Terms of Service
This Terms of Service (“Agreement”) between You, personally, or if on behalf of the entity entering into this Agreement, that entity (you and the entity, each a “Publisher”), and Echosense Technologies Private Limited (“Company”, “Echosense”, “Us”, “We”) constitute the terms and conditions for Your use of MoBuzy, a content monetization platform (“Platform” or “Service” or “Services”) operated by Echosense. “You” or “Your” means you or any other person or entity, using Our Services or identified in any Service account, to become a publisher on whose behalf you are authorized to act. These terms of service apply only to Publishers who integrate the platform with their mobile app(s) or website(s) and not to third-party websites that provide content to the platform (“Content Providers”).
By creating any Service account via the online user interface provided by Echosense for accessing the Services (“Echosense UI”), or by integrating MoBuzy platform with Your mobile application (“App”) and/or website or by otherwise accessing or using any of the Services provided by the platform, You agree that You have the authority to bind and You agree to be bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, do not create a Service account, or integrate the platform with your App and/or website, or access or use any Service. This Agreement does not alter in any way the terms or conditions of any other agreement You may have with Echosense for products, services or otherwise. Agreements entered into between Echosense and third-party websites that provide content to MoBuzy (“Content Provider”), Advertising Networks, and other partners and vendors may provide for additional terms related to the treatment of certain information of End Users and data generally by Echosense.
a) The Company has developed certain software applications and platforms which it makes available to Publisher via the internet for the purpose of online marketing and makes available content to the users of the Publishers’ mobile app or website in lieu of a certain share of the advertising revenue. The advertising revenue is generated by advertisements displayed within the content, provided by the Platform, consumed by the users of the Publishers’ mobile app or website.
b) The Publisher wishes to use the Company’s service in its business operations.
c) The Company has agreed to provide and the Publisher has agreed to take the Company’s service subject to the terms and conditions of this agreement. The use of the Platform is free of cost for Publishers.
This Agreement shall commence on the date on which you Accept these Conditions on Echosense UI or integrate Our Services with Your App and/or website or access or use any Service for the first time (“Effective date”) and shall remain in full force and effect unless and until terminated by either Party in accordance with the terms of the Contract.
3. PROVISION OF THE SERVICES AND THE PLATFORM
3.1 With effect from the Effective Date, We shall, subject to these Conditions:
(a) Make available and allow You to access the Services;
(b) make available to You (by download or any other method notified to You) a copy of the MoBuzy SDK and any other Materials or Advertisements which Echosense deems appropriate.
3.2 You acknowledge and agree that it is Your responsibility to ensure that You have appropriate protection for Your computers, software, data and applications including any systems that You use to access the Services or any Materials and that Echosense shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the Echosense Materials.
3.3 You acknowledge that Echosense may immediately by notice in writing to You suspend Your access to the Services (or any part thereof) and/or the MoBuzy SDK. Further Echosense shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any MoBuzy SDK (or any part thereof).
3.4 You acknowledge and agree that
(i) nothing in this Contract guarantees that the Services, MoBuzy SDK and/or Advertisements will be free from interruption or errors
(ii) there will be periods when the Services, Advertisements are unavailable and cannot be accessed
(iii) Echosense shall not be liable for any loss or damage You may suffer or incur as a result of any Service (or any part of a Service) Advertisements and/or any MoBuzy SDK Materials (or any part thereof) being unavailable at any time.
(iv) You have read and agree with the Disclaimer given in Section 14.
3.5 You may use Echosense technology products for obtaining Services including any fixes, updates and upgrades thereto as may be provided by Echosense from time to time.
4. RESTRICTIONS ON USE OF ECHOSENSE SERVICES AND MOBUZY SDK
4.1 You shall not:
(a) by accessing the Services, store, transmit, distribute, disseminate, publish or post any material in such a way as to breach any applicable law or regulation or to infringe the rights of, or restrict or inhibit the access to and enjoyment of the Services by, any other person;
(b) by accessing the Services, deliberately, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similar items into any Echosense or third party systems;
(c) distribute the Echosense Materials to any third party;
(d) copy, modify, distribute, sell, or lease any part of the Services or included software, nor attempt to extract the source code of that software, reverse compile, disassemble, reverse engineer or otherwise reduce to a human-perceivable form any component of the MoBuzy SDK or any other software to which You are given access by Echosense, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties;
(e) permit, assist or attempt to assist any third parties in obtaining access to the Services or the Echosense Materials;
(f) use the Platform to share, display or disclose any material including Advertisements that may be considered to contain any hate-related, pornographic, libellous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third party rights or which are reasonably likely to subject Echosense or its affiliates or advertisers or business partners to negative publicity.
