Terms And Conditions
DISCLAIMER Below are the generic T&Cs that will be applicable for using Vizibl DSP. Please note that these are provided here as a reference only, and to give you an indication of applicable T&Cs. Final and legally binding T&C’s will be made available at the time of signing up on Vizibl, and may vary from the below T&Cs.
- MW licenses a demand side platform called ‘Vizibl’ to direct advertisers, agencies or network partners for bidding real time inventory and running programmatic campaigns;
- Licensor wishes to use Vizibl for running their advertising campaigns; and
- Licensor wishes to obtain from MW, and MW wishes to provide to Licensor a license to access and use Vizibl to run its programmatic campaigns, as described within the applicable IO.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
DEFINITIONS In these Master Terms including the recitals, the following words shall have the following meanings:
- Ad Exchange means an advertising exchange or other biddable source of Ad Inventory.
- Ad Inventory means online advertising impressions, including, without limitation, web, mobile, application and/or widget based advertising impressions;
- Ad Tag means any programming code or HTML that requests Vizibl for an impression against which the creative will be served by a third-party system.
- Creative means a unit of advertising content.
- Affiliate means, with respect to a Party, an entity that directly or indirectly controls, is controlled by or is under common control with such Party.
- Auction Service means MW’s proprietary service through which parties may buy and sell Ad Inventory through an auction or real time bidding process (which includes, for purposes of clarification and without limitation, transactions of Managed Impressions
- Bidding Terms means, with respect to a Buyer or Seller, all of (x) the conditions that such party requires with respect to a particular Ad Unit or particular Ad Inventory as applicable, (y) the specifications and features of and rules associated with, its particular Ad Unit or Ad Inventory as applicable, and (z) other information and data provided within the Vizibl platform or a Service by or on behalf of that Buyer or Seller with respect to a particular Ad Unit or particular Ad Inventory, as applicable.
- Buyer means an advertiser, agency, network or other party that buys or attempts to purchase Ad Inventory through the Vizibl platform or a Service.
- Client means an advertiser, publisher, network or other third party, if any, on whose behalf Licensor utilizes the Vizibl platform or a Service.
- Confidential Information means any information that is disclosed provided or made accessible by, or on behalf of, one Party to the other Party in connection with these Master Terms, and which is identified as ‘confidential’ or ‘proprietary’ or which, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary (e.g. product or business plans), but does not include information that the recipient already knew, becomes public through no fault of the recipient, or was independently developed by the recipient without reference to the discloser’s confidential information.
- MW shall mean the specific legal entity (and shall, unless repugnant to the context or meaning thereof mean and include such legal entity’s successors-in-interest and assigns) that has entered into these Master Terms with the Licensor, i.e. either (i) Mediawrkz, Inc. (ii) MediaWrkz Pte. Ltd.; or (iii) Datawrkz Business Solutions Private Limited.
- MW Account means an account that MW has with a Third-Party Ad Exchange, which account entitles MW and/or its customers to purchase Ad Inventory through that Third-Party Ad Exchange.
- Media Budget means Licensor’s total budget to spend on advertising campaigns using Vizibl, including media costs to purchase Ad Inventory and any data costs such as those incurred towards 3rd party audience segments
- Managed Impression means an Ad Unit impression served pursuant to a transaction conducted through the Auction Service in which the same party both buys and sells the applicable Ad Inventory through the same Service “Account” (which may be on its own behalf and or on behalf of any of its Clients), it being understood that each of a “house” Ad Unit impression and a “default” Ad Unit impression served pursuant to a transaction conducted through the Auction Service will be deemed a “Managed Impression” for purposes hereof.
- Seller means a publisher, network, exchange, data aggregator, data management platform or other party that sells impressions or data through Vizibl.
- Sites means the digital properties on which any Service(s) is(are) utilized (i.e., web and mobile sites, video players, and mobile applications.
- Subcontractor means, with respect to a Party, a subcontractor, consultant third-party service provider or agent engaged by such Party (or a Client or Affiliate of such Party) in connection with its use or provision of the Vizibl platform or any Services, both of which are permitted under these Master Terms and the applicable IO.
- Supplemental Terms means the specific supplemental terms and conditions for the provision of the specific Service(s) that is(are) in addition to or different from the terms and conditions within these Master Terms, as may be made available within the applicable IO.
