BY USING THE PLATFORM (DEFINED BELOW), YOU ARE AGREEING ON BEHALF OF SUBSCRIBER THAT YOU HAVE READ, AND AGREE TO COMPLY WITH AND BE BOUND BY, THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION AS WELL AS NEEDFINDER’S PAYMENT AND REFUND POLICIES AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU ARE NOT AUTHORIZED TO SO AGREE, OR IF SUBSCRIBER DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND NEEDFINDER PAYMENT AND REFUND POLICIES AND TO FOLLOW ALL APPLICABLE LAWS AND REGULATIONS, DO NOT ACCESS OR USE THE PLATFORM.
1. Definitions. In addition to the capitalized terms defined elsewhere in this Agreement, as used in this Agreement, the following capitalized terms have the meanings given to them in this Section 1.
1.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Customized Catalog” means any promotional products catalog generated by the Platform specifically for Subscriber’s use.
1.3. “Data” means all data provided by Subscriber to Needfinder, including Subscriber’s own Subscribers’ contact information.
1.4. “Improvements” means any improvement, refinement, enhancement, or other modification of, or any addition to, the Platform.
1.5. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.6. “Platform” or “Needfinder Platform”) means the tools and features developed, operated and maintained by Needfinder as to which Subscriber is obtaining access to hereunder via http://NEEDFINDER.IN (the “Site”), including the Customized Catalog.
1.7. “Services” means the services provided to Subscriber in connection with its use or utilization of the Platform, including managing the Platform on Subscriber’s behalf and/or generating content to be processed via the Platform.
1.8. “Third-Party Applications” means technology, Web-based applications and offline software products that are provided by third parties, interoperate with the Platform, and are not owned or created by Needfinder.
1.9. “Subscriber Marks” means all proprietary marks (including, without limitation any trademarks, service marks, trade dress, or other marks or logos) of Subscriber or its Affiliates heretofore or hereinafter registered or used.
1.10. “Users” means individuals who are authorized by Subscriber to use the Platform on Subscriber’s behalf. Users may include but are not limited to Subscriber’s employees, consultants, contractors, and agents, or other third parties.
2. Use of the Needfinder Platform.
2.1. Our Responsibilities. Subject to the terms and conditions of this Agreement, including without limitation Subscriber’s payment of the Fees due hereunder, Needfinder shall use commercially reasonable efforts to make the Platform available to Subscriber and its Users. In addition, Needfinder shall provide Subscriber with a reasonable amount of Platform management support Services during the Term.
2.2. Subscriber’s Responsibilities. Subscriber shall (i) be responsible for its and its Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity, and legality of Subscriber’s Data and of the means by which Subscriber acquired its Data, (iii) be responsible for preventing unauthorized access to or use of the Platform, and notify Needfinder promptly of any such unauthorized access or use, and (iv) use the Platform only in accordance with this Agreement, our rules and any applicable laws and government regulations. Subscriber shall provide Needfinder with all information, assistance and materials as reasonably required to activate and operate the Platform for Subscriber pursuant to this Agreement, including uploading Subscriber’s logo, sharing customer contact information, etc. Needfinder recommends setting up Subscriber’s account on the same day as Subscriber’s first subscription payment. In the event that a third party inquires about how Needfinder acquired his or her information (an “Inquiring Party”), upon Needfinder’s request, Subscriber will promptly provide all information requested by Needfinder concerning or related to the source of the information for such Inquiring Party and the collection of his or her consumer information, including, without limitation, all information necessary in order to (i) identify the source of the information for such party and (ii) validate that such party opted-in to receiving marketing materials from third parties. For third parties whose information is sourced through websites, such information will include, without limitation, (A) the website with respect to which such individual opted-in to receiving marketing materials from third parties (including the name of the owner of or other person hosting such website), (B) the date in on which such individual accessed such website and (C) the IP address of the network utilized by such individual to access such website. For information that is sourced through phone marketing, compiled data, email responses and other channels, such information will include, without limitation, (A) the channel through which such individual opted-in to receiving marketing materials from third parties (including the owner of or other person operating such channel or collecting such information), (B) the date on which such individual opted in, (C) and relevant identifying information to validate that such individual originated through the specified channel. Notwithstanding anything to the contrary contained in this Agreement, Needfinder shall be entitled to disclose to any Inquiring Party (y) that Needfinder used his or her consumer information in conjunction with and as part of the provision of services to Subscriber and (z) all other information described under this Section.
