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Parties to this Agreement
This Master Agreement (hereinafter referred to as the 'Agreement') is being made, entered into and executed on 06 - Dec - 2019 (hereinafter referred to as the 'Effective Date')
EverData Technologies Private Limited, a Company registered under the provision of Companies Act 1956 and having its registered office at 372 Shri Gopal Nagar, Gopalpura Bypass, Near Gurjar ki thadi, Jaipur – 302019 Rajasthan, India (hereinafter referred to as "EverData") AND YOU (hereinafter referred to as 'Affiliate'). In case you are entering into this Agreement on behalf of a firm, company or other legal entity, you duly represent that you have the written authority to bind such entity to these terms and conditions, in which case the term 'Affiliate' shall refer to such entity.
(EverData and the Affiliate may be referred to individually as a 'Party' and collectively as the 'Parties').
WHEREAS EverData provides web-products & services including but not limited to domain registration, email & web-hosting, digital certificates and managed DNS.
AND WHEREAS Affiliate is desirous to provide EverData Products (defined hereinafter) to its customers
NOW, THEREFORE, for and in consideration of the mutual benefits, promises and covenants contained herein and for other good, notable and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, EverData and the Affiliate, intending to be legally bound, hereby agree as follows:
"Affiliate", in relation to a Person, shall mean any Person or individual which controls, is controlled by, or is under the common control of that Party.
"Affiliate Website" refers to that unique affiliate URL and the set of web-based interfaces that the Affiliates can utilize to provide and sell EverData Products.
"Affiliate Lead" refers to an Affiliate customer who places an EverData Order.
"Agreement" refers to this Affiliate Partnership Program Master Agreement along with all its appendices, extensions and amendments at any given point in time.
"EverData Database" is the collection of all data elements stored on EverData's Servers.
"EverData Order" refers to the purchase of an EverData Product by any Affiliate Lead, through the Affiliate Website, holding a unique order ID in EverData's Database.
"EverData Products" refer to all services and products of EverData which the Affiliate wishes to offer to Affiliate Leads.
"EverData Servers" refer to servers/machines that EverData or any of its Service Providers maintain to carry out services and operations.
"Business Day" refers to a working day between Mondays to Saturdays excluding all Public Holidays in India. Business Day shall become applicable only for issuing and accepting notice, if any, from either party and not for answering or attending to any service/support or maintenance related issues.
"Confidential Information", as used in this Agreement shall mean all data, information and materials including, without limitation, computer software, databases, data, information, protocols, documentation, reference implementation, functional and interface specifications, pricing, marketing customer and/or other information related to the subject matter of this Agreement provided by either Party to the other Party under this Agreement, whether transmitted, orally, written, or through either Party's Website or otherwise, that is marked as Confidential.
"Control" means the ownership or possession by a Person or a group of Persons working in concert, directly or indirectly, of more than 50% of the voting rights of another Person. The terms "Controlled by", "Controlling" or "under common Control" shall be construed accordingly
"Holding Period" in relation to commission payout refers to the time period for which the affiliate commission payout is held back by EverData to cover for money back guarantees/cancellations/refunds/reversals/charge-backs/etc.
"Person" means and includes an individual, partnership concern, corporation, company, unincorporated association or organization, trust or other entity, whether incorporated or not.
"Signup Date" in relation to an Affiliate Lead refers to the date on which such Affiliate Lead purchases its maiden EverData Order.
"Service Providers" refers individually and collectively to any Persons that EverData or its Service Providers (recursively) may, directly or indirectly, employ / engage / outsource / contract for the fulfillment / provision / purchase of EverData Products and any other services and operations of EverData.
Customer Account: Refers to an account created on the EverData platform to purchase any EverData product.
EverData Platform: Refers the web-based interfaces that allow an affiliate lead to purchase and manage EverData products.
Obligations of EverData
EverData grants Affiliates a non-exclusive license to sell EverData Products via the unique Affiliate URL to Affiliate Leads for the Term of this Agreement.
