Effective from : July 01, 2017
This Contract shall commence on the date on which you Accept these Conditions upon Your registration with Digidukan Media and shall remain in full force and effect unless and until terminated by either Party in accordance with the terms of the Contract.
2. PROVISION OF THE SERVICES AND THE DIGIDUKAN MEDIA SDK
2.1 With effect from the Effective Date, Digidukan Media shall, subject to these Conditions:
(a) make available and allow You to access the Services;
(b) make available to You (by download or any other method notified to You) a copy of the Digidukan Media SDK and any other Digidukan Media Materials or Advertisements which Digidukan Media seems appropriate.
2.2 You acknowledge and agree that it is Your responsibility to ensure that You have appropriate protection for Your computers, software, data and applications including any systems that You use to access the Services or any Digidukan Media Materials and that Digidukan Media shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the Digidukan Media Materials.
2.3 You acknowledge that Digidukan Media may immediately by notice in writing to You suspend Your access to the Services (or any part thereof) and/or the Digidukan Media Materials. Further Digidukan Media shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any Digidukan Media Materials (or any part thereof).
2.4 You acknowledge and agree that (i) nothing in this Contract guarantees that the Services, Digidukan Media Materials and/or Advertisements will be free from interruption or errors, (ii) there will be periods when the Services, Advertisements and/or Digidukan Media Materials are unavailable and cannot be accessed and (iii) Digidukan Media shall not be liable for any loss or damage You may suffer or incur as a result of any Service (or any part of a Service) Advertisements and/or any Digidukan Media Materials (or any part thereof) being unavailable at any time.
2.5 You may use Digidukan Media ’s technology products for obtaining Services including any fixes, updates and upgrades thereto as may be provided by Digidukan Media from time to time. In connection with the Services, Digidukan Media may provide You with certain analytics reports (“Reports”) which analyzes the data collected by Digidukan Media from the End-Users. This data concerns the characteristics and activities of the End-Users and facilitates management of End-User data by You.
3. PROPRIETARY RIGHTS
3.1 You acknowledge that You have and obtain no rights in the Services, Advertisements and/ or in any Digidukan Media Materials or the Intellectual Property Rights in or relating to them or to receive the Services save as expressly provided in the Contract.
3.2 Digidukan Media grants to You, with effect from the Effective Date, a limited, revocable, non-exclusive, non-transferable licence for the term of the Contract to access the Services solely for Your own internal business purposes as they relate to tracking the performance of ad-networks engaged by You and for no other purpose whatsoever.
3.3 Digidukan Media grants to You, with effect from the Effective Date, a limited, revocable, non-exclusive, non-transferable licence for the term of the Contract to use the Digidukan Media Materials solely for the purpose of enabling You to receive the benefit of the Services. You will have no right to use, perform, display, reproduce and distribute Digidukan Media Materials for any other purpose. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by Digidukan Media or updated in Digidukan Media website from time to time.
4. USER RESTRICTIONS
4.1 You shall not:
(a) by accessing the Services, store, transmit, distribute, disseminate, publish or post any material in such a way as to breach any applicable law or regulation or to infringe the rights of, or restrict or inhibit the access to and enjoyment of the Services by, any other person;
(b) by accessing the Services, deliberately, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similar items on to any Digidukan Media or third party systems;
(c) distribute the Digidukan Media Materials to any third party;
(d) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of the Digidukan Media SDK or any other software to which You are given access by Digidukan Media , except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties;
(e) assist or attempt to assist any third parties in obtaining access to the Services or the Digidukan Media Materials;
(f) Re-order, modify, edit obscure or truncate in anyway the Advertisements including without limitation, the advertising content, graphics, format, audio, video, sequence, or any aspect of the Digidukan Media Materials.
(g) Share, display or disclose any Digidukan Media Materials including Advertisements on any part of Your Network that may be considered to contain any hate-related, pornographic, libellous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third party rights or which are reasonably likely to subject Digidukan Media or its affiliates or advertisers or business partners to negative publicity.
(h) Engage in any Fraudulent Activities or illegal practices.
