These terms and conditions (herein after) shall be applicable to all Order Forms entered into by and between Digital Promotion Team (“Provider”) and the Client set forth on the Order Form (“Client”). Provider and Client are each referred to as a (“Party”) and collectively as the (“Parties”). The Order Form shall be subject to the Terms which are integrated therein by reference. The Order Form and these Terms together shall be jointly referred to as the Agreement. In consideration of the mutual covenants set forth herein, the adequacy of which is hereby acknowledged by each Party, Provider and Client hereby agree as follows:
Subject to all terms and conditions set forth herein, Provider shall provide the marketing services, campaigns, promotion and programs (collectively, the “Services”) set forth in the Order Form specifically made subject to the Terms and implemented by both Parties hereto. In the event of any difference between these Terms and the terms of the Order Form, the terms of the Order Form shall control. Descriptions of the accessible Services and corresponding additional terms (“Additional Terms”) are provided in the Exhibit attached hereto, which are incorporated herein by orientation. The Exhibits may be updated from time-to-time as additional services are introduced along with any equivalent additional terms for such service, which shall be effective upon implementation of a new order form for the respective service. Client acknowledges and agrees that client shall only receive the Services set forth in the applicable Order Form and purchased by client. Client agrees and acknowledges that the Services may be provided to client via Provider’s third party vendors and/or partners. Client acknowledges and agrees that the Services may be reliant on timely receipt by Provider of certain information, content and materials from Client. Provider will establish the method, details, and means of performing the Services. Client is responsible for implementing any recommendations, HTML code, server side code, sitemaps, and/or content, as applicable, provided by Provider in association with the Services. Such recommendation by Provider and implementation by Client may involve modifying certain web pages, making configuration changes to the web server, site navigation or content management system. In addition to implementing code recommendations, Client will be responsible for uploading/implementing the appropriate webmaster (“Validation Keys”) necessary to observe the website(s) on the applicable search engines (i.e. Google, Bing, etc.).
Client hereby authorizes Provider to act on behalf of Client in connection with provision of the Services to Client under the Agreement. Such authority, includes, but is not inadequate to, ordering the Services from third parties. For the escaping of doubt, Client grants Provider all rights necessary for Provider to facilitate the provision of the Services to Client hereunder. Client shall direct communications regarding the Services only to Provider, unless instructed otherwise by Client. Client agrees to comply with all reasonable requests of Provider necessary for the performance of the Services.
3. Third Party Service:
Client acknowledges that Provider cannot accept any responsibility or liability for the performance, policies or actions of third party digital marketing networks including, but not limited to, search engines, display networks, social networks or directories. Client acknowledges that third party digital marketing networks may drop listings, suspend accounts, impose additional requirements or terms and conditions, or undertake other actions, which may bang the Services, at their discretion. Client agrees that Provider shall not be accountable or liable for any of the foregoing.
Client acknowledges that Provider cannot guarantee specific delivery or positioning of any creative/advertising placements in connection with the Services.
Provider may require access to, and Client agrees to provide such access or otherwise make available, any systems, hardware, services, hosting, FTP software or similarly functioning software or content management systems, or other resources deemed required by Provider to fulfill its obligations under this Agreement.
Provider will charge the account management fee(s) set forth on the Order Form(s) to perform the Services selected on the Order Form. Account administration fees are on a monthly basis and invoiced in arrears. Account administration fees shall be prorated if the Effective Date is not on the first day of a month. In addition to account administration fees, Provider may charge Client a one-time technology fee to initiate the Services selected on the Order Form, which fees shall be invoiced on the Effective Date. All account management fees and technology fees are non-refundable. In addition to the account management fees and technology fees, Provider shall statement Client the monthly advertising budget (“Advertising Budget”) set forth on the Order Form, media spend on Google, BING and/or any added advertising platform in arrears. Advertising Budget may be accustomed during the Term. Any amendment to the Advertising Budget must be made in writing via email from Client and acknowledged in writing via email by (“Provider’s”) designated account manager. Advertising Budget modifications must be submitted and recognized in accordance with the previous sentence, at least three (3) business days prior to commencement of the applicable month. Unless otherwise agreed in writing by the parties, the Advertising Budget set forth on the Order Form, as modified in writing via email as set forth above, will automatically be designated as the promotion Budget during the Term. Within 30 days of the end of each month, Provider shall provide Client with a report summarizing the costs and charges for the digital media, content and advertising placement purchased in link with the Services with the Advertising Budget for such month, which costs and charges may include additional markup to account for volume commitments and contractual obligations undertaken by Client in exchange for more favorable rates. Any unused Advertising Budget shall carry over as a praise to be used in the following month.
