These terms & conditions are by and between COMEDIA Technologies Private Limited (hereinafter referred to as the Company) & you (hereinafter referred to as the user) for accessing the mobile software namely COMEDIA. WHEREAS the Company carries on the business of Information Technology enabled services including but not limited to software development, data communication, project management, system analysis and design, programming, software testing, software quality assurance, outsourcing of IT and telecommunication services, IT Consultancy and IT process development, development of data integration software, business support, business analysis, data mining, design, development and marketing of software applications, software products including IT recruitment, marketing and other related services including buy, sell, import, export or otherwise to deal in computers, electronic products, storage devices, computer peripherals, audio and video equipment, semiconductors and other electronic components including providing consultancy services and conducting training, mobile applications development, e-commerce and gaming; and WHEREAS, upon the agreement of the User to participate/ use the customized mobile software program and hosting services for content creation/ providing services as detailed in the Annexure - 1; NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the parties hereto agree as follows:
1. Service Software: COMEDIA Mobile Application and Software (“Mobile App”) — mobile software program mobile software program and hosting services for content creation/ providing services.
2. Pricing: As provided in Annexure – 2. “User” means any person that either.
a) Logs into the Mobile App and creates content.
b) Logs into the Mobile App for providing services.
c) Logs into the Mobile App as audience.
3. Payment Terms: As mentioned in Annexure - 3.
4. Conditions: The use of the mobile application shall be subject to the following conditions:
• Only people of sound mind who are above 18 years of age may use this App
• The usage of the App shall be subject to registration.
• The User Details will be accessible to other users on the Platform
5. Term: The term of the Agreement shall be until December 31, 2021 but shall automatically renew annually for twelve months unless the user informs at least sixty days in advance that it will not renew the same.
6. Tech Support
6.1 First Level Customer Service. The Company will provide first level customer service to all Users, namely, User sign-ups and cancellations; issuing User login information and passwords; answering general customer service questions.
6.2 Second Level Technical Support. The Company will provide second level technical support to Subscribed users relating to the Mobile App/website which will include email, live chat, and phone support between the hours of 10am and 6pm Indian Standard Time, Monday through Friday, except Holidays.
7. Service Level Agreement:
7.1 Operation. Company will make the Mobile App and the hosting environment available for User access seven (7) days/week, twenty-four (24) hours/day.
7.2 Scheduled and Unscheduled Downtime. The Company is permitted to perform periodic maintenance on the Mobile App or hosting environment for purposes of system upgrades, maintenance, and backup procedures (“Scheduled Downtime”). All Scheduled Downtime will either be performed seamlessly to the Users (so that they are unaware of the Scheduled Downtime). In addition to Scheduled Downtime meeting the requirements of this Section, there may be events that from time to time will make the system inaccessible for a limited amount of time due to unforeseen software, hardware, network, power and/or Internet outages (“Unscheduled Downtime”).
8. Data Security And PCI Compliance:
8.1 The Company shall implement and maintain appropriate administrative, technical (including, without limitation, encryption and virus/spyware scanning) and physical safeguards, procedures and practices to (i) comply with the appropriate Payment Industry Data Security Standards (ii) ensure the security, confidentiality, integrity and authorization of all information transmitted electronically between the parties, and between Company and Users, however stored, retained, maintained, saved or held by Company (“Electronic Information”); (iii) protect against any anticipated threats or hazards to the security, confidentiality or integrity of Electronic Information; and (iv) protect against unauthorized use, destruction, modification or disclosure of Electronic Information. Company shall not retain credit card information of Users (except last four digit identifiers for transaction verification) after transmission of transactions to the credit card issuers.
8.2 Company shall immediately notify Subscribed users as soon as Company learns or reasonably suspects that the security, confidentiality or integrity of any Electronic Information has been compromised or that there has been an unauthorized use, destruction, modification or disclosure of any Electronic Information, and Company shall promptly take all actions required to stop and remedy any such incident.
