Bytescare India Terms of Services

This Bytescare Services Agreement ("Agreement") governs your acquisition and use of services made available by Naxap Technology Private Limited ("Bytescare", "We", "Us" or "Our"), including on the website link and any of Our other websites, products and/or services that explicitly indicate the applicability of this Agreement (collectively, "Service(s)"), by all natural persons (humans) and juristic persons whether incorporated or not (companies, organisations, etc.). Collectively, such a natural or juristic person, as the case may be, is referred to below as "Client”.

Please read the contents of this document carefully before using any of Our Services.

By undertaking any of the following actions, the Client demonstrates that they have read, understood and agreed to these Terms:

  1. By clicking a box indicating acceptance;
  2. By executing a Change Order/Work order/ Addendum that references this Agreement; and/or
  3. By signing this Agreement, whether digitally or physically.

In addition, when using certain parts of the Service(s), the Client will be subject to additional terms and conditions, policies, rules, or guidelines, that may be posted on the relevant part of the Service Agreement or added to these Terms from time to time. The Client agrees not to use such parts of the Agreement or Terms without reading, understanding and accepting such additional terms as may be provided. In case of a conflict between this Agreement and the terms posted for a specific part of the Service, the latter shall have precedence with respect to the Client’s use of that part of the Service. In addition to any terms and conditions as provided for above or herein, the following terms and conditions, and policies, as updated from time to time, apply to your interactions on the Service:

  1. DEFINITIONS AND INTERPRETATIONS

    1. Definitions

      The following terms and references shall have the meanings defined in this Clause 1 solely as used in the context of service. The terms defined under Clause 1 shall supersede any conflicting definitions set forth elsewhere in this Agreement and each term shall have the meanings ascribed to them herein below:

