This Agreement is being entered into between you as the user(s) of the TYM Platform (referred to as “you”, “You”, “your” or “User” hereinafter) and TYM Social Data Pvt. Ltd. (referred to as “We”, “Us” or “TYM”). This Agreement shall be effective from the date of your first use of the TYM Platform or first access of any of the parts of the TYM Platform and shall remain applicable each time you use or access the TYM Platform or any of its part.
Whereas, User wishes to use the TYM App and/ or TYM website for the purposes of preparing questionnaires, upload and manage data collected on the field and perform data analytics;
Whereas, TYM provides the TYM platform for select third party Users, for the aforesaid purposes;
Whereas, TYM and User desire to set forth in this Agreement the terms and conditions that will govern Partner’s offer and sale of Products on the Site.
Now, therefore, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
For purposes of this Agreement, capitalized terms will have the meaning specified in their contextual paragraph, or where not otherwise defined herein, will have the meanings specified below:
“Claims(s)” will mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation.
“Intellectual Property” means any trademark, trade name, service mark, copyright, patent, logo, moral right, trade secret and any other intellectual property right arising under any Law and all ancillary and related rights, including all rights of registration and renewal and causes of action for misappropriation, infringement or violation of any of the foregoing.
“Law” shall mean any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, or any governmental authority of competent jurisdiction.
“Losses” shall mean any and all damages (including, without limitation, past, future, direct, indirect, economic, noneconomic, consequential, special, exemplary, incidental, and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys’ fees and costs.
“User Content” shall mean all images, product information and content including without limitation, the product data, (i) provided by Partner to TYM or its Affiliates and (ii) otherwise made available by Partner on the TYM Platform (e.g. through Partner’s distribution or hosting of such images, content or information).
“TYM Platform” shall mean the Track Your Metrics App offered on devices using Android Operating Systems as well as the Track Your Metrics website available on www.trackyourmetrics.com.
2.1 Your use and access of the TYM Platform and its services, software and products are governed by all terms and conditions under this Agreement and any other rules and policies of the App that We may publish from time to time. This Agreement and such other rules and policies of the App are collectively referred to herein as the “Terms” and the Services provided by TYM shall be referred to as “Services”.
2.2 You acknowledge and agree that We may amend any Terms at any time. We will notify you of any amendments to this Agreement and once notified, your further access or use of the TYM Platform or any of its parts will be subject to such amended Terms as may be notified. By continuing to use the Services or the App after such amendment, you agree that the amended Terms apply to you.
- Role performed by TYM
3.1 You agree, understand and acknowledge that the App is an online platform that enables You to prepare questionnaires, upload data collected on the field and perform data analytics. You further agree and acknowledge that TYM is only a passive facilitator and is not and cannot be a party to or control in any manner any of the functions performed by you on the App or the collection of data.
3.2 You agree and acknowledge that no agency relationship will be created between TYM and any User or agents or Subcontractors by virtue of use of the TYM Platform by such User, agents or Subcontractors.
3.3 You agree to release and indemnify TYM and its agents, affiliates, from all claims, demands, actions, proceedings, costs, expenses and damages (including, but not limited to, any actual, special, incidental or consequential damages) arising out of or in connection with any dispute that may arise in connection with or in relation to Your use of the TYM Platform.
- Use and Access of the TYM Platform
4.3 All materials, including images, text, illustrations, designs, icons, photographs, programs, source code, object code and written and other materials that are part of the TYM Platform (collectively, the “Contents”) originating from TYM or any of its agents, affiliates or subcontractors are proprietary to TYM and TYM is the owner of intellectual property in such Contents. You may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Contents, the TYM Platform or any related software.
4.4 All software used on the TYM Platform and the application layout and content from TYM is the property of TYM protected by the Copyright Act, 1957, Indian copyright law and international copyright laws. Any use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the Contents on the App, without prior written permission from TYM, is strictly prohibited.
