TERMS OF SERVICE
TERMS OF SERVICE
Your access to and use of products, software, and range of services (collectively referred to as the “Services”) provided by Entropik Technologies Private Limited (“Entropik”), is subject always to your acceptance to and adherence with the legally binding terms and conditions set out in these terms of service agreement (referred to herein as the “Agreement”).
Throughout the Agreement, “you” or “Client” will refer to the Client who desires to obtain the Services, and “we”, “us”, or “Company” shall refer to Entropik.
The capitalised terms used in this Agreement shall have the meaning set out in Schedule A of this Agreement.
2. LICENSE & USE OF SERVICES
2.1 The Client is granted a limited, non-exclusive, non-transferable and royalty-free access to and use of the Services for the Term, as may be described in the SLA.
2.2 The Client will be provided with login details to its account for use of the Services. The Client undertakes that access to the account and the Services shall be restricted to the designated users and/or to the number of users as may be specified in the SLA. The Client shall be solely responsible to ensure that its users keep the account, Services, and any information accessible through the login details provided to the Client private and confidential. In the event of any unauthorised access or use of the account or Services, including such access or use by any person other than a designated user and/or in excess of the number of users specified, the Client shall ensure that such access and use is restricted and immediately reported to the Company. The Company may, at its sole discretion, lock or delete or otherwise restrict access and use of the account and Services till such time as the Company and the Client are able to verify that such restrictions are no longer required. The Client shall be liable to indemnify the Company for any losses, damages, claims, or otherwise any costs incurred as a result of such unauthorised access or use attributable to the action or inaction of the Client or its users.
2.3. The Company will supply the Services set out in the SLA(s) to the Client on the basis and in the manner set out in SLA, which shall specify the payment terms, particulars of the Services, and such other terms and conditions as may be relevant to the access and use of the Services.
2.4 The Company provides its Services and charges the Service Fees (as described in the SLA) based on certain service offerings and pricing plans, the details of which will be provided while sharing the proposal
3.2 The Client agrees and understands that it is responsible for ensuring compliance with any and all regulations and Laws relating to the collection and usage of the Personal Information of its users, End Customers, and any other individuals, as may be applicable, including without limitation any requirements relating to consent, purpose, usage, transfers (including cross-border transfers), and any other requirements as may be applicable. The Client shall, upon request from the Company, furnish evidence of such compliance no later than 10 (ten) days from the date of such request, or such shorter period as may be required under applicable Law. In the event of any non-compliance with any Laws, attributable to an act or omission by the Client, the Client shall indemnify the Company for any Claims incurred as a result of or in relation to such non-compliance.
4. Term and Termination
The term of the agreement shall be one year from the effective date. The parties shall be eligible to terminate only after giving a sixty (60) days’ prior written notice to the other party. In the event of cancellation and/or termination of this agreement on request by the client, the client agrees to pay the full value of the contract. Either party can terminate the agreement if the other party (a) fails to cure any material breach of the agreement (including a failure to pay fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding.
5. PARTIES’ RESPONSIBILITIES
5.1 The Company will provide Services specified in the SLA to the Client, which may include tracking engagement, reactions, ad and retail insights, product testing, etc. The Company will provide Client with timely and reasonably required technical support for Services and Equipment, if applicable, and in accordance with the specifications set forth in the SLA.
5.2 The Client shall obtain prior and specific written consent from the End Customers for the collection, usage, storage, transfer, analysis and handling of data and Personal Information as may be required in relation to the Services and use of Equipment (including sensors, cameras, neural feedback, pulse tracking, etc.), if applicable. The provision of the Services shall be in the manner directed by the Client, and the Company will not be responsible for any Claims arising out of infringement of any agreements and/or Laws relating to privacy or data protection.
5.3 The Client shall provide all relevant data and Personal Information necessary for providing the Services, and shall ensure at its sole liability and obligation the accuracy, quality, integrity, reliability, completeness and the right without encumbrance to use all relevant data and Personal Information, including without limitation ownership and/or adequate right and title to any intellectual property to be provided by the Client.