4.2 You shall be responsible and liable to Digidukan Media for all acts or omissions of Your Personnel in accessing and use of the Digidukan Media Materials, Advertisements and Services . Any breach of any provision of the Contract caused by any such persons shall be deemed a breach of the Contract by You.
5. YOUR DATA
5.1 You shall own all rights, title and interest in and to all of Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data.
5.2 Digidukan Media shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
5.3 You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to Digidukan Media to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of Services by Digidukan Media (including the provision of the Services to third parties).
6.1 Subject to the terms and conditions of this Contract, Digidukan Media will pay You a percentage of Net Revenue relating to Advertisements run on Your properties during any given calendar month.
6.2 Digidukan Media shall provide You with reasonable access to its Panel which shall be used for monthly calculations of the payment to be made by Digidukan Media to You. Digidukan Media will make the payment within Thirty (30) days from the date of receipt by Digidukan Media of a valid invoice raised by you. The payment shall be made after the conversion of the amounts in the local currency (if applicable) provided the Net Revenues are collected by Digidukan Media from applicable advertisers, subject to You providing Digidukan Media , complete and accurate information relating to remittance of payment.
The Net Revenue percentage paid to You shall be determined by Digidukan Media and may be varied in its reasonable discretion from time to time. In case of any conflict with the amount payable under the panel and the amount as raised in the invoice, the amount as reflected in the panel shall prevail.
6.3 All payments will be made in Indian Rupees (INR) unless otherwise agreed (email accepted). Notwithstanding the foregoing and Section 6.2, the payment for publishers and developers based out of China, Japan, Korea or India will be made in the local currency.
6.4 Foreign Exchange Conversion: Any conversion from local currency to USD and from USD to any local currency would be based on the conversion rate mentioned by publisher/affiliate in the invoice generated. However, failing which Digidukan Media shall convert the currencies as per the Google.com conversion calculator. The conversion rate will be the one on the date on which the invoice has been generated. The data obtained from panel shall be relied upon unless more than a 5% margin error or problem is detected by Digidukan Media or You.
6.5 In the event of an error in payments made to You as determined by Digidukan Media , whether as a result of inaccurate information provided by a third party or otherwise, Digidukan Media shall allocate any deficient amounts or deduct any overpayment in the subsequent calendar month payment due to You.
6.6 Both parties agree that Digidukan Media expressly reserves the right to set off amounts owed to You against any other amounts owed by You relating to other Digidukan Media services.
6.7 Digidukan Media reserves the right to discontinue Service, withhold payment at any time, and/or terminate any agreement with You, without liability to You, if Digidukan Media reasonably suspects that any of the following have occurred on Your properties: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws or is reasonably likely to have a negative commercial impact on Digidukan Media , its advertisers or business partners. Without limitation to the foregoing, Digidukan Media may, at its sole discretion, credit back to advertisers and/or offset against future payments to You any payments which it subsequently determines accrued as a result of such Fraudulent activity or illegal activity.
6.8 Taxes: All payments are inclusive of taxes. Any taxes on the income of a Party, any other taxes, including but not limited to Central Goods and Service Tax, or such other transaction taxes, applicable in connection with this Contract shall be borne and remitted by You to the relevant tax authorities. In case applicable laws require withholding of any amount on account of withholding taxes, Digidukan Media may withhold such amounts, unless You provides a certificate of exemption from such withholding taxes. Amounts payable to You shall not be grossed up on account of withholding taxes.
6.9 Further Digidukan Media and You shall co-operate to enable each party to more accurately determine the respective tax liability and to minimize such liability, to the extent legally permissible.
7.1 You grant to Digidukan Media any and all necessary rights and permissions to use Your mobile web or app trademarks, trade names, logos, copyrights and other intellectual property provided during the course of the Services (“Your IPRs”) for the purpose of fulfilling Digidukan Media ’s obligations. Digidukan Media may mention Your name as a customer in its website, marketing, social Media and sales materials.
