The parties hereto wish to explore various business possibilities (the “Purpose”) under which each may disclose its Confidential Information to the other. Each party hereto (individually a “Party” and together, the “Parties”) has requested and/or will learn from the other Party, its subsidiaries or affiliates (collectively, the “Disclosing Party”), from or through the Disclosing Party’s employees, officers, directors, independent contractors, agents or representatives, confidential and proprietary information of the Disclosing Party, in written, graphic, oral, electronic, web‐based or other form (as now known or later developed), including, but not limited to, business plans and proposals, projections, financial, sales and marketing information, marketing plans and studies, proposed and actual pricing information, anticipated products or services, specifications, flow charts, databases, computer programs, drawings, schematics, know‐how, models, mock‐ups, customer lists, customer addresses, customer health information and any other personal or proprietary customer data or information, products and services provided to specific customers, sales volumes, employee information, equipment specifications, locations and use, network configurations, current or prospective relationship with vendors and independent contractors (including, without limitation, information regarding the types of products and services contracted for and the cost of such products and services to the Disclosing Party), any information concerning any publication, product, technology, procedure or service under development by the Disclosing Party, and any other information or materials that has been designated orally or in writing as confidential or proprietary (collectively, “Confidential Information”). The Parties also hereby agree that Confidential Information includes information that is not specifically encompassed in the definition thereof above, but
that, due to legends, the nature of such information, or the circumstances of its disclosure, is reasonably understood to be confidential by the receiving Party (the “Receiving Party”). The Parties further agree that Confidential Information also includes information with respect to Axismobi (Tagjoy Consultants Pvt. Ltd. and Pearlmirror Innovation Pte. Ltd.) and their subsidiaries and affiliates and all copies, summaries and extracts of any Confidential Information. Finally, the Parties agree that Confidential Information also includes any Confidential Information that was disclosed in connection with the Purpose prior, to the execution and delivery of this Agreement.
Use of Confidential Information.
The Receiving Party shall use the Confidential Information solely for the Purpose and shall not exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the Disclosing Party.
Except as expressly authorized in this Agreement or as required by law, the Receiving Party agrees to hold in confidence and not to disclose, copy, reproduce and distribute to anyone for any reason any Confidential Information of the Disclosing Party; provided, however, that (a) such Confidential Information may be disclosed to the officers, directors, employees, agents, or contractors, or legal representatives (collectively, “Representatives”) of the Receiving Party on a “need to know” basis for the purpose of evaluating a potential transaction between the Parties or in connection with a business relationship which is or may be established between the Parties, on the condition that (i) each such Representative will be informed of the confidential nature of such Confidential Information and will agree to be bound by the terms of this Agreement and not to disclose such Confidential Information to any other person, and (ii) each Party agrees to accept full responsibility for any breach of this Agreement by that Party’s Representatives; and (b) Confidential Information of the Disclosing Party may be disclosed by the Receiving Party upon the prior written consent of the Disclosing Party.
The Receiving Party agrees that it will take all reasonable steps to protect the secrecy of, and avoid disclosure or use of, Confidential Information of the Disclosing Party in order to prevent it from falling into public domain or the possession of unauthorized persons.
The Receiving Party agrees not to remove any copyright notice, trademark notice and/or other proprietary legend or indication of confidentiality set forth on or contained in any Confidential Information. Each Party agrees promptly to notify the other in writing of any misuse or misappropriation of such Confidential Information of the other which may come to its attention.
Exceptions. The term “Confidential Information” does not include any information which is or becomes generally available to or known by the public (other than as a result of a wrongful disclosure directly or indirectly by the Receiving Party)
Is independently developed by the Receiving Party without breach of this Agreement (and without use of other Confidential Information of the Disclosing Party)
Is lawfully received by the Receiving Party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation and had no obligation to refrain from disclosing it.
Is disclosed by the Receiving Party pursuant to applicable laws or regulations, provided that the Receiving Party shall use all reasonable efforts to notify the Disclosing Party prior to any disclosure of that Party’s Confidential Information and allow the Disclosing Party the opportunity to contest and avoid such disclosure, and further provided that the Receiving Party shall disclose only the portion of such information that it is legally required to disclose and shall use all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the information.