9. Security / Credit:
Post-pay accounts and credit accounts are provided at Provider’s discretion. Client may be required to submit a credit application to obtain a post-pay or credit account. Such accounts require an upfront payment equal to one (1) month’s account administration fee plus the Advertising Budget.
10. Term of Agreement:
The Agreement shall stay in effect during the term set forth in the Order Form (“Terms”). Unless terminated as provided for in Section 12, the Agreement will automatically renovate for an additional term of equal length to the Term.
Either party may terminate this Agreement by providing the other party with written notice at least thirty (30) days preceding to the end of the Term. The Agreement may be terminated by a Party if the other Party materially contravenes the Agreement and does not cure such contravene within thirty (30) days following written notice thereof from the non-breaching Party. In the event of a contravene of the Agreement by Client, Services may be suspended by Provider until the contravene of the Agreement is cured. The Agreement or a exacting Service may be terminated by Provider upon: (i) termination or expiration of the relationship between Provider and the vendor/partner that enables the Services; or (ii) thirty (30) days advance written notice. Upon termination of this Agreement, Provider may get rid of any tracking codes and the like installed by Provider in connection with the Services. The provisions of the Agreement, which expressly or by inference are intended to survive termination or expiration, will survive and continue to bind the Parties.
12. Usage and Ownership.
1. The rights and licenses granted hereunder to Client are non-transferrable. Client will not, and will not permit any third party to, use or disclose the Services, unless expressly permitted under this Agreement. Without limitation of the foregoing, Client will not overturn engineer, decompile, disassemble, or otherwise attempt to separate the source code or interface protocols of the Services. Provider, its partners and/or vendors entirely retain all right, title and interest in and to the Services, in all forms, and all copies, modifications, edits, improvements, additions, and derivative works prepared from or relating to the same, including all worldwide rights to patents, copyrights, trademarks, trade secrets or other intellectual property rights in or relating to the same. The Services shall not represent (“work for hire”). Client is not acquiring any right, title or interest of any nature whatsoever in any Services except the right to use the Services as contemplated in this Agreement. Provider will have the exclusive rights in making any plagiaristic works from the Services or its related work.
2. Client owns, or is authorized to use, any keywords, combination of keywords, Client advertising materials, artwork, links, domain names (URLs), websites, data and content provided by Client to Provider, including Client’s trademarks, service marks, names and logos and the content of any creative material created by Provider that Client approves (collectively, “Content”). Client hereby grants to Provider and its Affiliates a perpetual, non-exclusive, royalty-free, irrevocable right and license (i) to use, copy, perform, display, distribute and modify the Content in any manner or medium, now recognized or hereafter developed, for Provider to perform the Services, and (ii) to prepare statistical analyses which Provider and its Affiliates may use to improve their services and may combine with other similar data from other Clients and disseminate and otherwise use in aggregate form.
13. Use of Material for Services and Promotional Purposes:
Client grants Provider the right to (i) use any Content provided by Client in connection with the Services and/or (ii) cross-link (i.e. by placing a tag on Client’s website) any such Content with other advertising developed by Provider. Client grants Provider the right to list, reference or otherwise identify Client as a client of Provider in Provider’s advertising and marketing. In connection with the provision of certain Services, Client agrees and acknowledges that Provider identification may be annotated, and remain within the code or on Client’s web site, identifying Provider as the author and/or service provider. Client also agrees to put Provider’s copyright notices on any reports produce in connection with the Services and the applicable content therein.