7.2 You acknowledge that Digidukan Media and/or any third party instructed or engaged by Digidukan Media may in its sole discretion market, promote, reference, present and link Your IPRs to all Digidukan Media potential customers in connection with the provision of the Services and You grant Digidukan Media all necessary rights and permissions with respect to Your IPRs on a worldwide, perpetual, irrevocable royalty-free basis.
8.1 Each Party shall keep the other Party’s Confidential Information confidential for a period of 3 (three) years from the date of its disclosure.
8.2 Each Party agrees that it shall use the other’s Confidential Information solely for the purposes of performance of Services and will take all reasonable steps which shall include, at a minimum, the steps it takes to protect its own Confidential Information, but not less than the steps it takes to protect its own similar information. Each Party agrees that it will restrict the disclosure of the Confidential Information to its employees, affiliates or agents on a need to know basis and who have agreed to confidentiality obligations no less restrictive than the terms of this Section 8.
8.3 The obligations of confidentiality in Condition 8.1 shall not prevent any disclosure of information which: (a) is in, or has become part of, the public domain other than by a breach of the Contract; (b) becomes available to the disclosing Party in a lawful manner from a third party; (c) can be proven to be independently developed by or for the disclosing Party; (d) is required to be disclosed by law or because of a stock exchange/regulatory/statutory requirement.
9. DATA PROTECTION & COOKIES
9.1 You acknowledge and agree that Digidukan Media may, as a result of You accessing the Services, process personal data (as such terms are defined in the Data Protection Legislation) on Your behalf.
9.2 The Parties each acknowledge that You shall be the data controller and Digidukan Media shall be the data processor (as such terms are defined in the Data Protection Legislation) in respect of all personal data processed by Digidukan Media on Your behalf.
9.3 You warrant and represent that any personal data supplied or disclosed to Digidukan Media under or in connection with the Contract shall be controlled, collected and transferred in accordance with the Data Protection Legislation and with all relevant requirements and guidance notes issued from time to time by any Regulator and in particular You warrant and represent that You have obtained (or will obtain) any legally required consents to such control, collection and transfer and the processing of such personal data and/or any other tracking technology used by Digidukan Media in providing the Services and that You shall in all respects abide by the terms of all applicable data protection laws and regulations (including the Data Protection Legislation).
9.5 If the Advertisement transmission from Digidukan Media includes any bid data or other financial information relating to the Advertisement, all such data shall be treated as Confidential Information belonging to Digidukan Media.
10.1 You will indemnify, defend and hold Digidukan Media, its parents, subsidiaries, affiliates, shareholders, licensors, customers, officers, and employees harmless, including costs, expenses and attorneys’ fees and other legal costs, from any and all losses, damages, penalties liability, claim or demand made by any third party due to or arising out of: (a) Your use of the Services or Digidukan Media Intellectual Property Rights; (b) any violation of this Contract by You including without limitation breach of representations and warranties and obligations related to confidentiality; (c) infringement by You of any third party Intellectual Property Rights or other right of any person or entity; (d) wilful misconduct or gross negligence by You; (e) fraudulent or unlawful act of You. (f) Your breach or alleged breach of any warranties or representations made under Section 9; (g) Any material displayed in Your Network which do not comply with all applicable laws, statutes and regulations; (f) Any material displayed in Your Network which contain content that is obscene, defamatory, libellous, or slanderous, or hate-related.
10.2 Any claim for indemnification hereunder shall be subject to the following provisions: (i) You shall be given prompt written notice of the claim by Digidukan Media, provided that any delay in providing notice shall not relieve You of Your indemnity obligations under this Contract unless, and only to the extent, You were prejudiced by the delay; and (ii) Digidukan Media shall reasonably cooperate with You and Your counsel at Your cost and expense. Digidukan Media may participate in the defence and settlement of the claim and using attorneys selected by Digidukan Media. Each party shall make all reasonable efforts to mitigate damages.
11.1 Save as set out in these Conditions or the Contract and to the maximum extent permitted by applicable law, Digidukan Media excludes and disclaims all conditions, terms, representations (other than fraudulent misrepresentations) and warranties relating to the subject matter thereof, whether imposed by statute or by operation of law or otherwise, that are not explicitly stated in the Contract including the implied warranties of satisfactory quality and fitness for a particular purpose.