4.5 TYM grants you a limited license to access and make use of the TYM Platform in accordance with these Terms, but not to download (other than page caching) or modify it, or any portion of it, except with express written consent of TYM. This license does not include any resale or commercial use of this TYM Platform or its Contents, any derivative use of this TYM Platform or its Contents, any downloading or copying of account information for the benefit of another User, or any use of data mining, robots, or similar data gathering and extraction tools.
4.6 You grant TYM the license and authorization to use your publicly available company information and logo for the purposes of promotion of the TYM Platform.
4.7 The TYM Platform or any portion of the TYM Platform (including but not limited to any copyrighted material, trademarks, or other proprietary information) originating from or owned by TYM or Outline India (a sole proprietorship of Ms. Prerna Mukharya) may not be reproduced, duplicated, copied, sold, resold, visited, distributed or otherwise exploited for any purpose without express written consent of TYM.
- Content originating from User, agents and subcontractors and proprietary rights
5.1 User agrees and warrants that any and all content uploaded by the User or any of its agents or its Users on the TYM Platform:
- is not collected in an unauthorized or unlawful manner or in contravention of internationally accepted data collection protocols, including but not limited to protocols pertaining to obtaining consent of the persons providing such data (Respondents);
- will not violate the intellectual property rights of any third party such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy;
- will not violate any law, statute, ordinance or regulation;
- will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; and
- will not create liability for TYM.
5.2 User agrees and warrants that the User has the legal authority and capacity to upload, display, communicate to the public any and all of the content uploaded/ displayed/ communicated to the public by it on the TYM Platform and the person providing information and filling out the User Registration form has been duly authorized by the User to do so.
5.3 User agrees that the intellectual property rights including but not limited to the copyright and all proprietary rights in the content, data set, information and database(s) uploaded by the User, its agents and its subcontractors on the TYM Platform shall vest solely in TYM.
5.4 All intellectual property rights and proprietary rights over such content, data set, information, questionnaires and database(s) uploaded by the User on the TYM Platform, its agents and subcontractors is expressly licensed by the User in favour of TYM and Outline India (a sole proprietorship in favour of Ms. Prerna Mukharya) by virtue of this Agreement by a worldwide, perpetual and non – exclusive license to use, reproduce and communicate the said data set, content, information and database without limitation as to the extent or nature of use by TYM or Outline India.
5.5 User represents and warrants that it has the necessary authority to execute such license in favour of TYM and the User confirms that the User’s agents and subcontractors have assigned to the User all rights in the such content, data set, information and database(s) or that the User owns such rights by operation of law and/ or through requisite documentation.
5.6 User hereby represents and warrant that it will not upload Content on the TYM Platform that:
- is not owned by the User or for which the User or its agents or subcontractors do not have authority to upload the Content;
- violate the intellectual property rights of others such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy;
- contain any viruses, Trojan horses, worms, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- violate any law, statute, ordinance or regulation (such as those governing export control or consumer protection);
- contain any material that is obscene, pornographic or that contains child pornography; and/or;
- creates liability for TYM.
5.7 In our sole discretion, We reserve the right to remove from the TYM Platform any material or data which we reasonably believe is unlawful or violates this Agreement or could result in any liability to TYM or is otherwise inappropriate.
5.8 You agree that all activities that occur through or under or from your User Account (including, without limitation, posting any company information, clicking to accept any additional agreements or rules, subscribing to or making any payment for any services) will be deemed to have been authorized by You.
5.9 You understand that by using and accessing the TYM Platform or any Services provided on the TYM Platform, you may encounter content that may be deemed by some to be inappropriate, offensive, indecent, or objectionable, which content may or may not be identified as such. You agree to use the TYM Platform and any Service at your sole risk, and that TYM shall have no liability to you for Content that may be deemed to be inappropriate, offensive, indecent, or objectionable.
5.10 You agree that the product and content listing or displaying on the TYM Platform may relate to and/or contain copyrights, trademarks, trade secrets, patents and other personal or proprietary rights of a third party. Further, You agree that the User who uploads or lists that content and information on the TYM Platform shall be solely responsible for any violation of third party rights.
