OnlineSales Terms of Service
These Terms of Service (“Agreement”) describe the terms and conditions under which you (“Client”, “you”, or “your”) may access and use OSX TechLabs Pvt Ltd (“we”, “our”, “us” or “OnlineSales”) Service.
BY CLICKING THE “I ACCEPT” BUTTON, ENTERING INTO THE INSERTION ORDER, COMPLETING THE ACCOUNT CREATION PROCESS, OR USING ONLINESALES’S SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (FOR INSTANCE, AS AN ADVERTISING AGENCY ON BEHALF OF A CLIENT), OR YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND ANY SUCH OTHER ENTITY, THEN THE TERMS “CLIENT,” “YOU,” OR “YOUR” WILL REFER TO SUCH ENTITY (OR, IF SUCH ENTITY IS ACTING AS AN AGENT ON BEHALF OF ANOTHER THIRD PARTY, THEN THE TERMS “CLIENT,” “YOU,” OR “YOUR” WILL REFER TO SUCH ENTITY AND THE AUTHORIZING PARTY(IES), AS APPLICABLE). ONLINESALES MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE 30 DAYS AFTER NOTIFICATION WILL CONSTITUTE ACCEPTANCE.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, YOU AGREE TO RESOLVE DISPUTES WITH ONLINESALES THROUGH BINDING ARBITRATION (AND WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 16.
● Account”means a Client account for access to the platform.
● Ad"means any text, display, video or any digital advertisement that is targeted to an end user through the Service.
● Agreement” means these Terms of Service and all materials referred or linked to in here.
● OnlineSales Materials”means the Platform, Technology, Documentation, visual interfaces, graphics, design, compilation, computer code, and all other elements of the Service, including related modifications and derivative works.
● Applicable Law”means any applicable federal, state or foreign laws or regulations or any industry self-regulatory rules or guidelines that relate to a party’s obligations under this Agreement.
● Campaign Data”means performance and measurement data made available through the Platform that relates to Client’s Ad campaigns launched through the Service.
● Client Content”means all logos, trademarks, images, graphics, text, and other materials included by Client in the materials / Ads provided (including but not limited to contents on clients website, database or any data received through an access to client’s system) to OnlineSales for use with the Services.
● Documentation”means reference documents, support service guidelines, policies, or technical materials relating to the Service that are provided by OnlineSales to Client.
● Feedback”means information regarding the features and performance of the Service and Materials, including (without limitation) reports of failures, errors, or other malfunctions that Client encounters through its use of the Service.
● Insertion Order”means a document executed by both parties that specifies the type of Services to be provided to Client by OnlineSales for a particular campaign, the duration of the Services, a budget, fees, and other details.
● Network”means a group of publishers, Ad networks, Ad exchanges, and other Ad inventory sources that OnlineSales has partnered with to provide the Services.
● Platform”or “OnlineSales Platform”means any application including but not limited to OnlineSales website, platform, dashboard, and tools that Client has access to through the Service in order to create, launch, monitor, pause, and stop an Ad campaign.
● Service or Services”means any OnlineSales offering (including various plans and packages introduced from time to time)that Client agrees to receive, subject to this Agreement and mutually agreed upon addendums, and, if applicable, in an Insertion Order.
● SDK”means OnlineSales’s software development kit to support its mobile Ad Service.
● Service Data”means data (and each component of such data) that is collected by OnlineSales from end users through the use of a pixel (or other script or code) installed on Client’s website, an integrated mobile SDK, or other mutually agreed upon means, including any data obtained from third parties while providing the Services.
● Fees or Subscription Fees” meansthe amountyou pay for the Service.
● Third-Party Products” means non-embedded products and professional Services that are provided by third parties which interoperate with or are used in connection with the Service under this agreement.
● Technology”means the OnlineSales proprietary technology that allows OnlineSales to provide the Services, including the OnlineSales pixel (or other script or code), the SDK, or other mutually agreed upon means.