9. Intellectual Property License and Warranty: Company hereby grants to the subscribed users a license to install and use the Mobile App and to sublicense its Users to install and use the Mobile App. The term “intellectual Property Rights” means all copyrights, patents, trademarks, trade secrets, proprietary rights and other intellectual property rights, including the right to grant a license in the form hereof. The Mobile App, together with all Software embedded therein, both the object code and source code, all Intellectual Property Rights therein, all Company Confidential Information contained therein or related thereto, together with all javascripts, domain names, materials in HTML or XML, design documents and testing scripts contained in or related to such Mobile App and Software is solely owned by Company. Company warrants that the rights granted herein do not infringe the Intellectual Property Rights of any third party. (Content created on the app shall also be the intellectual property of the Company)
10. Confidentiality and Non Disclosure:
10.1 Definition. For the purposes of this Agreement, the term “Confidential Information” shall include all information that is not known by, or generally available to the public at large and that concerns the business or affairs of Subscribed users, as well as any and all materials provided to Company by Subscribed users, including information concerning or resulting from research work performed by Subscribed users, information concerning Subscribed users financial condition, financial operations, purchasing activities, sales activities, marketing activities, and business plans, information acquired or compiled by Subscribed users concerning actual or potential distributors and customers, including, but not limited to, the names and addresses of the Subscribed users and customers buying/ engaging with the Subscribed users contents.
10.2 Obligations. Company will receive and hold the Confidential Information in confidence. Without limiting the generality of the foregoing, Company shall (except as expressly authorized by prior written consent of the other party):
10.2.1 limit access to Confidential Information to its employees who needto-know such information in connection with their work for the party.
10.2.2 advise those employees who have access to the Confidential Information of the proprietary nature of such information and of the obligations contained in this Agreement.
10.2.3 take appropriate action by agreement or instruction with the employees having access to the Confidential Information to fulfil the party’s obligations under this Agreement.
10.2.4 safeguard all of the Confidential Information by using a reasonable degree of care, but not less than that degree of care used by the party in safeguarding its own information or material.
10.2.5 use all of the Confidential Information solely for the purposes expressly intended.
10.2.6 not disclose any Confidential Information to third parties except to any Court, Statutory Authority and Government as and when directed to do the same.
10.3 Exclusions. The confidentiality obligations of Company shall not apply to Confidential Information which is:
10.3.1 In the possession of a party prior to its disclosure by the other party.
10.3.2 publicly disclosed by a party or otherwise a matter of public or general knowledge.
10.3.3 lawfully received by a party from a third party without restriction on 3 disclosure or use
10.3.4 required by law to be disclosed. In the event that Company is requested or compelled by court order, decree or Statute, or other process or requirement of law to disclose Confidential Information Company shall provide Subscribed users with prompt notice of any such disclosure requirement (unless such notice is prohibited by law) so that Subscribed users may, at its option and expense, seek a protective order or other appropriate remedy.
10.4 Company specifically acknowledges and agrees that a remedy at law for any breach of the foregoing obligations undertaken by Company will be inadequate and that Subscribed users will be entitled in the ease of a breach to temporary and permanent, injunctive relief without the necessity of proving actual damages. This remedy is in addition to any and all other remedies available to Subscribed users at law.
11. Trademark License: Subscribed users grants to Company a non-exclusive, royalty-free and revocable right to use the Subscribed users Trademarks in order to perform the Services. Subscribed users agrees to provide all such policies to Company.
12. Breach and Termination for Breach:
12.1 Material Breach. The Parties agree that any breach of one or more provisions of this Agreement that threatens to, or in fact causes the other Party substantial harm, is a material breach, including breach of the non-disclosure, confidentiality, or non-competition provisions by either Party.
