Introduction

1.1 This Terms of Use (the “TOU”) between you and Digitalkites, a Way2online India Private limited (Way2online) strategic business unit (here after referred as ‘’Digitalkites’’ governs your use of AudiencePlay website and related AudiencePlay software and services (collectively the “Services”)

1.2. This Agreement supersedes and replaces any other previous agreement between the parties relating to the use of Client’s Audience Data. All capitalized terms not otherwise defined herein shall have the meaning given thereto in the Terms.

Background. As part of AudiencePlay offering, DigitalKites offers the ability to collect data, segment it and use these segments for targeting and monetization. DigitalKites may choose to aggregate this data without other data sources in order to provide onboarding, targeting, enrichment solutions etc. to brands and thus attempting to maximize the revenue opportunity for the client. By signing up with AudiencePlay it is implicitly understood that Client has Audience Data that it wishes to monetize and/or activate, and Digitalkites wishes to process and use such Audience Data for the provision of Data Services under the terms and conditions of this Agreement. Digitalkites aggregates data from multiple Clients and connects with the offline data of customers across different business verticals (“Customer(s)”). In case the same type of data from more than one Client is available, Digitalkites selects which Client’s Audience Data is used on a case by case basis taking into consideration market demand, data scale, fidelity, recency and other relevant factors.

Term. This Agreement shall commence on the date of the last signature below (“Effective Date”) and, subject to earlier termination as provided in the Terms, continue in full force for an initial period of 12 months after which it shall automatically renew for successive 12-month periods (each a “Renewal Term”), unless Client or Digitalkites provides written notice 60 days prior to expiration of the respective term.

Audience Data. Data provider is free to pass data in using various methods outlined within the portal such as Javascript SDK File upload and so on. Any data passed in by the data provider is considered as mutually agreed and covered as part of this agreement

Reporting. Digitalkites shall prepare and provide Client with reports documenting the use of Audience Data and the resulting Net Data Revenue generated through such use. Reports are to be provided within 60 workdays after the end of each calendar month. Such reports shall include at least: (i) the Net Data Revenue amount; (ii) the period during which Audience Data has been used; (iii) and purposes for which Audience Data has been used. In the event Digitalkites is unable to acquire the usage information from a participating Customer in a timely manner, an initial usage report may be provided with subsequent reporting provided when available. Furthermore, Digitalkites shall provide Client with real-time access to additional usage data regarding Audience Data and related metrics to the extent regularly generated by Digitalkites, whether through access to a dashboard, by provision of reports or other reasonable means. Client will have the right to retain and use all such data and information both during and after expiration or termination of this Agreement to the extent such data or information does not include confidential or proprietary information of Digitalkites.

Client Agreement: Terms

Definitions

All capitalized terms not otherwise defined shall have the meaning given in the Client Agreement to which these Terms are attached.

“Affiliate” means, with respect to either party, that party and its subsidiaries, holding/parent companies as well as subsidiaries of its holding/parent companies. For the avoidance of doubt and notwithstanding anything to the contrary, Way2Online Interactive India Private Limited and its strategic business units.

“Applicable Laws” means the legislation as well as the enactment or orders of any competent government body that are applicable to the parties; in particular, any applicable law relating to the processing, privacy, and use of Personal Data, as applicable to Digitalkites and/or to Client including, without limitation(i) any corresponding national Laws regarding data protection; (ii) any judicial or administrative interpretation of such laws, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority; (iii) any other applicable laws, rules, and regulations, including, without limitation, industry self-regulations.

“Audience Data” means certain data owned / controlled by Client of the type specifically described in Exhibit A that Client provides to Digitalkites to carry out Digitalkites’s Processing Activities for the monetization purposes hereunder.

“Confidential Information” means any of the parties’ or parties’ affiliates’ proprietary information, technical data, trade secrets or know-how, including, but not limited to research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, costs, pricing, pricing methodology or other business information.

“Customer” means a third party Digitalkites customer such as advertiser, publisher or any another company utilizing user data to enhance services provided to their clients that obtains Data Services, or the clients themselves for any uses permitted hereunder.

“Data Attribute” means an Audience Data attribute corresponding to one or more data categories.

