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:
- By clicking a box indicating acceptance;
- By executing a Change Order/Work order/ Addendum that references this Agreement; and/or
- 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:
- DEFINITIONS AND INTERPRETATIONS
- Headings and bold typeface are only for convenience and shall be ignored for interpretation;
- Unless the context of this Agreement otherwise requires:
- Words of any gender are deemed to include the other gender as well;
- The term “Clause” refers to the specified section of this Agreement;
- The term “hereof”, “herein”, “hereby” and derivative or similar words refer to this entire Agreement or specified Clauses of this Agreement, as the case may be;
- Reference to any legislation or law to any provision thereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted and reference to statutory provisions shall include any subordinate legislation made from time to time under that provision.
- Any schedule and exhibits attached to this Agreement shall constitute an integral part of this Agreement;
- Where a word or phrase is defined, other parts of speech and grammatical forms of that word shall have corresponding meanings;
- Words and Terms not defined under the Definition Clause and defined separately at any part of this Agreement or in any amendment, or addendum added to this Agreement, shall bear the defined meaning for the whole of this Agreement;
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:
- “Agreement” means this written document entered and executed between Company and Client together with all Annexure(s) hereto, including the Statement of Work (hereinafter “SOW”), signed and agreed to by both parties and shall be deemed to be read as an integral part of this Agreement;
- “Content” is the information that is to be expressed through any medium, oral, written, or any art form whose intellectual property rights or the rights required to execute the Company's service must be held by the Client. 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.
- "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. If the Content of a title is not substantially changed, In that case, this includes all editions, episodes, ISBNs, physical formats, or digital file formats ("Title Version"), but excluding derivative form(s) ("Derivative") “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 colors.
- “Metadata” means the information associated with the titles, including but not limited to the Name of Author(s), Name of Imprint(s), ISBN(s), Sales Price(s), Page Numbers, Distributor(s), etc. The Client does not restrict the title to a specific Title Version of it by providing this information.
- “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) is/are submitted by the Client to the Company for the execution of the Company’s Service as mentioned in Annexure I.
- “Piracy” means the unauthorized use or reproduction of clients' work.
- "Unauthorised Sources" means any website the Company, or individual that hosts, downloads, uploads, shares, and embeds the Client’s Content mentioned in the Content list that infringes upon the Client’s intellectual property rights.
- “Takedown” means to send ‘intellectual property right violation notices’ (see Annexure I) through email or other electronic and non-electronic means on behalf of the Client to unauthorized users of the Client's content/titles.
- “Copyright Notice Form” means a fillable form on a website that allows copyright holders to fill it and submit it to the website to remove infringing Content from the website or the website services.
- “Investigation” means to find the possible infringer(s) or point of contact of the infringer(s) from unauthorized sources for takedown purposes.
- "Authorisation" means the Client’s permission to the Company to act on behalf of the owner of the copyright involved, in furtherance of which,e, the Company will send legal takedown requests to the individuals, groups, or entities who are either infringers or engaged in the copyright infringement(s).
- “Engagement Period” or “Engagement” means the minimum number of days, months, or years for which the Client gives the title and/or brand to the Company for the Company’s services.
- “Copyright Agent” means a person or an organization authorised to act on behalf of the Client for takedowns
SCOPE OF SERVICE AND STATEMENT OF WORK
Subject to the provisions contained in this Agreement, the Company wishes to provide the Client online copyright and anti-piracy protection through the “Company’s platform” (“Bytescare”) as outlined below:
- Providing for the security, confidentiality, availability, efficiency, and stability of existing and future information technology processes and systems;
- 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;
- 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;
- Establishing a durable business relationship in which the risks are reasonably allocated between the Parties;
- 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;
- 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;
- Delivering a solution that will assist the Client in meeting the needs of its business;
- Securing performance of the Services in accordance with the Service Levels, laws applicable to the Company, and laws applicable to the Client.
- An SOW, in the form as provided in ANNEXURE II, define and describe such services as to be executed by the Company for the Client
- The manner and means by which Company chooses to complete the SOWs shall be the Company's sole discretion. The Client agrees and acknowledges that the Company shall begin its Services only after the Parties execute the present Agreement.