(“Confidential Information”) means any confidential and/or proprietary information provided by Provider to Client beneath this Agreement, including devoid of limitation, any information relating to Provider’s products, Services, costs, prices, vendors, partners, finances, marketing plans, business opportunity, personnel, research, development or know-how; that is (i) obviously designated by Provider as confidential in writing on the supplies at the time of disclosure, (ii) if disclosed orally, designated as confidential at the time of revelation and reduced to writing and designated as confidential in writing within thirty (30) days after oral disclosure, or (iii) given the nature of the information and the circumstances of disclosure, a reasonable person would deem to be confidential. Confidential Information includes, but is not imperfect to, the Services and all associated intellectual property and know-how. Client will not use any portion of the Confidential Information provide by Provider hereunder for any reason other than the purpose contemplated by the Agreement. Client shall protect all Confidential Information received from Provider with the same level of care with which it protects its own Confidential Information, which in no occurrence shall be less than reasonable care. Client shall rapidly notify Provider of any actual or suspected misuse or unauthorized disclosure of the Provider’s Confidential Information. Client shall not reveal Provider’s Confidential Information to any person except for as authorized in writing by Provider. Upon termination of this Agreement and/or upon request by Provider, Client shall quickly return to Provider all of Provider’s Confidential Information in its possession (including all copies and extracts thereof). In connection with a contravene of the confidentiality provisions herein, Provider shall be entitled to seek injunctive release, in any court having proper jurisdiction, in addition to any other remedy that the Provider may have.
15. Client Representations and Warranties:
Client symbolize and warrants that:
(a) the Content will not violate upon or breach any logical property or other rights of any third party, and that Client has all compulsory licenses and clearances to use, and to allow Provider to use, the Content;
(b) Client has all rights, title, licenses consents, authorizations, interest, permits, registrations, notices and rights to perform its compulsion under this Agreement, including, but not limited to, prerequisite of the Content hereunder in connection with the Services and provision of the Services to its Clients and website users;
(c) Client shall comply with all valid laws, rules, regulations (including, but not limited to, laws regarding the gathering, use, and disclosure of information from visitors to Client’s websites) and industry finest practices in connection with its use of the Services;
(f) Client has the full power and authority to enter into this Agreement, and the implementation and performance by Client of this Agreement does not and will not contravene or cause a default under any other agreement, contract or joint venture agreement to which it is a party.
16. Limited Warranty:
If the Services are not make available by Provider in agreement with the explanation of Services herein, Provider shall re-perform the Services without irrational delay, at Provider’s sole expense and without charge to Client, to bring the Services into conformance with the narrative of Services herein. This contract shall be the exclusive warranty available to Client. Client waives any other warranty, state or implied. Client acknowledges that Provider does not warrant that the Services will effort on all platforms or in every circumstance. Client acknowledges and have the same opinion that Provider will not be responsible for the results, productivity or any other measurable metric of the Services. EXCEPT AS SPECIFICALLY PROVIDED HEREIN IN THIS SECTION, PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO ANY SERVICE OR ITEM PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, TITLE, DESIGN, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM, OR USAGE IN TRADE.
Client will defend, indemnify and hold harmless Provider, its vendors, partners, parents, subsidiaries, affiliates and their officers, directors, employees and agents and their successors and assigns (collectively, (“Indemnities”) against any and all claims, demands, losses, costs or liability (including without limitation reimbursement for reasonable attorneys’ fees and disbursements) which Indemnities, may incur as a result of, arising from or relating to:
(a) Any breach of the Agreement by Client or any of its officers, directors, employees and agents;
(b) Use of the Services and/or Content;
(c) infringement by the Content of a patent, copyright, trademark right or other intellectual property right of a third party or misappropriation of any third party trade secret;
(d) Any violation of any law by Client in connection with the transactions contemplated by the Agreement;
(e) Client’s products/services, including, but not limited to, defective products sold via the Services;
(f) problems/disruptions with the Services caused by third-party services that Client may use, such as merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing and other services that relate to or impact Client’s use of the Services;
(g) use of digital tracking measures in connection with any applicable Services, including but not limited to, conversion tracking, call tracking, reverse proxies and analytic applications,
(h) The web pages linked to from Client website or advertisements and the content therein;
(i) The products or services promoted or offered in, or the web pages linked to, from Client website or advertisements;
(j) The collection and use by Client of personally identifiable information collected from users of Client website or advertisements.
