data” means the aggregated and analysed data, derived as an output from Near Platform, specifically for the Customer, including the attribution reports. Company Data includes aggregated and analysed consumer locations without use of GPS along with user behavior and context to build audiences/segments;
“Custom Data” means the aggregated dataset created and customized from existing Company Data based on specifications agreed under the Data Usage Agreement, for the Customer;
“Customer Data” means any data provided by Customer to the Company to be used in Near Platform, or any data received by or on behalf of Company from the Customer Sites, wherein reference to Customer includes, without limitation, Customer’s Users;
“Customer Site” means the website, application or other digital media owned and/or operated by Customer, in relation to which Company is providing Services to Customer;
“Data Usage Agreement” means the ‘Near Platform Data Usage and Services Agreement’ or ‘Near Data Usage Agreement’ or any other agreement with a similar title executed by and between Company and Customer, and which is governed by these T&Cs;
“Digital Application” means the application software designed to run on a mobile device, such as a smartphone, tablet computer or any other digital mobile device;
“Documentation” means Company’s standard user documentation and instructions related to use of the Near Platform;
“Fees” shall have the meaning as ascribed to the term in the Data Usage Agreement;
“Marketing Material” means the creative, artwork, copy or active URLs of advertisement provided or approved by the Customer to the Company for running it through Targeting Platform;
“Near Platform” means a mobile-first audience cloud powered, proprietary data management and analytics platform that allows its customers to leverage multiple streams of data (including location, behavioural, demographic, interest and third party data) by permitting them to curate audience, target audience in real-time, in and around hand-picked locations, track exposure to store visits and attribution for conversion tracking and provides real-time insights and heat maps of curated and standard off-the-shelf audience, as well as calculates the efficacy of digital campaigns (through an independent offline attribution product) in terms of visits to the brick and mortar locations of interest (including stores). Near Platform includes the Company’s flagship product offerings, i.e. Allspark, Carbon and Compass;
“Personal Data” means any information relating to an identified or identifiable natural person (“data subject”); an “identifiable natural person” being one who can be identified, directly or indirectly by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Personal Data includes PII;
“Personally Identifiable Information” or “PII” means any (i) personally identifiable information related to a data subject; (ii) social security number with the associated name; (iii) mother’s maiden name with the associated name; (iv) driver’s license or other government issued identification card numbers with the associated name; (v) telephone numbers identified as unlisted or unpublished; (vi) credit card, debit card or financial account numbers with the associated name and any required PIN or access code; (vii) personally identifiable health information; (viii) personally identifiable payroll/financial information including employee identification numbers; or (ix) any non-public personal information, as that term is known under the applicable privacy and data protection laws and/or regulations;
“Places” means the place segments used in building a custom Audience Card in Near Platform;
“Publisher Platform” means the Digital Application on which Company has a right to serve advertisements;
“Services” shall have the meaning as ascribed to the term in the Data Usage Agreement;
“Targeting Platform” means the platform that interfaces with the Publisher Platform to enable the Company to run Marketing Materials on Publisher Platform;
“Term” shall have the meaning as ascribed to the term in the Data Usage Agreement;
“User” means any individual who uses the Near Platform and/or Services on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
Company reserves the right to terminate the Data Usage Agreement (i) anytime with or without cause; (ii) by giving fifteen (15) days’ notice if the Customer is in material breach of the Data Usage Agreement and which breach is not cured within fifteen (15) days of receipt of a written notice from the Company or if such material breach is incapable of remedy.
Customer may terminate the Data Usage Agreement, if the Company is in material breach of its obligations hereunder, which breach is not cured within thirty (30) days of receipt of a written notice or which breach is incapable of remedy.
Upon termination or expiry of the Data Usage Agreement, (i) all payments due till the date of termination or expiry shall be immediately paid by Customer on or prior to the date of termination or expiry (as applicable); and (ii) Customer shall cease all use of the Near Platform and delete, destroy, or return all copies of the Documentation and Company Data in its possession or control, and certify any such deletion or destruction through an authorised officer of the Customer. Customer’s right to use the Services (including Company Data) shall cease on termination or expiry of the Data Usage Agreement. Termination or expiration of the Data Usage Agreement shall not affect any rights, obligations or liabilities, arising out of the Data Usage Agreement, which have accrued before termination or expiry or which are intended to continue to have effect beyond termination or expiry. Customer shall return all Confidential Information (including Company Data) of the Company within ten (10) days of termination or expiry of the Data Usage Agreement.