      1. "Authorisation" means the Client’s explicit, written permission granted to the Company to act on behalf of the owner of the intellectual property involved and shall include the Letter of Authorization (LOA) signed by the Client prior to the execution of this Agreement, which empowers the Company to send legal takedown requests to individuals, groups, or entities engaged in intellectual property infringement(s) or aiding such infringements and to such platforms and such domains of escalation hosting such infringing content.
      2. "Asset" means any title, product, brand, trademark, copyrighted work, digital content, or any other intellectual property owned, licensed, or lawfully controlled by the Client that requires monitoring, protection, or enforcement against unauthorized use, infringement, or piracy.
      3. "Blacklist" means the list of links that contain infringing material, for which the Company is authorized to initiate takedown actions under the terms of this Agreement. The Client shall be responsible for verifying the Blacklist. Any addition or deletion of links on the Blacklist by the Client, leading to a determination that a link should or should not be subject to takedown action, shall be the sole responsibility of the Client.
      4. “Brand” or “Trademark” (or multiple units as “Brands”) means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colours.
      5. "Content" means the information that is to be expressed through any medium, oral, written, visual, artistic, or any art form whose intellectual property rights or the rights required to execute the Company's service must be under the title/control of the Client by way of ownership, licence or assignment. Content is consumed via many media, including the internet, cinema, television, radio, smartphones, audio CDs, books, e-books, magazines, and live events, such as speeches, conferences, and stage performances.
      6. "Copyright Agent" means a person, team, or organization duly authorized to act on behalf of the Client for issuing takedown requests or addressing copyright-related disputes.
      7. "Copyright Notice Form" means a fillable form on a website that allows copyright holders to fill and submit to a website to remove infringing Content from such a website or the website services.
      8. "Counterfeits" means unauthorized, imitation, or fake products falsely representing themselves as genuine goods associated with the Client’s brand, trademark, or intellectual property.
      9. "Fake Profiles" means unauthorized online accounts, social media profiles, or digital identities impersonating the Client, its representatives, or associated brands, misleading consumers or engaging in fraudulent activities.
      10. "Fake Apps/Websites" means unauthorized mobile applications, websites, or digital platforms falsely claiming affiliation with the Client, misusing the Client’s branding, trademarks, or intellectual property, often for fraudulent, deceptive, or infringing purposes.
      11. "Infringing Materia" includes any content, post, blog, document, video, audio, writing, domain name, URL, website, or any other material published or disseminated on the World Wide Web, regardless of medium, method, form, or manner, that violates or infringes upon the Intellectual Property Rights (IPR) of the Client.
      12. "Investigation" means the act to identify potential infringer(s) or point of contact(s) of the infringer(s) from Unauthorised Sources for the purpose of initiating Takedown actions.
      13. "Link" shall:
        1. In the case of privacy protection services, mean the link of each specific offending content infringing upon the Client’s intellectual property rights, and
        2. In the case of brand protection services, mean the link for the platform, group, channel or page that is infringing upon the Client’s trademark.
        3. In the case of digital piracy solution services, mean the link of the group/channel only when the group/channel contains content of the Client. If the group/channel is doing piracy of content belonging to other individuals/entities in addition to the Client, then each such offending content’s link shall mean a Link.
        4. In the case of E-Commerce Solution (Counterfeits), mean the link of an online listing, product page, seller page, or marketplace storefront offering counterfeit, unauthorized, or infringing goods that violate the Client’s intellectual property rights.
      14. "Metadata" means the information associated with the Client’s Assets, including but not limited to identifying details, ownership information, distribution data, and other relevant attributes. Depending on the industry, Metadata may include:
        1. For Publishers: Name of author(s), name of imprint(s), ISBN(s), sales price(s), page numbers, distributor(s), edition details, and other bibliographic data.
        2. For Film, Music, and Entertainment: Title name, director(s), producer(s), artist(s), release date(s), genre(s), format(s), licensing rights, and distribution platform(s).
        3. For Software & Gaming: Product name, developer(s), version number(s), license key(s), platform compatibility, and digital rights management (DRM) information.
        4. For E-Commerce & Brand Protection: Product name, SKU(s), trademark registration details, seller information, pricing, images, and marketplace URLs.
        5. For Privacy & Personal Data Protection: Identifiers, leaked credentials, personally identifiable information (PII), and any other Client-provided data necessary for enforcement.
      15. "Piracy" means the unauthorised use or reproduction of the Clients' Content, violating the Client’s intellectual property rights.
      16. "Unauthorised Sources" means any website, individual or any other entity that hosts, downloads, uploads, shares, and embeds the Client’s Content that infringes upon the Client’s intellectual property rights.
      17. "Takedown" means to send ‘intellectual property right violation notices’, through email or other electronic and non-electronic means on behalf of the Client to unauthorized users of the Client's content/titles.
      18. "Term" shall have the meaning ascribed to it in Clause 23.1.
      19. "Title" (or multiple units as "Titles") means the name of the Content, which is labelled by the Client and/or known publicly for search, consumption and/or purchase from and from other authorised internet locations such as online/offline store/marketplace. In the event that the Content of a Title is not substantially changed, it shall include all editions, episodes, ISBNs, physical formats, or digital file formats ("Title Version"), but excluding derivative form(s) ("Derivative"). What constitutes derivative forms shall be the sole discretion of the Company.
      20. "Title List or “List of Titles" means the names and metadata of titles submitted by the Client to the Company for the execution of the Company’s Service as mentioned in Annexure I.“Brand List” or “List of Brands” means the name of the brand(s) and product(s) is/are submitted by the Client to the Company for the execution of the Company’s Service as mentioned in Annexure I.
      21. "Trademark Infringement" means the unauthorized use of a mark identical or deceptively similar to the Client’s registered or unregistered trademark, leading to confusion, dilution, or unfair advantage.
      22. "Whitelist" means the list of links provided by the Client which are deemed safe, and do not require any action for takedown under the terms of this Agreement. The Client shall be responsible for verifying and updating the Whitelist to ensure its accuracy. Any addition or deletion of links on the Whitelist by the Client, leading to a determination that a link does not require takedown action, shall be the sole responsibility of the Client at all times during the subsistence of the Agreement.
    2. Interpretation

      Headings and bold typeface are only for convenience and shall be ignored for interpretation; Unless the context of this Agreement otherwise requires:

