Last modified on: 30th Nov, 2023
These Terms of Service (“Terms” or “Agreement”) set forth the legally binding terms and conditions that covers your access to and use of iZooto’s products or services offered through the website(s) www.izooto.com, its sub-domains, mobile sites, mobile applications (the “Platform”) offered by Datability Technologies Private Limited and its Subsidiaries or Affiliates (“iZooto”, “us”, “our”, and “we”).
Subsidiaries of iZooto refer to the following:
- Datability Solutions Inc.
- Datability Technologies LLC
The “Customer”, “you”, “your” shall refer to any natural person or any legal entity and its authorized users that subscribe or use the services offered through the Platform. Certain features of the Platform may be subject to additional guidelines, terms, or rules, which will be posted on the Platform in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
By creating the Customer Account with iZooto and accessing the Platform, you are accepting these Terms (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). If you do not agree with all of the provisions of these Terms, do not access and/or use the Platform.
Modifications to this Agreement: From time to time, iZooto may modify this Agreement. Your use of the Services following any such modification constitutes your agreement to follow and be bound by the Terms so modified. iZooto will use reasonable efforts to notify the Customer of the changes through communications via the Customer’s Account, email, or other means.
The “Effective Date” of these Terms is the date which is the earlier of (a) Customer’s initial access to any Platform through any online provisioning, registration, or order process or (b) the effective date of any publisher or customer agreement signed with the Customer or (c) the effective date of any invoice or order form, as applicable, referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
In consideration of the terms and conditions set forth below, the Parties agree as follows:
2. CREATION OF CUSTOMER ACCOUNTS
- The Platform is a marketing automation platform which allows the Customer to engage with their end users/customer (“Visitor/End Users”) on and off page by sending them Web Push Notifications, On Site Notifications, Notification Center, App Notifications, Facebook Messenger Notifications and/or Advertisements and/or emails (as applicable) via Customer’s Sites and their business specific Facebook Messenger application. Customer Sites refer to their website(s), its subdomains, sub-portals and Customer’s mobile applications through which they are developing, managing and hosting online content.
- Account Creation. In order to use the Platform and send out Notifications or Advertisements, you may need to register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. iZooto may suspend or terminate your Account in accordance with the Termination Section.
- Account Types. We currently offer a trial Account with limited functionality (“ Trial Account”), and various fee-bearing Accounts offering feature enhancements (“Paid Subscriptions”). The Accounts’ details and pricing are available at https://www.izooto.com/pricing.
- Free Account or Trial Customers. Upon the expiration of the Customer’s free trial, iZooto may immediately suspend Customer’s access to the Platform. Customers may raise a request to the support team (firstname.lastname@example.org) or raise the request through chat and export Customer Data before the end of the free trial or Customer Data will be permanently deleted. iZooto will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the free trial period.
3. ACCESS TO THE PLATFORM AND GENERAL RESTRICTIONS
- iZooto also grants a worldwide non-exclusive, non-sublicensable, right to the Customer for accessing and using the Platform-wide integration of the same with the Customer Sites during the subsistence of these Terms.
- Customer grants iZooto right during the Term to (i) place the Platform on the Customer Sites and to interact with Customer Sites and the Visitors for the purposes of developing, optimizing, and serving Notifications; (ii) collecting Customer Data as required for sending the Notifications to the Customer’s Visitors in the manner and as per the specifications agreed between the Parties, (iii) track and analyze the performance of the Platform (either directly or through a third party); (iv) conduct tests on how visitors interact with the Platform or the Customer Sites to facilitate maintenance and optimization of the Platform (v) use the Customer Data collected in aggregated and anonymized form to improve and optimize the performance of the Platform and services provided by iZooto.
- The customer also grants the right to iZooto to integrate the Platform with the Customer Sites for the purpose of collecting Customer Data as required for sending Advertisements to the Customer’s Visitors in the manner and as per the specifications agreed.
- If iZooto handles the Advertisements via third-party advertiser platforms, then it will directly or via affiliates, enter into Advertising Sales agreements in relation to the Advertisements and/or native amplifications.
- If iZooto is handling the Advertisements via third-party advertiser platforms, then the Platform may require to be integrated with such third-party advertiser platforms. Such integrations will be made available to the Customer on the Platform only upon confirmation from the Customer. Customers will have independent obligations with such third-party advertiser platforms. iZooto will not be liable for all such third-party platforms or be held liable for the correctness, completeness, quality and reliability of the information or for the results which are achieved by means of such third-party platforms. iZooto is also not liable for the availability, security or functionality of such third-party platforms, including for any damage and/or loss caused by such third-party solutions to Customer Sites.
