The Subscription Platform is offered and available to users who are 18 years of age or older. By using the Subscription Platform, you represent and warrant that you meet the foregoing eligibility requirement. If you do not meet such age requirement, you must not access or use the Subscription Platform.
"Access Credentials " means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Subscription Platform.
"Action " means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
"Affiliate " of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50 % of the voting securities of a Person.
"Authorized User " means Merchant's employees, consultants, contractors, and agents (a) who are authorized by Merchant to access and use the Subscription Platform under the rights granted to Merchant pursuant to this Agreement; and (b) for whom access to the Subscription Platform has been purchased hereunder.
"Merchant Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Merchant or an Authorized User by or through the Subscription Platform. For the avoidance of doubt, Merchant Data does not include Resultant Data or any other information reflecting the access or use of the Subscription Platform by or on behalf of Merchant or any Authorized User.
"Merchant Systems" means the Merchant's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Merchant or through the use of third-party services.
"Harmful Code " means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Merchant or any Authorized User from accessing or using the Subscription Platform or Provider Systems as intended by this Agreement.
"Personal Information " means any information that individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted, or located. Personal Information includes all "nonpublic personal information" as defined under the Gramm-Leach-Bliley Act, "protected health information" as defined under the Health and Insurance Portability and Accountability Act of 1996, "Personal Data" as defined in the EU Data Protection Directive (Directive 95/46/EEC), "Personal Information" as defined under the Children's Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
"Process " means to take any action or perform any operation or set of operations that the Subscription Platform are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. "Processing " and "Processed " have correlative meanings.
"Provider Materials" means the Subscription Platform and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Subscription Platform or otherwise comprise or relate to the Subscription Platform or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider's monitoring of Merchant's access to or use of the Subscription Platform, but does not include Merchant Data.
"Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Subscription Platform, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.
"Subscription Platform" means www.Netbazaar.in and the Netbazaar mobile application that is a software-as-a-service offering which includes applications, programs, services, and technology designed to provide an online loyalty program and associated services for Merchants and Authorized Users.
Access and Use. Subject to and conditioned on Merchant's and its Authorized Users' compliance with the terms and conditions of this Agreement, Provider hereby grants Merchant a non-exclusive, nontransferable (except in compliance with Section 15.7) right to access and use the Subscription Platform in the United States, during the Term, solely for use by Merchants and Authorized Users in accordance with the terms and conditions herein. Such use is limited to Merchant's internal use.
Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; and (b) Merchant has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Merchant Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Merchant Systems or any other means controlled by Merchant or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Subscription Platform or Provider; (ii) results obtained from any use of the Subscription Platform or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.
Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Subscription Platform, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Subscription Platform, the Provider Materials, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.
Provider reserves the right, in its sole discretion, to make any changes to the Subscription Platform and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider's services to its customers; (ii) the competitive strength of or market for Provider's services; or (iii) the Subscription Platform' cost efficiency or performance; or (b) to comply with applicable Law.
Provider may suspend, terminate, or otherwise deny Merchant's, any Authorized User's, or any other Person's access to or use of all or any part of the Subscription Platform or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its discretion, that: (i) Merchant or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Subscription Platform beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Merchant or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of Provider's other rights or remedies, whether at law, in equity, or under this Agreement.
4.1 Merchant Systems and Cooperation. Merchant shall at all times during the Term, provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement; and abide by Provider’s rules, policies, and regulations as defined within the Subscription Platform.
Effect of Merchant Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Merchant's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Merchant Failure ").
Corrective Action and Notice. If Merchant becomes aware of any actual or threatened activity prohibited by Section 3, Merchant shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects, including, where applicable, by discontinuing and preventing any unauthorized access to the Subscription Platform and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access; and (b) notify Provider of any such actual or threatened activity.
Merchant agrees to receive periodic SMS promotions from Provider during use of the Subscription Platform. Merchant can opt out at any time by replying “STOP” to a campaign. Standard data and message rates may apply.
The Subscription Platform do not replace the need for Merchant to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF MERCHANT DATA.
Prohibited Data. Merchant acknowledges that the Subscription Platform are not designed with security and access management for Processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) data that is obtained outside of the United States or regarding any Person from the European Union; (c) Personal Information; (d) articles, services, and related technical data designated as defense articles or defense services; and (e) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, "Prohibited Data"). Merchant shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Subscription Platform, the Provider Systems, or any Provider Personnel. Merchant is solely responsible for reviewing all Merchant Data and shall ensure that no Merchant Data constitutes or contains any Prohibited Data.
Merchant Control and Responsibility. Merchant has and will retain sole responsibility for: (a) all Merchant Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Merchant or any Authorized User in connection with the Subscription Platform; (c) Merchant's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Merchant or through the use of third-party services ("Merchant Systems "); (d) the security and use of Merchant's and its Authorized Users' Access Credentials; and (e) all access to and use of the Subscription Platform and Provider Materials directly or indirectly by or through the Merchant Systems or its or its Authorized Users' Access Credentials, with or without Merchant's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
Taxes. All fees and other amounts payable by Merchant under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Merchant is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Merchant hereunder, other than any taxes imposed on Provider's income.
Payment. Merchant shall pay all fees in accordance with the subscription plans as set forth in the Subscription Platform. Provider may increase fees at any time and for any reason. Merchant agrees to allow Provider’s designated third party payment provider to collect, process, and store any payment information, including but not limited to credit/debit card information, type, expiration date, and billing address.
No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Merchant to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
Audit Procedure. Provider or its nominee (including its accountants and auditors) may,[ in Provider's sole discretion, inspect and audit Merchant's use of the Subscription Platform under this Agreement at any time during the Term and for 1 year following the termination or earlier expiration of this Agreement. Merchant shall reasonably cooperate with Provider’s request with respect to any such audit. Provider shall only examine information related to Merchant's use of the Subscription Software.
Cost and Results of Audit. If the audit determines that Merchant's use of the Subscription Platform exceeded the usage permitted by this Agreement, Merchant shall pay to Provider all amounts due for such excess use of the Software, plus interest on such amounts. Merchant shall make all payments required under this Section within 30 days of the date of written notification of the audit results.