(g) Engage in any Fraudulent Activities or illegal practices.
(h) Not offer the End Users any money, reward, loyalty points or incentive of any kind whatsoever, to read the content provided by the Platform or to watch or click on the advertisements shown in the content provided by the Platform.
4.2 You shall be responsible and liable to Echosense for all acts or omissions of Your Personnel in accessing and use of the Echosense Materials, Advertisements and Services. Any breach of any provision of the Contract caused by any such persons shall be deemed a breach of the Contract by You.
5. DATA COLLECTION AND USE
5.1 In connection with the operation of any Service, Echosense may collect and receive Service Data (“Service Data”) which includes any information that Echosense collects, as explained below, for the performance of obligations under this Agreement. You agree that Echosense will have the right to use and disclose Service Data
(i) to provide any of the Services,
(ii) for its internal business purposes and for the improvement of services provided to various partners,
(iii) to improve any products or services provided by Echosense, and
(iv) to enable, and allow services provided to you and to other Customers and Partners of Echosense
5.3 You warrant and represent that, (i) other than the data collected by MoBuzy SDK, you are not sharing, supplying or disclosing any personally identifiable information or personal data as such terms are envisaged under applicable privacy legislation (including for end-users in EEA under General Data Protection Regulation (GDPR)) to Echosense under or in connection with the Agreement.
5.4 You shall notify Echosense specifically in the event the end-user has exercised his/her right to opt-out of behavioural targeting through Your App and while notifying the same you will only provide the AAID to Echosense without disclosing any other personally identifiable information of the end-user.
5.6 Your Data
5.6.1 You shall own all rights, title, and interest in and to all of Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data.
5.6.2 Echosense shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
5.6.3 You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to Echosense to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of Services by Echosense (including the provision of the Services to third parties).
5.6.4 If Your mobile application is directed to children under the age of thirteen (13), in addition to complying with applicable laws including Children’s Online Privacy Protection Act (“COPPA”), You will ensure that appropriate technical measures have been undertaken, as applicable, in order for Echosense to determine that such mobile application is directed to children under the age of thirteen (13) including notification to Echosense regarding the nature of such application to facilitate Echosense’s compliance with COPPA. In any event, you will not share any personally identifiable information regarding users of COPPA flagged applications, with Echosense.
6. PROPRIETARY RIGHTS
6.1 You acknowledge that You don’t have and obtain no rights in the Services, Advertisements and/ or in any MoBuzy SDK or the Intellectual Property Rights in or relating to them or to receive the Services save as expressly provided in the Contract.
6.2 Echosense grants to You, with effect from the Effective Date, a limited, revocable, non-exclusive, non-transferable licence for the term of the Agreement to access the Services solely for Your own internal business purposes and for no other purpose whatsoever.
6.3 Echosense grants to You, with effect from the Effective Date, a limited, revocable, non-exclusive, non-transferable licence for the term of the Contract to use the MoBuzy SDK solely for the purpose of enabling You to receive the benefit of the Services. You will have no right to use, perform, display, reproduce and distribute MoBuzy SDK for any other purpose. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by Echosense or updated in MoBuzy Website from time to time.
7. PAYMENTS TO PUBLISHERS
In consideration of the above-mentioned services, Echosense agrees to pay a share of the total advertising revenue generated via Platform’s content displayed on the Partner’s App and/or website. Echosense generates daily and monthly revenue reports for the advertising revenue generated by the End Users while consuming of content provided by the Platform. These reports are generated with direct inputs from google analytics or such third-party revenue measurement tools and shall be the sole and final basis for tracking revenue and calculating the revenue share of Publishers.
The Publishers will raise an invoice to Echosense for their revenue share and Echosense shall clear the invoice within 15 days of receipt of the payment from the advertising networks or advertisers (collectively “Advertisers”) that were provided advertising space for monetization of the content provided by the Platform to generate advertising revenue. For advertising revenue generated by websites owned by Content Providers, Echosense shall clear the invoice within 15 days of receipt of the payment from the Content Providers as the advertising revenue will be paid by the Advertisers to the concerned Content Providers.
You agree that Echosense is liable to pay the share of the advertising to you only after receiving respective payment from the Advertisers and/or Content Partner(s) and that the share of the advertising revenue will be valid only and only for the corresponding payments received by Echosense and that Echosense cannot be held liable for any delays in payments and/or non-payment from Advertisers and/or Content Partner(s). Echosense will keep you informed about the status of the payments for advertising revenue from the Advertisers and/or Content Partners and will make all reasonable efforts to recover the payments at the earliest.