OWNERSHIP OF INTELLECTUAL PROPERTY
- Client shall retain all rights, titles, and interests in and to Client's intellectual property, and no right, title, or interest therein are transferred or granted to the Company under this Agreement;
- The Company is entitled to use the name and/or logo of the Client, including but not limited to marketing material, website, or any other manner for completion of the scope of work by the Company. Such use shall not be for activities that compete with the core business of the Client.
- 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 Work Product and all Intellectual Property Rights including copyright, trademarks in and to such Work Product created and provided by the Company to the Client pursuant to this Agreement shall be owned by the Company;
- 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 can lead to exposure/reverse engineering of its proprietary information.
- The Client agrees to respect and acknowledge the Intellectual Property Rights of the Company and undertakes not to violate, infringe or copy the Company's intellectual property right by producing any similar or identical intellectual property or in any other manner whatsoever.
The Client will indemnify and hold the Company harmless from and against all proven claims, demands, and obligations, causes of action, and lawsuits that arise out of infringement or violation of any third party Intellectual Property Rights or any third party’s rights because of services, deliverables provided by the Company under this Agreement influenced by Client’s action or fault.
Unless another payment schedule is specified in the applicable SOW (Annexure II), the Company will invoice the Client:
- after the Client’s acceptance of the Work Products or Deliverable (or other agreed payment milestones) in the case of Products sold or Services performed on a fixed price basis, or
Monthly in arrears for all additional charges, including for Services provided on a time and materials basis. Each invoice shall be itemized and have a detailed description of:
- the services or any products supplied by the Company
- Any pass-through expenses incurred during the invoice period, if applicable, and
- any taxes applicable to the invoiced amounts (each, an “Invoice”). The Client shall pay each undisputed invoice in full within thirty (30) days after receipt. The Company shall not be entitled to reimbursement of its costs and expenses hereunder except as expressly specified in the applicable SOW.
- Inflation Adjustment: All currency figures referred to in this Agreement as being "adjusted for inflation" shall be deemed to be adjusted after a particular period of time (as of each succeeding anniversary date of this Agreement) by the percentage change in the Consumer Price Index.
- To avoid doubt, Costs may include interest in any increase in the Services cost based on inflation and all other costs directly attributable to this event.
GOVERNING LAW AND DISPUTE RESOLUTION
- This Agreement and all the Annexures hereto are governed by the laws applicable in India without reference to the conflict of laws principles;
- Any 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;
- 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 with the Arbitration and Conciliation Act, 1996.
It is expressly agreed between the Parties that:
- The venue of such arbitration shall be Delhi, India;
- The arbitration proceeding shall be conducted in the English language;
- The arbitration award shall be final and binding.
- Any disputes not solved by the arbitration arising out of this Agreement will be subject to the exclusive jurisdiction of Courts in Delhi.
- 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.
- 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.
- The covered costs and expenses include but are not limited to settlement costs, reasonable attorneys’ fees, and other costs accrued out of or in the course of such proven claims, demands, obligations, causes of action and lawsuits.
GOOD INDUSTRY PRACTICES
The Company in providing the services and deliverables shall ensure that standards, practices, methods, and procedures conforming to the law are followed, and the Company would exercise such a degree of skill and care, diligence, prudence, and foresight which 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.
All Services to be provided by the Company hereunder will be performed in a diligent, professional, and skilful manner in good faith and according to Good Industry Practices. The Services provided under this Agreement shall be warranted for the entire period of the applicable Services under SOW.
Each Party hereby warrants and guarantees the performance of any and all rights and obligations of this Agreement by its Affiliates.