      1. Words denoting any gender shall be deemed to include all other genders, including non-binary genders, where applicable;
      2. The term “Clause” refers to the specified section or sub-section of this Agreement;
      3. The terms “hereof,” “herein,” “hereby,” and derivative or similar words shall refer to this entire Agreement or the specified Clauses within this Agreement, as the context may require;
      4. References to any legislation or law, or any provision thereof, shall include references to such legislation or law as amended, supplemented, substituted, or re-enacted from time to time, and references to statutory provisions shall include any subordinate legislation, rules, or regulations issued under such provisions;
      5. Any schedules, annexures, addenda, and exhibits attached or referred to in this Agreement shall form an integral and binding part of this Agreement and shall have the same legal force and effect as if expressly stated within the body of this Agreement;
      6. Where a word or phrase is defined in this Agreement, other parts of speech and grammatical forms of that word or phrase shall have meanings that correspond to the defined meaning;
      7. Words, terms, or phrases not defined under the Definition Clause but defined elsewhere in this Agreement, including any amendment, addendum, or schedule, shall bear the meaning so defined throughout this Agreement unless expressly stated otherwise;
      8. References to "day(s)," "month(s)," or "year(s)" shall mean calendar days, months, or years unless otherwise expressly stated or required by the context;
      9. Use of the words "include," "including," "for example," or similar expressions shall be deemed to be followed by the phrase "without limitation," unless the context explicitly provides otherwise;
      10. In the event of any inconsistency or conflict between the main body of this Agreement and any schedule, annexure, addendum, or exhibit, the provisions of the main body of this Agreement shall prevail unless specifically agreed otherwise in writing by the Parties;
      11. References to “Party” or “Parties” mean the signatories to this Agreement and include their respective successors, permitted assigns, and legal representatives unless expressly stated otherwise.

  2. SCOPE OF SERVICE AND STATEMENT OF WORK

    1. Subject to the provisions as contained in this Agreement, the Company shall provide the Client online copyright and anti-piracy protection through the “Company’s platform” (“Bytescare”) as outlined below:
      1. Providing for the security, confidentiality, availability, efficiency, and stability of existing and future information technology processes and systems;
      2. Evolving the business processes, support services, processes, and systems to meet the dynamic requirements and needs of its business, including enabling both strategic and tactical projects;
      3. Enhancing the current functionality of the information technology processes, systems, and internal controls of the Client for its business within the scope of Services and operations covered by the Agreement;
      4. Establishing a durable business relationship in which the risks are reasonably allocated between the Parties;
      5. Establishing a relationship between the Company and the Client, where the Company has world-class information technology services that will proactively define and propose cost-effective solutions to improve the efficiency and functionality of the information management systems operations of the Client in support of its business;
      6. Securing the commitment by the Company to maintain currency in the information technology and resources used to provide services and otherwise, and to apply its size and scale to quickly offer hardware, software, and personnel resources to support planned objectives that may be implemented concurrently for various business areas;
      7. Delivering a solution that will assist the Client in meeting the needs of its business;
      8. Securing performance of the Services in accordance with the Service Levels, laws applicable to the Company, and laws applicable to the Client.
      9. Digital Piracy: Providing protection against digital piracy by monitoring unauthorized distribution and sharing of the Client’s content, including online courses, e-books, articles, movies, TV series, music, software, photos, graphics, and video games. Taking action to prevent and mitigate the sale of counterfeit products that infringe upon the Client’s intellectual property rights.
      10. Brand Protection: Monitoring and taking action against fake profiles impersonating the Client’s brand or its representatives; Identifying and addressing trademark infringement, brand impersonation, and any form of unauthorized use of the Client’s trademarks or brand; Protecting the Client’s brand from brand infringement and unauthorized use across various online platforms.
      11. Reputation Management: Monitoring social media and other online platforms for defamatory, demeaning content, or negative feedback/reviews, and securing the delisting or removal of such content to protect the Client’s reputation.
    2. The Client agrees to appoint the Company on a non-exclusive basis to undertake and implement the Scope of Work (the “SOW") in furtherance of Annexure-I of this Agreement with effect from the Effective Date for the duration of the Term.
    3. The manner and means by which Company chooses to complete the SOW shall be the sole discretion of the Company, subject to adherence to applicable laws, Service levels, and confidentiality obligations under this Agreement.
    4. The Company shall be entitled to enter into any similar arrangement and agreements with any other persons or entities at any time during the Term of this Agreement. However, prior to entering into any such a similar agreements with any other persons or entities, the Parties shall duly inform the other Party and shall, to their best efforts, ensure that there is no direct breach of any confidential or proprietary information of the other Party to such third-party persons or entities in any manner whatsoever which may impact the Party’s business directly.