EverData grants Affiliates a license to sell EverData Products via the unique Affiliate URL to Affiliate Leads for the Term of this Agreement.
EverData will share this Affiliate Agreement electronically with the Affiliate and the Affiliate will send his/her acceptance electronically to EverData.
EverData will provide collateral such as creatives, html code for various banners, etc. in electronic format to the affiliates.
EverData might issue electronic promo coupons for specific offers that it may run from time-to-time. Affiliates may promote only these offers to Affiliate Leads.
EverData will provide the Affiliate with a unique affiliate URL, banners, creatives etc. Affiliate may post this link, banners, HTML code in any location, as many times as it likes, subject to the terms of this Agreement.
Affiliate agrees that this agreement may be amended by EverData at any time without notice. Affiliate agrees to keep advised of any changes to this agreement by checking the Affiliate Agreement on the www.everdata.com website on a periodic basis.
EverData agrees to furnish a monthly report to track the EverData Orders placed by the Affiliate based on which, commission earned by the Affiliate will be calculated.
EverData shall be responsible for providing sales, expert technical support, and live human customer service via phone, email and chat.
Upon acceptance of the Terms of this agreement, EverData would activate and provision the unique affiliate URL. Affiliate may post this link in any location, as many times subject to the terms of this agreement.
Obligations of the Affiliate
Upon signing up this Affiliate Agreement with EverData, Affiliate will be sent an electronic version of this Agreement. Affiliate will have to electronically accept the Terms & Conditions of this Agreement. The terms and conditions of this agreement shall be binding on the affiliate right from the period of sign-up till termination.
It shall be the responsibility of the Affiliate to refer Affiliate Leads to the aforementioned unique affiliate URL.
The affiliate will be granted a revocable, non-exclusive, worldwide License by EverData to refer Affiliate Leads to the unique affiliate URL - for the sole reason of accomplishing the purpose and intent of this affiliate agreement. An affiliate is allowed to use the links and images from the download center created specifically for that purpose subject to the terms and conditions of this Agreement. An affiliate may not otherwise use, copy, distribute, change, modify, or alter any such property. This License is neither transferable nor assignable.
The Affiliate will make his/her best efforts to effectively market and sell EverData Products to Affiliate Leads, and fulfill all obligations related to any and all mutually agreed upon marketing programs.
The Affiliate takes full responsibility for ensuring the proper and continuing operation of the unique Affiliate URL. Affiliate agrees to notify EverData if the unique Affiliate URL ceases to function properly.
The Affiliate understands and agrees that EverData may amend this agreement at any time without notice. Affiliate agrees to keep himself advised of any changes to this agreement by checking EverData's web site and Affiliate related Frequently Asked Questions (FAQs) on a periodic basis.
The Affiliate agrees that he/she will not use or otherwise permit the use of unsolicited commercial email (a.k.a. SPAM) in relation to the EverData Affiliate Program in the course of any performance under this agreement or otherwise with respect to any dealings between EverData and the Affiliate.
Each affiliate is eligible to hold only one affiliate account. If affiliates are found with multiple accounts, it will result in deletion of the account having the least accrued balance.
Tracking & Commissions
Commission will be shared with Affiliate only on those EverData products which have been purchased by Affiliate Leads after being referred to the unique Affiliate URL. Additionally, commission is payable only on purchases made by Affiliate Leads (from the unique Affiliate URL or the EverData website) within 90 days (Tracking Period) of first being referred to the unique Affiliate URL. Please note this is applicable only for click through traffic to the Unique Affiliate URL.
Commission will be awarded on a last click basis i.e. if an Affiliate Lead clicks on any other unique Affiliate URL (not controlled by You) during the Tracking Period, then You will not be eligible for commission on purchases made by that Affiliate Lead.
Holding Period - Commission payouts to Affiliates for product purchases by Affiliate leads would be held back for 60 days to cover for cancellations/reversals/chargebacks/refunds/money back guarantees etc. Commission held back in this regard is non-interest bearing.