5.4 The provision of the Services may require the use of certain Equipment which may be provided by the Company. The Client shall not handle, disassemble, displace, alter, misuse or destroy the Equipment in any manner whatsoever, or otherwise attempt to use or use the Equipment for any purpose other than the Services. The Client shall ensure that the Equipment is kept in a safe and secure storage, and shall be responsible for any damage or loss of the Equipment (permitting wear and tear at the sole discretion of the Company). The Company is entitled to immediately suspend Client’s use of the Equipment and call upon the Client to immediately return the Equipment to the Company, if the Company observes the Client treating the Equipment in a manner which may result in loss or damage to person or property. The entire right, title and interest in the Equipment will remain with the Company, and the Client shall not claim any right, title or interest in the Equipment at any time or for any reason.
5.5 The Company may engage third-parties to provide any part of the Services, including without limitation hosting, designing and/or operating certain features, availing respondent / tester services for conducting the Surveys, market research activities, etc., and may notify the Client accordingly.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The Company will retain all right, title and interest in and to the Service, including but not limited to all the documentation, modifications, improvements, upgrades, derivative works, and all other Intellectual Property rights in connection with the Service, including without limitation the Company’s name, logos, and trademarks.
6.2 The information and reports derived out of the Survey shall be the Intellectual Property of the Client and the Client shall have sole and exclusive ownership over such information and reports, subject to the rights granted to the Client in respect thereof in terms of this Agreement.
7. CONFIDENTIAL INFORMATION
7.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information relating to the Disclosing Party’s business and operations, including business, technical, non-technical or financial information relating to the Services, Equipment, Software, or this Agreement or any SLA.
The Receiving Party may, from time to time, be exposed to and will be furnished with the Disclosing Party’s Confidential Information. During the Term and for a period of five (5) years thereafter, the Receiving Party shall keep confidential and not reveal or disclose to any third party any part or all of the Confidential Information and/or the terms of this Agreement, any SLA, the Services, and the Software. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public (except as a result of an act or omission of the Receiving Party); (b) was in its possession or demonstrably known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction or breach of any other agreement by a third-party; (d) was independently developed without use or reference to the Confidential Information of the Disclosing Party; or (e) is required to be disclosed by Law.
7.2 With respect to the Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care; (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer, reproduce, or divulge such Confidential Information to any third party; and/or (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement or an SLA.
7.3 The Company may collect and use technical information gathered pursuant to this Agreement or an SLA for research, statistical analysis and business intelligence purposes in an aggregated, anonymised, pseudonymised, or non-personally identifiable form as it deems fit, to improve, market, support and operate the Services and otherwise for any legitimate business purpose during and after the Term.
7.4 The Client shall not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or Equipment, or any software, documentation or data related to the Services or Equipment (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized as a part of the Services); (c) use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third-party; or (d) remove any proprietary notices or labels.
8. REPRESENTATIONS AND WARRANTIES
8.1 The parties hereby represent and warrant the following:
8.1.1 The parties are competent and authorised to enter into and perform this Agreement, including any SLA, and the same would not result in a breach or violation of Laws or any agreements, rights or obligations existing between them and any third-party.
8.1.2 The parties shall not, in relation to this Agreement, any SLA, the Services, Equipment or Software, act or fail to act in a manner that: (i) is prohibited by or in violation of any Law or regulation; (ii) will infringe upon any third-party intellectual property rights; (iii) may result in any adverse impact whatsoever on the Company, Services, Equipment and/or Software including any viruses, malware, etc.; (iv) would result in the inability of either party to the perform this Agreement or any SLA; or (v) result in a breach of this Agreement or any SLA.
9. DISCLAIMER OF WARRANTIES
Company shall use reasonable efforts to maintain the Services, Equipment, and Software in a manner that minimizes errors and interruptions. HOWEVER, THE SERVICES, EQUIPMENT AND SOFTWARE ARE INHERENTLY PRONE TO POTENTIAL ERRORS AND INTERRUPTIONS, AND THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, EQUIPMENT AND/OR SOFTWARE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, EQUIPMENT AND SOFTWARE ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LIABILITY WHATSOEVER, EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR PAYABLE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
11. EXCLUSION OF DAMAGES
EXCEPT WITH RESPECT TO A PARTY’S WILFUL MISCONDUCT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, BREACH OF PAYMENT OBLIGATIONS, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, FAILURE OF SECURITY MECHANISM ARISING HEREUNDER OR FROM THE PROVISION OF SERVICES, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.1 Governing Laws: This Agreement shall be governed by and construed in accordance with the laws of India and the courts of Bengaluru, Karnataka shall have exclusive jurisdiction.
12.2 Notices: All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided hereinabove. All notices, consents and other communications between the parties will be sent to the recipient’s address specified above. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this section.