2. THE ONLINESALES SERVICE
2.1 The Services
OnlineSales Platform is an interactive marketing tool for digital media marketing, social media and advertising management, ads analytics, and ads optimization. We derive our revenue from a combination of user subscriptions for access to certain services provided by us. Client may choose to receive any combination of services available by indicating the same through the Platform or, if applicable, in an Insertion Order.
2.2 OnlineSales License Grant
OnlineSales grants the following limited, worldwide, nonexclusive, non- transferable rights and licenses without the right of sublicense to Client during the Term: (i) for all Services, to access and use the Platform and Documentation solely for Client’s internal business purposes, and solely on Client’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the pixel (or other script or code) into Client’s website for web-related Services; (iii) for mobile related Services, to integrate the SDK (in object code form) into Client’s mobile and tablet applications for mobile-related Services, or
(iv) to integrate through other mutually agreed upon means.
2.3 Client License Grant
During the Term, Client grants OnlineSales a worldwide, royalty-free, transferable license to use, distribute, reproduce, adapt (with respect to sizing or as specifically requested by Client), publicly perform, publicly display, and exploit the Client Content in Ads on the Network or otherwise in connection with the Service and in promotional materials related to the Service.
Client also grants OnlineSales an access to analytical data from Client’s sites, including but not limited to, customer searches, demographic information, new category launches, etc. This information will be mainly used for providing Service to Client and OnlineSales shall not use this information to (i) send spam or otherwise duplicative or unsolicited messages in violation of Applicable Laws; (ii) sell data as-is with any third party outside of OnlineSales. OnlineSales may
however, aggregate this data to enhance its Platform and algorithms or enhance the data so collected to provide solutions to its Clients overall.
In addition to above, Client grants OnlineSales an unconditional access to its logo, name & trademark purely to be used in connection with the Service and in promotional materials related to the Service.
Client will comply with all requirements for use of the Service communicated by OnlineSales to Client via Documentation, and acknowledges that absent such compliance, OnlineSales may be unable to provide the Service to Client.
Depending on the Services Client chooses to receive, technical requirements may include: (i) including tags, pixels, script, or code supplied by OnlineSales on Client's website; (ii) installing the SDK into Client’s mobile or tablet applications;
(iii) supplying appropriate Client Content necessary for OnlineSales to provide the Service; and/or (iv) allowing access to data collected by Client’s mobile measurement partner. If Client fails to comply with any technical requirements, OnlineSales may be unable to provide the Service and will have no liability to Client for such failure to provide the Service. Even if Client complies with all the requirements, OnlineSales reserves the sole right to deny you a Service or cancel your Account without cause or any notification to you.
2.5 Modifications to the Service
OnlineSales may make changes to the Service (including discontinuation of all or part of the Service) at any time. In the event of a material change, OnlineSales will provide 30 days notice to Client of such changes in accordance with this Agreement. If Client does not wish to continue to use the modified Service, Client’s sole remedy is to terminate the Agreement by providing written notice to OnlineSales, and OnlineSales will refund to Client any prepaid amounts for Services not performed as of the termination date.
2.6 Display of Ads
OnlineSales has absolute discretion as to where and how often Ads will be displayed within the Network. For instance, ads may be displayed next to ads of Client’s competitors, or on websites, and mobile and tablet applications that are undesirable to Client. OnlineSales will use commercially reasonable efforts not to
display Ads on websites, or mobile or tablet applications that it determines to be pornographic, defamatory, obscene or illegal in nature. If Client notifies OnlineSales in writing that Ads are being displayed in this manner, OnlineSales will use commercially reasonable efforts to remove such Ads. Client Content must comply with the Documentation requirements of various Networks or OnlineSales may be unable to provide the Service with respect to such Client Content.
OnlineSales reserves that right at all times to remove or refuse to distribute any content on the Service, such as content which violates the terms of this Agreement.
2.7 Third Party Terms
Certain parts of the Service require the creation of a user account with third parties in order to provide their products or services on the OnlineSales Platform. Client will review any applicable terms before participating in any part of the Service to which such terms apply. Client agrees that OnlineSales may accept certain third party terms and conditions as agent on Client's behalf where necessary for OnlineSales to perform Services requested by Client, for example, terms related to running campaigns on Facebook Website Custom Audiences.