It is also agreed that Echosense is not liable to make any payments to you, other than the share of the advertising revenue generated through the Advertisements displayed within the content served to End Users of Publishers.
8.1 You grant to Echosense any and all necessary rights and permissions to use Your App trademarks, trade names, logos, copyrights and other intellectual property provided during the course of the Services (“Your IPRs”) for the purpose of fulfilling Echosense’s obligations. Echosense may mention Your name as a customer in its website, MoBuzy website, marketing, social media and sales materials.
8.2 You acknowledge that Echosense and/or any third party instructed or engaged by Echosense may in its sole discretion market, promote, reference, present and link Your IPRs to all Echosense potential customers in connection with the provision of the Services and You grant Echosense all necessary rights and permissions with respect to Your IPRs on a worldwide, perpetual, irrevocable royalty-free basis.
9.1 Each party acknowledges that Confidential Information under its control may be disclosed to the other party during the performance of this Agreement. Each party agrees that it shall use the other’s Confidential Information solely for purposes of performing its obligations under the Agreement and to take reasonable steps, which shall include, at a minimum, the steps it takes to protect its own Confidential Information, to prevent the duplication or disclosure of the other’s Confidential Information, other than by or to its employees, Affiliates or agents who must have access to the Confidential Information to perform such party’s obligations hereunder. The Publisher also acknowledges that Echosense may need to share Publisher information including Confidential Information with third parties (such as its data management partners, licensors, media vendors and/or for API reporting purposes). Provided, however, that in each such case, a Party shall ensure that the recipient employees, Affiliates, agents or third parties have each agreed to or shall each agree to be bound by confidentiality obligations no less restrictive than the terms of this Section 9. Each party agrees that it shall not be a breach of this Section 9 to disclose the other party’s Confidential Information that is required to be disclosed by law, regulation or order of any governmental body or regulatory authority; provided, however, that such disclosing party must first give written notice of such required disclosure to the other party, make a reasonable effort, at the other party’s sole cost and expense, to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which disclosure is required and allow the disclosing party to participate in the proceeding. The confidentiality obligations set forth herein shall continue for two (2) years following termination or expiration of this Contract with respect to Confidential Information. If the Advertisement transmission from Echosense includes any financial information relating to the Advertisement, all such data shall be treated as Confidential Information belonging to Echosense.
9.2. Return of Confidential Information. Upon termination of this Agreement, or upon disclosing party’s request, the receiving party shall promptly return or destroy all manifestations of Confidential Information of the disclosing party and so certify to the disclosing party in writing provided however that a party may retain a copy of such Information solely for archival purposes.
9.3 Each party may disclose the existence of this Contract, but agrees that the terms and conditions of this Contract will be treated as Confidential Information; provided, however, that each party may disclose the terms and conditions of this Contract: (i) as required by law; (ii) as part of filings with any court or governmental entities, including without limitation national securities exchanges; (iii) to legal counsel of the parties; (iv) under the terms and conditions of a non-disclosure contract to accountants, banks, and financing sources and their advisors; (v) in connection with the enforcement of this Contract or rights under this Contract; or (vi) under the terms and conditions of a non-disclosure contract, in connection with an actual or proposed merger, acquisition, or similar transaction.
10.1 You agree to indemnify, defend and hold Echosense, its licensors, affiliates, shareholders, customers, agents, directors, officers, and employees harmless, including costs, expenses and attorneys’ fees and other legal costs, from any and all claims, losses, damages, penalties, expenses (including damage awards, settlement amounts, and reasonable legal fees), liability, claim or demand made by any third party due to or arising out of:
(a) Your use of the Services or Echosense’s Intellectual Property Rights;
(b) any violation of this Agreement by You including without limitation breach of representations and warranties and obligations related to confidentiality;
(c) Your failure to comply with the MoBuzy Policies
(d) infringement by You of any third party Intellectual Property Rights or other right of any person or entity;
(d) wilful misconduct or gross negligence by You;
(e) fraudulent or unlawful act of You.
(f) Your breach or alleged breach of any warranties or representations made under Section 9;
(g) Any material displayed in Your Network which do not comply with all applicable laws, statutes and regulations;
(h) Any material displayed in Your Network which contain content that is obscene, defamatory, libellous, or slanderous, or hate-related.
10.2 Any claim for indemnification hereunder shall be subject to the following provisions:
(i) You shall be given prompt written notice of the claim by Echosense, provided that any delay in providing notice shall not relieve You of Your indemnity obligations under this Agreement unless, and only to the extent, You were prejudiced by the delay; and
(ii) Echosense shall reasonably cooperate with You and Your counsel at Your cost and expense. Echosense may participate in the defence and settlement of the claim and using attorneys selected by Echosense. Each party shall make all reasonable efforts to mitigate damages.