12.3 Assignment: Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment by the Company to an affiliate or in connection with any merger.
12.4 Publicity: The Company shall be entitled to use Client’s logo on the Company website and other marketing materials.
12.5 Amendment/Modification, Waiver: No amendment or modification shall take place under this Agreement or any SLA until and unless mutually agreed between the parties by the way of an addendum signed thereof. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement or any SLA, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
12.6 Force Majeure: Neither party shall be responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, pandemics, weather conditions or acts of hackers, internet service providers or any other third party.
12.7 Survival: In addition to any provisions of this Agreement and the SLA(s) which, by their nature, would survive the termination or expiry of this Agreement, the following provisions shall survive such termination or expiry: Clause 3 (Privacy), Clause 5 (Intellectual Property Rights), Clause 6 (Confidential Information), Clause 8 (Disclaimer of Warranties), Clause 9 (Limitation of Liabilities), Clause 10 (Exclusion of Damages), Clause 11 (Miscellaneous) of this Agreement, and the Effect of Termination and Payment Terms set out in the SLA.
12.8 Severability: The unenforceability of any part of a provision or provisions of this Agreement shall not render unenforceable or impair its remainder. If any provision of this Agreement is deemed invalid or unenforceable in whole or in part, this Agreement shall be deemed to have been amended to delete or modify, as necessary, the offending provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties.
12.9 Relationship of Parties: The parties are entering into this Agreement and the SLA(s) on a principal-to-principal basis, and are not employees, agents, partners or joint ventures of each other. Neither party shall have the right to enter into any agreement on behalf of the other.
12.10 Headings and Titles: The headings and titles of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the various sections.
12.11 Entire Agreement: The entire understanding between the parties hereto relating to the subject matter hereof is contained in this Agreement and in the SLA(s) executed between the parties in writing, and the parties make no warranties, representations or undertakings hereto except as expressly provided herein. This Agreement cannot be changed except in a writing signed by the parties.
“Affiliates” refers to any corporation, association, or other entity that directly or indirectly owns, is owned by, or is under common ownership with either party, respectively, either currently or during the term of this Agreement.
“Claim” shall mean any claims by either party in respect of or pursuant to any liability, suits, claims, actions, proceedings, losses, damages, judgments, and reasonable costs incurred by either party.
“Confidential Information” shall mean information including, without limitation, all data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include any related source or object codes, technical data, data output of such software.
“Documentation” shall mean and include any and all technical user documentation/guidelines concerning the services offered hereunder this Agreement.
“End Customer” shall mean and include the users, customers, participants, or other individuals in respect of the which the Client intends to avail the Services.
“Equipment” shall mean and include cameras and any other additional equipment, materials, hardware/ software, etc. provided to the Client in order to conduct offline Surveys to capture the emotions of the End Customer.
“Intellectual Property” shall mean shall include collectively or individually, the following worldwide intangible legal rights, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (i) patents, patent disclosures, patent rights, know-how, including any and all divisions, re-issues, re-examinations, utility, model and design patents/ rights or any extensions thereof; (ii) software codes, internet domain names, trademarks, service marks, trade names, logos and corporate names; (iii) rights associated with works of authorships, including without limitation, copyrights, moral rights, copyright applications, copyright registrations; (iv) rights relating to the protection of trade secrets and confidential information; (v) all other intellectual property rights anywhere in the world including rights of privacy and publicity, whether or not requiring registration and whether or not such registration has been obtained; (vi) goodwill symbolized by or associated with any of the foregoing rights; and (vii) proprietary information, proprietary processes, software, technical information, data, databases (including but not limited to customer data, sales data, etc.), process technology, plans, formulae, algorithms and blue prints.
“Laws” shall mean and include all applicable local, state and international laws, including, without limitation, those related to data privacy and data security.
“Personal Information” shall mean and include all the variable of “personal information”; “personal data”; “personally identifiable information”, or such other similar expressions; the information identifies, relates to, describes, or is capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable living natural person, including but not limited to real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name and such other information as defined under the applicable privacy or data security laws.
“Service Level Agreement” or “SLA”: shall mean the agreement entered into and executed between the Company and the Client, setting out the terms of provision of Services, and which shall be governed by the provisions of this Agreement, such that this Agreement shall be deemed to form part of the SLA.
“Survey” shall mean and include without limitation a study of the opinions, behaviour, etc. of the End Customer.