Words and expressions that appear in these terms and conditions shall have the following meanings:
- 1.1. “Account” means the record of all Charges due from a Publisher.
- 1.2. “Charges” means the any charges payable in respect of the Services.
- 1.3. “Effective Date” means the date of acceptance of these terms and conditions.
- 1.4. “Network” means the inventory offered to Infinitech Solutions for the use of its Service and includes various Sites, Publishers and their mobile properties used for publishing or advertising Content by Infinitech Solutions.
- 1.5. “Net Revenue” mean the revenues actually received by Infinitech Solutions less any applicable taxes, and less any agency commissions, carrier and/or partner fees, and less any allowances actually made or taken for returns, discounts or promotional allowances. The Net Revenue shall also exclude other revenues indirectly earned, if applicable, for consulting, planning and targeting, copywriting, site building, account management or technical modifications or technical innovations which may be charged by Infinitech Solutions to third parties from time to time.
1.6. “Service(s)” mean:
1.7. “Site(s) or ‘‘Website(s)” mean all websites, portals, WAP sites, mobile internet sites, mobile websites and mobile applications that are publishing Content or services.
1.8. “Publisher” means the Party who agrees to avail the services as provided by Infinitech Solutions and includes all parties who are publishers of Website, Portal, blog, WAP, App etc and Independent Service Providers (ISVs)
2.PROVISION OF SERVICES
- 1.6.1. Infinitech Solutions modules;
- 1.6.2. the use of Infinitech Solutions APIs, modules, etc. including the Publisher in the Network;
- 1.6.3. any other services provided by Infinitech Solutions from time to time
3.REPRESENTATIONS AND WARRANTIES
- 2.1. In order to use the Services, the Publisher must first agree to the Terms and Conditions. The Publisher may not use the Services if he does not accept the Terms. The Publisher can accept the Terms and Conditions by:
(A) clicking to accept or agree to the Terms and Conditions, where this option is made available to the Publisher by Infinitech Solutions in the user interface for any Service; or (B) by actually using the Services in which case, the Publisher understands and agrees that Infinitech Solutions will treat your use of the Services as acceptance of these Terms and Conditions from that point onwards. The Publisher may not use the Services and may not accept the Terms if (a) the Publisher is not of legal age to form a binding contract with Infinitech Solutions, or (b) the Publisher is a person barred from receiving the Services under the laws of its country or other countries including the country in which the Publisher is a resident or from which the Publisher uses the Services. Before the Publisher continues, the Publisher should print off or save a local copy of the Terms and Conditions for records. This service is currently valid for India only. Only a valid Indian phone number can avail of these services. Both the caller and callee have to be from India only.
- 2.2. Each of the Services provided by Infinitech Solutions to the Publisher may be treated by Infinitech Solutions as separate agreements (on these terms and conditions) between Infinitech Solutions and the Publisher for the provisions of that particular service. These terms and conditions will continue to the services being provided notwithstanding the non-availability, suspension or termination of any of the individual services, unless Infinitech Solutions advises the Publisher otherwise in writing.
- 2.3. The minimum period for the Services is 12 months beginning on the effective date (“the Minimum Period”). After the expiry of the Minimum Period, these Terms and Conditions will continue unless and until it is terminated by either party giving the other party at least one month’s written notice to terminate or the Agreement being terminated in accordance with the provisions of Clause 10 below.
3.1. The Publisher hereby makes each of the Representations and Warranties:
4.INFINITECH SOLUTIONS’S RIGHTS AND OBLIGATIONS
- 3.1.1. The Publisher has full power and authority to accept these Terms and Conditions and these Terms and Conditions constitutes a valid and binding obligation on each of them in accordance with its terms.
- 3.1.2. The execution and delivery of and the performance by the Publisher of each of the obligations under these Terms and Conditions will not:
(i) result in a breach of any laws, legal requirements, order, judgement or decree of any court, governmental agency or regulatory body to which the Publisher is a party or by which it is bound;
(ii) result in the breach of any other Terms and Conditions or agreement(s) or contract by which the Publisher is bound.
- 3.1.3. The representations and warranties accepted by the Publisher in these Terms and Conditions, as well as in any certificate, document or other written statement delivered by or on behalf of the Publisher to the Infinitech Solutions are accurate, correct and complete in all respects, do not contain any untrue statement of a material fact, or, in light of the circumstances in which made, omit to state a material fact necessary in order to make the statements and information contained herein or therein not misleading.
- 3.1.4. The Publisher’s representations and warranties set out in these Terms and Conditions is separate and independent and is not limited by reference to any other provision or by anything in these Terms and Conditions.
- 3.2. The Publisher shall not act in any matter that is prejudicial to the rights of Infinitech Solutions under these Terms and Conditions. The Publisher recognizes that all the Parties have rights and obligations under these Terms and Conditions. It is agreed by the Publisher that he shall not act in any manner nor do any deed or thing under these Terms and Conditions, that would derogate or adversely affect the rights of Infinitech Solutions hereunder.