“Data Services” means services that Digitalkites provides or intends to provide to Customers using Digitalkites’s proprietary technology and Audience Data, such as data onboarding, data matching and activation or similar services for companies in other industries (e.g. financial and insurances services).

“Force Majeure” means any event beyond the reasonable control of either party including, among other things, unpredictable adverse weather conditions, war, acts of God, acts of terrorism, floods, earthquakes or civil disturbance (but excluding labor disputes, strikes, industrial action or lockouts by the Party seeking to rely on Force Majeure).

“Intellectual Property” means any rights in or in relation to any patent, copyright, database rights in relation to software, utility model, trade mark (whether registered or not), brand name, service mark, trade secrets and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and existing anywhere in the world.

“Launch Date” means the later of (i) the date on which Digitalkites starts monetizing Audience Data by providing Data Services, or (ii) the date as may be agreed in the applicable Exhibit A.

“Processing Activities” means transfer, transformation, encryption, aggregation and/or any other processing activity with respect to Audience Data and Third Party Data necessary for the provision of Data Services.

“Rendering Pseudonymous” means replacing unique identifying characteristics of an individual in a Profile, such as a name or phone number, with a non-personal data label, such as a hashed number, in order to preclude identification of the individual or to render such identification impossible without a disproportionate amount of effort.

“Security Breach” means any security breach relating to (i) any Personal Data elements contained in Audience Data leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Audience Data; or (ii) Audience Data, other than any Personal Data elements within it, reasonably determined by either Party to be sufficiently serious or substantial to give rise to a material risk of litigation by the individuals whose Data is the subject of the breach.

“Sensitive Personal Data” means data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic or biometric data uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation or other categories of information designated as sensitive under Applicable Laws.

“Subcontractor” means any third-party company that Digitalkites would engage to provide the Data Services as defined under this Agreement.

“Third party data” means the offline data received by Digitalkites from a customer, which may be combined or incorporated with the Audience Data and processed by Digitalkites, for the purposes of the Data Services.

The terms “Personal Data,” “Data Subject,” “Data Controller,” “Data Processor,” “Data Protection Impact Assessment,” “Supervisory Authority” have the meaning as defined in the Applicable Laws.

License Grant to Audience Data

Client hereby grants Digitalkites all rights necessary to allow Digitalkites to provide Data Services including, for the term of this Agreement, a non-exclusive, sub-licensable, non-revocable (except as set forth in the termination provisions), worldwide license to access, process and use Audience Data, including the rights to: (i) collect, receive, assemble, compile, analyze, modify and transform Audience Data; (ii) associate, match and combine Audience Data with other offline data, which includes Third Party Data; (iii) transmit and distribute Audience Data to Customers as necessary for the provision of Data Services.

License Grant to Audience Data

Client hereby grants Digitalkites all rights necessary to allow Digitalkites to provide Data Services including, for the term of this Agreement, a non-exclusive, sub-licensable, non-revocable (except as set forth in the termination provisions), worldwide license to access, process and use Audience Data, including the rights to: (i) collect, receive, assemble, compile, analyze, modify and transform Audience Data; (ii) associate, match and combine Audience Data with other offline data, which includes Third Party Data; (iii) transmit and distribute Audience Data to Customers as necessary for the provision of Data Services.

Data Services

Digitalkites aggregates Audience Data from multiple Clients and performs Processing Activities to onboard the offline data from customers.

Digitalkites shares anonymous data with Digitalkites Customers within and outside India for the purposes of the provision of Data Services.

In the event that there is a change in Applicable Laws that would, in the reasonable opinion of Digitalkites, require changes to the Processing Activities, Digitalkites reserves the right to make such changes.

Client agrees that Digitalkites may add any Data Service not yet described as part of this Agreement but similar to Data Services already provided. The specifics of any offered additional service may be agreed between the parties in writing as an addendum of this Agreement.

Audience Data Provision

Client shall render Digitalkites reasonable assistance to ensure the provision / access to and use of the required Audience Data hereunder.

Client shall provide updates of Audience Data on a regular basis with the frequency as may be separately agreed by the parties.

Client shall ensure that Audience Data or any other information provided to Digitalkites does not include or contain, or will not include or contain, any viruses, “trojan horses” or other harmful code of any kind or nature whatsoever.