Links to or copies of any such terms will be provided upon request. You hereby agree to indemnify us, our affiliates, employees, officers, advertisers, and any others associated with us for any damages that may result from your use of such third party services.
2.8 Modifications to the fees
We may change our Subscription Fees, plans or packages, and will provide you with thirty (30) days’ notice to the e-mail address on file with us when we do so. If you fail to cancel your subscription within this period, you agree that we may charge the new fees.
Advertiser reserves the right to Unsubscribe from the Platform at any time. If the Unsubscription happens within the first 30 days of First Subscription, OSwill refund the Platform Fees for the remaining time frame.
However, if Unsubscription is done by the Advertiser after 30 days of the first Subscription, OSwill only be able to revoke the access from the following billing cycle.
2.10 Unsubscription/ Cancellation
Advertiser reserves the right to Unsubscribe from the Platform at any time. If the Unsubscription happens within the first 30 days of First Subscription, OS will refund the Platform Fees for the remaining time frame to the Advertiser.
However, if Unsubscription is done by the Advertiser after 30 days of the first Subscription, OSwill only be able to revoke the access from the following billing cycle. In such case, there would be no refund of the Platform Fees.
3. AGENCY CLIENTS
Agencies entering into Services on behalf of their clients represent that they have the authority to act on behalf of such clients with respect to all obligations and representations set forth in this Agreement. Agency accepts responsibility for the actions of its Client Accounts and liability for all expenses incurred through the provision of Services to its clients. Agency clients may request at any time that their Account be migrated to another agency or to direct Client Account with OnlineSales.
4. ACCOUNT AND CAMPAIGN SETUP
4.1 Account Set Up
Client is responsible for all activities that occur through its Account or with its credentials. Client will use reasonable measures to secure its Account credentials and will promptly notify OnlineSales of any breach of security, misuse or unauthorized use of its Account or credentials. Campaign modifications made using Client’s Account to set up, adjust the budget for, launch, suspend, or stop a campaign are the sole responsibility of Client. Charges incurred as a result of changes made using Client’s Account will be included in Client's regular bill or invoice.
4.2 Campaign Set Up
Client will use the Platform to manage its receipt of Services, specifically to set campaign budgets and other details, and to review performance. OnlineSales may manage a Client’s Account(s) if agreed to by both OnlineSales and the
Client. OnlineSales will use commercially reasonable efforts to comply with the budget specified by Client. However, when Client increases or decreases its budget it may take up to 2 business days for the new authorized budget to take effect. Unless expressly agreed to in writing by OnlineSales, Service fees will be based on OnlineSales's measurements and tracking through its own servers using the number of impressions, clicks and other indicators necessary for calculating the fees payable by Client. Client may access these measurements through the Platform.
5. INTELLECTUAL PROPERTY RIGHTS
OnlineSales Materials are the sole and exclusive property of OnlineSales or its third party licensors and are protected by Applicable Law. Client’s rights to the OnlineSales Materials are limited to those rights expressly granted in this Agreement and do not include any other licenses.
Client will not (i) modify the OnlineSales Materials or any related proprietary notices; (ii) reverse engineer, decompile, disassemble or interfere with any OnlineSales Materials (except where and to the extent such prohibition is not permitted by law); (iii) sublicense, rent, sell, or lease access to the OnlineSales Materials, or use the OnlineSales Materials to create any other product, service or dataset; (iv) except with respect to campaign data, log, capture, or otherwise create any record of any data transmitted to or from the OnlineSales Materials;
(v) deliver any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the OnlineSales Materials; (vi) use the Platform for any purpose other than using the Service for its intended purpose, which does not include creating or supplementing user profiles with targetable interests, user movement profiles, site-specific retargeting, and product interest information outside of the Services; (vii) make or publish any representations or warranties on behalf of OnlineSales concerning the Service or OnlineSales Materials without OnlineSales’s prior written approval. When reproducing OnlineSales Materials, Client will include proprietary rights notices contained on the OnlineSales Materials.