  3. OWNERSHIP OF INTELLECTUAL PROPERTY

    1. Client's Retention of Intellectual Property:
      The Client shall retain all rights, titles, and interests in and to the Client's intellectual property, and no right, title, or interest therein is transferred or granted to the Company under this Agreement unless otherwise specified herein.
    2. Use of Client’s Name and Logo:
      The Company is entitled to use the name and/or logo of the Client for the completion of the SOW by the Company and for the limited purpose of marketing materials, website, and other such PR endeavours of the Company. Such use shall not extend to activities that directly compete with the core business of the Client.
    3. Work Product:
      In connection with the provision of the Services, the Company may generate, create, write, or produce literary works or other works of authorship, including but not limited to manuals, training materials, reports, advice, methodologies, code, test data, analyses, studies, research, and documentation (hereinafter referred to as “Work Product”). The rights and title to such Work Product shall be retained by the Company.
    4. Ownership of Work Product:
      The Company shall retain ownership of the Work Product and all intellectual property rights, including copyrights and trademarks, in and to such Work Product created and provided by the Company to the Client pursuant to this Agreement. The Client is granted a limited right to use the Work Product solely for the purpose of completing the SOW and for no other purposes. The Client agrees to maintain the confidentiality of the Work Product and treat it as the proprietary information and intellectual property of the Company. The Client shall not disclose, distribute, or use the Work Product for any purpose outside the scope of this Agreement, nor shall the Client attempt to reproduce, reverse engineer, or otherwise derive any other works from the Work Product.
    5. Proprietary Information:
      The Company reserves the right to deny access to any raw data, intermediary process information, back-end platform access, source code, or other resources that could lead to exposure or reverse engineering of its proprietary information.
    6. Acknowledgment of Company's Intellectual Property:
      The Client agrees to respect and acknowledge the intellectual property rights of the Company and undertakes not to violate, infringe upon, or copy the Company's intellectual property by producing any similar or identical intellectual property or in any other manner whatsoever.
    7. Limited License Granted to Company:
      The Client grants to the Company a limited, non-exclusive license to use materials containing the Client’s intellectual property or any material over which the Client has intellectual property rights solely and exclusively for the purposes of providing the Services in accordance with the terms of this Agreement (“Limited License”).

  4. INDEMNIFICATION

    1. Indemnification by the Client

      The Client shall indemnify, defend, and hold the Company harmless from any claims, losses, suits, liabilities, or judgments (“Losses”) that the Company may suffer, including but not limited to reasonable attorney’s fees and costs, arising from:

      1. Any infringement or violation of third-party intellectual property rights or other third-party rights due to services, deliverables, or actions provided by the Company under this Agreement, where such Losses result directly from the Client’s actions, fault, or gross negligence;
      2. Any breach by the Client of the terms, representations, warranties, or agreements under this Agreement;
      3. Any fraud, negligence, or willful misconduct by the Client in relation to this Agreement.
    2. Indemnification for Actions Under Client’s Instructions

      The provision of indemnity under this Agreement shall also extend to any actions undertaken by the Company in the performance of the SOW, pursuant to the instructions or authorization of the Client. The Client acknowledges that the Company is acting on behalf of the Client in such matters, and is responsible for vetting and verifying the blacklist and whitelist. Therefore, the Client is fully responsible for any third-party claims arising from those instructions or actions, including but not limited to takedown requests and other services performed, and verification of blacklist and whitelist, by the Company under this Agreement.

    3. Indemnification by the Company:

      The Company shall indemnify, defend, and hold the Client harmless with respect to any Losses suffered by the Client, including but not limited to, reasonable attorney’s fees and costs, or fines, arising out of:

      1. Any breach by the Company of the terms, representations, warranties, or agreements under this Agreement;
      2. Claims raised by any third parties utilized by the Company to provide services under or in connection with this Agreement, if such claims are due to the Company’s failure to comply with applicable laws or its contractual obligations.

  5. GOOD INDUSTRY PRACTICES & SERVICE WARRANTY

    1. The Company, in providing the Services and deliverables, shall ensure that all standards, practices, methods, and procedures conform to applicable laws and regulations. The Company shall exercise such a degree of skill, care, diligence, prudence, and foresight that would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances. The Company shall also ensure compliance with industry best practices to achieve the desired outcome for the Client.
    2. All Services to be provided by the Company under this Agreement shall be performed in a diligent, professional, and skilful manner, in good faith, and in accordance with Good Industry Practices. The Company warrants that the Services provided under this Agreement will be consistent with these standards. This warranty shall be valid for the entire duration of the applicable Services, as outlined in the SOW.

