This Terms of Service (“Agreement”) between You, personally, or if on behalf of the entity entering into this Agreement, that entity (you and the entity, each a “Customer”), and Echosense Technologies Private Limited (“Company”, “Echosense”, “Us”, “We”) constitutes the terms and conditions for Your use of the Echosense Context SaaS Platform (“Platform” or “Service” or “Services”). “You” or “Your” means you or any other person or entity, using Our Services or identified in any Service account, to become a publisher, on whose behalf you are authorized to act.
By creating any Service account via the online user interface provided by Echosense for accessing the Services (“Echosense UI”), or by integrating Echosense SDK (“SDK”) with Your mobile application (“App”) or by otherwise accessing or using any of the Services, You agree that You have the authority to bind and You agree to be bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, do not create a Service account, or integrate the SDK with your App, or access or use any Service. This Agreement does not alter in any way the terms or conditions of any other agreement You may have with Echosense for products, services or otherwise.
Agreements entered into between Echosense and Mobile Apps, Advertising Networks, App Publishers, partners and vendors may provide for additional terms related to the treatment of certain information of End Users and data generally by Echosense.
a) The Company has developed certain software applications and platforms which it makes available to Customer via the internet on a pay-per-use basis for the purpose of online marketing and makes available Context Marketing SaaS as a free-to-use service for publishers.
b) The Customer wishes to use the Company’s service in its business operations.
c) The Company has agreed to provide and the Customer has agreed to take the Company’s service subject to the terms and conditions of this agreement. The use of the platform is free of cost for Apps that become publishers for a Contextual Marketing Network of any Advertising Network using the Echosense Context SaaS platform.
This Agreement shall commence on the date on which you Accept these Conditions on Echosense UI or integrate Our SDK with Your App or access or use any Service for the first time (“Effective date”) and shall remain in full force and effect unless and until terminated by either Party in accordance with the terms of the Contract.
3. PROVISION OF THE SERVICES AND THE ECHOSENSE SDK
3.1 With effect from the Effective Date, We shall, subject to these Conditions:
(a) Make available and allow You to access the Services;
(b) make available to You (by download or any other method notified to You) a copy of the Echosense SDK and any other Echosense Materials or Advertisements which Echosense deems appropriate.
3.2 You acknowledge and agree that it is Your responsibility to ensure that You have appropriate protection for Your computers, software, data and applications including any systems that You use to access the Services or any Echosense Materials and that Echosense shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the Echosense Materials.
3.3 You acknowledge that Echosense may immediately by notice in writing to You suspend Your access to the Services (or any part thereof) and/or the Echosense SDK. Further Echosense shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any Echosense SDK (or any part thereof).
3.4 You acknowledge and agree that
(i) nothing in this Contract guarantees that the Services, Echosense SDK and/or Advertisements will be free from interruption or errors
(ii) there will be periods when the Services, Advertisements are unavailable and cannot be accessed
(iii) Echosense shall not be liable for any loss or damage You may suffer or incur as a result of any Service (or any part of a Service) Advertisements and/or any Echosense SDK Materials (or any part thereof) being unavailable at any time.
(iv) With respect to Your use of the Echosense Platform, You shall be solely responsible for all aspects of dealing with Your Advertisers or Advertising Networks you work with (e.g., selling, collection of payment, client service, etc.), the content and placement of Ads, and handling all related inquiries of any type or nature.
(v) You have read and agree with the Disclaimer given in Section 14.
3.5 You may use Echosense technology products for obtaining Services including any fixes, updates and upgrades thereto as may be provided by Echosense from time to time.
4. RESTRICTIONS ON USE OF ECHOSENSE SERVICES AND ECHOSENSE SDK
4.1 You shall not:
(a) by accessing the Services, store, transmit, distribute, disseminate, publish or post any material in such a way as to breach any applicable law or regulation or to infringe the rights of, or restrict or inhibit the access to and enjoyment of the Services by, any other person;
(b) by accessing the Services, deliberately, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similar items on to any Echosense or third party systems;
(c) distribute the Echosense Materials to any third party;
(d) copy, modify, distribute, sell, or lease any part of the Services or included software, nor attempt to extract the source code of that software, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of the Echosense SDK or any other software to which You are given access by Echosense, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties;
(e) permit, assist or attempt to assist any third parties in obtaining access to the Services or the Echosense Materials;
(f) use the Platform to share, display or disclose any material including Advertisements that may be considered to contain any hate-related, pornographic, libelous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third party rights or which are reasonably likely to subject Echosense or its affiliates or advertisers or business partners to negative publicity.