- IZooto reserves the right, at any time, to modify, suspend, or discontinue the Platform (in whole or in part) with or without notice to you. You agree that IZooto will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Platform or any part thereof.
- No Support or Maintenance. You acknowledge and agree that IZooto will have no obligation to provide you with any support or maintenance in connection with the Services except to the extent agreed to in writing.
- General Restrictions: Customer agrees and undertakes that it will not directly (via its permitted Accounts) and/or indirectly via third parties (i) modify, adapt, translate, copy, archive, store, reproduce, rearrange, download, upload, display, perform, publish, distribute, redistribute or otherwise create derivative works of the Platform; (ii) circumvent, disable or otherwise interfere with security-related features of the Platform or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Platform; (iii) give, sell, rent, lease, timeshare, outsource, sublicense, disclose, publish, assign, market, resell, transfer or distribute any portion of the Platform to any third party, including, but not limited to Customer’s affiliates, or use the Platform in any service bureau arrangement; (iv) reverse engineer, decompile or disassemble the Platform or any components thereof or otherwise attempt to discover the underlying ideas, algorithms, structure or organization of the Platform; (v) disclose or publish the results of any benchmark tests run on the Platform; (vi) use any robot, spider, scraper, or other automated means to access the Platform for any purpose; (vii) take any action that imposes or may impose an unreasonable or disproportionately large load on the Platform infrastructure; (viii) interfere or attempt to interfere with the integrity or proper working of the Platform, or any related activities; (ix) modify, translate, patch, alter, change or create any derivative works of the Platform, or any part thereof; (x) disclose permitted Platform account details, user names or passwords to any third party; (xi) remove, deface, obscure, or alter iZooto’s or any third party’s copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Platform, or use or display logos with the Platform differing from iZooto without iZooto’s prior written approval; (xii) hack, deface or otherwise misuse the Platform or attempt to gain unauthorized access to other parts of the Platform or the underlying technology for the Platform (xiii) build a competing product or develop a Platform using similar ideas, features, functions, interface or graphics; (xiv) attempt to gain unauthorized access to the iZooto’s systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Platform; (xv) develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the Platform.
- Restrictions on Notification content: Customer will not use the Platform on any Customer Sites or send out Notifications that contain any material or content that is, or that may reasonably be considered: illegal, unlawful, or infringing under any Applicable Law (including, without limitation, content that infringes third-party copyright), pornographic, profane, promotional of illicit drugs and drug paraphernalia, gambling-related (unless legal in the location offered), fake or deceptive, libelous, invasive to privacy, violent, threatening, discriminatory (racially, ethnically, or otherwise), in breach of confidence or any other right of any third party, or lacking in necessary authorizations, approvals, consents, or licenses. Nor will Customer use the Platform on any Customer Sites or send out Notifications containing content designed to promote hatred of any societal group based on, but not limited to, ethnicity, race, religion, sexual orientation, gender or trans-gender status, or designed to harass any individual (including, without limitation, by promoting “doxing”). iZooto reserves the right to remove the Platform (or its applications) from any pages of the Customer Sites that it deems, in its sole discretion, to violate the foregoing. The Customer Notifications shall not contain third-party advertising editorials, campaign details, and other relevant information in relation to the same.
- Use of third-party OEM Push Platforms: Customers may be required to use third-party OEM Push Platforms which helps with improved deliveries of Customer Notifications. If the Customer decides to use any external OEM Push Platforms for the Notifications, they will have independent obligations with such Platforms. Any commercial fee or terms of usage of such OEM Push Platforms would be as per the agreement between the Customer and the respective OEM Push Platform. iZooto will not be responsible or liable for the availability, security, functionality or reliability of the information or results which are to be achieved by means of such third-party OEM Push Platforms, including for any damage and/or loss caused by them.
4. PAYMENTS AND FEES
- Fees and payments payable by Customers depend on the plan they choose.
- Fee payable by Customer shall be as per the payment model defined below in this Clause unless otherwise decided between the Customer and iZooto through a separate order form or customer agreement for the use of the Platform.
- Payment for Platform Fee Plan:
- The fee structure provided at https://www.izooto.com/pricing will be applicable to the Platform Fee plan.