VALID AND LEGALLY BINDING AGREEMENT By accepting the Master Terms (when Licensor first registers to access and use the Vizibl platform and also again each time Licensor subsequently accesses and uses the Vizibl platform), Licensor confirms that:
- The person opening the Vizibl account is authorised to act for and on behalf of the Licensor in whose respect MW has set up the Vizibl account;
- The person accepting the Master Terms is the Licensor’s authorised representative with the requisite authority to bind Licensor in respect of these Master Terms and submit any requests on Licensor’s behalf; and
- Licensor agrees to be legally bound by the Master Terms in all respects.
LICENSE AND SERVICES MW will allow access to the Vizibl platform and/ or provide various services (each, a “Service”) to Licensor, which the Parties may agree to in writing from time to time within the applicable IO. Each IO, which will be deemed to incorporate these Master Terms. If Licensor avails any other Service, then the applicable Supplemental Terms will also apply in addition to these Master Terms. If there is any conflict between the Supplemental Terms and these Master Terms, the Supplemental Terms will take precedence.
PAYMENT; PAYMENT OBLIGATIONS Payment Dates and Terms. Licensor shall make all payments in accordance with the payment dates and related terms for access to the Vizibl platform and each particular Service as set forth within these Master Terms, the Supplemental Terms or the applicable IO.
Additional Payment Rules.
- Late payments that are not disputed in good faith bear interest at the rate of 1.5 % per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. The amounts invoiced hereunder do not include any taxes levied by or due to any duly authorized taxing authority. Licensor will pay all applicable taxes and other government charges, if any, however designated, derived from or imposed on the transactions contemplated hereby, including without limitation sales, value-added, use, and transfer, withholding privilege, excise and other taxes and duties. Licensor will pay reasonable expenses and outside attorneys’ fees MW incurs in collecting late payments that are not disputed in good faith.
- Notwithstanding anything to the contrary in these Master Terms, Licensor will be ultimately responsible for any and all payment obligations for its purchases of Ad Inventory through the Vizibl platform or any Services. Without limiting any of MW’s other rights or remedies under these Master Terms, MW may set off amounts due and owing by Licensor (other than amounts disputed in good faith) to MW against payments owed by MW to Licensor hereunder.
- Promptly following MW’s request, Licensor will provide MW with the information necessary to enable MW to perform a credit check of Licensor. MW may, in its sole discretion, extend revise or revoke credit at any time. MW is not obligated to enable the purchase of any Ad Inventory in excess of any credit limit.
- All executed transactions are final.
DUTIES AND OBLIGATIONS OF LicensorProhibited Acts.
a) General. Licensor will not, will not attempt to, and will not assist or knowingly permit any third party to:
- copy, reproduce, modify, damage, disassemble, decompile, reverse engineer or create derivative works of the Vizibl platform or any Service or any portion thereof;
- breach, disable, tamper with, or develop or use (or attempt) any workaround for, or otherwise damage the Vizibl platform or any Service or any security measure thereof;
- interfere or attempt to interfere (whether through a device, software, mechanism, routine or otherwise) with the proper working of the Vizibl platform or any Service or any activity conducted on MW server;
- set, read, write, modify or delete any cookie on MW owned or operated domain;
- pass personally identifiable information to MW, or otherwise associate a cookie, web beacon, or other mechanism with personally identifiable information;
- use the Vizibl platform or any Service to select or target Ad Units (x) based on past visits or clicks by users on sites directed at children under the age of 13 years, or (y) based on information generally accepted as “sensitive” pursuant to Internet advertising industry guidelines (e.g, the self-regulatory principles/code of conduct of the Network Advertising Initiative) or policies or applicable law, rule or regulation; or
- alter or tamper with any information or materials on or associated with the Vizibl platform or any Service.