DATA OWNERSHIP AND PRIVACY
- Data Ownership: All Client’s information (including, without limitation, the data, records, and reports related to the Client and/or any of its affiliates) whether in existence at the Effective Date, any Commencement Date, and/or compiled thereafter in the course of performing the Services, shall be treated by The Company and its subcontractors as the exclusive property of the Client and the furnishing of such the information, or access to such items by, the Company and/or its subcontractors, shall not grant any express or implied interest in such Client information to the Company and/or its subcontractors, and the Company’s and its subcontractors' use of such Client information shall be limited to such use as is necessary to perform and provide the Services. Upon request by the Client at any time and from time to time and without regard to a Party’s default under the Agreement, the Company and/or its subcontractors shall promptly deliver the Client information to the Client in electronic format and such hard copy as exists on the date of the request by the Client.
- Data Privacy: The Client shall have the exclusive right to determine the means by which and the purposes for which the Client Data is processed and shall remain the "controller" of the Client data under the Information Technology Act, 2000, which all the rules made thereunder, more particularly the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (“Privacy Rules”) and the amendments made thereto, and nothing in the Agreement will restrict or limit in any way the Client’s rights or obligations as owner and/or controller of its data and information (including the Client Data).
- Company shall have access to and use of the Client Data for the sole purpose of performing and providing the Services in accordance with the Agreement.
LIMITATIONS OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT OR THE RENDERING OF SERVICES, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO ANY OF THE FOLLOWING: (A) THE CLIENT’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (B) A PARTY’S BREACH OF ITS CONFIDENTIALITY, DATA PROTECTION OR INFORMATION SECURITY OBLIGATIONS UNDER THIS AGREEMENT; (C) ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A PARTY; OR (D) PROPERTY DAMAGE, PERSONAL INJURY OR DEATH
TERM AND TERMINATION
- This Agreement shall commence on the latest date signed by the parties (provided both parties sign the Agreement within thirty (30) days of receipt of the final version) ("Commencement Date"). It will continue to be in full force for the duration (if any) mentioned in Annexure-II unless terminated prematurely as specified below. Any subsequent changes must be made in writing with the consent of both parties. Thereafter, this Agreement may be renewed upon the mutual consent of the parties.
- This Agreement may be terminated at any time by mutual written Agreement.
Either Company or Client may terminate this Agreement by giving 30 days prior written notice to the other party if:
- The other Party commits a breach of any material term or condition/obligation of this Agreement and, where that breach is capable of remedy, fails to remedy such breach or violation within 30 (Thirty) days after receipt of written notice requiring to do so;
- The other Party commits a breach of any of the provisions of this Agreement that is not capable of remedy;
- The other Party becomes subject to any form of insolvency administration;
- In the event of non-payment of the consideration by the Client for one (01) month, the Company shall give notice of seven (07) days to the Client to make the payment within such period, failing which the Company shall be entitled to terminate this Agreement and shall be entitled to any remedy in law and equity;
- In the event of non-delivery of work products as outlined in Annexure-I & Annexure-II of this Agreement, the Client shall have the right to terminate the Services after notifying the Company, in writing, of such non-delivery and allowing a subsequent two-week period to make corrections that are satisfactory to the Client. Both parties may agree, in writing, to a separate settlement on a case-by-case basis.
- The other party disposes of the whole or part of its assets, operations, or business other than in the ordinary course of business;
- The other party ceases to carry on business;
- The other Party ceases to be able to pay the debts as they become due;
- Any step is taken to appoint a receiver, a manager or a trustee in bankruptcy, a provisional liquidator, an administrator, or other like person of the whole or part of the other Party's assets, operation, or business.
The termination of this Agreement shall:
- Not relive the Client of any obligations hereunder which expressly or by implication survive the termination of this Agreement including payment for service granted and for the notice period if any;
- Except as otherwise provided in any provisions of this Agreement expressly limiting the liability of the Client, nothing in this Agreement shall relieve the Client of any obligations or liabilities for loss to the Company arising out of, or caused by, acts or omissions of the Client before the effectiveness of such terminations of this Agreement, or arising out of such termination of this Agreement;
- In the event of termination of this Agreement by the Client, before the period of one year from the effective date without any reason or without mutual consent, the Client shall be liable to pay the Company amount as equivalent for the cost of services for one year.
Last updated on 14.12.2022