5.11 The TYM Platform and TYM shall not be liable for any infringement or violation of such third party intellectual property and/or other personal or proprietary rights which may occur owing to uploading/ listing.
5.12 You agree that the product and content listing or displaying on the TYM Platform may relate to and/or contain copyrights, trademarks, trade secrets, patents and other personal or proprietary rights of a third party. Further, You agree that the User who uploads or lists that content and information on the TYM Platform shall be solely responsible for any violation of third party rights.
5.13 The TYM Platform and TYM shall not be liable for any infringement or violation of such third party intellectual property and/or other personal or proprietary rights which may occur owing to uploading/ listing.
5.14 When required by law, the government, law enforcement body, or obligee whose legitimate right has been injured, TYM may disclose the User’s identity and contact information. User agrees not to bring any action or claim against TYM for such disclosure.
5.15 The TYM Platform may allow Users to access content, products or services offered by third parties through hyperlinks (in the form of word links, banners, channels or otherwise), API or otherwise. You are cautioned to read such web TYM Platforms’ terms and conditions and/or privacy policies before using such TYM Platforms. You acknowledge that TYM has no control over such third parties’ web TYM Platforms, does not monitor such web TYM Platforms, and TYM shall not be responsible or liable to anyone for such web TYM Platforms, or any content, products or services made available on such web TYM Platforms.
- Force Majeure
6.1 Under no circumstances shall TYM be held liable for any delay or failure or disruption of the content or services delivered through the TYM Platform resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including, without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance by third parties.
- TYM’s Copyrights, Trademarks and Other Intellectual Property Rights
7.1 Unless otherwise noted or expressly mentioned, all contents on the TYM Platform are copyrights, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by TYM or one of its affiliates and are protected by the relevant laws prevailing in India and international copyright, patent, trademark and other intellectual property laws. The compilation (meaning the collection, arrangement, and assembly) of all Contents on this TYM Platform is the exclusive property of TYM and is also protected by international copyright, patent, trademark and other intellectual property laws.
7.2 TYM and its suppliers and/or licensors expressly reserve all intellectual property rights in all text, programs, products, processes, technology, content and other materials which appear on the TYM Platform. Access to the TYM Platform does not confer and shall not be considered as conferring upon anyone any license under any of TYM’s or any third party’s intellectual property rights, except to the extent stated hereinabove.
7.3 The TYM names and logos and all related product and service names, design marks and slogans are the trademarks of TYM. All other marks are the property of their respective companies. No trademark, service mark or logo license is granted in connection with the materials contained on this TYM Platform. Access to this TYM Platform does not authorize anyone to use any name, logo or mark in any manner. The unauthorized use of these names, logos or marks is strictly prohibited.
7.4 References on this TYM Platform to any names, marks, products or services of third parties or hypertext links to third party TYM Platform or information are provided solely as a convenience to you and do not in any way constitute or imply TYM’s endorsement, sponsorship or recommendation of the third party, information, product or service. TYM is not responsible for the content of any third party TYM Platform and does not make any representations regarding the content or accuracy of material on any such TYM Platform. If you decide to link to any such third party web TYM Platforms, you do so entirely at your own risk.
- Information Security
User will use appropriate internal information security practices to prevent the compromise of its information systems, computer networks and data files by unauthorized users, viruses or malicious computer programs which could in turn be transmitted to TYM or compromise the security of TYM Confidential Information or any of the Contents uploaded on the TYM Platform. User shall be responsible for any costs, damages or legal notification procedures resulting from any breach of this Section.
9 Confidential Information
9.1 Obligations. User acknowledges that User may receive (“Receiving Party”) Confidential Information from TYM (“Disclosing Party”) during the Term, and such Confidential information will be deemed to have been received in confidence and will be used only for purposes of this Agreement. The Receiving Party shall use the Disclosing Party’s Confidential Information only to perform its obligations under this Agreement and disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel, contractors and affiliates having a need to know the information for the purpose of this Agreement.
The Receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care. Upon the Disclosing Party’s written request, the Receiving Party shall return or certify the destruction of all Confidential Information, and the obligation of confidentiality shall continue for three (3) years from the expiration or termination of this Agreement; provided however, the Receiving Party shall continue to keep confidential (i) any personally identifiable information (“PII”) as required by this Agreement and any applicable Law and (ii) any trade secrets of the Disclosing Party as long as such information is deemed a trade secret. User agrees that TYM may share User’s Confidential Information with its Affiliates for internal use only.
9.2 Definition. The term “Confidential Information” means all information communicated by the disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation (a) the terms of this Agreement, (b) all trade secrets, (c) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, (d) information relating to business plans, sales or marketing methods and Buyer or supplier lists or requirements, and (e) all information identified as confidential to which Receiving Party has access in connection with the subject matter hereof, whether before or after the Effective Date. User shall also treat all Transaction Information, payment card data, tax codes, and PII as Confidential Information.
9.3 Exceptions. The obligations of the Receiving Party under this Section will not apply to information that the Receiving Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality; (b) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act or failure to act by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (c) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by such third party or the Receiving Party; or (d) is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.
10.4 Disclosure by Law. In the event the Receiving Party is required by Law, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (a) give the Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (b) limit the disclosure to the minimum amount that is legally required to be disclosed.
- Representations and Warranties
11.1 User hereby represents and warrants to TYM that User is a corporation duly organized, validly existing and in good standing under the laws of the state where User was incorporated and User has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid, and binding obligations of User. User has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances.
11.2 You will be required to provide information or material about your entity, business or products/services as part of the registration process on the TYM Platform or your use of any Service or the TYM account. You represent, warrant and agree that (a) such information and material, whether submitted during the registration process or thereafter throughout the continuation of the use of the TYM Platform or Service, is true, accurate, current and complete, and (b) you will maintain and promptly amend all information and material to keep it true, accurate, current and complete.
- Term, Termination and Suspension
12.1 Termination for Breach . This Agreement may be terminated at any time by TYM if the User breaches any provision of this Agreement. Termination under this Section does not limit TYM from pursuing any other remedies available to TYM, including but not limited to injunctive relief.
12.2 Termination in the Event of Insolvency. TYM may terminate this Agreement upon written notice to the User in the event (a) the User files a petition for bankruptcy or insolvency or is adjudicated bankrupt or insolvent; (b) a petition in bankruptcy or insolvency is filed against the User and such petition is not dismissed within ninety (90) days; (c) the other Party becomes or is declared insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (d) the other Party ceases to do business in the normal course; or (e) a receiver is appointed for the other Party or its business.
12.3 TYM Termination. TYM may terminate this Agreement without cause by giving thirty (30) days’ prior written notice to User.
12.4 Suspension. TYM may immediately suspend User’s Account on the TYM Platform for (i) User’s failure to comply with any obligations set forth in this Agreement, (ii) any breach of User’s information security obligations set forth or breaches to User’s systems, until User has resolved such failure to TYM’s reasonable satisfaction. User will work diligently and cooperate with TYM to promptly remedy any information security failures within a reasonable period of time.
12.5 Post-Termination Obligations. User will continue to have obligations under this Agreement after termination of the Agreement, including without limitation, the obligation to (i) pay any invoices delivered by TYM in connection with the Agreement, and (ii) immediately notify TYM of any security breach that allows a third party to view or access or otherwise compromise any Content uploaded by User.
12.6 Survival. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement (including, without limitation, representations, warranties, indemnification, payment obligations, remedies, limitations of liability, choice of law, jurisdiction, and venue) shall survive its termination.