3. Usage And Restrictions
Subject to compliance with these T&Cs and upon payment of applicable fees by Customer, Company hereby grants the Customer a fixed-term, non-exclusive, revocable, non-transferable access to the Near Platform and Company Data for the purpose of availing the Services described herein. All rights not expressly granted herein are reserved by the Company and/or its licensors.
Customer acknowledges that Company Data is based upon data which is provided by third parties, the accuracy and/or completeness of which would not be possible and/or economically viable for Company to guarantee. Services involve models and techniques based on aggregate statistical analysis, probability and predictive behavior. Company is therefore not able to accept any liability for any inaccuracy, incompleteness or other error in the Services and any failure of Company Data to achieve any particular result for the Customer, other than the specifications for Services already mentioned in the Data Usage Agreement.
Company will use commercially reasonable security technologies in providing Services and Customer shall comply with the applicable security policies of Company made known to Customer. However, Company does not control the transfer of data, including but not limited to Custom Data, over telecommunications facilities, including the Internet, and Customer acknowledges and agrees that Company shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect the Customer’s computers, computer systems, software, infrastructure or data as a result of the Customer’s access to or use of Services.
Company shall put all reasonable efforts in accordance with industry standards to make the Services available at all times. However, Customer acknowledges and agrees that (i) nothing in these T&Cs guarantees that the Services will be free from interruption or errors, (ii) there will be periods when the Services are unavailable and cannot be accessed and (iii) Company accepts no liability for any loss or damage that Customer may suffer or incur as a result of such unavailability at any time.
Acceptable Use. Customer shall not:
license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party access to Near Platform in any way;
copy, translate, decompile, reverse-engineer or otherwise modify any parts of Near Platform (including Company Data) or modify or make derivative works based upon the Services offered;
create Internet “links” to Near Platform or “frame” or “mirror” Near Platform on any other server or wireless or Internet-based device;
interfere with or disrupt Company’s systems used to host the Company Data, other equipment or networks connected to Company Data, or disobey any requirements, procedures, policies or regulations of networks accessed;
circumvent the user authentication/login provided;
share non-public features or content of the Near Platform and/or the Services with any third party;
use the Near Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Near Platform;
access Near Platform in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics as the Near Platform, or (c) copy any codes, ideas, features, functions or graphics of Near Platform;
engage in web scraping or data scraping on or related to the Near Platform, including without limitation collection of information through any software that simulates human activity or any bot or web crawler;
except for access provided to Customer as permitted in these T&Cs, allow any third party to use any user identification(s), code(s), password(s) or other log-in information of the Near Platform, procedure(s) and user keys issued to, or selected by Customer to access Near Platform.
Unauthorized Access. In the event Company suspects any breach of the requirements of Section 3.5 above, including without limitation by Users, Company may suspend Customer’s access to the Near Platform and/or Services without advanced notice, in addition to such other remedies that Company may have. Customer shall notify Company immediately of any known or suspected unauthorized use of the Near Platform or breach of its security and shall use best efforts to stop the said breach.
Compliance with Laws. In its use of the Near Platform and/or Services, Customer shall comply with all applicable laws, including without limitation laws governing the protection of Personal Data and other laws applicable to the protection of Customer Data.
Access by Users. Customer is responsible and liable for: (a) Users’ use of the Near Platform and/or Services, including without limitation unauthorized conduct of the User and/or any User conduct that would violate the requirements under these T&Cs applicable to Customer; and (b) any use of the Near Platform and/or Services through Customer’s account, whether authorized or unauthorized.
The Customer is not relieved of any of its liabilities or obligations under these T&Cs due to the fact that the Customer engages the services of a third party and in so far as the acts, omissions, defaults and neglects of the Customer or any employee or agent of the Customer results in a breach of the Customer’s obligations under these T&Cs.
4. Intellectual Property Rights
Customer acknowledges that it has no ownership rights in the Near Platform (including without limitation, all software used to provide the Near Platform and all graphics, user interfaces, logos, and trademarks reproduced through the Near Platform), Company Data, Custom Data and the Services. Subject to any limitations associated with intellectual property rights of third parties, Company (and/or its licensors, where applicable) shall retain sole and exclusive ownership in any and all patent rights, copyrights, trademark rights and other intellectual property rights in the Company Data, Custom Data and the Services, as well as any enhancements, changes, revisions, modifications, design contributions or derivative works conceived, made or created to the same, including the know-how, techniques, or procedures acquired or used by Company. Except for the licenses described herein, nothing herein shall be construed to assign or transfer any intellectual property rights to the Customer. Customer shall not remove notices and notations on Company Data that refer to copyrights, trademark rights, patent rights and other intellectual property rights.