Qualified Commission - Revenue accrued and received by EverData from an Affiliate Lead, towards an EverData Order less any chargebacks, reversals, refunds, debits and indirect taxes, within the Tracking Period will be treated as Qualified Revenue. Commission will be calculated on Qualified Revenue & paid out to the affiliate after the Holding Period. Purchases made by Affiliate leads over the telephone with EverData telesales representatives would not be considered as qualified revenue.
Payment Date - The payout date is set at thirtieth (30th) day of the month. Only qualified commissions that have crossed our minimum payout limit and the Holding period will be paid on this date. Commission payouts are made on a net 60 days basis which means commissions for January will be paid on 30th March.
Minimum payout - Bank Transfer: Commission payments will be made by EverData to an Affiliate only if the minimum monthly commission accrued is Rs. 3000. If the commission amount accrued is less than Rs. 3000 in a month, then the commission will be held till it reaches the minimum payout threshold. Affiliates opting for "Add Funds" payout option will be paid only if the minimum monthly commission accrued is Rs. 2000. If the commission amount accrued is less than Rs. 2000 in a month, then the commission will be held till it reaches the minimum payout threshold. Commission carried forward in this manner is non-interest bearing.
Commission Payout Method: Commissions will be paid via one of the following methods -
1. Bank Transfer: Commissions deemed payable as per this agreement will be transferred to any domestic bank account provided by the Affiliate. Affiliate accepts the responsibility to provide a valid bank account number and the related information by signing into the Affiliate Control Panel.
2. Add Funds: Commissions deemed payable as per this agreement will be moved to an existing customer account on the EverData Platform provided by the Affiliate via the Affiliate control panel. It is the responsibility of the Affiliate to provide accurate customer account.
Coupon Usage - Commission accrued to an affiliate will reduce in proportion to discount in the event of coupon usage by an Affiliate Lead.
EverData agrees to notify Affiliate by email of any change in Commission structure that may be required from time to time.
An Affiliate will not earn a commission on purchases made through their own account.
The EverData Affiliate Program is meant strictly for individuals/companies who refer new customers to EverData using approved marketing methods. Affiliates who abuse the affiliate program by purchasing products for themselves will not be eligible for earning commissions on such sales.
For Example: Domainers are explicitly disallowed from making purchases through their Affiliate account and gaining commissions on the same.
Representation & Warranties
Both Parties represent and warrant that they each have all requisite power and authority to execute, deliver and perform their obligations under this Agreement and that this Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation, enforceable against either Party in accordance with its terms.
Rights of EverData and Affiliate
Affiliate agrees that EverData at its own sole discretion can at any point of time with reasonable notification temporarily or permanently cease to make an EverData Product available through the unique Affiliate URL.
EverData in its sole discretion can change the pricing and discounts of EverData Products at anytime.
EverData will independently enter into a separate agreement ("EverData Terms") with each Affiliate Lead, and the terms of each EverData Order will be governed by the terms of this agreement. Affiliate confirms and acknowledges that EverData will not be liable to the affiliate for any actions carried out by EverData in accordance with EverData Terms.
EverData in its sole discretion, without notice, expressly reserves the right to fix any bugs in, modify, upgrade, freeze the Affiliate Website and EverData Products. EverData in its sole discretion, without notice, expressly reserves the right to modify the content on any page within the Affiliate Website and associated product interfaces. Affiliate acknowledges that actions described in this paragraph may occur without notification or knowledge of the Affiliate. EverData will not be held responsible or liable for any such changes under any circumstance.
By accepting these terms and conditions the affiliate expressively gives EverData the right to send the affiliate transactional/promotional SMS messages for business purposes, even in the case that the affiliate phone number is listed as DND with TRAI.
Termination of Agreement
Either Party may terminate this Agreement at any time by providing a written or electronic notice to the other party. In case of special scenarios termination is as follows-
With immediate effect, by giving written notice of the same, if the other Party is adjudged insolvent or bankrupt, or if proceedings are instituted by or against a Party seeking relief, reorganization or arrangement or compromise or settlement under any laws relating to insolvency, or seeking any assignment for the benefit of creditors, or seeking the appointment of a receiver, liquidator or trustee of a Party's property or assets or the liquidation, dissolution or winding up of a Party's Business.