11.2 Digidukan Media shall not be liable, however that liability arises, for the following losses arising out of or in connection with the Contract: consequential, special, incidental or indirect losses ; loss of profits; loss of revenue; loss of business; loss of technology; loss of opportunity; loss of contracts; loss of anticipated savings; loss of goodwill; or loss of, or damage to, data, even if such loss was reasonably foreseeable or Digidukan Media had been advised or notified of the possibility of You incurring such losses.
11.3 The aggregate liability of Digidukan Media for all claims arising out of or in connection with the Contract (however that liability arises) shall be limited to actual direct damages up to $500.
11.4 You acknowledge and agree that the limitations and exclusions of liability contained in these Conditions and the Contract are reasonable in view of the nature and extent of the obligations accepted by each Party under the Contract and the fact that the Services are provided without any monetary charge and that this Condition 11 shall prevail over all other provisions in the Contract.
11.5 If any limitation provision contained in these Conditions or the Contract is held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted, but if a Party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out in these Conditions.
11.6 For the purposes of this Condition 11, ‘however that liability arises’ means howsoever arising, whether in contract, tort (including negligence and strict liability), breach of statutory duty, or otherwise.
11.7 Notwithstanding anything else in the Contract, Your liability with regard to Indemnification obligations under Section 10 shall be unlimited.
Either Party may terminate this Contract at any time by written notice to the other.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of the Contract for any reason:
(a) All licenses granted by Digidukan Media under this Contract shall immediately terminate; and
(b) You shall uninstall or otherwise remove any means of access to the Services provided under the Contract including client software and Digidukan Media SDK supplied by Digidukan Media for that purpose;
(c) You shall immediately return any and all of the Confidential Information of Digidukan Media and any and all of the Digidukan Media Material provided to You by Digidukan Media .
13.2 The termination of the Contract shall be without prejudice to any accrued rights and obligations of the Parties arising under the Contract prior to such termination
13.3 The following Conditions shall survive the expiry or termination of the Contract: (a) 4.2, 5.2, 8, 9, 10, 11, 13, 14 and 15; and (b) any other provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination.
Except as expressly set forth herein, the parties hereby specifically disclaim any representations, endorsements, guaranties, or warranties, express or implied, related to the advertisements including, but not limited to, the implied warranty of merchantability, title, fitness for a particular purpose and non infringement of intellectual property rights.
15.1 Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of Digidukan Media (which may be delayed or withheld in its discretion).
15.2 Assignment and Subcontracting by Digidukan Media : Digidukan Media shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
15.3 No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
15.4 Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
15.5 Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract.
15.6 Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). Digidukan Media shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Digidukan Media ’s reasonable control.
15.7 Amendments: Digidukan Media reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by Digidukan Media , You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to Digidukan Media . In the event of such termination, clause 12 above shall apply.
16. GOVERNING LAW AND JURISDICTION
16.1 These Conditions, the Contract and any dispute or claim arising in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of India.
16.2 The Parties irrevocably agree that the courts of the India shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Conditions and/or the Contract or their subject matter or formation (including non-contractual disputes or claims). Any Dispute arising shall be handled under Jaipur jurisdiction.