Return or Destruction of Confidential Information. The Receiving Party agrees, upon termination or expiration of this Agreement or otherwise upon the written request of the Disclosing Party, to promptly deliver within three (3) working days to the Disclosing Party (or, with the Disclosing Party’s consent, destroy by shredding or incinerating) the originals and all
copies of the Disclosing Party’s Confidential Information then in the Receiving Party’s or any of its Representatives’ possession or control. Any destruction of Confidential Information will be certified in writing to the Disclosing Party by an authorized officer of the Receiving Party supervising such destruction. This provision shall not apply to any Confidential Information that constitutes a product or deliverable licensed or assigned by the Disclosing Party to the Receiving Party pursuant to a separate agreement between the Parties, and the terms of any such agreement shall control the return of such product or deliverable.
Ownership of Confidential Information. The Receiving Party acknowledges that the Disclosing Party claims the Confidential Information as its sole and exclusive property (or that the Disclosing Party is a valid licensee of such information) and that the Receiving Party shall not have any right, title, or interest in or to such Confidential Information except as expressly provided in this Agreement or a separate written agreement between the Parties. Except as expressly provided herein, nothing in this Agreement shall grant the Receiving Party any intellectual property rights or license in or to any portion of the Confidential Information provided by the Disclosing Party.
No Press Releases. Neither Party shall make any press release or other public statements regarding or mentioning the other Party, the purpose or this agreement without the prior written consent of the other Party.
No Obligation to Proceed. Each Party reserves the right to terminate at any time any discussions regarding potential transactions between the Parties. Unless and until a definitive agreement, if any, concerning potential transactions has been executed and delivered by the Parties, neither Party shall have any obligation to the other Party with respect to such potential transactions except as specifically provided herein.
Warranty. Each party warrants that it has the right to disclose the Confidential Information under his Agreement. EXCEPT FOR THE FOREGOING, NEITHER PARTY MAKES ANY OTHER WARRANTY UNDER THIS AGREEMENT, AND ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS” WITH ALL FAULTS AND SAVE AS EXPRESSLY SET OUT IN THIS AGREEMENT NEITHER PARTY SHALL OWE ANY DUTY OF CARE TO NEITHER THE OTHER PARTY NOR ANY OTHER PERSON. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION SAVE THAT THIS CLAUSE WILL NOT EXCLUDE ANY LAIBILITY FOR OR REMEDY IN RESPECT OF FRAUDULENT MISREPRESENTATION.
Term. This Agreement shall remain in effect so long as the Parties continue to exchange Confidential Information, provided that either Party may terminate this Agreement at any time upon thirty (30) days prior written notice to the other Party. Upon any expiration or other termination of this Agreement for any reason, each Party’s obligations with respect to Confidential Information received prior to such expiration or termination shall continue for a period of five (5) years after the date of such termination.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of Singapore and/or India and the parties submit to the exclusive jurisdiction of the court of Singapore and/or India.
Remedies. Each Party agrees that its obligations hereunder are necessary and reasonable in order to protect the other Party and the other Party’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of this Agreement. Accordingly, each Party agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other Party, and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other Party shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or continuation of any such breach, without the necessity of proving actual damages. In the event of any legal proceeding between the Parties arising out of or related to this Agreement, the prevailing Party shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’s fees) incurred in any such proceeding.
Counterparts. This Agreement may be executed in one or more counterparts, each of which for all purposes shall be deemed to be an original, and all of which when taken together shall constitute but one and the same instrument.
Miscellaneous. The Parties agree that this Agreement shall be binding upon the successors and permitted assigns of such Party and shall inure to the benefit of, and be enforceable by, such successors and assigns, and any officers or directors thereof. The Parties agree that a Party’s failure at any time to require performance of any provision of this Agreement shall in no way affect such Party’s right at a later time to enforce the same, unless the Party waives such right in writing. No waiver by a Party of a breach of a term contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of such breach of any other term of this Agreement. In construing the terms of this Agreement, no presumption shall operate in either party’s favor as a result of its or its counsel’s role in drafting the terms or provisions hereof.
Entire Agreement. This Agreement supercedes all prior agreements, written or oral, between the parties relating to the subject matter of this Agreement.
This Agreement shall not be assignable or transferable without the prior written consent of the other party.