  6. REPRESENTATIONS AND WARRANTIES

    Each Party represents and warrants to the other Party as follows:

    1. It is duly organized, validly existing under the laws of its respective jurisdiction, and has full power and authority (corporate or otherwise), along with all necessary governmental licenses, consents, and approvals, to own its assets and properties and to carry on its business as currently conducted in accordance with applicable laws.
    2. It has the requisite power and authority to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement have been duly authorized through all required corporate actions.
    3. This Agreement constitutes a valid, legally binding, and enforceable obligation of each Party.
    4. It shall take all necessary actions, execute and deliver additional instruments and documents, and generally do all things reasonably necessary to ensure the performance of its obligations under this Agreement.
    5. There is no existing agreement or arrangement that restricts either Party from performing its obligations under this Agreement.
    6. Each of the representations and warranties shall be construed as a separate representation, warranty, covenant, or undertaking and shall not be limited by the terms of any other representation, warranty, or by any other provision of this Agreement.

  7. NO OTHER RIGHTS GRANTED

    Nothing in this Agreement shall be construed to grant any rights under any patent, copyright, trademark, or other intellectual property rights of any Party in favor of the other, nor shall this Agreement be construed to grant any Party ownership in or to the other Party's Confidential Information, except for the limited right to use such Confidential Information in connection with the Services provided under this Agreement. Neither the Client nor the Company shall receive any intellectual property rights in the other Party's Confidential Information, other than the limited right to use the Confidential Information solely for the purposes specified in this Agreement. All intellectual property rights shall continue to vest with the Party disclosing the Confidential Information.

  8. DATA OWNERSHIP AND PRIVACY

    1. Data Ownership:
      All data, records, reports, and other information related to the Client and/or its affiliates, whether existing at the Effective Date or compiled during the course of performing the Services (collectively, “Client Data”), shall remain the exclusive property of the Client.

      The furnishing of Client Data to the Company or its subcontractors does not grant any express or implied rights, title, or interest in such data to the Company or its subcontractors. The Company and its subcontractors shall:

      1. Use the Client Data solely for purposes necessary to perform and provide the Services under this Agreement.
      2. Treat all Client Data as Confidential Information and ensure its protection in accordance with the terms of this Agreement.

      Upon request by the Client, at any time and irrespective of whether a Party is in default under this Agreement, the Company and/or its subcontractors shall promptly deliver all Client Data to the Client in electronic format and any existing hard copies.

    2. Data Privacy:
      The Client shall retain exclusive control over and responsibility for determining the means and purposes for processing Client Data and shall be deemed the "Controller" of Client Data under the Information Technology Act, 2000, and applicable rules thereunder, including the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, and any subsequent amendments thereto (“Privacy Rules”). The Company shall:
      1. Act as a "Processor" under the Privacy Rules and process Client Data solely to the extent necessary for providing Services under this Agreement.
      2. Comply with all applicable laws and Privacy Rules governing the processing, storage, and transmission of sensitive personal data or information.
      3. Implement and maintain reasonable security practices and procedures to protect Client Data against unauthorized access, loss, or damage.

      Nothing in this Agreement shall restrict or limit the Client’s rights or obligations as the owner and/or Controller of its data and information.

    3. Security Breach Notification:
      In the event of any unauthorized access, disclosure, loss, or breach of Client Data, the Company shall:
      1. Promptly notify the Client in writing, providing details of the breach and any actions taken to mitigate its impact.
      2. Cooperate fully with the Client to resolve the breach and prevent future occurrences.

  9. COMPLIANCE WITH LAWS

    1. The Company represents and warrants that:

      1. It will perform the Services and its obligations under this Agreement in accordance with all applicable laws, regulations, rules, and directives of any relevant jurisdiction (“Applicable Law”); Neither the receipt of fees nor the performance of the Services under this Agreement is in any respect a violation of applicable law.
      2. At its own cost and expense, the Company shall monitor changes in applicable law that may affect the Company's provision of the Services and shall modify its Services, practises and policies as necessary to remain in compliance with applicable law.
      3. In the event changes in applicable law prevent or impair the Company from delivering the Services under an applicable SOW, the Company shall:
        1. Promptly notify the Client in writing of the specific changes in Applicable Law and their potential impact on the Services;
        2. Use commercially reasonable efforts to develop a suitable workaround to address the legal impediments; and
        3. Upon obtaining the Client’s prior approval (such approval not to be unreasonably withheld or delayed), implement the workaround to minimize any disruption in the delivery of the Services.
        4. If a suitable workaround cannot be implemented promptly or if the Client determines that such workaround would not meet its operational requirements, the Parties agree to negotiate in good faith to modify the relevant terms of the applicable SOW or Agreement to ensure compliance with Applicable Law while achieving the intended objectives of the Service.
        5. The Client shall indemnify, defend, and hold the Company harmless from any claims, losses, damages, liabilities, costs, or expenses (including reasonable attorney’s fees) arising out of the Company’s inability to perform its obligations or deliver Services due to changes in Applicable Law, provided the Company has made reasonable efforts to comply with such changes or implement a workaround. This indemnity covers any penalties, fines, or third-party claims resulting from the Company's adherence to such legal changes.