(g) Engage in any Fraudulent Activities or illegal practices.
4.2 You shall be responsible and liable to Echosense for all acts or omissions of Your Personnel in accessing and use of the Echosense Materials, Advertisements and Services. Any breach of any provision of the Contract caused by any such persons shall be deemed a breach of the Contract by You.
5. DATA COLLECTION AND USE
5.1 In connection with the operation of any Service, Echosense may collect and receive Service Data. “Service Data” includes any information that Echosense collects, as explained below, for the performance of obligations under this Agreement. You agree that Echosense will have the right to use and disclose Service Data
(i) to provide any of the Services,
(ii) for its internal business purposes and for the improvement of services provided to various partners,
(iii) to improve any products or services provided by Echosense, and
(iv) to enable, and allow services provided to you and to other Customers and Partners of Echosense
5.2 Echosense’s SDK integration requires certain permissions for its operation to meet the objectives of this Contract. You acknowledge that You have read and understood the SDK integration guide made available to you, and by virtue of integrating with the SDK, deemed to grant such permissions including Echosense’s ability to collect or receive performance data of a user such as AAID, Location data, other sensor data and other information regarding the device, or such other performance user data. You acknowledge and agree that, other than the information that Echosense SDK collects from the End User device, You are not providing any personally identifiable information under applicable laws to Echosense. You undertake that prior to You granting Echosense such permissions, You will obtain all necessary consent from the User for collection, sharing, and/or use of such data for behavioural targeting or analytical purposes.
5.3 You warrant and represent that, (i) other than the data collected by Echosense’s SDK, you are not sharing, supplying or disclosing any personally identifiable information or personal data as such terms are envisaged under applicable privacy legislation (including for end-users in EEA under General Data Protection Regulation (GDPR)) to Echosense under or in connection with the Agreement.
5.4 You shall notify Echosense specifically in the event the end-user has exercised his/her right to opt-out of behavioural targeting through Your App and while notifying the same you will only provide the AAID to Echosense without disclosing any other personally identifiable information of the end-user.
5.6 Your Data
5.6.1 You shall own all rights, title and interest in and to all of Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data.
5.6.2 Echosense shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
5.6.3 You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to Echosense to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of Services by Echosense (including the provision of the Services to third parties).
5.6.4 If Your mobile application is directed to children under the age of thirteen (13), in addition to complying with applicable laws including Children’s Online Privacy Protection Act (“COPPA”), You will ensure that appropriate technical measures have been undertaken, as applicable, in order for Echosense to determine that such mobile application is directed to children under the age of thirteen (13) including notification to Echosense regarding the nature of such application to facilitate Echosense’s compliance with COPPA. In any event, you will not share any personally identifiable information regarding users of COPPA flagged applications, with Echosense.
6. PROPRIETARY RIGHTS
6.1 You acknowledge that You have and obtain no rights in the Services, Advertisements and/ or in any Echosense SDK or the Intellectual Property Rights in or relating to them or to receive the Services save as expressly provided in the Contract.
6.2 Echosense grants to You, with effect from the Effective Date, a limited, revocable, non-exclusive, non-transferable licence for the term of the Agreement to access the Services solely for Your own internal business purposes and for no other purpose whatsoever.
6.3 Echosense grants to You, with effect from the Effective Date, a limited, revocable, non-exclusive, non-transferable licence for the term of the Contract to use the Echosense SDK solely for the purpose of enabling You to receive the benefit of the Services. You will have no right to use, perform, display, reproduce and distribute Echosense SDK for any other purpose. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by Echosense or updated in Echosense website from time to time.
7. PAYMENTS TO PUBLISHERS
If you are a Publisher who is working with Advertising Networks using Echosense Context Marketing Technology then you agree that it is direct arrangement between You and the Network and that Echosense is not responsible for Your dues from any such Network. By using our platform to enter into a contract with any Network, you agree that Echosense will not have any liability to you for any dues, disputes with the Network.