All suggestions, solutions, improvements, corrections, and other contributions for improving or otherwise modifying any of Company’s products or services (“Feedback”) provided by Customer regarding the Near Platform, Company Data, Custom Data or the Services shall be owned by Company, and Customer hereby agrees to assign all rights in such Feedback to the Company. Nothing in this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit the Feedback, without compensating or crediting Customer or the User in question. Notwithstanding anything to the contrary, Feedback will not be considered as Confidential Information.
Customer owns and retains all right, title and interest (including without limitation, all intellectual property rights) in and to the Customer Data and any updates or modifications to the foregoing, unless expressly agreed otherwise between Company and Customer. In case the Customer shares any Customer Data on Near Platform or requires Company to use any Customer Data in combination with Company Data or Custom Data, or in any other manner required for provision of the Services, Customer grants to Company the non-exclusive, fully paid-up, royalty free, worldwide, irrevocable, perpetual right and license to use the Customer Data in the Near Platform for the purpose of provision of the Services and to further modify, compile, store, validate, integrate, normalise, aggregate, sort, manipulate, analyse, combine with other third party data and create derivative works of the Customer Data for the purpose of Company’s provision of the Services and to further improve and optimise the Near Platform and Services. For clarity, the foregoing license grant to Company does not affect Customer’s other ownership or license rights in the Customer Data, unless otherwise agreed in writing with Company. Customer represents and warrants that it has all rights to grant such license to Company without infringement or violation of any third-party rights, including without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
5. Representations and Warranties
From Company. Company represents and warrants that it is the owner of the Near Platform and the components thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the Near Platform as set forth in these T&Cs without the further consent of any third party. Company’s representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Sub-sections 6.3(a) through 6.3(c) below. In the event of a breach of the warranty in this Section 5.1, Company, at its own expense, shall promptly take the following actions: (i) secure for Customer the right to continue using the Near Platform; (ii) modify the Near Platform to make it non-infringing; or (iii) terminate the infringing features of the Near Platform, and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination, in which case Customer shall cease all use of the affected Services and erase any copies of Company Data in relation thereto. In conjunction with Customer’s right to terminate for breach, where applicable, the preceding sentence states Company’s sole obligation and liability, and Customer’s sole and exclusive remedy, for breach of the warranty in this Section 5.1 and for potential or actual intellectual property infringement by the Near Platform.
From Customer. Customer represents and warrants that:
it has the full right and authority to enter into, execute, and perform its obligations under the Data Usage Agreement and these T&Cs;
it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law;
it has the right, power and authority to provide Customer Data and Marketing Material to the Company;
the Customer Data and Marketing Material are complete, accurate and in the agreed format;
the Marketing Materials are not false, deceptive, misleading, obscene, defamatory, illegal (including without limitation, in violation of applicable advertising laws and other applicable state and local laws, rules and regulations), harmful, threatening, abusive, obscene, hateful, libelous, invasive of another party’s privacy rights, unethical or racially or politically objectionable;
the Customer Data and Marketing Materials will not infringe or misappropriate the intellectual property rights of any third party, breach any duty towards or rights of any third party, including rights of publicity or privacy;
the Marketing Materials will be in accordance with the then existing policies of the Company;
Customer shall accurately identify each User and shall not provide any inaccurate information about a User to Company; and
the performance of its obligations under these T&Cs will not cause Company to infringe the rights of any third party.
EXCEPT AS OTHERWISE SET FORTH HEREIN, CUSTOMER ACCEPTS THE COMPANY DATA, CUSTOM DATA, NEAR PLATFORM AND ANY OTHER SERVICES PROVIDED BY COMPANY “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE NEAR PLATFORM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE NEAR PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION.
Customer shall defend, indemnify, and hold harmless Company and the Company Associates against:
claims by Users (including Customer’s employees or customers) arising out of Customer’s use of the Near Platform or Company Data;
any third-party claim, suit, or proceeding arising out of unauthorized disclosure or exposure of Personal Data shared with Company as part of Customer Data;
any third-party claim, suit, or proceeding arising out of infringement or violation of copyright, trademark, trade secret, or other intellectual property rights by Customer Data or Marketing Material;
any third-party claim, suit, or proceeding arising out of Customer’s failure to secure necessary rights, title, and interest in the Marketing Materials to be displayed via the Targeting Platform;
any claims that the Marketing Materials violate any applicable law including restriction on electronic advertising.