  10. INVOICES AND PAYMENT

    1. Payment Schedule
      1. The payment schedule specified in Annexure I of this Agreement shall govern all payments under this Agreement.
      2. If no payment schedule is specified in Annexure I, the provisions of Clause 10.2 shall apply.
    2. Invoices and Payment Terms
      1. The Company shall issue invoices to the Client as follows:
        1. Upon the Client’s acceptance of the Work Products which shall be documented in Annexure I of the Service Agreement, for Services performed on a fixed-price basis; or
        2. In accordance with the Services provided as outlined in the SOW, inclusive of arrears for all approved additional charges.
      2. Each invoice shall be itemized and include the following:
        1. A detailed description of the services or products supplied by the Company,
        2. Any pass-through expenses incurred during the invoice period (if applicable), and
        3. Any applicable taxes on the invoiced amounts.
      3. The following terms apply to each invoice raised by the Company:
        1. The Client shall pay each invoice in full within fifteen (15) days from the invoice date.
        2. If the Client disputes any part of an invoice, the undisputed portion shall still be paid within the specified time period. The disputed amount shall be resolved in accordance with Clause 12 of this Agreement.
    3. Consequences of Non-Payment
      1. Failure to clear any invoice within the specified fifteen (15) days shall attract a late payment fee calculated at the rate of 1.5% per month, compounded monthly, on the outstanding amount until full payment is made.
        However, this late payment fee may be waived at the sole discretion of the Company. The Company shall act in good faith in making this determination; however, the Company’s decision shall be final and binding.
      2. In addition to the late payment penalty, the Company reserves the right to:
        1. Suspend performance of and retract work done through all Services under this Agreement until full payment, including late payment fees, is received.
        2. Initiate legal or equitable remedies in accordance with Clause 12, including recovery of all outstanding amounts, late payment fees, and associated costs of collection, including attorney’s fees.
      3. Cooperation for Timely Payment
        1. The Client acknowledges that timely payment is critical for the Company’s performance and agrees to:
        2. Provide all requisite approvals and information necessary for invoicing without delay.
        3. Refrain from withholding, deducting, or setting off any amounts unless expressly agreed upon in writing by the Company.
    4. Lock-In Period
      1. Notwithstanding anything contained in Clause 13 of this Agreement, this Agreement cannot be terminated by either Party, unless terminated in compliance with Clause 13.2, for a period of six months from the Effective Date (“Lock-In Period”).
      2. If the Client terminates this Agreement during the Lock-In Period, the Client shall pay a severance amount equivalent to the Service Fee for the remainder of the Lock-In Period as a Severance Fee without demurrer.
      3. The Severance Fee shall be paid within thirty (30) days of the Client issuing the termination notice. Failure to make such payment shall constitute a breach of this Agreement and entitle the Company to enforce remedies in accordance with Clause 12, including suspension of Services, retraction of the work done and legal action for recovery of dues.

  11. INDEPENDENT CONTRACT

    1. The Parties to this Agreement are entering into this relationship on a principal to principal basis and the Company shall be an independent contractor of the Client.
    2. There is no partnership, joint venture, employment, franchise, or agency created by this Agreement between the parties. Neither Party will have the power to bind the other or incur obligations on the other Party's behalf without the other Party's prior written consent.
    3. The Parties acknowledge that the performance of their respective obligations under this Agreement does not create any employer-employee relationship, nor shall either Party be entitled to any employee benefits from the other Party.
    4. Each Party shall retain full control over its personnel, the manner of performing its obligations, and any subcontractors used in connection with the provision of the Services under this Agreement.