8.1 You grant to Echosense any and all necessary rights and permissions to use Your App trademarks, trade names, logos, copyrights and other intellectual property provided during the course of the Services (“Your IPRs”) for the purpose of fulfilling Echosense’s obligations. Echosense may mention Your name as a customer in its website, marketing, social media and sales materials.
8.2 You acknowledge that Echosense and/or any third party instructed or engaged by Echosense may in its sole discretion market, promote, reference, present and link Your IPRs to all Echosense potential customers in connection with the provision of the Services and You grant Echosense all necessary rights and permissions with respect to Your IPRs on a worldwide, perpetual, irrevocable royalty-free basis.
9.1 Each party acknowledges that Confidential Information under its control may be disclosed to the other party during the performance of this Agreement. Each party agrees that it shall use the other’s Confidential Information solely for purposes of performing its obligations under the Agreement and to take reasonable steps, which shall include, at a minimum, the steps it takes to protect its own Confidential Information, to prevent the duplication or disclosure of the other’s Confidential Information, other than by or to its employees, Affiliates or agents who must have access to the Confidential Information to perform such party’s obligations hereunder. Publisher also acknowledges that Echosense may need to share Publisher information including Confidential Information with third parties (such as its data management partners, licensors, media vendors and/or for API reporting purposes). Provided however, that in each such case, a Party shall ensure that the recipient employees, Affiliates, agents or third parties have each agreed to or shall each agree to be bound by confidentiality obligations no less restrictive than the terms of this Section 9.
Each party agrees that it shall not be a breach of this Section 9 to disclose the other party’s Confidential Information that is required to be disclosed by law, regulation or order of any governmental body or regulatory authority; provided, however, that such disclosing party must first give written notice of such required disclosure to the other party, make a reasonable effort, at the other party’s sole cost and expense, to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which disclosure is required and allow the disclosing party to participate in the proceeding. The confidentiality obligations set forth herein shall continue for two (2) years following termination or expiration of this Contract with respect to Confidential Information. If the Advertisement transmission from Echosense includes any financial information relating to the Advertisement, all such data shall be treated as Confidential Information belonging to Echosense.
9.2. Return of Confidential Information. Upon termination of this Agreement, or upon disclosing party’s request, the receiving party shall promptly return or destroy all manifestations of Confidential Information of the disclosing party and so certify to the disclosing party in writing provided however that a party may retain a copy of such Information solely for archival purposes.
9.3 Each party may disclose the existence of this Contract, but agrees that the terms and conditions of this Contract will be treated as Confidential Information; provided, however, that each party may disclose the terms and conditions of this Contract: (i) as required by law; (ii) as part of filings with any court or governmental entities, including without limitation national securities exchanges; (iii) to legal counsel of the parties; (iv) under the terms and conditions of a non-disclosure contract to accountants, banks, and financing sources and their advisors; (v) in connection with the enforcement of this Contract or rights under this Contract; or (vi) under the terms and conditions of a non-disclosure contract, in connection with an actual or proposed merger, acquisition, or similar transaction.
10.1 You agree to indemnify, defend and hold Echosense, its licensors, affiliates, shareholders, customers, agents, directors, officers, and employees harmless, including costs, expenses and attorneys’ fees and other legal costs, from any and all claims, losses, damages, penalties, expenses (including damage awards, settlement amounts, and reasonable legal fees), liability, claim or demand made by any third party due to or arising out of:
(a) Your use of the Services or Echosense’s Intellectual Property Rights;
(b) any violation of this Agreement by You including without limitation breach of representations and warranties and obligations related to confidentiality;
(c) Your failure to comply with the Echosense Policies (d) infringement by You of any third party Intellectual Property Rights or other right of any person or entity;
(d) wilful misconduct or gross negligence by You;
(e) fraudulent or unlawful act of You.
(f) Your breach or alleged breach of any warranties or representations made under Section 9;
(g) Any material displayed in Your Network which do not comply with all applicable laws, statutes and regulations;
(h) Any material displayed in Your Network which contain content that is obscene, defamatory, libelous, or slanderous, or hate-related.