Customer’s obligations set forth in this Section 6 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
Company shall defend, indemnify and hold harmless Customer and its officers, directors, successors, and assigns against any third party claim, suit, or proceeding (“Claim”) arising out of, related to, or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right by the Near Platform or Company Data. Company’s obligations set forth in this Section 6.3 do not apply to the extent that a Claim arises out of: (a) Customer’s breach of these T&Cs; or (b) revisions to the Near Platform or Company Data made without Company’s written consent; or (c) the Customer Data shared by Customer. In the event of a Claim, Company may exercise the remedies in Sub-sections 5.1(i) through 5.1(iii) above, including without limitation its right therein to terminate the Data Usage Agreement and require erasure of the Company Data.
7. Limitation of Liability
COMPANY’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THESE T&Cs WILL NOT EXCEED THE FEES PAID BY THE CUSTOMER TO THE COMPANY, UNDER THE DATA USAGE AGREEMENT, DURING THE TWELVE (12) MONTHS PERIOD, PRIOR TO THE DATE THE LIABILITY FIRST AROSE, NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
IN NO EVENT WILL COMPANY BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES.
THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 7, COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, COMPANY’S LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION 7 APPLY LIKEWISE TO COMPANY’S AFFILIATES, LICENSORS, SUPPLIERS, AGENTS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES.
Confidential Information. “Confidential Information” refers to the following items that either Party (“Disclosing Party”) discloses to the other Party (“Receiving Party”): (a) any document that the Disclosing Party marks as “Confidential”; (b) any information that the Disclosing Party orally designates as “Confidential” at the time of disclosure, provided the Disclosing Party confirms such designation in writing within fifteen (15) business days; (c) the Documentation and Customer Data, whether or not marked or designated as confidential; and (d) any other non-public, sensitive information that the Receiving Party should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the Receiving Party’s possession at the time of disclosure; (ii) is independently developed by the Receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s improper action or inaction; (iv) has been disclosed to the Receiving Party by a third party who, to the Receiving Party’s knowledge, has the right to disclose such information without restriction; or (v) is approved for release in writing by the Disclosing Party. Customer is on notice that the Confidential Information may include Company’s valuable trade secrets.
Non-disclosure. Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than for the purpose of providing the Services (in case of Company) or availing the Services (in case of Customer) in accordance with these T&Cs (the “Purpose”). The Receiving Party: (a) shall not disclose the Confidential Information to any of its employee or contractor unless such person needs access in order to facilitate the Purpose and executes a non-disclosure agreement with the Receiving Party with terms no less restrictive than those of this Section 8; and (b) shall not disclose Confidential Information to any other third party without the Disclosing Party’s prior written consent. Without limiting the generality of the foregoing, Receiving Party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Receiving Party shall promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information that comes to the Receiving Party’s attention. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.
Injunction. Receiving Party agrees that a breach of this Section 8 would cause irreparable injury to the Disclosing Party, for which monetary damages may not provide adequate compensation, and that in addition to any other remedy, the Disclosing Party will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
Termination & Return. With respect to each item of Confidential Information, the obligations of Section 8.2 above (Non-disclosure) will terminate three (3) years following the date of expiry or termination of the Data Usage Agreement; provided that such obligations related to Confidential Information constituting Disclosing Party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of the Data Usage Agreement, Disclosing Party shall return all copies of Confidential Information to the Receiving Party or certify, in writing, the destruction thereof.
Retention of Rights. These T&Cs do not transfer ownership of Confidential Information or grant a license thereto. Disclosing Party will retain all right, title, and interest in and to all Confidential Information.
9. Data Privacy
Customer agrees and acknowledges that the Company does not require any Personal Data, for the provision of Services. Customer shall ensure that it reviews all Customer Data provided to Company and scrub any Personal Data from the same before providing it to the Company. In the event Customer determines that disclosure of Personal Data is crucial, for the performance of Company’s obligations hereunder, Customer shall provide Company with a prior written notice of Customer’s intention to disclose Personal Data. Such data shall be disclosed by Customer upon Company’s written acceptance of such notice and subject to any documentation that the Company requires the Customer to execute.
Customer warrants that it will not use Company Data in combination with any third-party data that may lead to identification or disclosure of Personal Data.
In case the Customer Data contains any Personal Data, or the Customer otherwise discloses Personal Data to the Company, the Customer represents and warrants that: (i) it complies with all applicable data protection laws in respect of processing (as defined in the applicable data protection laws) of such Personal Data; and (ii) it will always have explicit consents from the respective data subjects whose Personal Data is shared in respect of the following:
sharing such Personal Data with the Company;
the Company’s processing of such Personal Data for data enrichment activity within the Near Platform, which includes, but is not limited to, identifying the behaviour of such data subjects and profiling them based on their physical/digital world behaviour to create an enriched dataset from such Personal Data (“Enriched Data”);
sharing of such Enriched Data by the Company with the Customer.