  12. GOVERNING LAW AND DISPUTE RESOLUTION

    1. This Agreement and all the Annexures hereto are governed by the laws applicable in India without reference to the conflict of laws principles;

    2. Arbitration

      1. In the event of any controversy, dispute, disagreement or claim arising out of or relating to this Agreement (a “Dispute”), the Parties shall endeavour to resolve such Dispute amicably through good faith negotiations.
      2. Following such negotiations, any unresolved dispute, controversy or claim arising from or related to this Agreement (each, a dispute) shall be referred to binding arbitration under the Arbitration and Conciliation Act, 1996 and thus rules made thereunder, as amended and in force, from time to time;
      3. Each party involved in the Dispute appoints one arbitrator within 15 (fifteen) days of the Dispute arising, and the arbitrators so appoint the presiding arbitrator, failing which the third arbitrator shall be appointed in accordance to the Arbitration and Conciliation Act, 1996.
      4. It is expressly agreed between the Parties that:
        1. The venue of such arbitration shall be Delhi, India;
        2. The arbitration proceeding shall be conducted in the English language;
        3. The arbitration award shall be final and binding.
      5. Any disputes not solved by the arbitration arising out of this Agreement will be subject to the exclusive jurisdiction of Courts in Delhi.
      6. No Election of Remedies - The exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or available at law or in equity.
      7. Third Parties - Other than an affiliate of the Company or Client, a person or entity who is not a Party to this Agreement has no right to enforce any term of this Agreement.

  13. TERM AND TERMINATION

    1. Term

      This Agreement shall commence from the Effective Date and continue in force for a period of 12 months or 24 months, as specified in Annexure I of the Agreement (the “Term”). The Term may be extended for further periods of 12 or 24 months each (each such period, an “Extended Term”), unless terminated by either Party in accordance with this Clause. The Service Fee for each Extended Term shall automatically increase by 10% of the Service Fee applicable in the preceding Term, unless otherwise expressly agreed between the Parties.

    2. Termination by Parties’ Consent

      This Agreement may be terminated at any time by mutual written consent of the Parties.

    3. Termination by Notice

      Either Party may terminate this Agreement by providing 30 days’ prior written notice to the other Party in the event of:

      1. Breach with Remedy: If the other Party commits a breach of any material term, condition, or obligation of this Agreement, and such breach is capable of remedy, the breaching Party fails to remedy such breach within 30 days after receiving written notice requiring the remedy.
      2. Breach without Remedy: If the other Party commits a breach of any provision of this Agreement that is not capable of remedy.
      3. Insolvency: If the other Party becomes subject to any form of insolvency administration.
      4. Non-payment: If the Client fails to make payment of an Invoice raised by the Company within 15 days from the date of the Invoice, and the Company has issued a written notice with a 7-day grace period to make the payment. Failure to make the payment within this grace period will entitle the Company to terminate the Agreement and pursue legal remedies, including but not limited to revocation of services and retraction of all work completed in the Term.
      5. Non-delivery of Work Products: If the Company fails to deliver the work products as outlined in Annexure I, the Client may terminate the Agreement after notifying the Company, provided the Company is given a two-week period to make satisfactory corrections. Both Parties may mutually agree to a settlement on a case-by-case basis.
    4. Termination for Specific Events
      The Agreement may also be terminated by either Party if the other Party:
      1. Disposes of the whole or part of its assets, operations, or business, except in the ordinary course of business.
      2. Ceases to carry on business or becomes incapable of paying debts as they become due.
      3. Any step is taken to appoint a receiver, manager, trustee in bankruptcy, provisional liquidator, administrator, or similar person over the other Party's assets or business.
    5. Consequences of Termination
      Upon termination of this Agreement:
      1. Survival of Obligations:
        The Client shall remain obligated to fulfil all payment obligations under this Agreement.
      2. Liability for Pre-Termination Actions:
        Except as otherwise expressly provided in this Agreement, the termination shall not relieve the Parties of any liabilities or obligations arising from acts or omissions before or after the termination.
    6. Temporary Suspension of Services
      In the event that the Client fails to pay an invoice raised by the Company within 45 days of the invoice date, the Company shall have the unilateral right to temporarily suspend the Services. The Company will provide the Client with a written notice of suspension, and the suspension will remain in effect until the Client makes the payment in full with respect to all dues.