With immediate effect by giving written notice, in the event that the either party or an Agent / Employee / Authorized Representative of either party breaches any term of this Agreement, including any of its representations, warranties, covenants and agreements hereunder and has failed to cure such breach in all respects within thirty (30) days of being provided with notice of such breach.
Any commission that has become payable by either Party to the other Party as per this Agreement, as of the date of such termination shall be paid forthwith upon termination. If this Agreement is terminated because an Affiliate has violated the terms of the Agreement then the Affiliate is not eligible to receive any commissions payments, even for commissions earned prior to the date of termination.
Neither Party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement in accordance with its terms, unless specified otherwise.
Limitation of Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ALL ITS APPENDICES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BOTH PARTIES FURTHER DISCLAIM ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO (i) UNAUTHORIZED USE OR MISUSE OF AFFILIATE WEBSITE OR ANY PRODUCT INTERFACES, (ii) FORCE MAJEURE EVENTS (iii) ACCESS DELAYS OR ACCESS INTERRUPTIONS (iv) NON-DELIVERY OF DATA OR DATA MIS-DELIVERY (v) BUGS, ERRORS, OMISSIONS, OR MISSTATEMENTS IN THE AFFILIATE WEBSITE AND ANY AND ALL INFORMATION OR THEIR PRODUCT(S) PROVIDED UNDER THIS AGREEMENT (vi) ANY ACTIONS CARRIED OUT BY EITHER PARTY AS PER THIS AGREEMENT (vii) THE INTERRUPTION OF SERVICE.
BOTH PARTIES ACKNOWLEDGE THAT THE CONSIDERATION AGREED UPON BY THE PARTIES IS BASED IN PART UPON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Each Party ("Indemnifying Party") at their own expense, will indemnify, defend and hold harmless, the other Party and its employees, directors, officers, representatives, agents and partners (individually and collectively the "Indemnified Party"), against any claim, suit, action, or other proceeding brought against the Indemnified Party based on or arising from any claim or alleged claim:-
arising out of any breach by the Indemnifying Party of this Agreement.
relating to any product or service of the Indemnifying Party.
relating to any actions of the Indemnifying Party, or the Indemnifying Party's Affiliates, employees, contractees, agents, customers and partners.
relating to any agreement and terms and conditions with any customer of the Indemnifying Party.
relating to the Indemnifying Party's business, including, but not limited to, the advertising, application process, systems and other processes, fees charged, billing practices and customer services provided.
relating to any action of the Indemnified Party as permitted by this Agreement.
Indemnifiable claims will not include any claim arising from any actions of the Indemnified Party that are not permitted under this Agreement, or any claim arising from any breach of this Agreement by the Indemnified Party.
The Indemnified Party will not enter into any settlement or compromise of any such indemnifiable claim without the Indemnifying Party's prior written consent, which shall not be unreasonably withheld.
The Indemnifying Party will pay any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs awarded against or otherwise incurred by the Indemnifying Party in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
Intellectual Property & Employment
Subject to the provisions of this Agreement, each Party will continue to independently own his/her/its intellectual property, including all patents, trademarks, trade names, domain names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Any improvements to existing intellectual property will continue to be owned by the Party already holding such intellectual property.
Without limiting the generality of the foregoing, no commercial use rights or any licenses under any patent, patent application, copyright, trademark, know-how, trade secret, or any other intellectual proprietary rights are granted by either party to the other party, or by any disclosure of any Confidential Information under this Agreement.
Affiliate agrees that in the course of any performance under this agreement or otherwise with respect to any dealings between the Affiliate & EverData the affiliate will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy.
Rights & Use of Data
Affiliate agrees and acknowledges that except for any limitations described in this Agreement, EverData has full and exclusive rights, title and interests worldwide in the Affiliate Website & associated product interfaces, and all data, information and derivative works in/generated from the same.