Feedback provided to OnlineSales may be used to develop and improve the Service, OnlineSales Materials and new products and Services. To the maximum extent permitted by law, Client grants OnlineSales a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit Feedback without restriction.
6. DATA RIGHTS, RESTRICTIONS AND PRIVACY
6.1 Service Data and Campaign Data
OnlineSales is the sole owner of the Service Data and the Campaign Data and may use either for any purpose allowed by Applicable Law. OnlineSales grants Client a non-exclusive, royalty-free, fully paid, transferable, worldwide right and license to use, reproduce, and disclose the Campaign Data in any manner allowed under Applicable Law.
6.2 Client Data Privacy Responsibilities
Client will comply with all Applicable Laws that relate to individual third party privacy and publicity rights, and will be solely responsible for the operation of all websites and applications owned or operated by Client when Client uses the Service. Client will include clear and conspicuous notice consistent with Applicable Law on its websites, mobile and tablet applications that (i) discloses (and, where legally required, obtains consent to) its practices with regard to cookies, targeting and online behavioral advertising, specifically addressing its data collection, use and disclosure practices (including that by visiting Client’s site third parties may place cookies on end user browsers for this purpose, the types of data that may be collected for targeted advertising, and data collected may be used by third parties to target advertising on other sites or applications based on the end users’ online activity); and (ii) informs users that they may opt- out from receiving targeted advertisements from OnlineSales, by specifying the procedure or reference links which will help users in opting out from targeted advertising.
ONLINESALES WILL HAVE NO LIABILITY IN CONNECTION WITH, AND CLIENT SHALL INDEMNIFY, DEFEND AND HOLD ONLINESALES HARMLESS WITH RESPECT TO, CLIENT’S FAILURE TO PROVIDE NOTICES REQUIRED BY APPLICABLE LAW TO ITS END USERS REGARDING ITS PRIVACY PRACTICES OR FOR ONLINESALES’S COLLECTION, USE OR DISCLOSURE OF SERVICE DATA AS CONTEMPLATED IN THIS AGREEMENT.
7. PROCESSING OF DATA
7.1 The Customer expressly acknowledges and agrees that it is Customer's obligation to observe and to comply with any and all privacy and data protection laws (including but not limited to EU General Data Protection Regulation, GDPR), regulations and terms applicable to information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context (“Personal Data”) contained in the materials provided by the Customer for the purposes of the Service regardless of the country/state in which the Customer is based. The above mentioned includes, but is not limited to, complying with terms and restrictions related to Customer's use of customer/contact databases and complying with any applicable privacy policies and cookie opt-in policies.
8.1 Client indemnification
Client will defend, indemnify, and hold harmless OnlineSales and its officers, directors, employees and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding (i) Client’s breach of this Agreement; (ii) client’s use of our Services; and (ii) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Client or the Client Content.
You further agree that, in the event that a third party claim is brought against us arising from or relating to your use of our Service, you have a duty to defend us against that claim, including bearing any reasonable attorney’s fees, court costs, or disbursements.
You further agree that, we may settle any or all such claims against us without defending against them in court, and that you will still have a duty to indemnify us for such settlements.
8.2 OnlineSales Indemnification
OnlineSales will defend, indemnify and hold harmless Client and its officers, directors, employees, and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any third party claim that the OnlineSales Materials infringe any copyright, trade secret, patent or trademark right of such third party. In no event will OnlineSales have any liability under this Section 10.2 arising from unauthorized modifications made to the Technology. OnlineSales’s indemnification obligations in this Section 10.2 will be OnlineSales’s sole liability and Client’s sole remedy for any claims that the Service or Materials infringe or misappropriate any intellectual property right.
8.3 Indemnification Process
The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the indemnified party to admit liability requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed and (ii) the indemnified party may join in the defense with its own counsel at its own expense.