b) While buying inventory, Licensor hereby further covenants that:
- the Bidding Terms entered into the Vizibl platform or any Service will be complete and correct in all material respects;
- none of the Ad Units entered into Vizibl and/or provided to MW will, when viewed or clicked on by a user(s), cause the download or delivery of any software application executable code, virus, or malicious or social engineering (phishing) code or features;
- none of the Ad Units entered into Vizibl and/or provided to MW, and none of the sites to which a user is directed following a click on any such Ad Unit, will be obscene, deceptive or otherwise illegal; and
- it will not, will not attempt to, and will not assist or knowingly permit any third party to:
- disclose Ad Inventory availability, volume, or pricing data obtained through the Vizibl platform or any Service without written consent of the Seller or publisher, as applicable; or
- collect or use data provided by, from or related to a Seller or publisher via a cookie, web beacon, log data analysis or other mechanism or method, for purposes of segmenting re-targeting, creating or supplementing user profiles or inventory profiles, creating supplementing or amending interest categories, or syndication or other distribution to third parties, unless (x) such data collection and usage are authorized in writing by or on behalf of the applicable Seller or publisher, as applicable, or (y) the data is independently derived by Licensor from a user’s “click” on an Ad Unit and not related to the Seller or publisher, as applicable.
ADDITIONAL VIZIBL RULES.
- The highest bid may not always win an auction due to current and future functionality including without limitation functionality that may allow a Seller to specify Bidding Terms related to the purchase of its Ad lnventory and determine who can bid on and win auctions of Ad Inventory in the Auction Service.
- Each Seller may exclude Licensor or any of Licensor’s Clients (either individually or collectively, and either in whole or in part) from bidding on the Seller’s Ad Inventory at any time for any reason or no reason.
- Certain transactions or portions of a transaction on Vizibl execute in real time, and bids and offers may compete simultaneously against multiple other bids and offers.
- Licensor will have no recourse for any transaction on Vizibl (e.g. any purchase or sale of Ad Inventory) that does or does not occur based on erroneous Bidding Terms.
- MW may reject, remove or deactivate Ad Units that do not comply with policies, or do not comply with any applicable law, rule or regulation or for any reasonable business reason.
Licensor’S REPRESENTATIONS AND WARRANTIES
(i) Licensor hereby represents and warrants that it has and will have all necessary rights and authority (x) to Enter into these Master Terms and each IO and (y) to perform its obligations hereunder and thereunder; and (ii) if Licensor is using Vizibl on behalf of Clients, it is and will be authorized to act on behalf of each of its Clients, its performance under these Master Terms (including each IO) will not breach any agreement or other obligation that it has with or to any of its Clients, and it is and will be liable for its Clients’ acts and omissions in connection with the Vizibl platform or any Services provided under these Master Terms (including each IO).
(ii) Licensor will (x) be solely responsible for all use of the Vizibl platform or any Services hereunder (including without limitation, the creation of all Ad Units, the creation and submission of all Ad Units into the Vizibl platform or any applicable Service(s) and the entering of all Bidding Terms into the Vizibl platform or any applicable Service(s)), all inquiries relating to Ad Units, and the content of all Ad Units (it being understood that nothing in this clause (x) will be deemed to limit MW’s obligations with respect to the provision of the Vizibl platform or any Services hereunder); (y) use the Vizibl platform and any Services in compliance with Licensor’s other agreements (including without limitation with advertisers and publishers); (z) have obtained and be deemed to have hereby granted to MW, all rights necessary to allow MW to store, audit, optimize, and serve Ad Units to Ad Inventory and otherwise provide the Vizibl platform and any Services hereunder.
MW’S REPRESENTATIONS AND WARRANTIES
- MW hereby represents and warrants that it has and will have all necessary rights and authority (i) to enter into these Master Terms and each IO and (ii) to perform its obligations hereunder and thereunder.
- MW will (a) provide the Vizibl platform and any Services to Licensor in accordance with the terms set out herein and each applicable IO, and obtain all rights necessary to provide Services hereunder; (b) use commercially reasonable efforts to serve Ad Units to Ad Inventory through the Vizibl platform or any applicable Service(s) according to the Bidding Terms selected by Licensor; and (c) if Licensor has elected to receive email notifications of “Policy Updates”, provide notice by email to Licensor of material changes to MW’s Service Policies. Notwithstanding anything to the contrary in these Master Terms, MW will have no liability or other responsibility with respect to the content of any Ad Unit or any Ad Inventory or Site.