Delays or Omissions; Waivers
No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing duly executed and delivered.
All Confidential Information shall be governed by the Confidentiality Agreement as attached in Appendix A'.
Other than the marketing collateral such as creatives, HTML etc created by EverData the Affiliate shall not create, publish, distribute, or permit any written / oral / electronic material that makes reference to EverData or EverData's Service Providers or use any of EverData's registered Trademarks / Service Marks or EverData's Service Providers' registered Trademarks / Service Marks without first submitting such material to EverData and EverData's Service Providers and receiving prior written consent.
The Affiliate gives EverData the right to recommend / suggest the Affiliate's name and details to Customers / Prospective Customers and use the Affiliate's name in marketing / promotional material with regards to its Products & Services. EverData acknowledges that such usage of Affiliate's name will be in good faith, and EverData will not intentionally cause harm to Affiliate's reputation or image by such use.
PPC & online advertising are deemed as acceptable publicity avenues as per the terms of this Affiliate agreement as long as EverData trademark terms are not used. Examples of EverData trademarked keywords include but not limited to "EverData Domains", "EverData coupons", "EverData offers" & "EverData Hosting" etc. The goal of our guidelines regarding pay-per-click advertisements is to preserve the integrity of the EverData brand name and reputation. We do not want affiliates, or for that matter, any third party, representing themselves as EverData or presenting themselves in a way that could be confused with EverData.
Neither party shall be liable to the other for any loss or damage resulting from any cause beyond its reasonable control (a 'Force Majeure Event') including, but not limited to, insurrection or civil disorder, riot, war or military operations, national or local emergency, acts or directives or omissions of government or other competent authority, compliance with any statutory obligation or executive order, strike, lock-out, work stoppage, industrial disputes of any kind (whether or not involving either party's employees), any Act of God, fire, lightning, explosion, flood, earthquake, eruption of volcano, storm, subsidence, weather of exceptional severity, equipment or facilities breakages / shortages which are being experienced by providers of telecommunications services generally, or other similar force beyond such Party's reasonable control, and acts or omissions of persons for whom neither party is responsible. Upon occurrence of a Force Majeure Event and to the extent such occurrence interferes with either party's performance of this Agreement, such party shall be excused from performance of its obligations (other than payment obligations) during the first three months of such interference, provided that such party promptly notifies the other party and uses best efforts to avoid or remove such causes of non performance as soon as possible.
Assignment / Sublicense
Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of and be binding upon, the successors and assigns of the Parties. The Partner shall not assign, sublicense or transfer its rights or obligations under this Agreement to any third person(s)/party without the prior written consent of EverData.
THE AFFILIATE WEBSITE, ASSOCIATED PRODUCT INTERFACES, EVERDATA SERVERS AND ANY OTHER SOFTWARE / API / SPECIFICATION / DOCUMENTATION / APPLICATION SERVICES IS PROVIDED ON 'AS IS' AND 'WHERE IS' BASIS AND WITHOUT ANY WARRANTY OF ANY KIND. BOTH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES AND / OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS AND QUALITY/AVAILABILITY OF TECHNICAL SUPPORT. BOTH PARTIES ASSUME NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, THE USER'S COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH THEIR ACCESS TO, USE OF THE AFFILIATE WEBSITE. WITHOUT LIMITING THE FOREGOING, BOTH PARTIES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT (A) THE INFORMATION AVAILABLE ON OR THROUGH THE AFFILIATE WEBSITE, ASSOCIATED PRODUCT INTERFACES OR THEIR RESPECTIVE SERVERS WILL NOT CONTAIN MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; OR (B) THE FUNCTIONS OR SERVICES PERFORMED BY EITHER PARTY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE AFFILIATE WEBSITE & ASSOCIATED PRODUCT INTERFACES WILL BE CORRECTED; OR (C) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
BOTH PARTIES MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF THE INFORMATION, CONTENT, DATA, SERVICES, AVAILABLE OR WITH RESPECT TO THEIR LEGITIMACY, LEGALITY, VALIDITY, QUALITY, STABILITY, COMPLETENESS, ACCURACY OR RELIABILITY. BOTH PARTIES DO NOT ENDORSE, VERIFY OR OTHERWISE CERTIFY THE CONTENT OF ANY SUCH INFORMATION. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSIONS, AS TO IMPLIED WARRANTIES, MAY NOT APPLY TO SUCH USER
Jurisdiction & Attorneys Fees
Governing Law & Jurisdiction - This Agreement shall be governed and interpreted by, and construed in accordance with the substantive laws of the Republic of India, without giving effect to the principles of conflict of laws thereunder. The courts at Jaipur, Rajasthan shall have exclusive jurisdiction over matters arising out of this Agreement.