- All payments due to iZooto shall be remitted to iZooto by Customer in the prescribed currency within a maximum timeline of 30 (thirty) days post raising of invoice by iZooto.
- Payment for the Advertisement monetization Plan:
- Under this Plan, the Customer allows iZooto and the Platform to place and run Advertisements on the Publisher Sites.
- Payable Platform Revenue under the Monetization Plan for the Customer shall be determined by iZooto and is subject to the Customer Site’s performance on iZooto’s Platform. The payable platform revenue to the Customer by iZooto shall be visible and displayed on the iZooto’s dashboard for the Customer’s review. Any customized change to the Revenue payable to a Customer shall be conveyed in a separate agreement or an order form.
- Net Platform Revenue for the purpose of this Agreement means Gross Platform Revenue minus any applicable third-party advertiser commission if applicable on the Parties. Gross Platform Revenue means advertising fees paid by third-party advertisers to iZooto for placements of Advertisements on the Platform, after the deduction of any applicable taxes thereon.
- Customers will not pay any separate fee for getting the right to access and use the Platform.
- All payments shall be remitted to the customer by iZooto in the prescribed currency within sixty (60) days of receiving the Invoice.
- For web push Notifications and App push Notifications, the Platform will run ten (10) Notifications and three (3) Advertisements per day. The size of the Notifications and/or Advertisements will be as defined by the Operating System.
- For the on-site Notifications and Notification center, the size of the Advertisements will be as defined by the IAB - https://www.iab.com/guidelines/iab-new-ad-portfolio
- Notifications sent through Facebook messenger shall be priced as listed on the iZooto website or agreed in writing between the Parties.
e. Payment for Hybrid Plan
- Payment for hybrid plans will be a combination of the plan mentioned in Clause 4(c) and Clause 4(d), unless any other separate agreement or order form is signed with the Customer which may have a separate revenue share.
f. Applicable Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Each Party will be responsible, as required under the Applicable Law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments received by it under or in connection with this Agreement.
5. INTELLECTUAL PROPERTY
- Except as expressly provided herein, the Customer shall exercise creative control on its Customer Sites and shall own and retain all the Intellectual Property Rights and other rights in relation to such Sites and iZooto shall own and retain all the Intellectual Property Rights and other rights in relation to the Platform. Except as expressly provided, nothing herein will deem to imply or mean to transfer the Intellectual Property of either Party to the other Party and neither Party will raise any adverse claims in and to the same. Neither Party will acquire any right, title or interest in any Intellectual Property belonging to the other Party.
- Excluding any Customer Data (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Platform and its services and its content are owned by iZooto. Neither these Terms (nor your access to the Platform) transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 3. iZooto reserves all rights not granted in these Terms. There are no implied licenses granted under these Terms.
- Usage Data includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support, and/or Customer’s use of the Platform (“Usage Data”). Notwithstanding anything to the contrary in this Agreement, iZooto may collect and use Usage Data to develop, improve, support, and operate its products and services. iZooto may share Usage Data that includes Customer’s Confidential Information with third parties to the extent necessary to provide the services and in accordance with Section 7 (Confidentiality) of this Agreement. iZooto may also utilize Customer Data for its internal business purposes only to the extent such Customer Data has been aggregated and anonymized such that Customer and Customer’s Users and End Users cannot be identified.
- Updates. iZooto may update the Platform from time to time and Customers may receive notifications of Updates. Any Updates to the Platform are subject to this Agreement. Customer agrees that its purchase of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by iZooto with respect to future functionality or features.
- Customer hereby grants to iZooto, during the Term of this Agreement, a non-exclusive license to display and/or use its or its affiliate's trade name, trademark, service name, and similar proprietary marks (collectively, “Marks”), in connection with certain promotional materials that iZooto may disseminate to the public within the context of this Agreement. The promotional materials may include, but are not limited to, brochures, videotapes, website, press releases, social media collaterals, advertising in the newspaper and/or other periodicals or magazines, and any other materials relating to marketing and promotional efforts, specific to the subject matter of this Agreement.
Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and will disclose such Confidential Information solely to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse such Confidential Information. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with the advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
7. TERM AND TERMINATION
- This Agreement will come into force on the Effective Date and shall continue for 36 (thirty-six) months unless terminated earlier in accordance with the terms hereof (“Term”). The Agreement may be renewed for such further terms as may be mutually agreed in writing between the Parties.