18. Limitations of Liability:
IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, LOST OR DESTROYED DATA, LOST REVENUES, LOST OPPORTUNITY COSTS, DIMINISHED BRAND OR ANY OTHER ECONOMIC LOSS, OF ANY TYPE OR NATURE, OR FOR EVENTS OR CIRCUMSTANCES BEYOND PROVIDER’S CONTROL, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER OCCASIONAL SHORT TERM INTERRUPTIONS OF SERVICE NOR INTERRUPTIONS OF SERVICE RESULTING FROM EVENTS OR CIRCUMSTANCES BEYOND PROVIDER’S REASONABLE CONTROL SHALL BE CAUSE FOR ANY LIABILITY OR CLAIM AGAINST PROVIDER HEREUNDER, NOR SHALL ANY SUCH OCCASION RENDER PROVIDER IN DEFAULT UNDER THIS AGREEMENT. PROVIDER’S CUMULATIVE, AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING IN ANY WAY OR IN ANY DEGREE FROM THIS AGREEMENT, OR OTHERWISE FROM THE ACTS OR OMISSIONS OF PROVIDER UNDER ANY AND ALL LEGAL THEORIES WILL NOT EXCEED THE LESSER OF (I) $50,000 OR (II) THE TOTAL AMOUNT PAID BY CLIENT TO PROVIDER IN THE 12 MONTHS BEFORE SUCH CLAIM AROSE. CLIENT HEREBY ACKNOWLEDGES THAT THE REMEDIES SET FORTH ON TOP OF ARE REASONABLE AND WILL NOT FAIL OF THEIR ESSENTIAL PURPOSE.
19. Force Majeure:
No failure, delay, or default in presentation of any obligation under this Agreement (other than payment obligations) will constitute a contravene of this Agreement if it is caused by strike, fire, civil disorder, shortage of materials, labor strife, act of a public authority, riot, work stoppage, cessation of third party supplies or services, vandalism, war, severe weather, natural disaster or other act of God; terrorism; or other cause that is beyond the realistic control of the Party otherwise chargeable, for so long as such cause continues and for a reasonable period of time thereafter.
20. All notices, authorizations and approval with respect to this Agreement shall be deemed given
(i) On the day personally delivered,
(ii) on the third (3rd) business day after deposited in the Indian mail, postage prepaid, certified or registered, return receipt requested, and
(iii) On the commerce day after sent by nationally recognized overnight courier, charges prepaid, return receipt requested. All notices, authorizations and consents to be sent to (a) Licensor shall be sent to D-213, Ground Floor , Sector 63, Noida, Uttar Pradesh - 201301 and to the attention of President, and (b) Licensee shall be sent to the office of business set forth on the applicable Order Form to the awareness of the person set forth thereon.
Section titles are for ease only and will not affect the meaning of this Agreement. This Agreement will be governed by and construed in accordance with the laws of the State of Delhi, without regard to or application of any conflict of law rules or principles. The Parties agree to the exclusive jurisdiction of federal and state courts located in County, India and waive all claims that such jurisdiction is inconvenient, lacks jurisdiction or other claims which seek to modify the agreed upon venue. In the event any party to this Agreement employs an legal representative to enforce any of the terms of the Agreement, the prevailing party shall be entitled to make progress its actual attorney’s fees and costs. This Agreement constitutes the entire agreement between the Parties relating to the subject matter herein and supersedes all prior oral or written agreements, understandings, and representations relating thereto. No change, modification or amendment to this Agreement will be effective or binding unless signed by Client and a duly authorized officer of Provider. Provider shall be retained as an independent service provider. Nothing contained in this Agreement will be construed to generate a joint venture, partnership, or like relationship between the Parties, and their relationship is and will remain that of autonomous Parties. In no event will either Party be liable for the debts or responsibility of the other Party. This Agreement shall be binding upon and insure to the benefit of Client and Provider and their particular successors and assigns. Provider may allocate this Agreement. Client may not assign this Agreement. The waiver by either party of any contravene or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and require strict compliance with every term and condition of this Agreement. Except as explicitly set forth herein, none of the provisions of this Agreement will be for the benefit of or enforceable by any third party. If any term of this Agreement is held invalid, illegal or unenforceable for any cause, the remainder of the provision shall continue in full force and effect, and it is the target of the parties that a valid, legal and enforceable provision with the same intent and economic effect be substituted. Except as may be required by law or contemplated herein, neither Party shall disclose, publicize or advertise in any manner the discussions and/or negotiations giving rise to the Agreement or the being or terms of the Agreement without the prior written consent of the other Party as to the timing, medium and content of such disclosure. The Order Form may be executed in two or more counterparts, each of which will be consider an original and all of which together will constitute one instrument.
D-213, Ground Floor, Sector 63, Noida, Uttar Pradesh 201301
Phone: +91 8595541513
Email Address: firstname.lastname@example.org