17. DEFINITIONS AND INTERPRETATION
17.1 Unless the context otherwise requires, the following definitions apply in these Conditions:
Accept means Your clicking ‘Accept’ to signify that you accept these Conditions and agree to this Contract;
Advertisements: means all the advertising content provided by Digidukan Media on behalf of advertisers for distribution on Your Network;
Confidential Information means information (including confidential or sensitive commercial; financial; marketing; and/or technical information in written, electronic or any other form or medium) which is marked ‘confidential’ or ‘secret’ or is, by its nature shall be considered confidential by a reasonable prudent person;
Conditions means these terms and conditions;
Contract means the agreement formed between You and Digidukan Media , on the terms set out in these Conditions, when you click accept;
Data Protection Legislation means any and all other applicable laws and regulations in any jurisdiction in the world relating to the processing of personal data, privacy and online behavioural advertising including, where applicable, the guidance and codes of practice issued by any Regulator;
Effective Date means the date on which You Accept these Conditions;
End User means visitors to the website(s) or application(s) that comprise Your Network;
Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (a) generate impressions of or clicks on any Advertisement through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (b) mislead users to click on Advertisements; (c) in any way minimize or obstruct the display of any Advertisements, or edit, modify, filter or change the order of the information contained in any Advertisements; (d) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by Digidukan Media ; or reverse engineer, decompile or disassemble any software components of the advertising services provided by Digidukan Media ;
Gross Revenues means the amounts due and owing to Digidukan Media from advertisers for distribution of Advertisements on Your Network as received by Digidukan Media ;
Group Company means (in relation to a Party) any subsidiary or holding company from time to time of a Party, or any subsidiary from time to time of a Party’s holding company;
Digidukan Media means, a company incorporated and existing in accordance with the laws of the country of India, with registered office at D-97, Vaishali Nagar, Jaipur (Rajasthan), 302021, acting on behalf of itself and its affiliates;
Digidukan Media Materials means any materials (including software, manuals, developers notes or other materials) provided to You by Digidukan Media in relation to this Contract, including the Digidukan Media SDK;
Digidukan Media SDK means the software development kit provided to You by Digidukan Media to allow you to generate data which will be processed as part of the Services;
Intellectual Property Rights means trademarks, service marks, and rights in the nature of passing off and unfair competition, get-up, trade dress, registered designs and unregistered designs and design rights, business and trading names, domain names, topography rights, copyright (including copyright in software), moral rights, database rights, rights in inventions, patents, know-how, trade secrets and other confidential information, and all other intellectual property rights and rights of a similar or corresponding character which may exist now or in the future subsist in any part of the world (whether registered or not or the subject of an application for registration) and including all rights to apply for, and obtain, registrations in respect of any and all of the foregoing, each for their full term including extensions, revivals and renewals thereof;
Net Revenues means Gross Revenues, less Digidukan Media ’s cost of sales and Advertisement serving costs, including (a) any commissions due to, or revenue shares retained by, third party advertising sales networks or agencies, (b) any out of pocket costs paid by Digidukan Media to third parties to serve the Advertisements pursuant to this Contract, including, without limitation, data enrichment and directed marketing costs, and (c) refunds to advertisers, credit-card or bank charges, foreign exchange fluctuations, electronic payment processing fees, charge-backs, and bad debt;
Party means each of Digidukan Media and You and Parties shall be construed accordingly;
Personnel means a Party’s directors, officers, employees, workers, agents, third party service providers, successors, subcontractors and permitted assignees;
Regulator means any regulator or regulatory body which, whether under statute, rules, regulations, codes of practice or otherwise, is entitled to regulate, investigate, or influence the matters dealt with in this Contract or any other aspect of Your business or affairs;
Services means the provision of an independent and open platform to track conversions of ad campaigns across mobile websites and apps and across campaigns running on any advertising network;
Your Network means (a) the website(s) or application(s) owned/ operated or contracted by You, and (b) the websites or applications that are added or removed from Your Network during the Term;
You means the person accessing the Services and/or using the Digidukan Media Materials; and
Your Data means any data belonging to You or to third parties and used by You under licence which is stored and/or processed by Digidukan Media as a result of the use of the Services.
17.2 A reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute, as may be amended and in force from time to time.
17.3 The words and phrases “include”, “including” and “in particular” (and any variations of these words, or similar words) shall be deemed to be immediately followed by the words “without limitation” (where such words do not already immediately follow in these Conditions).
17.4 References to a person include an individual, company, corporation, body corporate or unincorporated, firm, partnership, public body, charity or other legal entity and that party’s personal representatives, successors and permitted assigns.
17.5 Any obligation on a Party not to do something includes an obligation to not to allow that thing to be done.
Terms for participating in Digidukan Media Exchange. If you do not opt out from participating in Digidukan Media Exchange within 30 days from the date of notification, you shall be deemed to have accepted these terms.