Client shall render any Personal Data being part of the shared Audience Data pseudonymous in such a way that Digitalkites is in no position to determine Data Subjects behind the provided data without a disproportionate amount of effort. Client shall not provide any Personal Data to Digitalkites before it is rendered pseudonymous to Digitalkites’s reasonable satisfaction. Furthermore, Client shall not provide any data that should not be provided according to the Applicable Laws.

Each party will bear its own costs in connection with the provision and processing of Audience Data. All required technical measures are to be completed by the Launch Date set forth in the applicable Exhibit A or as may be agreed separately.

Contractual and Regulatory Compliance

Client shall ensure that the disclosure, transfer of Audience Data to and the use of Audience Data by Digitalkites for the provision of Data Services do not infringe any Applicable Laws and are not in breach of Client’s contractual obligations toward third parties. Specifically, Client ensures that it lawfully acquired/generated Audience Data and it has any and all appropriate licenses, registrations and consents under Applicable Laws and applicable self-regulatory rules required to allow Client and Digitalkites to legitimately process Audience Data as described hereunder. If required by Applicable Laws, Client shall conduct a data protection impact assessment, taking into account the type of Processing Activities, context and purposes of the processing to assess whether the use of Audience Data hereunder is likely to result in a high risk to the rights and freedoms of Data Subjects. Upon Digitalkites’s request, Client shall promptly provide to Digitalkites the documented results of such assessment.

The parties agree and acknowledge that both Digitalkites and Client are acting as Data Controllers with respect to Audience Data and shall comply with Applicable Laws. Either Party independently determines the purposes and means of the processing of Audience Data subject to the restrictions in the Agreement and nothing contained in the Agreement shall be deemed to constitute the Parties as Joint Controllers.

Digitalkites may refuse to receive and use any Audience Data if it reasonably believes that such processing of Audience Data may infringe Applicable Laws, pose a risk of liability or harm to Data Subjects, Digitalkites, any of Digitalkites’s agents or Customers. Client shall modify the provision of Audience Data as soon as possible to make it compliant and eliminate the risk of liability and harm.

Transparency and Data Subject Choice

Client shall provide the Data Subject with sufficient notice including information regarding the purposes for which Audience Data is collected and processed and the legal basis for the processing. In particular, Client shall ensure that all Data Subjects are properly informed about Digitalkites´s Processing Activities. If Client does not collect Data directly from Data Subjects, Client shall ensure that third parties it obtains Data from provide sufficient notice subject to Applicable Laws and requirements substantially similar to the ones hereunder at the time data is collected from the Data Subject.

Either party shall maintain an easily accessible, up to date privacy policy that complies with Applicable Laws. Specifically, Client’s privacy policy must (i) describe the fact that Data is shared with Digitalkites for marketing and other purposes as necessary for the provision of Data Services and the relevant Processing Activities of Digitalkites, (ii) provide an easy mechanism to enable Data Subjects to opt - out from the collection, use and processing of their Personal Data, and (iii) fulfil any other criteria under Applicable Laws. Whenever technically feasible, Client shall include in its privacy policy the following link to Digitalkites´s privacy policies (http://digitalkites.com/privacy-policy)

Subject to section 9 below, Client shall inform the Data Subjects that any of the Processing Activities of Personal Data of Data Subjects may take place outside India as per the engagement of affiliates.

Client shall ensure that, before providing Audience Data to Digitalkites, Client has obtained the valid consent of all Data Subjects for processing of Audience Data as far as and in the way required by Applicable Laws. Client shall document and maintain records of the obtained consents for processing as required by the Applicable Laws. If Client does not collect Audience Data directly from Data Subjects, Client shall ensure that third parties it obtains Audience Data from comply with substantially similar requirements as described in this clause.

Data Subject Requests

Client shall ensure that Data Subjects are granted an easy and available at any time mechanism to opt out, to ask for access, rectification, erasure, restriction, portability or to exercise any other rights under Applicable Laws with respect to their Personal Data (“Data Subject Requests”). Where applicable, Data Subjects shall be provided with a clear and unambiguous option to opt out of interest-based advertising.

The Parties will cooperate with each other in the fulfillment of their respective obligations related to Data Subject Requests. If either Party receives a Data Subject Request that it has no ability to handle, such Party shall inform the other Party, and the other Party shall use commercially reasonable efforts to facilitate necessary actions to the extent it is permitted under Data Protection Laws.