8.4. Cap on Liability
UNDER NO CIRCUMSTANCES WILL ONLINESALES’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO ONLINESALES UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10. TERM AND TERMINATION
10.1 Term and Termination
Unless otherwise terminated, this Agreement will remain in full force and effect while you use the Services and will terminate upon written notice of cancellation of Client’s Account by OnlineSales or Client (“Term”), such termination to take effect 48 hours from receipt of such termination notice (or at such other designated time, at least 48 hours in advance).
10.2 Post-Termination Obligations
Upon termination of this Agreement (i) OnlineSales will cease providing the Service and permitting access to the Platform to Client; (ii) Client will within seven (07) days pay to OnlineSales any fees that have accrued prior to the effective date of termination; and (iii) Client will remove the OnlineSales pixel from its website and OnlineSales will not be liable for any damages (or any benefit to OnlineSales) resulting from Client’s failure to remove the pixel.
Each party retains all right, title and interest to its own logos and trademarks. The OnlineSales logos and names are trademarks of OnlineSales. All other trademarks and product or company names mentioned in the Service or OnlineSales Materials are the property of their respective owners and may not be used without the prior written permission of the respective owner. Reference to any products or Services by name or otherwise does not imply endorsement by OnlineSales. Notwithstanding the foregoing, OnlineSales may use Client’s logos and name to indicate in promotional materials that Client is a client of the OnlineSales Service.
Confidential Information includes all information disclosed by a party (the “disclosing party”) to the other party (the “receiving party”), whether of a technical, business or other nature that the receiving party knows or has reason to know is the confidential, proprietary or trade secret information of the disclosing party. Confidential Information does not include information that (i) was lawfully known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (ii) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; (iii) is lawfully acquired by the receiving party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the receiving party.
Each receiving party will (a) use the disclosing party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (b) not disclose the disclosing party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 14; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the disclosing party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
If a receiving party is required by law to disclose the Confidential Information of the disclosing party, such receiving party must give prompt written notice (except where prohibited by law) of such requirement to the disclosing party before such disclosure and assist the disclosing party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 14 will survive termination of this Agreement until the expiration of 1 year from the date of last disclosure. Notwithstanding the foregoing, with respect to a disclosing party’s trade secrets, the receiving party’s obligations under this Agreement remain in effect as long as the Confidential Information remains a trade secret under the Uniform Trade Secrets Act
a.Assignment: Neither Party shall assign its rights, duties, obligations and liabilities under this Agreement nor any project executed in terms of this Agreement, without prior written consent of other Party, which consent shall not be unreasonably withheld or delayed.
b.Completeness: This Agreement along with all its Appendices or other agreements constitute the entire understanding between the Parties with respect to the subject matter hereof and supersedes prior negotiations, representations, documents or agreements, either written or oral.
c.Severance of terms: If any provision in this Agreement becomes invalid or illegal or adjudged unenforceable, the provision shall be deemed to have been severed from this Agreement and the remaining provisions of this Agreement shall not, so far as possible, be affected by the severance.
d.Specific performance: Either Party shall be entitled to an injunction, restraining order, right for recovery, suit for specific performance or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate to restrain the other Party from committing any violation or to enforce the performance of the covenants, representations and obligations contained in this Agreement. These injunctive remedies are cumulative and are in addition to any other rights and remedies the Parties may have at law or in equity.
e.Counterparts: This Agreement may be signed in any number of counterparts, each of which is an original and all of which, taken together, constitutes one and the same instrument.
14. Relationship of Parties:
The relationship between the parties established by this Agreement shall be solely that of vendor and vendee and all rights and powers not expressly granted to the Client are expressly reserved to OnlineSales. The Client shall have no right, power or authority in any way to bind OnlineSales to the fulfillment of any condition not herein contained, or to any contract or obligation, expressed or implied
This Agreement constitutes a personal contract and Client shall not transfer or assign same or any part thereof without the advance written consent of OnlineSales, except in cases where the assignee is a related Party or subsidiary of the Client.
16. Applicable Law:
This Agreement shall be governed by the laws of India. Any disputes under this Agreement shall be submitted to the jurisdiction of the Courts in Mumbai, India. OnlineSales's rights granted hereby are cumulative and in addition to any rights it may have at law or equity.