  14. INTELLECTUAL PROPERTY DISPUTES BETWEEN CLIENTS

    The Company may, from time to time, have multiple clients who may claim that one client ("First Client") is infringing upon the intellectual property rights ("IPR") of another client ("Second Client"). In such instances, the Company shall first endeavour to resolve the matter amicably between the affected parties through discussions and negotiation without any formal reports or takedown action being initiated.

    If the Company is unable to effect a resolution through mutual agreement and determines, in its sole discretion, that the Second Client is indeed infringing upon the IPR of the First Client, the Company shall be obligated to take necessary action to protect the IPR of the First Client. In such event, the Clients shall indemnify and hold the Company harmless from any and all consequences, claims, damages, losses, or liabilities arising out of or in connection with any take-down action or legal proceedings undertaken by the Company to safeguard the IPR of the First Client.

  15. MISCELLANEOUS

    1. Severability:

      In the event that any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or illegal, such determination shall not affect the validity, enforceability, or legality of the remaining terms or provisions of this Agreement, which shall remain in full force and effect. However, in such an event, the Parties agree that the invalid, unenforceable, or illegal term or provision shall be amended, to the extent necessary, as per the direction or opinion of the court, in order to render the Agreement enforceable or valid. The amended term or provision shall reflect the original intent of the Parties as closely as possible. Furthermore, notwithstanding any provision to the contrary, the following clauses, which are expressly or impliedly intended to survive the termination or expiration of this Agreement, shall remain in effect: Dispute Resolution, Indemnity, Limitation of Liability, and any other clauses which, by their nature, should survive termination or expiration.

    2. Amendments:

      This Agreement may only be altered, modified, or supplemented by a written document signed by both Parties. Any such alteration, modification, or supplement shall be binding upon the Parties only if made with the prior written approval of both Parties.

    3. Limitations Of Liability
      1. In no event shall either Party be liable to the other Party for any special, incidental, indirect, or consequential damages, including but not limited to loss of profit, business interruption, or loss of data, arising out of or in connection with this Agreement, even if such Party has been advised in advance of the possibility of such damages.
      2. Not withstanding the foregoing, the limitation of liability shall not apply to the following circumstances:
        1. The Client’s obligation to indemnify the Company as per the terms of this Agreement;
        2. Any breach by either Party of its confidentiality, data protection, or information security obligations under this Agreement;
        3. Any acts of gross negligence or willful misconduct by a Party;
        4. Any damage to property, personal injury, or death arising out of or in connection with the performance of this Agreement.
      3. The Company agrees to take all reasonable measures to protect the Client’s data, and in the event of any breach, the Company will promptly notify the Client and provide reasonable support to resolve the breach, including assistance with data recovery, identification of the breach’s scope, and actions to mitigate any harm caused.
      4. Cap on Liability:

        The liability of the Company, whether arising from breach of contract, tort (including negligence), or otherwise, shall be limited to an amount equal to the total contract value of this Agreement, and shall not exceed the Service Fee paid by the Client to the Company under this Agreement as on the date of such a claim being brought forth against the Company by the Client.

    4. Fair Use Policy

      The Client acknowledges and agrees that the services provided by the Company include a limited number of scans, and the frequency and number of these scans are specified in Annexure I of this Agreement. Should the Client's manual submission requests exceed 100% of the number of manual submissions outlined in Annexure I, the Company reserves the right to refuse further scan requests or request an escalation in the Service Fee.

      Additionally, the frequency of scans is fixed and shall not be altered or adjusted by either Party during the Term of this Agreement in order to ensure fair and balanced use of the Company’s platform and resources unless otherwise amended by the mutual consent of the Parties recorded in writing.

    5. Reporting And Client Access

      The Company shall, upon the Client's reasonable request, provide periodic reports outlining the progress of the services being rendered under this Agreement. Such reports shall include details regarding the work completed, ongoing activities, and any issues or developments relevant to the Client’s interests. The frequency, format, and content of the reports shall be mutually agreed upon by the Parties in writing at the commencement of the Agreement or as otherwise agreed during the Term. The Company shall not be obligated to provide reports more frequently than once per month, unless otherwise agreed in writing.

  16. SUPERSEDING CLAUSE

    This Agreement shall supersede all prior agreements, understandings, and representations, whether oral or written, between the Parties with respect to the subject matter of this Agreement. Any such prior agreements are hereby deemed null and void, and this Agreement shall constitute the complete and exclusive statement of the terms and conditions governing the subject matter herein.

Last updated on 21.02.2025