Digitalkites will promptly address any Data Subject Requests addressed to Digitalkites. Digitalkites will erase the Data in case Data Subjects submit their Ad ID for the deletion of the associated Data.

If in compliance with a Data Subject Request Client was required to rectify, erase, stop or restrict the processing of Data, Client shall promptly notify and assist Digitalkites to rectify, erase, stop or restrict the processing of Data of the respective Data Subjects. This shall not affect the lawfulness of the processing activities, if any, conducted before the respective Data Subject Requests. Digitalkites imposes similar obligations on its Customers.

Information Security

Each party agrees that it shall handle all Audience Data with utmost care. Taking into account the nature of and risks associated with the type of Audience Data shared or used in connection with the Processing Activities, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it), each party shall have in place appropriate technical and organizational measures to protect the Audience Data including (i) implementing and maintaining industry standard organizational and information security measures; and (ii) effectively restricting access to Audience Data only to authorized users on a need to know basis (“Authorized Users”). 

In case of a Security Breach that is likely to result in a risk to the rights and freedoms of Data Subjects, either party shall without undue delay on becoming aware, notify the other party of the Security Breach. Each party shall promptly provide all information in its possession including: (i) the possible cause of the Security Breach; (ii) the categories of Personal Data involved; (iii) the likely consequences of the Security Breach; (iv) any measures taken to mitigate any damage from the Security Breach, provided that, (without prejudice to the above obligations) if the party cannot provide all these details, it shall provide the other Party with reasons for the delay and when it expects to be able to provide the relevant details.

Either Party shall ensure that any Authorized Users it makes Audience Data available to as permitted herein are subject to the security and privacy obligations substantially similar to the obligations in this section.

International Data Transfers

When Digitalkites transfers any hashed Personal Data outside of India, Digitalkites will ensure that (i) appropriate safeguards are provided in relation to the transfer; (ii) the Data Subject whose Personal Data is processed for purposes of the Data Services have enforceable rights and effective legal remedies; (iii) it complies with its obligations under Applicable Laws by providing an adequate level of protection to any Personal Data that is transferred.

Cooperation and Audit

Either party shall appoint a data protection officer if required by Applicable Laws or another contact person with respect to data protection issues in connection with the Agreement. Client shall promptly notify such contact person along with respective contact details to the other party.

Client will cooperate fully with any reasonable request for information from Digitalkites or Customers related to the collection, use and processing of Data. Either party will inform the other party if, in such party’s reasonable opinion, the other party infringes Applicable Laws. Nothing herein constitutes an obligation of either party to provide legal advice to the other party.

To the extent permitted by law, either party shall promptly notify the other party if it receives notice of any claim or complaint in connection with Applicable Laws by any Data Subject or Supervisory Authority in relation to Personal Data processed in connection the Agreement. Upon reasonable notice, either party shall assist and support the other party in the event of an investigation by a Supervisory Authority, if and to the extent that the investigation relates to the use of Audience Data hereunder. Nothing herein will require the parties to disclose any information that is not linked with the fulfillment of the obligations under the Agreement.

Intellectual Property Rights

Each party shall remain the sole owner of its respective Intellectual Property Rights.

Digitalkites may use Audience Data for the purposes of developing statistical and analytical models. Unless otherwise agreed, Digitalkites shall own all right, title and interest in and to all Intellectual Property developed by Digitalkites during the term of the Agreement, including, but not limited to, such statistical and analytical models. Without prejudice to the Client’s rights to the Audience Data, Digitalkites shall own all right, title and interest in and to all Intellectual Property arising from the application of such models, such as derivative databases created by Digitalkites, and such Intellectual Property shall not be deemed to constitute Audience Data.

Digitalkites may use know-how acquired, principles learned or developed or experience gained during the performance of its obligations for its own purposes. Nothing in this Agreement, unless stated otherwise, shall be implied or construed as an assignment of any Intellectual Property belonging to either party. Client undertakes not to copy, alter, adapt, translate, develop, decompile, license, sub-license, reverse engineer, create derivative works from or resell any documentation, software and materials produced by Digitalkites, unless expressly authorized in writing to do so by Digitalkites or by relevant law.