12.2 Notice of Breach.
12.2.1 In the event of an actual or perceived material breach of this Agreement by either Party, the non-breaching Party shall give written notice in accordance with the provisions of this Agreement to the allegedly breaching Party of the alleged material breach, disclosing in reasonable detail the nature of the alleged breach. The allegedly breaching Party shall have ten business days to respond in writing either denying the breach or proposing a remedy for the breach.
12.2.2 If the allegedly breaching Party fails to respond in writing within the ten-day period, the non-breaching party may terminate the agreement without further notice.
12.2.3 If the allegedly breaching Party proposes a remedy for the breach, it shall have thirty days from the date of the notice of breach to complete the remedy. At the end of the thirty-day period, if the breach has not been reasonably remedied, the Agreement may be terminated by the non-breaching Party.
12.2.4 If the allegedly breaching Party denies the breach, then the Parties shall proceed in accordance with the dispute resolution provisions outlined below under the paragraph entitled “Disputes”. The notifying party may not terminate the Agreement unless permitted to do so by the Arbitrator.
12.3 Termination of Subscribers. Company may terminate any User for non-compliance with the terms of this Agreement and the User agreement. However, Company must obtain Subscribed users consent to terminate any User, which consent shall not be unreasonably withheld. Company will provide Subscribed users at least seven (7) days advance written notice of its intent to terminate any User for non-compliance. Company reserves the right to exercise all remedies allowed at law or in equity in regards to Users’ violation of the terms of this Agreement or abuse of the Mobile App.
13. Disputes:
13.1 Arbitration. All disputes, controversies, claims and differences arising out of, or relating to this Agreement, or any alleged or actual breach thereof, which cannot be settled through correspondence, mutual consultation, and negotiations between the Parties, shall be finally settled by arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement. Arbitration will be deemed to have commenced when one Party notifies the other in writing that it is demanding formal Arbitration.
13.2 Location. Arbitration proceedings shall be held in Delhi and Courts at Delhi shall have exclusive jurisdiction to try and entertain any legal proceedings related to the same.
13.3 Governing Law. This Agreement will be governed by the laws as applicable in India at the time of entering the present agreement.
13.4 Privacy: The Company respects the privacy of the subscribed users and shall try to maintain the same subject to the usual exceptions.
14. Miscellaneous:
14.1 Assignment. Neither Party may assign this Agreement to another person or entity without the written approval of the other Party.
14.2 Governing Law. This Agreement will be governed by the laws of India.
14.3 Independent Contractor. The Parties to this Agreement are independent contractors, and there is no relationship of agency, partnership, joint venture, employment or franchise between the Parties. Neither Party has the authority to bind the other or to incur any obligation on the others behalf.
14.4 Severability. If any term or provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such term shall be severed, and the remaining terms of this Agreement shall be interpreted in such a way as to give maximum validity and enforceability to this Agreement.
14.5 Notices. All payments shall be sent to the address Udaya Paradise Krishna Reddy Industrial Estate, Dooravani Nagar, Bengaluru, Karnataka 560016, and all notices and other communications hereunder shall be in writing and shall be deemed to have been duly given.
14.5.1 when delivered personally
14.5.2 when received by the addressee if sent by Post/ Courier, in each case to the other Party at the addresses listed below. The Company may change its official address by notice to the subscribed users.
14.6 Liability: No warranty of any kind, implied, expressed or statutory, including but not limited to the warranties of non-infringement of third party rights, title, merchantability, fitness for a particular purpose and freedom from computer virus, is given with respect to the contents available through the App or its links to other internet resources as may be available to the subscribed users through the App. Reference in the App to any specific commercial products, processes, or services, or the use of any trade, firm or corporation name is for the information and convenience of the users, and does not constitute endorsement, recommendation, or favoring the same.
14.7 VIOLATION OF COMMUNITY GUIDELINES: In case it is reported by any user that content may violate Community Guidelines, the same shall be considered by the Company on a case to case basis. The same shall be reviewed internally and the company will work as quickly and as efficiently as possible to remove the content that does not meet Community Guidelines, or take actions appropriate for such content after review.