- Notwithstanding anything stated in this Agreement, either Party may terminate this Agreement for convenience and without reason by giving 6 (six) months’ prior written notice to the other Party. There is no lock-in period whatsoever.
- Suspension. iZooto may suspend Customer’s access to the Platform and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, (ii) non-renewal of the Platform services by Customer; (iii) Customer’s or its Users’ breach of user restrictions or (iv) in the event suspension is deemed necessary by iZooto to prevent or address a security incident, or other harm to Customer, iZooto, or iZooto's other customers. iZooto will notify the Customer of any such suspension and will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Customers in case of any incident occurring as described in Point (iv) and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Agreement.
- Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND IZOOTO (AND OUR SUPPLIERS) EXPRESSLY DISCLAIMs ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE services WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. IZooto DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. IZooto IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS.
9. LIMITATION OF LIABILITY
- SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY
- EXCEPT FOR AN ACTION BROUGHT FOR DATA CLAIMS OR IP CLAIMS, THE LIABILITY OF IZOOTO AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED OR PAYABLE TO IZOOTO IN THE THREE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”)
- IN THE CASE OF IP CLAIMS AND DATA CLAIMS, IZOOTO AND ITS AFFILIATE'S TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“SUPERCAP”).
- IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP. SIMILARLY, THE FOREGOING CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE CAP.
- THE PARTIES AGREE THAT THIS SECTION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE INVOICE WITH IZOOTO.
- Indemnification by iZooto. iZooto will defend Customer and its Affiliates, from any third-party claim alleging that Customer’s use of the iZooto Platform as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer and its Affiliates from and against any damages and costs awarded against Customer or its Affiliates, or agreed in settlement by iZooto (including reasonable attorneys’ fees) resulting from such IP Claim. iZooto will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the iZooto Platform by Customer, its Affiliates or Users; (ii) modification of the Platform by anyone other than iZooto or its representatives; or (iii) the combination, operation or use of the Platform with other data, hardware or software not provided by IZooto. If Customer’s use of the Platform results (or in IZooto's opinion is likely to result) in an IP Claim iZooto may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonable as determined by iZooto, then either Customer or iZooto may terminate Customer’s subscription to the Platform, whereupon iZooto will refund Customer, on a pro-rated basis, any Fees Customer has previously paid iZooto for the corresponding unused portion of the services through the Platform. This section states iZooto’ entire liability and the Customer’s exclusive remedy with respect to an IP Claim.
- Indemnification by Customer. Customer will defend iZooto from any third party claim (“Claim”), and will indemnify iZooto from and against any damages and costs awarded against iZooto, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, or (ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business.
- Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
a. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, iZooto may assign this Agreement in its entirety without the customer's consent to its Affiliate or Subsidiary or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.
- c. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original condition, and the remaining provisions of this Agreement will remain in effect.
- d. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
- e.Survival. The sections on Use Restrictions, Intellectual Property, Fees and Payment, Term, Termination and Suspension, Confidentiality, Warranty Disclaimer, Limitation of Liability, Indemnification, Entire Agreement, Survival, Notices, Governing Law, Dispute Resolution and Definitions will survive any termination of termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
- f. Notices. All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service or to the mailing address provided on the order form or details provided by Customer for invoicing purposes; or (ii) electronic mail to the e-mail address provided for Customer’s Account. The address for a notice to iZooto is: Datability Technologies Private Limited, A-35, near Sector 15, A Block, Sector 2, Noida, Uttar Pradesh 201301 with a copy to email@example.com by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
- g. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to but not limited to, acts of God, acts of government, acts of terror or civil unrest, pandemics, shutdowns or lockdowns through government orders, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement written notice to the non-performing party.
- h. Governing Law and Dispute Resolution
- The Parties to this Agreement intend to discharge their obligations in utmost good faith. The Parties therefore agree that they will, at all times, act in good faith, and make all attempts to resolve all differences howsoever arising out of or in connection with this Agreement through mutual discussion. Any dispute arising out of or in connection with this Agreement (“Dispute”) shall first be referred to the respective senior management of the Parties for discussion and resolution no later than 30 (thirty) working days from the date on which either Party gives written notice to the other Party that such a Dispute exists. Such discussion may be held telephonically if travel is impractical for either Party. If the Dispute does not get resolved by mutual discussion, Parties may refer the Dispute to appropriate courts for resolution.