TERM, TERMINATION & SUSPENSIONUnless earlier terminated, these Master Terms will remain in effect until all IOs have terminated. Either of the party may at its own will have the option to terminate any IO or these Master Terms at any time without stating any reason for the termination, by giving the other party prior written notice of atleast 30 (thirty) days. Each Party may terminate an IO immediately on notice to the other Party that it is in material breach of these Master Terms with respect to the Vizibl platform or any such Service; provided that (x) if the breach is capable of cure, the breaching Party will have 30 days from the notice date to cure the breach to the non-breaching Party’s reasonable satisfaction; and (y) MW may immediately suspend the provision and use of the Vizibl platform or any or all Services under the IOs on notice to Licensor if, in MW’s reasonable discretion, Licensor breaches any of the clauses of Section 4.1(a) hereof and of clauses (ii), (iii) or (iv) of Section 4.l (b) hereof. Under (y), all payments from MW, including but not limited to Security Deposit, will stand suspended. If Licensor fails to pay fees invoiced by MW (other than fees disputed in good faith) by the applicable payment due date, MW may suspend the Vizibl platform or each applicable Service, in whole or in part, on notice to Licensor. Notwithstanding termination of these Master Terms, any provisions of these Master Terms that by their nature are intended to survive, will survive termination.
CONFIDENTIALITY The Receiving Party may use Confidential Information only to exercise its rights and fulfill its obligations under these Master Terms and must use reasonable care to protect Confidential Information. The Receiving Party will not disclose Confidential Information, except to employees, directors, agents, advisors and/or Subcontractors who need to know it and who are obligated to keep it confidential. No Party may disclose the terms of these Master Terms (including, for purposes of clarification, the-pricing terms of any IO) to a third party without prior written consent of the other Party, except (a) to its professional advisors and financing sources under a strict duty of confidentiality, (b) for purposes of enforcing its rights under these Master Terms and (c) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving the reasonable notice to disclosing Party and using commercially reasonable efforts to provide the disclosing Party with the opportunity to seek a protective order or the equivalent (at the disclosing Party’s expense).
DATA; PROPRIETARY RIGHTS Data As between Licensor and MW, Licensor will own its Bidding Terms and subject to terms and conditions of these Master Terms (including without limitation, Section 4.1 hereof), all data derived from transactions (i.e., purchases and sales of Ad Inventory and the serving of Ad Units to such Ad Inventory) conducted pursuant to its use of the Vizibl platform or any Services (collectively, “Licensor Data”); provided that MW may use and disclose Licensor Data solely:
- as aggregate Service statistics,
- to provide, operate, manage, maintain and enhance the Vizibl platform or any Services (it being understood and agreed that without limiting the generality of the foregoing, MW may disclose certain Licensor Data, in connection with the operation of the Services, only to (x) each Seller of Ad Inventory on which Licensor has bid in an auction or from which Licensor has purchased Ad Inventory through the Vizibl platform or a Service, and (y) each Buyer that has bid on or viewed Licensor’s Ad Inventory in an auction or to which Licensor has sold Ad Inventory through the Vizibl platform or a Service),
- to (A) Subcontractors and other third-party service providers (e.g. auditors) of MW who need to know it and who are obligated to keep it confidential subject to the terms and conditions hereto and (B) third parties whose services Licensor has elected to use though the Vizibl platform or any applicable Service(s) and who are obligated to keep it confidential subject to the terms and conditions hereto,
- if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to Licensor and using commercially reasonable efforts to provide Licensor with the opportunity to seek a protective order or the equivalent (at Licensor’s expense), and
- as may otherwise be elected by Licensor within the Vizibl platform or any applicable Service(s);
provided further, however, that MW’s retrieval and/or provision to Licensor of event-level data and/or custom reports derived from Licensor’s use of the Vizibl platform or any Services may result in additional fees hereunder (to be agreed by MW and Licensor in writing) based on storage and service costs. For purposes hereof, notwithstanding anything herein to the contrary, but subject to the provisos in this Section 10.1, Licensor Data will be Confidential Information of Licensor.