13.1 Indemnification Obligations . User will defend, indemnify and hold harmless TYM and Affiliates and their respective employees, directors, agents and representatives (each an “Indemnitee”) from and against any and all Losses arising out of or related to third party Claims asserted against, imposed upon or incurred by an Indemnitee due to, arising out of or relating to:
(b) violation of any law, regulation or third-party right by the User or its agents or its subcontractor or anyone acting on behalf or at the behest of the User;
(c) User’s own website or other sales channels, User’s Products (including the advertisement, offer, sale or return of any of User’s Products), User’s Content, any actual or alleged infringement of any intellectual property or proprietary rights by User’s Products or Content;
(d) personal injury, death or property damage arising from User’s Products; and
13.2 Procedure for Indemnification. Upon receipt of notice, from whatever source, of Claims against TYM for which User is obligated to indemnify TYM, User immediately shall take necessary and appropriate action to protect TYM’s interests with regard to the Claims. TYM shall notify User of the assertion, filing or service of any Claims of which TYM has knowledge, as soon as is reasonably practicable.
13.3 Settlement. User, in the defense of any Claim, shall not, except with the prior written consent of TYM, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term the giving by the claimant or plaintiff to TYM or a release from all liability and blame with respect to the Claim. TYM shall have the right at all times to accept or reject any offer to settle any Claim against it.
- Warranty Disclaimer
THE TYM PLATFORM AND ANY RELATED PRODUCTS, SERVICES, CONTENT, SOFTWARE, ARTWORK, DATA, AND INFORMATION ARE PROVIDED “AS IS.” TYM EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE TYM PLATFORM, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES OR CORRESPONDENCE TO DESCRIPTION. USER AGREES THAT IT’S USE OF THE TYM PLATFORM IS ENTIRELY AT USER’S OWN RISK.
- Limitation of Liability
THE ENTIRE RISK ARISING OUT OF USER’S USE OF THE TYM PLATFORM, THE USE OF ANY SERVICES OFFERED IN CONNECTION WITH THE PLATFORM, AND/OR THE USE OF ANY CONTENT REMAINS WITH USER. IN NO EVENT SHALL TYM OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS USER AGREEMENT, USER’S USE OF THE PLATFORM OR ITS SERVICES, ANY INFORMATION OBTAINED THROUGH THE PLATFORM, ANY DELAY OR INABILITY TO USE THE PLATFORM OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES TO USER IN CONNECTION WITH THE PLATFORM, OR OTHERWISE ARISING OUT OF THE USE OF THE TYM PLATFORM WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF TYM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Controlling Law and Jurisdiction.
16.1 The Parties mutually acknowledge and agree that Agreement shall be governed, controlled, interpreted and defined by and under the laws of India and New Delhi, without regard to the conflicts of laws provisions thereof. Unless waived by TYM (which it may do in its sole discretion) the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the Courts at New Delhi and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. Service of process in any such action may be affected in the manner provided hereinabove for delivery of notices.
16.2 In case a dispute of any kind whatsoever arises out of this Agreement, the parties shall make all attempts to resolve such dispute amicably. In the event that such attempts fail in resolving the dispute, a party to the agreement may refer the dispute to arbitration by a person to be mutually decided by the parties to adjudicate upon the aforesaid disputes that have arisen between the parties.
16.3 The arbitration proceedings shall be conducted in accordance with the Arbitration and Conciliation Act, 1996. The venue of the arbitration shall be Delhi and any proceedings arising out of this Agreement shall be subject to the jurisdiction of the Delhi High Court.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall only apply to such provision and shall not render this Agreement unenforceable or invalid as a whole; and, in such event, such provision shall be modified or interpreted so as to best accomplish the objective of such unenforceable or invalid provision within the limits of applicable law or applicable court decision and the manifest intent of the parties hereto.
- Relationship of the Parties.
The parties hereto expressly understand and agree that the other is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. This Agreement does not make either party the employee, agent or legal representative of the other.
- Complete Agreement.
This Agreement (and all Exhibits hereto) constitutes the entire understanding and agreement with respect to the subject matter hereof and supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom.
Section headings are for reference only and shall not affect the interpretation of this Agreement.
This Agreement may be executed in any number of separate counterparts each of which when executed by and delivered to the other party shall be an original as against the party whose signature appears thereon, but all such counterparts shall together constitute one and the same instrument.