2.3. Restrictions. Subscriber shall not (a) use the Platform as a service bureau or otherwise make the Platform available to anyone other than Users, (b) sell, resell, rent or lease the Platform or access thereto to any third party, (c) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights, (d) use the Platform to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or operation of the Platform or third-party data contained therein, or (f) attempt to gain unauthorized access to the Platform or its related systems or networks. Users may be required to acknowledge and agree to the pertinent provisions of this Agreement as a condition to access. Further, Subscriber may not access the Needfinder Platform if it is or is under the control of a direct competitor of Needfinder or for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes, except with Needfinder’s prior written consent.
2.4. Limitations. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by Needfinder. During such time, the Platform may be unavailable. Emergency maintenance may be required at other times in the event of system failure. Needfinder will use commercially reasonable efforts to promptly remedy any system failure and restore access to the Platform.
3. Support and Technical Matters.
3.1. Maintenance and Technical Support Relating to Subscriber’s Customized Catalog. During the Term, Needfinder shall provide reasonable maintenance and technical support services relating to the Platform.
3.2. Accuracy of Information in Subscriber’s Customized Catalog. Subscriber acknowledges and agrees that Needfinder shall not be responsible for the accuracy of any information (including Data) posted in any Customized Catalog. Needfinder cannot guarantee specific pricing, product descriptions, or availability, as these factors are controlled in part by suppliers and other parties. Needfinder shall, in its sole discretion, determine the method, details, and means of developing, altering, or enhancing the any Customized Catalog.
3.3. Hosting. Needfinder shall host and serve the Platform. Needfinder may retain one or more third-party service providers to supply the necessary facilities, equipment, and connectivity to provide the hosting services. Needfinder retains sole right and control over the programming, content, and conduct on the Needfinder Platform. Needfinder shall solely be responsible for the maintenance, functionality and improvement of the Needfinder Platform.
4. Fees; Payment.
4.1. Fees. In exchange for the provision of the Platform, Subscriber agrees to pay Needfinder all fees listed on the confirmation email sent to Subscriber or otherwise agreed to by Subscriber during the subscription process (“Fees”). Subscriber agrees that (i) Fees are due and payable in Indian National Rupees (ii) Fees are not based on actual usage, and (iii) except as set forth in Section 18, payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof (or the last day of the applicable month if a given month does not have a corresponding day).
4.2. Invoicing and Payment. Subscriber will provide Needfinder with valid and updated credit card information, or with an alternative payment method reasonably acceptable to Needfinder. If Subscriber provides credit card information to Needfinder, Subscriber authorizes Needfinder to charge such credit for all Fees due hereunder. Such charges shall be made in advance, either monthly or annually. Subscriber is responsible for maintaining complete and accurate billing and contact information in its account.
5. Suspension or Cancelation of Access to the Platform. If any amount owing by Subscriber under this or any other agreement for services is twenty-one (21) or more days past due, Needfinder may, without limiting its other rights and remedies, suspend or cancel Subscriber’s access to the Platform (including without limitation Subscriber’s access to all Data) until such amounts are paid in full.
6. Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Subscriber is solely responsible for paying all Taxes associated with this Agreement. If Needfinder has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides Needfinder with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. License Grant. Subscriber hereby grants to Needfinder, under all of its applicable intellectual property rights, a world-wide, non-exclusive, royalty-free, license to use Data and Subscriber Marks in conjunction with the provision of the Platform to Subscriber and its Users under this Agreement. Further, Subscriber grants and agrees to grant to Needfinder a non-exclusive, transferable license to use such Data (a) for statistical use (provided that such data is not disclosed if it is personally identifiable to Subscriber); (b) on an aggregated basis, for any lawful purpose (again, provided that such data is not disclosed if it is personally identifiable to Subscriber), and (b) as necessary to monitor and improve the Platform.
8. Intellectual Property Ownership.
8.1. Ownership of the Works. All right, title, and interest in the Platform, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, including any Customized Catalog, all copyrights, patents, trade secrets, trade dress, and other proprietary rights, and any derivative works thereof (including Improvements), shall belong solely and exclusively to Needfinder or its licensors, and Subscriber shall have no rights whatsoever in any of the foregoing except as expressly set forth herein. Subscriber acknowledges that the Platform is comprised of valuable trade secrets and is the confidential information of Needfinder and/or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to Subscriber or its Users an ownership interest in the Platform, in whole or in part. All content and materials included as part of the Platform, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Works”) are the property of Needfinder and are protected by copyrights, trademarks, trade secrets, or other proprietary rights, and these rights are valid and protected in all forms, media, and technologies existing now or hereinafter developed. All Works are copyrighted as individual works and as a collective work under the Indian copyright laws and international treaty provisions, and Needfinder owns a copyright in the selection, coordination, arrangement and enhancement thereof. Subscriber may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as expressly contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Works is strictly prohibited. Subscriber understands and acknowledges that unauthorized disclosure, use or copying of the Works may cause Needfinder and its licensors irreparable injury, which may not be remedied at law, and agrees that Needfinder’s and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
8.2. Ownership and Use of Data. Subject to Section 7, as between Needfinder and Subscriber, Subscriber exclusively owns all rights, title, and interest in and to all of its Data. Needfinder will not use such Data for any purpose other than to provide the Platform to Subscriber.
8.3. Suggestions. Needfinder shall have and Subscriber hereby grants a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Platform and any derivatives thereof any suggestions, enhancement requests, recommendations, or other feedback provided by Subscribers (including Users), relating to the Platform.
9. Trademarks. The Needfinder name and logo and other related names, design marks, product names, feature names, and related logos are trademarks of Needfinder and may not be used, copied, or imitated, in whole or in part, without the express prior written permission of Needfinder. In addition, except as otherwise set forth herein, the look and feel of the Platform (including all page headers, custom graphics, button icons, and scripts) constitutes the service marks, trademarks, and trade dress of Needfinder and may not be copied imitated or used, in whole or in part, without the express prior written permission of Needfinder.
11. Links to External Sites. The Site and the Platform may contain links to other web sites. Needfinder is not responsible for the availability of these external sites nor does it endorse the activities or services provided by these websites. Under no circumstances will Needfinder be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to a user in connection with the use of or reliance on any content, goods, or services available on such external websites.
12. Third-Party Service Providers. The Platform may include Third-Party Applications or may be fulfilled by third-party providers who are acting on behalf of Needfinder. Subscriber acknowledges and agrees that Needfinder may allow providers of those Third-Party Applications to access its Data as required for the interoperation of such Third-Party Applications with the Platform.
13. Warranties and Disclaimers.
13.1. Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
13.2. Subscriber Warranties. The methods and practices used to collect Data provided to Needfinder hereunder will at times be in compliance with Indian laws, rules, and or regulations.
13.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Needfinder MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND Needfinder SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
14. Mutual Indemnification.
14.1. Indemnification by Needfinder. Needfinder shall defend Subscriber against any claim, demand, suit, or proceeding (“Claim”) made or brought against Subscriber by a third party alleging that the use of the Platform as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Subscriber for any damages finally awarded against Subscriber in connection with any such Claim; provided, that Subscriber (a) promptly gives Needfinder written notice of the Claim; (b) gives Needfinder sole control of the defense and settlement of the Claim; and (c) provides Needfinder all reasonable assistance, at Subscriber’s expense.
14.2. Indemnification by Subscriber. Subscriber shall defend Needfinder against any Claim made or brought against Needfinder by a third party (a) alleging that Subscriber’s Data, or Subscriber’s use of the Platform in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or (b) in any other way relating to or arising from Subscriber’s Data, or a breach of Subscriber’s Responsibilities set forth in Section 2.3, and shall indemnify Needfinder for any damages finally awarded against, and for reasonable attorneys fees incurred by, Needfinder in connection with any such Claim; provided, that Needfinder (i) promptly gives Subscriber written notice of the Claim; (ii) gives Subscriber sole control of the defense and settlement of the Claim (provided that Subscriber may not settle any Claim unless the settlement unconditionally release Needfinder of all liability); and (iii) provides to Subscriber all reasonable assistance, at Needfinder’s expense.
14.3. Exclusive Remedy. This Section 14 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
15. Limitation of Liability. IN NO EVENT SHALL Needfinder’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $10,000 OR THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
16. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL NEEDFINDER HAVE ANY LIABILITY TO SUBSCRIBER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
17.1. Definition of Confidential Information. As used herein, Confidential Information means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Subscriber’s Confidential Information shall include its Data; Needfinder’s Confidential Information shall include the Platform; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Subscriber’s Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
17.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
17.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
18. Term and Cancellation of Subscription.
18.1. Term. This Agreement will commence on the date listed on the confirmation email sent to Subscriber and, unless Subscriber is currently under a month-to-month subscription, will continue for a period of 12 months (the “Initial Term”) and will automatically renew for additional one-month terms (each, a “Renewal Term”) unless either party notifies the other party of its intent to not renew at least 30 days prior to the end of the Initial Term or the then current Renewal Term. The Initial Term and all such Renewal Terms are collectively referred to as the “Term.”
18.2. Cancellation of Subscription. If Subscriber elects to cancel its subscription to the Platform, Subscriber must call Needfinder at 1-888-988-5526 and speak with a Client Success Manager, who will confirm cancellation via email. Cancellation and termination of this Agreement will be effective within 5 business days of receipt of the email, if Subscriber cancels during the Initial Term, and within 30 days if Subscriber cancels within any Renewal Term or other month-to-month subscription. Needfinder reserves the right to suspend Subscriber’s access to the Platform and terminate this Agreement at any time upon notice to Subscriber.
18.3. Effect of Termination. In no event shall termination relieve Subscriber of the obligation to pay any Fees payable to Needfinder for the period prior to the effective date of termination. If the effective date of termination is prior to the end of the subscription month, Fees for such partial month will be prorated. If Subscriber cancels its subscription prior to the expiration of the Initial Term, Subscriber agrees to pay an early termination fee of 50% of the Fees payable during the remainder of the Initial Term. If Subscriber prepaid any Fees, Needfinder will refund to Subscriber such prepaid Fees covering the remainder of the term of all subscriptions after the effective date of termination; provided that if Subscriber received a prepayment discount, the amount refunded will be less any applicable discount for the periods prior to the effective date of termination.
19. General Provisions.
19.1. Governing Law; Venue. This Agreement shall be governed by New Delhi law and controlling Indian law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Platform shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, Texas.
19.2. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
19.3. Export Compliance. Each party shall comply with the export laws and regulations of India and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any Indian government list of persons or entities prohibited from receiving exports, and (ii) Subscriber shall not permit Users to access or use the Platform in violation of any Indian export embargo, prohibition or restriction.
19.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
19.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
19.6. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
19.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
19.8. Attorney Fees. Subscriber shall pay on demand all of Needfinder’s reasonable attorney fees and other costs incurred by Needfinder to collect any Fees or charges due Needfinder under this Agreement.
19.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
19.10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or attachment hereto, the terms of this Agreement shall prevail.
19.11. Survival. Rights and obligations under this Agreement which by their nature should survive, including, but not limited to any and all payment obligations invoiced prior to the termination or expiration hereof, will remain in effect after termination or expiration hereof.
19.12. Amendment. This Agreement will not be changed, modified, or amended except by a writing executed by both parties or if Subscriber electronically accepts a subsequent agreement or amendment delivered by Needfinder via the Platform.
19.13. Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.
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