- As between the Parties, MW owns and will retain all right, title and interest in and to the Vizibl platform and any each of the Services and MW API specifications (in each case, including but not limited to all software, concepts, methodologies, techniques, models, templates, algorithms, recommendations, trade secrets, processes, information, materials, source codes and know-how contained therein, all modifications, updates, enhancements and derivative works thereof, all documentation and manuals, related thereto and all other aspects of such technology, the name “MW” or any derivatives thereof and any other trademarks and logos which are owned or controlled by MW and made available to Licensor through the Vizibl platform or any Services or otherwise hereunder and all intellectual property and proprietary rights in and to all of the foregoing. As between the Parties, Licensor owns and will retain all rights, title and interest in and to its intellectual property, including all software and technologies related thereto, and any modifications, updates, enhancements and derivative works thereof.
- As between the Parties: (i) MW will own all rights, title and interest in and to the source and object code of any software or application (in each case, including but not limited to all software, concepts, methodologies, techniques, models, templates, algorithms, trade secrets, processes, information materials, source codes and know-how contained therein, all modifications, updates, enhancements and derivative works thereof, all documentation and manuals related thereto and all other aspects of such technology) that can access or communicate with Licensor’s servers using Vizibl console (each a “MW Application”); provided, however that in no event will MW Application incorporate or include any of Licensor’s Confidential Information or otherwise breach these Master Terms or infringe any intellectual property right of Licensor; and (ii) Licensor will own all right, title and interest in the source and object code of any software or application (in each case, including but not limited to all software, concepts, methodologies, techniques, models, templates, algorithms, trade secrets, processes, information, materials, source codes and know-how contained therein, all modifications, updates, enhancements and derivative works thereof, all documentation and manuals related thereto and all other aspects of such technology) that can access or communicate with MW’s servers using Vizibl console (each, a “Licensor Application”); provide, however, that in no event will Licensor Application incorporate or include any of MW’s Confidential Information or otherwise breach these Master Terms or infringe any intellectual property right of MW.
- To the maximum extent permissible under applicable law, MW reserves any and all rights not expressly granted in these Master Terms and disclaims all implied licenses including without limitation implied licenses to trademarks, copyrights, trade secrets and patents.
DISCLAIMERS; LIMITATION OF LIABILITY
- EACH PARTY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES FOR NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.
- TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM:
- EXCEPT (i) FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES UNDER THESE MASTER TERMS AND (ii) WITH RESPECT TO BREACHES OF SECTION 8 (CONFIDENTIALITY) OF THESE MASTER TERMS, NO PARTY MAY BE HELD LIABLE UNDER THESE MASTER TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THESE MASTER TERMS FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE; AND
- EXCEPT WITH RESPECT TO (i) ITS FRAUD OR INTENTIONAL MISCONDUCT AND (ii) IT’S PAYMENT OBLIGATIONS UNDER THESE MASTER TERMS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR IO WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY LICENSOR TO MW WITH RESPECT TO THE VIZIBL PLATFORM OR ANY SERVICES UNDER SUCH IO DURING THE TWELVE (12) MONTHS BEFORE THE DATE WHEN THE LIABILITY AROSE.
Each Party (in such capacity, the “Indemnifying Party”) will defend, indemnify and hold harmless the other Party and its officers, directors, employees and agents (each, an “Indemnified Party”) from all third party claims or liabilities (including without limitation reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to the Indemnifying Party’s (i) breach or alleged breach of these Master Terms (including, for purposes of clarification, any IO) or (ii) infringement or misappropriation of a third party’s patent, trademark, trade secret copyright or any other intellectual property right in connection with (a) with respect to MW, the software and other technology used by MW to provide the Vizibl platform or any Services hereunder, and (b) with respect to Licensor, the creative, technology, data or other materials provided by Licensor to MW or otherwise provided and utilized by Licensor in connection with the Vizibl platform or any Services hereunder (“Licensor Materials”) (the indemnification obligation of each Party described in this clause (ii), the “IP Infringement Obligation”). Except as set forth in Section 4.3 hereto the previous sentence states the sole liability of the Indemnifying Party, and the sole remedy of the Indemnified Party, with respect to any third-party claim arising out of the Indemnifying Party’s breach of these Master Terms or intellectual property infringement or misappropriation.