10.2 Any claim for indemnification hereunder shall be subject to the following provisions:
(i) You shall be given prompt written notice of the claim by Echosense, provided that any delay in providing notice shall not relieve You of Your indemnity obligations under this Agreement unless, and only to the extent, You were prejudiced by the delay; and
(ii) Echosense shall reasonably cooperate with You and Your counsel at Your cost and expense. Echosense may participate in the defense and settlement of the claim and using attorneys selected by Echosense. Each party shall make all reasonable efforts to mitigate damages.
11.1 Save as set out in these Conditions or the Contract and to the maximum extent permitted by applicable law, Echosense excludes and disclaims all conditions, terms, representations (other than fraudulent misrepresentations) and warranties relating to the subject matter thereof, whether imposed by statute or by operation of law or otherwise, that are not explicitly stated in the Contract including the implied warranties of satisfactory quality and fitness for a particular purpose.
11.2 Echosense will not be liable to You or any third party hereunder for any punitive, incidental, indirect, special, reliance or consequential damagers, including lost business, revenue, or anticipated profits, whether based on breach of contract, tort (including negligence), or otherwise, and whether or not Echosense was advised of the possibility of such loss or damages.
11.3 In no event will Echosense’s liability and damages, whether based on breach of contract, tort (including negligence), or otherwise, arising out of or relating to any service or this agreement exceed INR 25000. The parties agree that the existence of more than one claim shall not increase the foregoing limit, and that the limitations of liability set forth in this section will apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
11.4 Notwithstanding any provision to the contrary, nothing in these Conditions or the Contract limits or excludes Echosense’s liability for fraud or fraudulent misrepresentation or for any liability, which may not be lawfully limited or excluded.
11.5 You acknowledge and agree that the limitations and exclusions of liability contained in these Conditions and the Agreement are reasonable in view of the nature and extent of the obligations accepted by each Party under the Agreement and the fact that the Services are provided without any monetary charge and that this Condition 11 shall prevail over all other provisions in the Contract.
11.6 Notwithstanding anything else in the Contract, Your liability with regard to Indemnification obligations under Section 9 shall be unlimited.
12.1 Either Party may terminate this Contract at any time by providing 15 days’ written notice (email sufficient) to the other party.
On termination of the Contract for any reason:
(a) All licenses granted by Echosense under this Contract shall immediately terminate; and
(b) You shall uninstall or otherwise remove any means of access to the Services provided under the Contract including client software and Echosense SDK supplied by Echosense for that purpose;
(c) You shall immediately return any and all of the Confidential Information of Echosense and any and all of the Echosense Material provided to You by Echosense.
12.2 The termination of the Contract shall be without prejudice to any accrued rights and obligations of the Parties arising under the Contract prior to such termination.
12.3 The following Conditions shall survive the expiry or termination of the Contract: (a) 4, 5, 8, 9, 10, 11, 12, 13, 14 and 15; and (b) any other provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination.
You acknowledge that some features of the Services may be experimental in nature. Echosense does not represent or warrant that the Services are reliable, accurate, complete, or otherwise free from defects. Accordingly, the Services are made available for use “AS IS,” and any use thereof will be undertaken solely at Your own risk. Echosense reserves the right, in its sole discretion, to include or cease providing the Services at any time (subject to notice as may be required herein), and Echosense does not give or enter into any conditions, warranties or other terms with regard to the Services. Echosense does not control, endorse or adopt any Ads and makes no representation or warranties of any kind regarding the content of any Ads, including, without limitation, regarding the accuracy, completeness or decency of any Ads. Echosense makes no warranties, express or implied, with respect to subject matter of this Agreement, and expressly disclaims the implied warranties of merchantability, non-infringement, title, fitness for a particular purpose, and implied warranties arising from course of dealing or performance. For the avoidance of doubt, Echosense does not guarantee the results of the Services or that the Services will be correct, uninterrupted or error-free, that defects will be corrected, or that the Services are free of viruses or other harmful components, that the Services will be operable at all times or during any down time
- caused by outages to any public Internet backbones, networks or servers,
- caused by any failures of Your equipment, systems or local access services
- for previously scheduled maintenance or
- relating to events beyond Echosense’s (or its wholly owned subsidiaries or affiliates’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Echosense (or its wholly owned subsidiaries or affiliates) or Your servers are located or co-located.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE ADVERTISEMENTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
14.1 Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of Echosense (which may be delayed or withheld in its discretion).