For the avoidance of doubt, this Agreement and any documentation created and shared by Digitalkites with Client hereunder constitute Intellectual Property owned by Digitalkites and shall not be distributed to any third party without the express prior written authorization of Digitalkites nor to any party which has not executed a non-disclosure agreement in a form reasonably acceptable to both parties (except to the extent falling within any of the exclusions in clause 13.2 below).

Neither Digitalkites nor Client shall infringe, misappropriate, dilute or otherwise violate Intellectual Property of a third party. In the event any claim or dispute arises in relation to the Intellectual Property utilized for the purposes of this Agreement, Digitalkites will take reasonable steps to modify its technology and related Data Services to make them non-infringing, while not degrading performance or functionality in any respect.

Confidentiality

For the purposes of this section 13, the party or its Affiliates disclosing the Confidential Information is referred to as the “disclosing party” and the party receiving the Confidential Information is referred to as the "receiving party.”

Confidential Information does not include information:

that is known to the receiving party at the time of disclosure, as evidenced by written records of the receiving party;

that has become publicly known and made generally available through no wrongful act of either party;

that is identified by the disclosing party in writing as no longer proprietary or confidential;

that is independently developed by the receiving party without use or reference to the Confidential Information of disclosing party;

to the extent it is required to be disclosed pursuant to a court order or applicable law, provided (to the extent permitted by law) prior written notice is given to disclosing party of such required disclosure to the extent legally practicable; or

that has been rightfully received (not under conditions of confidentiality) by the receiving party from a third party who is authorized to make such disclosure.

The exceptions in clause 13.2 above shall not apply to Personal Data.

The parties shall hold each other’s Confidential Information in confidence, exercising the same degree of care as with respect to their own confidential information, but in no event less than a reasonable degree of care. The parties shall not use each other’s Confidential Information for any purpose whatsoever other than as specified in the Agreement to perform their respective obligation hereunder.

Both parties agree to maintain the confidentiality of all Confidential Information disclosed to such parties by the other party or its respective Affiliates in the pursuit of the Agreement and to not disclose, publish or pass on such Confidential Information to third parties in direct or indirect form unless expressly authorized in advance in writing by the disclosing party. Notwithstanding the above, receiving party is permitted to disclose Confidential Information to (i) receiving party’s employees, consultants and Affiliates with a need to know for purposes of this Agreement, and (ii) receiving party’s legal advisors, financial advisors, investors and bankers (to the limited extent of enabling such advisors to provide services to the receiving party), provided such personnel, Affiliates, advisors, investors and bankers are bound by obligations of confidentiality with respect to such Confidential Information at least as protective as those contained herein). Receiving party remains responsible to the disclosing party for actions or omissions of the third parties it made Confidential Information available to.

Notwithstanding the above, to the extent Digitalkites contracts with Subcontractors, Client agrees that Digitalkites may disclose certain Confidential Information to such Subcontractors to the extent such disclosure is required for the monetization of Audience Data provided that such Subcontractors are bound by obligations of confidentiality with respect to such Confidential Information at least as protective as those contained herein (and receiving party remains liable to disclosing party for such Subcontractors’ compliance with such confidentiality terms).

Upon request of the disclosing party and upon termination of this Agreement, each party shall, at the option of the disclosing party, promptly return or destroy all of the Confidential Information in its possession or control relating to the other party, and provide to the other party an officer’s certification within thirty (30) days thereafter stating that such return or destruction has been completed.

The confidentiality obligations under this section 13 apply to all Confidential Information disclosed prior or during the term of the Agreement and shall remain in force after the termination of the Agreement.

For the avoidance of doubt, the terms of this Agreement and the fact the negotiations are taking place between the parties are deemed Confidential Information of both parties.

Term and Termination

This Agreement shall commence on the Effective Date and shall continue for the agreed Initial and Renewal Term(s) unless terminated earlier under the terms of the Agreement.

Either party may terminate the Agreement for cause:

if the other party materially breaches any of its obligations hereunder and such breach remains not rectified for a period of 30 (thirty) days after the date the non-breaching party provides written notice of such breach; or

if a competent public authority instructs the respective party in writing to terminate this Agreement, or Client’s licenses or registrations mentioned in clause 5.1 issued to Client are cancelled or revoked.