The Indemnified Party must (i) promptly notify the Indemnifying Party in writing of the third-party claims (provided that failure of the Indemnified Party to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter and (iii) give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement. The Indemnified Party may at its expense join in the defense with counsel of its choice. The Indemnifying Party may enter into a settlement only if it (A) involves only the payment of money damages by the Indemnifying Party and (B) includes a complete release of the Indemnified Party; any other settlement will be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed).
MW’s IP Infringement Obligation will not apply to claims to the extent arising from (i) Licensor’s use of the Vizibl platform or any Service in violation of these Master Terms; (ii) Licensor Materials’ infringement or misappropriation of third party’s patent, trademark, trade secret or copyright; or (ii) the combination, operation or use of the Vizibl platform or any Service with any product or service not provided or authorized in writing by MW. Licensor’s IP Infringement Obligation will not apply to claims to the extent arising from MW’s provision of the Vizibl platform or any Service in violation of these Master Terms or a third party’s patent, trademark, trade secret or copyright. If the Vizibl platform or any Service becomes, or in MW’s reasonable opinion is likely to become, the subject of an intellectual property infringement claim, then MW will promptly notify Licensor and at its sole option and expense, may either: (x) procure the right to continue providing the Vizibl platform or such Service as contemplated by these Master Terms; (y) modify the Vizibl platform or such Service to render it non-infringing (provided that modification does not adversely affect use of the Vizibl platform or such Service); or (z) replace the Vizibl platform or such Service with a functionally equivalent non-infringing service. If none of the foregoing options is commercially practicable, then each Party will have the right to terminate each affected IO.
NON- SOLICITATION EXCEPT FOR THE EXPRESS WARRANTIES AS STATED IN THIS SECTION 14, MW DISCLAIMS ALL OTHER WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE VIZIBL PLATFORM AND ANY SERVICES ARE PROVIDED “AS IS.” MW DOES NOT WARRANT THAT THE VIZIBL PLATFORM AND ANY SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. MW AND ITS PARTNERS/ SUBCONTRACTORS ARE NOT RESPONSIBLE FOR ANY CONTENT INSIDE ANY ADS SERVED. MW MAKES NO REPRESENTATION OR WARRANTY REGARDING THE RESULTS LICENSOR WILL OBTAIN BY USING THE VIZIBL PLATFORM OR ANY SERVICES.
- Headings The section headings used in these Master Terms are intended for reference purposes only and shall not affect the interpretation of these Master Terms.
- Waiver No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under these Master Terms shall operate as a waiver thereof.
- Remedies not Exclusive Except as expressly set forth herein, no remedy hereunder is intended to be exclusive of any other remedy available hereunder or at law or in equity.
- Severability If any provision of these Master Terms are held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision. The illegality, invalidity, or unenforceability of such provision shall not in any manner affect or render illegal, invalid or unenforceable any other provision of these Master Terms, and that provision, and these Master Terms generally, shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in these Master Terms. The fact that any provision of these Master Terms is held to be illegal, invalid or unenforceable in a particular jurisdiction shall have no effect upon the legality, validity, or enforceability of such provision in any other jurisdiction.
- Non-Exclusivity Nothing in these Master Terms restricts either Party from developing, marketing, selling, licensing, and/or distributing its products or services, or products and services similar to those of the other Party, in the normal course of business or through its standard sales channels.
- Independent Contractor Relationship MW is an independent contractor and these Master Terms do not create an agency, partnership, or joint venture relationship between MW and Licensor or MW and any Licensor personnel. MW has sole responsibility for activities of MW and its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate Licensor in any manner.
- Force Majeure Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event. “Force Majeure Event” means (i) floods, earthquakes, or other similar elements of nature or acts of God; (ii) riots, civil disorders, rebellions or revolutions in any country; or (iii) any other cause beyond the reasonable control of the non-performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans or other reasonable precautions.
- Notices Unless otherwise stated, all notices, approvals, instructions and other communications for the purposes of these Master Terms shall be given in writing and may be given by personal delivery or by sending the same by registered post, electronic medium or by facsimile addressed to the Party concerned at the address stated herein, or any other address subsequently notified to the other Parties for the purposes of this Clause and shall be deemed to be effective in the case of personal delivery or delivery by registered post at the time of delivery.