11.1 Save as set out in these Conditions or the Contract and to the maximum extent permitted by applicable law, Echosense excludes and disclaims all conditions, terms, representations (other than fraudulent misrepresentations) and warranties relating to the subject matter thereof, whether imposed by statute or by operation of law or otherwise, that are not explicitly stated in the Contract including the implied warranties of satisfactory quality and fitness for a particular purpose.
11.2 Echosense will not be liable to You or any third party hereunder for any punitive, incidental, indirect, special, reliance or consequential damagers, including lost business, revenue, or anticipated profits, whether based on breach of contract, tort (including negligence), or otherwise, and whether or not Echosense was advised of the possibility of such loss or damages.
11.3 In no event will Echosense’s liability and damages, whether based on breach of contract, tort (including negligence), or otherwise, arising out of or relating to any service or this agreement exceed INR 25000. The parties agree that the existence of more than one claim shall not increase the foregoing limit, and that the limitations of liability set forth in this section will apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
11.4 Notwithstanding any provision to the contrary, nothing in these Conditions or the Contract limits or excludes Echosense’s liability for fraud or fraudulent misrepresentation or for any liability, which may not be lawfully limited or excluded.
11.5 You acknowledge and agree that the limitations and exclusions of liability contained in these Conditions and the Agreement are reasonable in view of the nature and extent of the obligations accepted by each Party under the Agreement and the fact that the Services are provided without any monetary charge and that this Condition 11 shall prevail over all other provisions in the Contract.
11.6 Notwithstanding anything else in the Contract, Your liability with regard to Indemnification obligations under Section 9 shall be unlimited.
12.1 Either Party may terminate this Contract at any time by providing 15 days’ written notice (email sufficient) to the other party.
On termination of the Contract for any reason:
(a) All licenses granted by Echosense under this Contract shall immediately terminate; and
(b) You shall uninstall or otherwise remove any means of access to the Services provided under the Contract including client software and MoBuzy SDK supplied by Echosense for that purpose;
(c) You shall immediately return any and all of the Confidential Information of Echosense and any and all of the Echosense Material provided to You by Echosense.
12.2 The termination of the Contract shall be without prejudice to any accrued rights and obligations of the Parties arising under the Contract prior to such termination.
12.3 The following Conditions shall survive the expiry or termination of the Contract: (a) 4, 5, 8, 9, 10, 11, 12, 13, 14 and 15; and (b) any other provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination.
You acknowledge that some features of the Services may be experimental in nature. Echosense does not represent or warrant that the Services are reliable, accurate, complete, or otherwise free from defects. Accordingly, the Services are made available for use “AS IS,” and any use thereof will be undertaken solely at Your own risk. Echosense reserves the right, in its sole discretion, to include or cease providing the Services at any time (subject to notice as may be required herein), and Echosense does not give or enter into any conditions, warranties or other terms with regard to the Services. Echosense does not control, endorse or adopt any Ads and makes no representation or warranties of any kind regarding the content of any Ads, including, without limitation, regarding the accuracy, completeness or decency of any Ads. Echosense makes no warranties, express or implied, with respect to subject matter of this Agreement, and expressly disclaims the implied warranties of merchantability, non-infringement, title, fitness for a particular purpose, and implied warranties arising from course of dealing or performance. For the avoidance of doubt, Echosense does not guarantee the results of the Services or that the Services will be correct, uninterrupted or error-free, that defects will be corrected, or that the Services are free of viruses or other harmful components, that the Services will be operable at all times or during any down time
14.1 Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of Echosense (which may be delayed or withheld in its discretion).
14.2 Assignment and Subcontracting by Echosense: Echosense shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
14.3 No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
14.4 Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
14.5 Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract.
14.6 Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). Echosense shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond reasonable control of Echosense.
14.7 Amendments: Echosense reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by Echosense, You shall be entitled, during the period of 15 days following notice of the amendment, to terminate this Contract by notice in writing to Echosense. In the event of such termination, clause 12 above shall apply.
14.8 Governing Law and Jurisdiction: Unless otherwise agreed to by parties in an agreement and/or addendum, the Parties irrevocably agree that the courts of Gurgaon, Haryana, India shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Conditions and/or the Contract or their subject matter or formation (including non-contractual disputes or claims) under the Laws of India.
15. DEFINITIONS AND INTERPRETATION
15.1 Unless the context otherwise requires, the following definitions apply in these Conditions: