THIS END USER AGREEMENT GOVERNS THE END-USER'S ACCESS TO AND USE OF THE SOFTWARE, CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES CONTAINED IN THE COMPANY'S PLATFORM (THE "SERVICES"). BY USING OR OTHERWISE ACCESSING THE SERVICES PROVIDED BY THE COMPANY OR BY CONFIRMING THE ORDER AS PART OF THE DOWNLOADING OR ORDERING PROCESS, THE END-USER ("YOU", "END-USER) AGREES TO THE TERMS OF THIS END USER AGREEMENT WHICH WILL BIND IT AND ITS EMPLOYEES IF APPLICABLE. THIS END USER AGREEMENT FORMS PART OF THIS AGREEMENT BETWEEN THE END-USER AND THE COMPANY IN RELATION TO THE SERVICES. YOU SHOULD ENSURE THAT YOU CAREFULLY READ THESE TERMS. IF YOU ARE ENTERING INTO THIS END USER AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS END USER AGREEMENT, IN WHICH CASE THE TERM END-USER SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS END USER AGREEMENT, YOU MAY NOT USE OR ACCESS THE SERVICES. IF YOU DO NOT INTEND TO BE LEGALLY BOUND TO THE TERMS AND CONDITIONS OF THIS END USER AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE SERVICES AND DO NOT CLICK “ACCEPT” OR OTHERWISE ASSENT TO THIS END USER AGREEMENT.
LAW & JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of India and the parties agree that any dispute relating to its terms or subject matter shall be subject to the exclusive jurisdiction of the Indian courts.
SERVICES
2.1 The Company will provide the End-user with
use of and access to the Services in accordance with the terms of this Agreement.
2.2 In relation to the Authorised Users, the End-user undertakes that each Authorised User shall
keep a secure and confidential password for his use of the Services and that each Authorised User
shall comply with good industry practice in respect of password security.
2.3 The End-user shall not knowingly access, store, distribute or transmit any Viruses, or any
material, data or Content during the course of its use of the Services that, in the sole opinion of
the Company:
2.3.1 Is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or
ethnically
offensive;
2.3.2 violates or infringes any Intellectual Property Rights or other rights of third parties;
2.3.3 facilitates illegal activity;
2.3.4 depicts sexually explicit images;
2.3.5 promotes unlawful violence;
2.3.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation,
disability, or any other illegal activity; or
2.3.7 causes damage or injury to any person or property,
and the Company reserves the right, without liability to the End-user, to disable the End-user's
access to any material that breaches the provisions of this Clause 2.3.
2.4. The End-user shall not and shall ensure that the Authorised Users do not:
2.4.1 except as may be allowed by any applicable law which is incapable of exclusion by
agreement
between the parties:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish,
download, display, transmit, or distribute all or any portion of the Software or Services (as
applicable) in any form or media or by any means including any part of the Company Data, the data
models or screens, and any data that has been entered by the Company or one of its agents; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to
human-perceivable form all or any part of the Software;
1. access all or any part of the Services or Software in order to build a product or service
which
competes with the Software and/or the Services;
2. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise
commercially exploit, or otherwise make the Software or the Services available to any third party
except the Authorised Users;
3. attempt to obtain, or assist third parties in obtaining, access to the Software or the
Services
other than as provided under this Agreement;
2.5. The End-user shall not, and shall ensure that the Authorised Users do not, do any of the
following while using or accessing the Services or the Software:
2.5.1. disable, hack, circumvent or otherwise interfere with security related features of the
Software or the Services;
2.5.2. use any metadata, meta tags or other hidden text utilising the Company name, trademark,
URL
or product name;
2.5.3. upload, submit, post, email or otherwise transmit any unsolicited or unauthorised
advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any
other form of solicitation;
2.5.4. forge any TCP/IP packet header or any part of the header information in any posting or in
any
way use the Services or the Software to send altered, deceptive or false source-identifying
information;
2.5.5. attempt to scan, probe or test the vulnerability of any Company system or network or
breach,
impair or circumvent any security or authentication measures protecting and providing security for
the Services or the Software;
2.5.6. collect or store Personal Data about any third party except in accordance with the Data
Protection Legislation; or
2.5.7. misrepresent or impersonate its affiliate with any person or entity, through pretext or
some
other form of social engineering or otherwise commit fraud.
2.6. The End-user shall use all reasonable endeavours to prevent any unauthorised access to, or
use
of, the Services and, in the event of any such unauthorised access or use, promptly notify the
Company.
2.7. The Company may amend the Services in its sole and absolute discretion from time to time on
notice to the End- user.
CONTENT
3.1 The End-user shall submit all Content at
its sole expense in the format(s) required by the Company or the Consumer Stores. Technical
descriptions of such format(s) will be provided to the End-user on request. In the event that
Content is provided by the End-user in the incorrect format, the End-user shall be liable to pay any
resubmission or similar fees levied by the Consumer Stores in respect of any such Content provided
by the Company to the Consumer Stores.
3.2 The End-user hereby grants to the Company, during the term of this Agreement and for a
reasonable period thereafter, a non-exclusive, royalty-free, irrevocable and worldwide licence
(including without limitation the right to sub-license all of these rights) to:
3.2.1 use the Content to provide the Services;
3.2.2 sell, copy, display, distribute and otherwise exploit the Content by all means and media
(whether now known or existing in the future) through any and all Consumer Stores or the Company
website (including for permanent download by End-users);
3.2.3 to supplement any artwork provided for use with the Services;
3.2.4 to make and perform clips of any Content of up to thirty (30) seconds in length via
streaming
or download free of charge, for the purposes of promotion of the Content, the relevant artists or
the Services;
3.2.5 to use the Content in connection with the Company's business purposes; and
3.2.6 to collect all income deriving from the activities specified in this clause 3.2.
3.3 The Company shall make the Content available ‘as is’ through the Services and shall not be
liable for any reliance placed by the End-user or any third party on the Services, Software or
Content.
3.4 The Company engages the services of third party providers who also provide back-up services
for
data stored in or entered into the Software, including Content. In the event of any loss or damage
to Content, the End-user's sole and exclusive remedy shall be for the Company to use reasonable
commercial endeavours to have its service providers restore the lost or damaged Content from the
latest back-up of such Content maintained in accordance with the archiving procedure described in
the relevant back up policies. The Company shall not be responsible f or any loss, destruction,
alteration or disclosure of Content caused by any third party (except those third parties
sub-contracted by the Company to perform services related to Content maintenance and back-up or the
Company's duly authorised contractors or agents).
3.5 The End-user warrants and represents that:
3.5.1 It has the authority to enter into this Agreement;
3.5.2 It is the owner or licensee of the Content and is permitted to provide the rights to the
Content as specified in this Agreement to the Company and the Consumer Stores; and
3.5.3 the use and exploitation by the Company or any of the Consumer Stores of Content as
contemplated by this Agreement shall not infringe the Intellectual Property Rights of any third
party.
3.6 For clarity, the End-user shall be solely responsible for obtaining and paying for any
licences
from the owners of any Intellectual Property Rights in Content required in connection with the use
or exploitation of Content by the Company or the Consumer Stores as contemplated in this Agreement.
3.7 The End-user acknowledges that in providing the Services and payments hereunder, the Company
will be required to enter into certain agreements with various Consumer Stores. The selection of
these Consumer Stores shall be within the sole discretion of the Company.
3.8 Nothing in this Agreement shall require the Company, and the Company does not guarantee,
that it
will use or exploit any Content or upload it to any Consumer Stores.
3.9. Not to use Artificial Intelligence, Artificial Music Generator, or any other artificial and
or
robotic means.
DATA PROTECTION
4.1 If the Company processes any personal
data
on the End-user's behalf (and the End-user is an entity or an individual other than a Data Subject)
when performing its obligations under this Agreement, the parties record their intention that the
End-user shall be the data controller and the Company shall be a data processor (where "Controller"
and "Processor" have the meanings specified in the GDPR), and in any such case:
4.1.1 for the purposes of this Clause 4.1.1, the terms "Personal Data", "Data Subject" and
"Processing" (and "Process" and "Processed" shall have a corresponding meaning) shall have the same
meanings as in the GDPR;
4.1.2 Schedule 1 sets out the scope, nature, purpose, duration of Processing by the Company and
the
types of Personal Data and categories of Data Subject to be Processed;
4.1.3 the End-user will ensure that at all times there is a legal basis in place to enable the
Company to Process the Personal Data in order to provide the Services, provide Content to Consumer
Stores and the Company's other obligations under this Agreement;
4.1.4 the End-user acknowledges and agrees that the personal data may be transferred or stored
outside the EEA or the country where the End-user and the Authorised Users are located in order to
provide/make available the Services, provide Content to Consumer Stores and the Company's other
obligations under this Agreement;
4.1.5 the End-user permits the Company to subcontract its Processing functions as it deems
necessary
in order to provide/make available the Software and the Company's other obligations under this
Agreement to any of the third parties listed at Schedule 1;
4.1.6 the Company shall, in relation to any Personal Data Processed under this Agreement:
Process that Personal Data only on the written instructions of the End-user unless the Company is
required to do so by European Union law or the laws of any member of the European Union applicable
to the Company, and in such a case the Company will inform the End-user of such where permitted. The
End-user hereby instructs the Company to Process Personal Data contained in the Content for the
purposes of providing the Services, providing Content to Consumer Stores and complying with the
Company's other obligations under this Agreement;
implement appropriate technical and organisational measures to protect against unauthorised or
unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to,
Personal Data, appropriate to the harm that might result from the unauthorised or unlawful
Processing or accidental loss, destruction, damage, alteration or disclosure, having regard to the
state of technological development and the cost of implementing any measures;
ensure that all personnel who have access to and/or Process Personal Data are obliged to keep the
Personal Data confidential;
assist the End-user, at the End-user's cost, in responding to any request from a Data Subject and in
ensuring compliance with its obligations under the Data Protection Legislation with respect to
security, breach notifications, impact assessments and consultations with supervisory authorities or
regulators;
notify the End-user without undue delay on becoming aware of a Personal Data breach;
at the written direction of the End-user, delete or return Personal Data and copies thereof to the
End-user on termination of this Agreement unless required by European Union or European Union Member
State Law to store the Personal Data; and
at the cost of and upon reasonable notice from the End-user, provide all information necessary to
demonstrate the Company's compliance with its obligations under the GDPR and allow for and
contribute to audits or inspections conducted by the End-user or any auditor acting on the authority
of the End-user to carry out an audit or inspection (subject to the End-user or such auditor signing
a confidentiality agreement proposed by the Company) provided however that any information obtained
in connection with or in the course of any such audit or inspection shall be used solely for the
purposes of ensuring that the Company is complying with its obligations as a Processor under the
Data Protection Legislation, maintained in the strictest confidence and shall not be used or
disclosed for any other purpose.
THIRD PARTY PROVIDERS
The End-user acknowledges that the Services may enable or assist it to access third party software and/or application programming interfaces and the website content of, correspond with, and purchase products and services from, third parties via third-party websites, software and application programming interfaces, and that it does so solely at its own risk. The Company makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website or application programming interfaces, or any transactions completed, and any contract entered into by the End-user, with any such third party. Any contract entered into and any transaction completed via any third-party website or application programming interfaces is between the End-user and the relevant third party, and not the Company. The Company recommends that the End-user refers to the third party's website or application programming interface terms and conditions and privacy policy prior to using the relevant third-party website or application programming interface. The Company does not endorse or approve any third-party website or application programming interface nor the content of any of the third-party website made available via the Services.
THE COMPANY'S OBLIGATIONS
6.1 The Company warrants that the Services and
any Software: (i) will be performed in accordance with reasonable skill and care, and (ii) does not
infringe any third party Intellectual Property Rights.
6.2 The warranty at Clause 6.1 shall not apply to the extent of any non-conformance which is
caused
by use of the Services contrary to the Company's instructions, or modification or alteration of the
Services or the Software by any party other than the Company or the Company's duly authorised
contractors or agents. If the Services or the Software do not conform with the warranty at Clause
6.1 above, the Company will, at its expense: (i) use reasonable commercial endeavours to correct
any
such non-conformance promptly, or provide the End-user with an alternative means of accomplishing
the desired performance; or (ii) re-perform the relevant Services (as applicable). Such correction,
substitution or re-performance constitutes the End-user's sole and exclusive remedy for any breach
of the warranty set out in Clause 6.1. Notwithstanding the foregoing, the Company:
6.2.1. does not warrant that the End-user's use of the Services or the Software will be
uninterrupted or error-free, nor that the Software or the information obtained by the End-user
through the Services will meet the End-user's requirements; and
6.2.2.is not responsible for any delays, delivery failures, or any other loss or damage
resulting
from the transfer of data over communications networks and facilities, including the internet, and
the End-user acknowledges that the Services may be subject to limitations, delays and other problems
inherent in the use of such communications facilities. The Company shall use commercially reasonable
endeavours to prevent and/or minimise any such delays or loss of data resulting from the transfer of
data over communications networks and facilities to the extent that such matters are within the
Company’s control.
6.3 Nothing in this Agreement shall prevent the Company from entering into similar agreements
with
third parties, or from independently developing, using, selling or licensing documentation, products
and/or services which are similar to those provided under this Agreement
PAYMENTS
7.1The Company shall pay or arrange payment to
the End-user the Net Income within 30 days of the end of the month in which the related Income is
received from the Consumer Store(s). Net Income shall be applied to the End-user's Company account,
which can be accessed through the Services. For the avoidance of doubt, the Company shall only pay
or arrange payment to the End-user the Net Income which is actually received by the Company prior to
date on which payment is specified to occur in this Clause 7.1.
7.2 The Company shall not be responsible for the payment of any income tax or corporation tax
or
comparable taxes levied on the End-user or the Company in respect of the Net Income or Income. If
any withholding tax is incurred under income tax or corporation tax enforced in India or
elsewhere, the Company shall be entitled to deduct the statutory amount of withholding tax from the
payments due to the End-user.
7.3 The Company (on its own behalf or, where applicable, on behalf of its authorised
distributors or
partners) shall be entitled to deduct the Fee from any Income prior to applying the Net Income to
the End-user's account.
7.4 To the extent that the End-user elects to use Content to distribute free to any third
parties
(by whatever means), the End-user agrees that it will be solely responsible for any fees or charges
levied by Consumer Stores or taxes in respect of such distribution.
7.5 In the event that the Company determines, in its sole discretion, that the End-user's
Company
account has been subject to and / or involved in fraudulent or infringing activities, the Company
reserves the right to discontinue the application of Net Income to the End-user's Company account
and block the End-user's ability to otherwise withdraw funds therefrom until resolution of the
suspect activities to the satisfaction of the Company. The End- user agrees that any Net Income
obtained as a result of the End-user's fraud or infringement of third party Intellectual Property
Rights shall be forfeited to the Company. Certain Consumer Stores may also have policies related to
fraud and suspected fraudulent activities and the End-user agrees that it is its responsibility to
investigate such policies and such policies shall be binding on the End-user hereunder.
7.6 To the extent that any Net Income applied to the End-user's Company account bears any
interest
prior to the withdrawal by the End-user of such Net Income, the End-user agrees that it will not
receive interest or other earnings on the Net Income. In consideration for the End-user's use of the
Services, the End-user transfers and assigns to the Company any ownership rights the End-user may
have in any interest or other earning that may accrue on Net Income prior to its withdrawal by the
End-user.
END-USER'S OBLIGATIONS
8.1The End-user shall:
8.1.1. provide the Company with all necessary
8.1.1.1 co-operation in relation to this Agreement; and
8.1.1.2 access to such information as may be required by the Company,
in order to render the Services and other Company services as may be available from time to time and
in relation to security and configuration services;
8.1.2. comply with all applicable laws and regulations with respect to its activities under this
Agreement;
8.1.3. carry out all other End-user responsibilities set out in this Agreement in a timely and
efficient manner. In the event of any delays in the End-user's provision of such assistance as
agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as
reasonably necessary;
8.1.4. ensure that the Authorised Users use the Services in accordance with the terms and
conditions
of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
8.1.5. obtain and maintain all necessary licences, consents, and permissions necessary for the
Company, its contractors and agents to perform their obligations under this Agreement;
8.1.6. ensure that its network, systems and devices comply with the relevant specifications
provided
by the Company from time to time and with good industry practice; and
8.1.7. be solely responsible for procuring and maintaining its network connections and
telecommunications links from its systems to the Company's systems, and all problems, conditions,
delays, delivery failures and all other loss or damage arising from or relating to the End-user's
network connections or telecommunications links or caused by the internet
PROPRIETARY RIGHTS
9.1 The End-user acknowledges and agrees that
the Company and/or its licensors own all Intellectual Property Rights in the Software and the
Services. Except as expressly stated herein, this Agreement does not grant the End-user any rights
to, or in, any Intellectual Property Rights.
9.2 The End-user shall ensure that all titles, logos, trademarks, copyright and other notices
applied by the Company to the Software or any materials provided or produced by the Company or the
Software in connection with this Agreement shall be reproduced and not deleted or removed.
CONFIDENTIALITY
10.1 The End-user may be given access to
Confidential Information from the Company in the course of the provision of the Services under this
Agreement. The Company's Confidential Information shall not be deemed to include information that:
10.1.1.is or becomes publicly known other than through any act or omission of the End-user;
10.1.2.was in the End-user's lawful possession before the disclosure;
10.1.3.is lawfully disclosed to the receiving party by a third party without restriction on
disclosure;
10.1.4.is independently developed by the End-user, which independent development can be shown by
written evidence; or
10.1.5.is required to be disclosed by law, by any court of competent jurisdiction or by any
regulatory or administrative body.
10.2 The End-user shall hold the Company's Confidential Information in confidence and, unless
required by law, not make such Confidential Information available to any third party, or use the
Company's Confidential Information for any purpose other than the implementation of this Agreement.
10.3 The End-user shall take all reasonable steps to ensure that the Company's Confidential
Information to which it has access is not disclosed or distributed by its employees or agents in
violation of the terms of this Agreement.
10.4 The End-user acknowledges that details of the Software and the Services constitute the
Company’s Confidential Information.
10.5 This Clause 10 shall survive expiry or termination of this Agreement, however arising
INDEMNITY
11.1 The End-user shall defend, indemnify on demand and hold harmless the Company and its authorised distributors or partners against any and all claims, actions, proceedings, losses, damages, fees expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) the End-user's and its Authorised Users' use of the Services otherwise than as permitted under this Agreement, or (ii) any claim by any third party that the use or exploitation of Content by the Company or any of the Consumer Stores infringes a third party's Intellectual Property Rights or other rights
LIMITATION OF LIABILITY
12.1 Except as expressly and specifically
provided in this Agreement:
12.1.1.the End-user assumes sole responsibility for results obtained from the use of the
Services by
the End-user, and for conclusions drawn from such use. the Company shall have no liability for any
damage caused by errors or omissions in any information, instructions or scripts provided to the
Company by the End-user in connection with the Services, or any actions taken by the Company at the
End-user's direction;
12.1.2.all warranties, representations, conditions and all other terms of any kind whatsoever
implied by statute or common law (with respect to the Services or otherwise) are, to the fullest
extent permitted by applicable law, excluded from this Agreement; and
12.1.3.the Services are provided to the End-user on an "as is" basis.
12.2 Nothing in this Agreement shall limit or exclude the liability of either party for a matter
in
respect of which it would be unlawful to exclude or limit liability.
12.3 Subject to 12.2:
12.3.1.NEITHER THE COMPANY NOR ITS AUTHORISED DISTRIBUTORS OR PARTNERS SHALL BE LIABLE TO THE
END-USER WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT,
MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF
GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS,
OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER
ARISING UNDER THIS AGREEMENT.
12.3.2.THE COMPANY'S TOTAL AGGREGATE LIABILITY (AND THAT OF ITS AUTHORISED DISTRIBUTORS OR
PARTNERS)
IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION
OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS
AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF THE FEES RECEIVED BY THE COMPANY PURSUANT TO THIS
AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
12.4 For the purposes of Clause 12.3, the Company is acting on its own behalf and as an agent
for
and on behalf of its authorised distributors and partners, and accordingly the Company may enforce
and rely on Clause 12.3 on its own behalf and/or in its capacity as agent of its authorised
distributors and partners
FORCE MAJEURE
The Company shall have no liability to the End-user under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the End-user is notified of such an event and its expected duration
GENERAL
15.1. The End-user shall not, without the
prior written consent of the Company assign, sub-License, delegate or transfer this Agreement or any
of its rights under this Agreement to any other person, firm or company. The Company may at any time
assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or
obligations under this Agreement, with or without notice to the End-user.
15.2. All notices to or by the respective Parties shall be in writing in the English language
and
shall be deemed to have been duly given when (a) delivered by hand, (b) posted by recorded delivery
post (postage prepaid), (c) sent by reputable overnight courier (d) sent by fax or (e) sent by email
to the party to which such notice is required to be given under this Agreement addressed to the
parties as provided for in this Agreement; or to such other address, fax number or email address as
either party may subsequently notify to the other in writing.
15.3. Failure or neglect by the Company to enforce at any time any of the provisions hereof
shall
not be construed nor shall be deemed to be a waiver of the Company's rights pursuant to this
Agreement nor in any way affect the validity of the whole or any part of this Agreement nor
prejudice the Company's rights to take subsequent action.
15.4. This Agreement supersedes any arrangements, understandings, promises or agreements made or
existing between the parties prior to the signing of this Agreement that constitutes the entire
understanding between the parties hereto. Except as otherwise provided in this Agreement, no
addition, amendment or modification of this Agreement shall be effective unless it is in writing and
signed by and on behalf of each party by a director or such other duly authorised officer as the
case may be.
15.5. In the event that any or any part of the terms, conditions or provisions contained in this
Agreement or any Schedule hereto shall be determined by any competent authority to be invalid,
unlawful or unenforceable to any extent such term, condition or provision shall to that extent be
severed from the remaining terms and conditions which shall continue to be valid and enforceable to
the fullest extent permitted by law.
TERMINATION
13.1 This Agreement shall continue until
terminated in accordance with this Agreement.