14.2 Assignment and Subcontracting by Echosense: Echosense shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
14.3 No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
14.4 Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
14.5 Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract.
14.6 Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). Echosense shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Echosense’s reasonable control.
14.7 Amendments: Echosense reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by Echosense, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to Echosense. In the event of such termination, clause 12 above shall apply.
14.8 Governing Law and Jurisdiction: Unless otherwise agreed to by parties in an agreement and/or addendum, the Parties irrevocably agree that the courts of New Delhi shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Conditions and/or the Contract or their subject matter or formation (including non-contractual disputes or claims) under the Laws of India.
15. DEFINITIONS AND INTERPRETATION
15.1 Unless the context otherwise requires, the following definitions apply in these Conditions:
- Advertisements: means all the advertising content provided by Echosense on behalf of advertisers for distribution on Your Network or your App;
- Confidential Information means information (including confidential or sensitive commercial; financial; marketing; and/or technical information in written, electronic or any other form or medium) which is marked ‘confidential’ or ‘secret’ or is, by its nature shall be considered confidential by a reasonable prudent person;
- Conditions means these terms and conditions;
- Contract means the agreement formed between You and Echosense, on the terms set out in these Conditions, when you click accept;
- Effective Date means the date on which You Accept these Conditions;
- End User means user of Your mobile application or of mobile applications that comprise Your Network;
- Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (a) generate impressions of or clicks on any Advertisement through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (b) mislead users to click on Advertisements; (c) in any way minimize or obstruct the display of any Advertisements, or edit, modify, filter or change the order of the information contained in any Advertisements; (d) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by Echosense; or reverse engineer, decompile or disassemble any software components of the advertising services provided by Echosense;
- Echosense Materials means any materials (including software, manuals, developers notes or other materials) provided to You by Echosense in relation to this Contract, including the Echosense SDK;
- Echosense SDK means the software development kit provided to You by Echosense to allow you to generate data which will be processed as part of the Services;
- Intellectual Property Rights means trademarks, service marks, and rights in the nature of passing off and unfair competition, get-up, trade dress, registered designs and unregistered designs and design rights, business and trading names, domain names, topography rights, copyright (including copyright in software), moral rights, database rights, rights in inventions, patents, know-how, trade secrets and other confidential information, and all other intellectual property rights and rights of a similar or corresponding character which may exist now or in the future subsist in any part of the world (whether registered or not or the subject of an application for registration) and including all rights to apply for, and obtain, registrations in respect of any and all of the foregoing, each for their full term including extensions, revivals and renewals thereof;
- Party means each of Echosense and You and Parties shall be construed accordingly;
- Personnel means a Party’s directors, officers, employees, workers, agents, third party service providers, successors, subcontractors and permitted assignees;
- Regulator means any regulator or regulatory body which, whether under statute, rules, regulations, codes of practice or otherwise, is entitled to regulate, investigate, or influence the matters dealt with in this Contract or any other aspect of Your business or affairs;
- Services means the provision of an independent and open platform to track conversions of ad campaigns across mobile apps and across campaigns running on any advertising network;
- Your Network means (a) the mobile application(s) owned/ operated or contracted by You, and (b) the applications that are added or removed from Your Network during the Term;
- You means the person accessing the Services and/or using the Echosense Materials; and
- Your Data means any data belonging to You or to third parties and used by You under licence which is stored and/or processed by Echosense as a result of the use of the Services.
15.2 A reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute, as may be amended and in force from time to time.
15.3 The words and phrases “include”, “including” and “in particular” (and any variations of these words, or similar words) shall be deemed to be immediately followed by the words “without limitation” (where such words do not already immediately follow in these Conditions).
15.4 References to a person include an individual, company, corporation, body corporate or unincorporated, firm, partnership, public body, charity or other legal entity and that party’s personal representatives, successors and permitted assigns.
15.5 Any obligation on a Party not to do something includes an obligation to not to allow that thing to be done.