- This Agreement shall be governed by the laws of India (both substantive and procedural) and the courts at Delhi shall have the exclusive jurisdiction in respect of any matter or dispute connected with this Agreement.
- “Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Platform.
- “Affiliate" or "Subsidiary" means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
- “Advertisements” means all the promotion material/content, advertising editorials, campaign details and other relevant information in relation to the same, owned or created by or licensed to iZooto and/or licensed directly to Customer (as applicable) and pushed as advertisements to the Visitors through the Platform.
- “Applicable Law” means any applicable law, regulation, ordinance, order, treaty, judgment, notification, decree, bye-law, governmental approval, directive, guideline, requirement or other governmental restriction, or any similar form of a decision of, or determination by, or any interpretation, policy or administration, having the force of law and shall include any of the foregoing, injunction, permit or decision of any central, state or local, municipal government, authority, agency, the court having jurisdiction over the matter in question, whether in effect as of the date of this Agreement or thereafter. “Applicable Privacy Laws” means all applicable international, national, federal, and state data protection and privacy laws.
- “Confidential Information” means and consists of (a) any technical information or plans concerning the Platform, services provided through it, or any Platform or other technology of iZooto or the Customer Sites(s); (b) any financial information of the Parties; (c) other information disclosed by the Disclosing Party to the Receiving Party that is marked as confidential or should reasonably be assumed to be confidential under the circumstances; and (d) the content of this Agreement. The Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of the Receiving Party (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information; or (iv) is rightfully obtained by the Receiving Party from a third party that has no duty of Confidentiality to the Disclosing Party.
- “Customer Data” includes but is not limited to the browsing behavior of the Visitor; consent for Notifications and network data as collected through the Platform from Customer Sites or from the Visitors while they are browsing Customer Sites for the purpose of enabling such Visitors to get the Notifications and Advertisements. It also includes all electronic data, text, messages or other materials, including, without limitation, the Personal Data of End Users, submitted to the Platform by the Customer through the Customer’s Account in connection with Customer’s use of the Platform.
- ‘Customer Sites’ includes the Customer’s website(s), its sub-domains, sub-portals and mobile applications through which it hosts online content.
- “Intellectual Property” means and includes ideas, concepts, creations, discoveries, domain names, inventions, improvements, know how, trade or business secrets; patents, copyright (including all copyright in any designs and any moral rights), trademarks, service marks, designs, utility models, tools, devices, models, methods, procedures, processes, systems, principles, algorithms, works of authorship, flowcharts, drawings, books, papers, models, sketches, formulas, teaching techniques, source codes, object codes, electronic codes, proprietary techniques, research projects, and other confidential and proprietary information, computer programming code, databases, images, audio, video, Platform programs, data, documents, instruction manuals, records, memoranda, notes, user guides; in either printed or machine-readable form, whether or not copyrightable or patentable, or any written or verbal instructions or comments, which is capable of being recognized and protected as intellectual property under any statute or common law. iZooto’s Intellectual Property shall additionally include its Platform and all trademarks, service marks, copyrights and Intellectual Property vesting with iZooto and/or its affiliates and for which an authorization to use and the license is granted to iZooto for a limited period under an Agreement and all parts and contents therein. Customer’s Intellectual Property shall additionally include the Customer Sites and all trademarks, service marks, copyrights and Intellectual Property vesting with Customer and/or its affiliates and for which an authorization to use and the license is granted to Customer for a limited period under an Agreement and all parts and contents therein;
- “Notifications” means the content owned or created by Customer or licensed to the Customer for publishing on the Customer Sites not containing any advertisement or promotional material of a third party and pushed to the Visitors through the Platform to Customer Sites, their business-specific Facebook Messenger or emails. Notifications include content pushed to Customer Sites in the form of web push Notifications, on-site Notifications, notification centers (new hubs), mobile app Notifications and Facebook messenger Notifications sent through Facebook Messenger.
- “Platform” means the generally available software as a service platform provided by iZooto in connection with Customer’s use of the services, and includes mobile applications, but excludes any applications or APIs that are provided by third parties.
- “Subscription Term” means the period stated during which the Customer subscribes to the Platform services.
- “Update” means, the generally available updates, upgrades, hotfixes, patches, and workarounds to the Platform or service provided by iZooto to all subscribing customers, but excludes separately priced new products or modules.
You can contact iZooto at https://izooto.atlassian.net/servicedesk/customer/portal/7 or firstname.lastname@example.org to clarify any points mentioned in this Agreement.