All additions or modifications to this Agreement must be made in writing and must be signed by both parties.
Axismobi Standard Terms and Conditions
This terms and conditions and any Insertion Order, whether expressly provided herein or incorporated by reference (collectively, the ‘Agreement’) constitute the entire and exclusive agreement between Tagjoy Consultants Private Limited (hereinafter referred to as ‘Axismobi’ or ‘Advertiser’) and the company (hereinafter referred to as ‘Supply Partner’).( collectively referred to as ‘Parties’, separately as ‘Party’ ).
The Parties agree as follows:
Tracking data, Payment and Payment Liability
Billing numbers will be subject to conversion reports provided by Axismobi in GMT+5.30. Advertiser shall start the verification of tracking data with Axismobi in writing and shall finish the verification within the first 15 days of each calendar month. If the Parities fail to finish the verification within the first 15 days of each calendar month, REGARDLESS OF WHETHER ADVERTISER AGREES OR NOT, Axismobi’ s calculation of the billing amount shall be final, conclusive and binding on Advertiser.
Advertiser shall pay by bank transfer as per the information given by Supply Partner. Relevant expenses regarding the payment such as bank fees shall be individually paid by each Party.
If the Advertiser delays its payment to Supply Partner under the Agreement, Advertiser shall be charged a penalty interest of 0.05% of the overdue amount for every delayed day or the maximum allowed by applicable law.
Advertiser should set the parameter of the data postback system accurately according to the offer description and campaign confirmed by both parties in writing. If Advertiser fails to set the parameter accurately, Advertiser shall assume compensation liability on pro-rata basis, calculation based on the actual data which the system transmits to Supply Partner by 3rd Party tracking system/MMP.
The Parties agree that any taxes imposed on a Party by any governmental authority in connection with the execution and performance of this Agreement shall be paid by that Party. If any withholding tax is imposed by any relevant tax authority with respect to any sums due to Axismobi, then such sum will be paid by the Parties respectively with a copy of tax receipts.
Limitation of Liability
In the event that Supply Partner fails to place campaign in accordance with the schedule provided in the Insertion Order, or in the event of any other failure, technical or otherwise, the sole liability of Supply Partner and exclusive remedy of the Advertiser shall be limited, placement of the campaign at a later time in a comparable position, or extension of the end date specified in the Insertion Order until the campaign are delivered. IN NO EVENT WILL AXISMOBI, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO ADVERTISER OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR ANY LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, LOSS OF CUSTOMERS, LOSS OF ANY EQUIPMENT OR SOFTWARE, SYSTEMS, COMPUTER DAMAGE OR SYSTEM FAILURE, LOSS OF DATA OR INFORMATION, INTEREST CHARGES OR COST OF CAPITAL, COST OF PROCUREMENT OF SUBSTITUTE EQUIPMENT , ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ADVERTISER’S ABILITY OR INABILITY TO USE AXISMOBI ADVERTISING PLATFORM UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT AXISMOBI SHOULD HAVE REASONABLY FORESEEN OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT WILL AXISMOBI’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT RECEIVED BY AXISMOBI PURSUANT TO THIS AGREEMENT. The Supply Partner confirms that it has entered into the Agreement with Axismobi relying on the limitations of liability stated herein and that those limitations are an essential part of the bargain between the Supply Partner and Axismobi.
Cancellation, Term and Termination
This Agreement shall commence on the date of signature of Insertion Order by both Axismobi and Supply Partner. Unless terminated by either Party upon three 3 business days with prior written notice to other party, the Agreement shall automatically renew for successive 1 year term.
Unless designated on the IO as non-cancellable, Advertiser may cancel the IO before Supply Partner starts the Campaign, within a 48 hours with written notice.
Unless otherwise provided in this Agreement, if one party breaches any provision hereof materially and has not made any correction within 15 days after the other party’s written notice, the other party shall be entitled to terminate this Agreement.
Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with the laws of India and/or Singapore, without giving effect to principles of conflicts of law. If any dispute cannot be resolved by negotiation, then any Party may submit the dispute to Arbitration Council of India (ACI) for arbitration by arbitrators which shall be conducted in accordance with its arbitration rules in effect at the time of applying for arbitration. The place of arbitration shall be New Delhi, India and/or Singapore.
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