13.2 The Company may terminate this Agreement on 7 days' notice to the End-user.
13.3 The End-user may terminate this Agreement on 6 months' notice to the Company.
13.4 Without prejudice to any other rights or remedies to which the parties may be entitled, the
Company may terminate this Agreement without liability to the End-user if:
13.4.1. the End-user commits a material breach of any of the terms of this Agreement and (if
such a
breach is remediable) fails to remedy that breach within 30 days of that party being notified in
writing of the breach;
13.4.2. an order is made or a resolution is passed for the winding up of the End-user, or
circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in
relation to the other party;
13.4.3. an order is made for the appointment of an administrator or examiner to manage the
affairs,
business and property of the End-user, or documents are filed with a court of competent jurisdiction
for the appointment of an administrator or examiner of the End-user, or notice of intention to
appoint an administrator or examiner is given by the End-user or its directors or by a qualifying
floating charge holder;
13.4.4. a receiver is appointed of any of the End-user's assets or undertaking, or if
circumstances
arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager
of the End-user, or if any other person takes possession of or sells the End-user's assets;
13.4.5. the End-user makes any arrangement or composition with its creditors, or makes an
application to a court of competent jurisdiction for the protection of its creditors in any way;
13.4.6. the End-user ceases, or threatens to cease, to trade;
13.4.7. the End-user (being an individual) is the subject of a bankruptcy petition or order; or
13.4.8. the End-user takes or suffers any similar or analogous action in any jurisdiction in
consequence of debt.
13.5 On termination of this Agreement for any reason:
13.5.1. all licenses granted under this Agreement (subject to Clause 3.2) shall immediately
terminate;
13.5.2. the End-user shall return and make no further use of any Software, property,
documentation
and other items (and all copies of them) belonging to the other party;
13.5.3. the Company may destroy or otherwise dispose of any of Content in its possession unless
the
Company receives, no later than thirty (30) days after the effective date of the termination of this
Agreement, a written request for the delivery to the End-user of the then most recent back-up of
Content. The Company shall use reasonable commercial endeavours to make available the back-up to the
End-user within 30 days of its receipt of such a written request, provided that the End-user has, at
that time, paid all fees and charges outstanding at and resulting from termination (whether or not
due at the date of termination). The End-user shall pay all reasonable expenses incurred by the
Company in returning or disposing of Content; and
13.5.4. the accrued rights of the parties as at termination, or the continuation after
termination
of any provision expressly stated to survive or implicitly surviving termination, shall not be
affected or prejudiced
INTERPRETATION
7.1The Company shall pay or arrange payment to
the End-user the Net Income within 30 days of the end of the month in which the related Income is
received from the Consumer Store(s). Net Income shall be applied to the End-user's Company account,
which can be accessed through the Services. For the avoidance of doubt, the Company shall only pay
or arrange payment to the End-user the Net Income which is actually received by the Company prior to
date on which payment is specified to occur in this Clause 7.1.
7.2 The Company shall not be responsible for the payment of any income tax or corporation tax or
comparable taxes levied on the End-user or the Company in respect of the Net Income or Income. If
any withholding tax is incurred under income tax or corporation tax enforced in India or
elsewhere, the Company shall be entitled to deduct the statutory amount of withholding tax from the
payments due to the End-user.
7.3 The Company (on its own behalf or, where applicable, on behalf of its authorised
distributors or
partners) shall be entitled to deduct the Fee from any Income prior to applying the Net Income to
the End-user's account.
7.4 To the extent that the End-user elects to use Content to distribute free to any third
parties
(by whatever means), the End-user agrees that it will be solely responsible for any fees or charges
levied by Consumer Stores or taxes in respect of such distribution.
7.5 In the event that the Company determines, in its sole discretion, that the End-user's
Company
account has been subject to and / or involved in fraudulent or infringing activities, the Company
reserves the right to discontinue the application of Net Income to the End-user's Company account
and block the End-user's ability to otherwise withdraw funds therefrom until resolution of the
suspect activities to the satisfaction of the Company. The End- user agrees that any Net Income
obtained as a result of the End-user's fraud or infringement of third party Intellectual Property
Rights shall be forfeited to the Company. Certain Consumer Stores may also have policies related to
fraud and suspected fraudulent activities and the End-user agrees that it is its responsibility to
investigate such policies and such policies shall be binding on the End-user hereunder.
7.6 To the extent that any Net Income applied to the End-user's Company account bears any
interest
prior to the withdrawal by the End-user of such Net Income, the End-user agrees that it will not
receive interest or other earnings on the Net Income. In consideration for the End-user's use of the
Services, the End-user transfers and assigns to the Company any ownership rights the End-user may
have in any interest or other earning that may accrue on Net Income prior to its withdrawal by the
End-user.