- Publicity Either Party grants the other, the limited right to use the other’s name and any trademarks or service marks in connection with these Master Terms. Such use of other party’s name and trademarks shall be solely to identify the other as business partners under these Master Terms. Sufficient care will be taken to ensure that neither Parties deem to explicitly or implicitly endorse the activities of the other, or which is likely to cause confusion as to Licensor’s relationship to MW’s services. Both Parties shall allow the other to use its name as a reference.
- Marketing Materials Both Parties agree to use any marketing materials provided by the other party only for the purpose of marketing the Vizibl platform and any Services detailed in these Master Terms and its IOs. Neither Party shall not use such provided marketing materials in any manner not authorized by the other party
- Governing Law / Jurisdiction.
- These Master Terms will be exclusively construed, governed and enforced in all respects in accordance with the internal laws (excluding all conflict of law rules) of the following: (i) the State of Texas, if Licensor contracts with MediaWrkz, Inc.; (ii) the Republic of Singapore, if Licensor contracts with MediaWrkz Pte. Ltd.; or (iii) the Republic of India, if Licensor contracts with Datawrkz Business Solutions Private Limited. The United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to these Master Terms or the parties thereto.
- The exclusive jurisdiction and venue for all disputes under or pursuant to these Master Terms will be (i) a court of competent jurisdiction in Austin, Texas, if Licensor contracts with MediaWrkz, Inc.; (ii) a court of competent jurisdiction in the Republic of Singapore, if Licensor contracts with MediaWrkz Pte. Ltd.; or (iii) a court of competent jurisdiction in Bengaluru, Karnataka, if Licensor contracts with Datawrkz Business Solutions Private Limited.
- Notwithstanding anything stated herein, all disputes under or pursuant to these Master Terms shall be finally resolved by binding arbitration proceedings conducted in English before a single arbitrator at the local MW office (i) administered by the American Arbitration Association in accordance with the Commercial Arbitration Rules for the time being in force, if Licensor contracts with MediaWrkz, Inc.; (ii) administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause, if Licensor contracts with MediaWrkz Pte. Ltd.; or (iii) in accordance with the Arbitration and Conciliation Act, 1996 as may be amended from time to time, if Licensor contracts with Datawrkz Business Solutions Private Limited.
- The arbitrator shall be knowledgeable in the chosen law and the software industry. At either party’s request, the arbitrator shall give a written opinion stating the factual basis and legal reasoning for the decision. The arbitrator shall have the authority to determine issues of arbitrability and to award damages as permitted by these Master Terms. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. Judgment on the arbitration award may be entered in any court having jurisdiction. Notwithstanding the foregoing, MW may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) as necessary to enforce its rights in its proprietary information or intellectual property.
- The official language of these Master Terms is English. All contract interpretations, notices and dispute resolutions are to be in English. Any attachments or amendments to these Master Terms are to be in English. Translations of any agreement documents are not to be construed as official or original versions of the documents.
- Entire Agreement These Master Terms, any Supplemental Terms and their exhibits/ annexures, along with each applicable IO and any applicable Supplemental Terms, constitute the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof.
- Changes MW may update these Master Terms and any Supplemental Terms, along with any of MW’s operating rules and policies or introduce new policies and rules that relates to these Master Terms or any Supplemental Terms at any time by publishing a revised version on or through the Vizibl platform. Licensor’s continued access or use of the Vizibl Platform after the stated effective date (even if Licensor originally availed of the license/ service before that effective date) constitutes Licensor’s acceptance of the relevant revised document with respect to access and use of the Vizibl Platform. If Licensor does not agree to any changes or updates proposed to be made by MW to these Master Terms or any Supplemental Terms (as applicable), Licensor shall immediately inform MW in writing and cease to access, use or avail of the Vizibl platform as of the effective date of any such change or update.
- Survival The obligations under sections that contemplate performance or observance subsequent to termination or expiration of these Master Terms, including the following sections: Section 5 (“Representations and Warranties”), Section 9 (“Confidentiality”), Section 11 (“Disclaimer &Limitation of Liability”), Section 12 (Indemnity), Section 14 (Non-Solicitation) Section 16 (“Miscellaneous”) and this Section 16.14 (“Survival”), and any other sections that state that they are to survive expiration or termination, shall survive the expiration or termination of these Master Terms.