Dispute Resolution & Arbitration:
Any and all claims, disputes, questions or controversies involving the parties arising out of or in connection with this Agreement, or the execution, interpretation, validity, performance, breach or termination hereof (collectively, Disputes') which cannot be finally resolved by the parties within 60 calendar days of the arising of a Dispute by amicable negotiation and conciliation shall be resolved by final and binding arbitration held in Mumbai in accordance with the (Indian) Arbitration and Conciliation Act, 1996, as amended (the Arbitration Act'), to be conducted by a sole arbitrator to be appointed by the parties, provided, however, that if the parties are unable to appoint the arbitrator by mutual consent within a period of 30 days of the dispute (or if the second arbitrator is not appointed within 15 days of the parties agreeing to have the matter referred to arbitration for settlement, the arbitrator shall be appointed by the Court in accordance with the Indian Arbitration & Conciliation Act, 1996. In connection with the arbitration proceedings, the parties hereby agree to cooperate in good faith with each other and the arbitral tribunal and to use their respective best efforts to respond promptly to any reasonable discovery demand made by such party and the arbitral tribunal.
All arbitration proceedings shall be conducted in the English language and the arbitral award (the Award') shall be rendered no later than six months from the commencement of the arbitration or as otherwise provided by the Arbitration Act, unless otherwise extended by the arbitral tribunal for no more than an additional six months for reasons that are just and equitable.
Except as otherwise required by law, the arbitration proceedings and the Award shall not be made public without the joint consent of the parties and they shall maintain the confidentiality of such proceedings and the Award.
The cost of the arbitration shall be borne by the parties in accordance with the applicable provisions stipulated in the Arbitration Act. Unless the Award provides for non-monetary remedies, any such Award shall be made and shall be promptly payable in Indian Rupees net of any tax or other deduction. The Award shall include interest from the date of any breach or other violation of this Agreement and the rate of such interest shall be specified by the arbitral tribunal and shall be calculated from the date of any such breach or other violation to the date when the Award is paid in full.
All notices and other communications by either party to the other or by the arbitral tribunal to either party in connection with the arbitration hereunder shall be in accordance with the provisions of Clause 22 of this Agreement.
Each party expressly understands and agrees that the Award shall be the final and binding remedy between them regarding any and all Disputes presented to the arbitral tribunal.
During the period of this Agreement, EverData may, through mutual agreement, by execution of a written amendment, revise this Agreement. Any such revision or change will be binding and effective on both parties.
Each party shall be responsible for their own taxes and duties, whether international, national, state or local, however designated, which are levied or imposed or may be levied or imposed, with respect to this Agreement.
There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein.
Survival: In the event of termination of this Agreement for any reason, Sections 1, 4, 6, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20 and all Sections of Appendix A & Appendix B shall survive.
This Agreement does not provide and shall not be construed to provide third parties (i.e. non-parties to this Agreement), including any agent, customer and prospective customer with any remedy, claim, and cause of action or privilege against EverData or Affiliate.
The Affiliate and EverData and its Service Providers are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the parties. Partner will have no authority to make or accept any offers or representations on our, or our Service Providers' behalf. Affiliate will not make any statement, whether on his website or otherwise, that reasonably would contradict anything in this Agreement.