Either party may decide not to renew the Agreement by giving 60 days’ written notice prior to the expiration of the respective Initial or Renewal Term.

Either party may terminate this Agreement for convenience (with or without cause), at any time upon sixty (60) days’ prior written notice to the other party.

Either party may terminate the Agreement if Client becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, has a trustee or receiver appointed for it, becomes the subject of any voluntary or involuntary insolvency or dissolution, bankruptcy or reorganization proceeding, which, in the case of any involuntary proceeding, is not dismissed within 60 (sixty) days’ after it is commenced, or discontinues its business.

Termination of the Agreement howsoever arising shall be without prejudice to any accrued rights and remedies of either party and any rights or obligations that would by their nature or context be intended to survive the expiration or termination of Agreement, including obligations with respect to confidentiality, Intellectual Property rights, Governing Law and Jurisdiction.

Upon any expiration or termination of this Agreement, all licenses to Audience Data hereunder shall terminate, and Digitalkites shall cease using and distributing Audience Data, except that Customers that have already received Audience Data prior to such expiration or termination may continue to retain and use such Audience Data, consistent with this Agreement and in accordance with the applicable agreements between Digitalkites and such Customer (such as to complete advertising campaigns running at the date of the termination). Subject to the above, Digitalkites establishes internal rules related to the retention, review and deletion of Audience Data and shall contractually obligate Customers to comply with a reasonable storage period and deletion obligations (unless longer storage period of any data is required by the Applicable Laws).

Liability and Disclaimers

To the maximum extent permitted by law, subject to clause 16.2 below, under no circumstances shall either party be liable, whether in contract, tort (including negligence), or breach of a statutory duty, or in any other way for any of the following losses or damage, howsoever caused and whether such losses or damage were foreseen, foreseeable, known or otherwise: (i) loss of revenue; (ii) loss of actual or anticipated profits; (iii) loss of the use of money; (iv) loss of anticipated savings; (v) loss of business; (vi) loss of opportunity; (vii) loss of goodwill; (viii) loss of reputation; (ix) loss of contracts; (x) advertising costs incurred to restrict damage caused to the other party or the other party´s Affiliate’s goodwill or reputation; (xi) any indirect, special or consequential loss or damages of any kind.

Nothing in this section excludes or limits either party’s liability for: (i) fraud, fraudulent misrepresentation or gross negligence, (ii) breach of section 13 (Confidentiality), (iii) obligations under section 17 (Indemnity), (iv) payment of sums properly due and owing to the other in the course of normal performance of the Agreement, (v) matters that cannot be excluded or limited under applicable law).

The affected party shall promptly, and in any case within 3 days or as soon as reasonably possible, notify the other party of the nature and anticipated duration of a Force Majeure event and thereupon shall be excused from performing such obligation for so long as the event of Force Majeure continues and shall use all reasonable endeavors to resume performance of the obligation as soon as reasonably possible. The corresponding obligation of the party not affected by Force Majeure shall be suspended to the same extent as those of the party first affected by such Force Majeure event.

If any Force Majeure event lasts for a period exceeding 90 (ninety) days, and the parties fail to mutually agree as to the way forward within such time period, then either party may terminate the Agreement by written notice to the other party, unless otherwise agreed in writing.

Indemnity

Digitalkites hereby agrees to indemnify, defend, and hold Client harmless from all claims, actions, suits and proceedings brought by a third party (“Claims”) against Client, along with any directly resulting losses, expenses, damages, costs (including, without limitation, reasonable attorneys’ fees) or liabilities from such Claim, which Claim arises out of Digitalkites’s infringement of a third party’s Intellectual Property.

Client hereby agrees to indemnify, defend, and hold Digitalkites harmless from all Claims brought against Digitalkites, its Affiliates, agents and representatives, along with any directly resulting losses, expenses, damages, costs (including, without limitation, reasonable attorneys’ fees and administrative fines) or liabilities from such Claim, which claim arises out of Client’ alleged breach of any term, condition, representation or warranty under this Agreement, including but not limited to any claims by Data Subjects regarding collection, processing, transfer and/or use of Audience Data.