10. Customer Data
Customer Data. All Customer Data is the sole responsibility of the Customer. Company cannot guarantee the authenticity of any Customer Data. Company may use the Customer Data in various ways in connection with the provision of Services and the Near Platform as Company may determine in its sole discretion, including but not limited to, creating derivative works from the Customer Data (including by creating Aggregate Data therefrom). Company shall have the right to use Aggregate Data in an anonymous manner for the Near Platform. Customer understands that all Customer Data transmitted through the Near Platform is the sole responsibility of the Customer; that Company will not be liable for any errors or omissions in any Customer Data. Company will have no responsibility or liability for the accuracy of data uploaded to the Near Platform by or under the instructions of the Customer, including without limitation Customer Data and any other data uploaded by Users.
Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure that arise out of factors not in reasonable control of Company and that, in accessing and using the Near Platform, Customer assumes such risks. Company offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
Without prejudice to its obligations under these T&Cs, the Customer shall affect and maintain, commercial general liability insurance policy with a limit of USD five (5) million, with a reputable insurance company. Upon receipt of a written request from Company, the Customer shall submit a certificate to confirm that Customer maintains the required insurance policy with a reputable insurance company.
12. Compliance Audit
Customer shall maintain accurate records of its use of the Near Platform and Company Data throughout the Term.
In the event any third party (including person or entity/authority) authorised under applicable law requests Company for information/data or audits Company’s records in respect of Custom Data or Customer’s use of Company Data (“Third Party Request”), Customer shall permit Company or an independent third-party auditor approved by Company to inspect and audit Customer’s records pertaining to the scope of such Third Party Request. The audit rights provided herein shall be valid for the Term and a period of six (6) months thereafter.
Such audits shall be conducted at Company’s sole expense. All audits conducted under this Section will be subject to the following requirements: (i) Company shall provide two (2) business days’ notice to Customer before such audit; and (ii) any such inspection and audit shall be conducted during regular business hours of Customer in such a manner as to not interfere with normal business activities of Customer.
Customer shall, at its own expense, promptly correct any non-compliance detected by such audit, but not exceeding (i) fifteen (15) days from the release of such audit results identifying such non-compliance; or (ii) the period as may be required under applicable law, whichever is lower.
If any audit under this Section reveals any material breach of these T&Cs or the Data Usage Agreement by Customer, the Customer shall reimburse Company for the reasonable costs of the audit.
Force Majeure. Except for the Customer’s payment obligations under the Data Usage Agreement, neither Party will be responsible for any failure or delay in its performance under these T&Cs due to causes beyond its reasonable control, including, but not limited to, labour disputes, strikes, lock-outs, internet or telecommunications failures, shortages of or inability to obtain labour, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
Independent Contractors. The Parties shall be independent contractors under these T&Cs, and nothing herein will constitute either Party as the employer, employee, agent or representative of the other Party, or both Parties as joint venturers for any purpose.
Trademarks. The Customer authorizes the Company to use the trade name, trademark and logo of the Customer for the purpose of listing Customer in its general list of customers. Customer also permits Company to bring out press releases, create case studies on anonymized basis and will be open to provide quotes from time to time solely for Company’s marketing purposes, provided Company obtains prior written approval of the Customer specific to such quotes, which approval shall not be unreasonably withheld or delayed. Company shall comply with Customer’s guidelines regarding use of Customer’s trademarks.
Assignment. Customer shall not have the right to assign, transfer, resell or sublicense Customer’s rights or obligations hereunder. Any attempt to assign, transfer, resell or sub-license such rights or obligations without Company’s prior written approval will be null and void. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
Severability. If one or more of the provisions contained in these T&Cs is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not be affected. The provisions will be revised only to the extent necessary to make them enforceable.
No Waiver. No action of a Party, other than an express written waiver, may be construed as a waiver of any provision of these T&Cs. A delay on the part of a Party in the exercise of its rights or remedies will not operate as a waiver of those rights or remedies, and a single or partial exercise by a Party of any of the rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
Governing Law and Jurisdiction. These T&Cs will be governed by the laws of Singapore. The Company and the Customer agree that any claims, legal proceedings, or litigation arising in connection with these T&Cs, will be brought solely in the courts of Singapore. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
Notices. Any notice required to be delivered hereunder will be deemed delivered: (a) upon delivery, if delivered by courier or by hand (against receipt); or (b) three (3) days after posting, if sent by electronic mail, fax, or certified or registered mail, return receipt requested. All notices to the Company and the Customer will be sent to the addresses set forth in the Data Usage Agreement or to such other address as a Party may designate by written notice to the other.