Further Assurances: Each Party hereto shall execute and/or cause to be delivered to the other Party hereto such instruments and other documents, and shall take such other actions, as such other Party may reasonably request for the purpose of carrying out or evidencing any of the transactions contemplated / carried out, by / as a result of, this Agreement.
Construction: The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement.
Entire Agreement; Severability: This Agreement, which includes Appendix A and Appendix B, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If necessary to effect the intent of the Parties, the Parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
The division of this Agreement into sections, subsections, appendices, and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be used in the construction or interpretation of this Agreement.
This agreement may be executed in counterparts.
Language. All notices, designations, and specifications made under this Agreement shall be made in the English Language only.
Dates and Times. All dates and times relevant to this Agreement or its performance shall be computed based on the date and time observed in the city of the registered office of EverData.
Affiliate will not violate any applicable law, ordinance, regulation or standard.
Affiliate agrees that in the course of any performance under this agreement or otherwise with respect to any dealings between the Affiliate and EverData that the affiliate will not transmit any information which is or might be considered to be defamatory or libelous.
Affiliate agrees that in the course of any performance under this agreement or otherwise with respect to any dealings between Affiliate and EverData- the Affiliate will not transmit any information which is or might be considered to be lewd, pornographic or obscene.
Any notice or other communication required or permitted to be delivered to EverData under this Agreement shall be in writing or via email, unless otherwise specified, and shall be deemed properly delivered when delivered to -
EverData Technologies Pvt. Ltd.
372, Shri Gopal Nagar,
Gopalpura Bypass Road,
Near Gurjar ki thadi,
Jaipur, Rajasthan, INDIA
Email Address: email@example.com
Any communication delivered to either party under this Agreement shall be deemed to have been validly and effectively given, on the date of receiving such communication, if such date is a Business Day and such delivery was made prior to 19:30 hours local time, and otherwise on the next Business Day.
All Conditions have been read and agreed upon.
Either Party's use and disclosure of Confidential Information are subject to the following terms and conditions: -
With respect to the Confidential Information, both Parties agree that:
each Party shall treat as strictly confidential, and use all reasonable efforts, including implementing reasonable physical security measures and operating procedures, to preserve the secrecy and confidentiality of, all Confidential Information received from the other Party.
each Party shall make no disclosures whatsoever of any Confidential Information to others, provided however, that if the Party is a corporation, partnership, or similar entity, disclosure is permitted to their officers and employees who have a demonstrable need to know such Confidential Information, provided the Party shall advise such personnel of the confidential nature of the Confidential Information and of the procedures required to maintain the confidentiality thereof; and
each Party shall not modify or remove any confidentiality legends and/or copyright notices appearing on any Confidential Information of EverData.
The obligations set forth in this Appendix shall be continuing, provided, however, that this Appendix imposes no obligation upon either Party with respect to information that:
is disclosed with the other Party's prior written approval; or
is or has entered the public domain in its integrated and aggregated form through no fault of the receiving party; or
is known by the receiving Party prior to the time of disclosure in its integrated and aggregated form; or
is independently developed by the receiving Party without use of the Confidential Information; or
is made generally available by the other Party without restriction on disclosure.
In the event either Party is required by law, regulation or court order to disclose any Confidential Information, the Party will promptly notify the other Party in writing prior to making any such disclosure in order to facilitate the other Party seeking a protective order or other appropriate remedy from the proper authority, at the disclosing Party's expense. Each Party agrees to cooperate with the other Party in seeking such order or other remedy. Each Party further agrees that if the other Party is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information which is legally required.
In the event of any termination of this Agreement, all Confidential Information, including all copies, partial copies of Confidential Information, copied portions contained in derivative works in each Party's possession shall be immediately returned to the other Party or destroyed.
Each Party shall provide full voluntary disclosure to the other Party of any and all unauthorized disclosures and/or unauthorized uses of any Confidential Information; and the obligations of this Appendix shall survive such termination and remain in full force and effect.
Each Parties duties under this Appendix shall expire five (5) years after the information is received or earlier, upon written agreement of the parties.
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