The above indemnification obligations are conditioned upon the party seeking indemnification hereunder providing the indemnifying party with (i) prompt written notice of the Claim for which it is seeking indemnification; (ii) sole authority to defend or settle the Claim; and (iii) reasonable cooperation and assistance in connection with the defense and settlement of the Claim at the indemnifying party’s expense. Any settlements shall be subject to the indemnified party’s prior consent, not to be unreasonably withheld.

Notices

Notices between Digitalkites and Client shall be in writing and shall be transmitted by hand or by registered or recorded delivery post or by email to the address of the party as stated on page 1 of the Platform Agreement or as otherwise notified. Notice shall be deemed to be effective the same day when transmitted by hand; within seven (7) days when transmitted by registered or recorded delivery post. Notices sent by email will be deemed to be effective on the date of confirmed electronic read receipt by the authorized recipient; or upon the date of response or acknowledgement of receipt by the recipient.

Publicity

Notwithstanding anything to the contrary, Client grants Digitalkites and its Affiliates the right to use Client’s name and/or logo for the purposes of promoting the partnership in marketing and sales materials, including the Digitalkites website and press communications.

Client may use and disclose Digitalkites’s name and trademark in its commercial materials with Digitalkites’s prior written consent (email sufficient).

Assignment and Subcontracting

Neither party may transfer any of its rights or obligations under the Agreement without the prior written consent of the other party, except that a party may assign the Agreement as a whole without consent to an Affiliate, in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of such party or all or substantially all of its assets related to this Agreement.

Client agrees that Digitalkites may engage Subcontractors for the processing of Audience Data within and outside India. In particular, Client agrees that Digitalkites Affiliates, may perform certain Digitalkites’s obligations under this Agreement and/or receive access to the Audience Data, in each case solely on Digitalkites’s behalf. Digitalkites shall remain fully liable for all acts and omissions of, and any breaches of this Agreement by its Affiliates.

Successors

This Agreement inures to the benefit of and binds Client and Digitalkites, and each of Client’s and Digitalkites’s respective heirs, executors, administrators, successors and permitted assigns, as applicable.

Independent Contractors

The parties are independent contractors for all purposes under this Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

Governing Law and Jurisdiction

The Agreement shall be interpreted, construed and governed in accordance with laws of India.

The parties submit to the exclusive jurisdiction of the competent court of the city of Hyderabad, India. The parties hereby irrevocably waive any objection to the choice of the competent court on the grounds of venue or forum non conveniens or similar grounds.

Miscellaneous

Any obligations hereunder are in addition to, and do not relieve, remove or replace, a party’s obligations under Applicable Laws.

The parties hereby acknowledge that the state of the law with respect to behavioral advertising, mobile targeted advertising, cookies, and Personal Data regarding, but not limited to, the collection and use of Audience Data, or other activities as contemplated hereunder is in flux. Should any change in Applicable Laws render Data Services, Processing Activities or any other activities contemplated hereunder, non-compliant with Applicable Laws, the parties shall work together to modify the provision of Audience Data, amend this Agreement or take such other steps to remain compliant with Applicable Laws.

Each of the provisions of the Agreement is distinct and severable from the others. If at any time one or more of those provisions is or becomes invalid or unenforceable (whether wholly or partly), the validity and enforceability of the remaining provisions (or the same provision to any other extent) shall not be affected or impaired in any way. If any provision of the Agreement is adjudged by any court of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent possible and necessary to preserve the original intentions of the parties, and the validity or enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties will cooperate to review this Agreement or/and enter additional agreements as reasonably required to be complaint with the Applicable Laws. No waiver shall be deemed a waiver of any prior or subsequent default hereunder.

This Agreement, together with all of its exhibits and attachments, constitutes the entire agreement of the parties with regard to the subject matter hereof, and may only be amended by a writing executed and dated by both parties.

Sections 12 (Intellectual Property Rights), 13 (Confidentiality), 16 (Liability), 17 (Indemnity) and 25 (Miscellaneous) will survive the termination or expiration of this Agreement. Expiration or termination of this Agreement will not relieve either party of any obligation accruing prior to such expiration or termination.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both together shall be deemed to be one and the same Agreement. Facsimile signatures shall be accepted.

In case if you have queries, write to legal@digitalkites.com