- 3.3. None of the Representations, Warranties or statements contained in these Terms and Conditions contain any untrue statement of a material fact or omits to state any material fact that makes any of such Representations, Warranties or statements misleading, and there is no other information relating to the Party that has not been disclosed to the other Party which shall prejudice any claim made by the other Party in these Terms and Conditions or operate to reduce any amount recoverable there under. It shall not be a defense to any claim against any Party that the other Party ought to have known or had knowledge of any information relating to the circumstances giving rise to such claim.
5.USER’S RIGHTS AND RESPONSIBILITIES
- 4.1. Infinitech Solutions reserves the right to refuse or to accept the Publisher or any of the Publisher‘s site for participation in the Network or to perform any Services for the Publisher for any reason, in its sole discretion. On such Refusal, Infinitech Solutions shall deactivate the account of the Publisher and stop the provision of all services being offered by Infinitech Solutions.
- 4.2. Infinitech Solutions shall use all reasonable endeavours to maintain the Services 24 hours in every day of the year but Infinitech Solutions shall not be liable for any failure to maintain the Services because of factors outside Infinitech Solutions’s control including any technical or other failure (including, without limitation, failure due to fire, flood, land heave and subsidence, physical obstructions, atmospheric conditions, acts of God, industrial action, default or failure of a third party, governmental action or faults in the Network). Infinitech Solutions does not warrant that the Services will be fault free or free of interruptions. However, in the event of such interruptions, Infinitech Solutions shall, in its best endeavor, try to restore the Services at the earliest.
- 4.3. Infinitech Solutions reserves the right from time to time to improve or alter the Services as it deems appropriate, provided that such changes do not substantially change the nature of the Services.
- 4.4. Infinitech Solutions reserves the right to suspend and/or alter the operation of the Services for the purposes of remedial work or preventative maintenance or improvement of the Services provided that Infinitech Solutions shall use all reasonable endeavors to keep such suspension to a minimum.
- 4.5. The Parties agree and acknowledge that the Services are only to enable a peer-to-peer call and the maintenance of the quality of connectivity is solely the responsibility of the Telecom Operator.
- 4.6. The Parties agree and acknowledge that the Services are restricted to the widgets and plug-in which clearly specify the Services and their purpose.
5.1. The Publisher shall at all times throughout the validity of its account with Infinitech Solutions:
- 5.1.1. comply with any reasonable directions or instructions issued from time to time by Infinitech Solutions in connection with the Services or any of them;
- 5.1.2. ensure that the Services are not used for the transmission of any material which is or is intended to be a hoax call to emergency services or is of a defamatory, offensive, abusive, obscene or menacing character, or which is likely to bring the Services or Infinitech Solutions into disrepute or may be prejudicial to Infinitech Solutions’s commercial interests;
- 5.1.3. ensure that the Services are not used in any manner which will or may constitute an unlawful or criminal act (including in particular but, without limitation, deception and/or fraud) or a violation or infringement of the rights of any person, firm or company (including, but not limited to, rights of confidentiality and intellectual property right or a violation or infringement of any statutory duty or obligation in contract, tort or otherwise to any third party;
- 5.1.4. not act, omit to act or allow the Services to be used in any way which will or may injure or damage any persons (whether or not employees, agents or representatives of Infinitech Solutions), property or the Services or howsoever cause the quality of the Services to be impaired;
- 5.1.5. provide to Infinitech Solutions such assistance and/or information as Infinitech Solutions may from time to time reasonably require in order to comply with all requirements and conditions at any time and from time to time imposed by law or by any license under the extant laws or by any competent authority or public body which are or may be applicable to or affect any of the Services and/or their provision;
- 5.1.6. pay Infinitech Solutions’s Charges under these Terms and Conditions on or before the due date for payment without set off, deduction, counterclaim or abatement;
- 5.2. The Publisher shall indemnify and hold harmless Infinitech Solutions against all liabilities, claims, damages, losses, costs and proceedings howsoever arising from or in any way connected with the use of the Services provided by Infinitech Solutions to the Publisher under these Terms and Conditions.
- 5.3. If the Services are suspended pursuant to clause 9 below due to the contravention by the Publisher of this clause, Infinitech Solutions may refuse to restore the Services to the Publisher until Infinitech Solutions receives a written assurance from the Publisher that there will be no further contravention.
- 5.4. The Publisher is solely responsible for all of its activity in connection with the Services and accessing the Infinitech Solutions Site. The Publisher may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Infinitech Solutions user. The Publisher shall not use any part of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. The Publisher will not run Mail list, Listserv, any form of auto-responder, or “spam” on the Site or Services, or any processes that run or are activated while the Publisher is not logged in.
- 5.5. The Publisher is responsible to validate all calls originating from its sites and ISV. The Publisher must report any discrepancies related to its campaign to Infinitech Solutions within 15 days of the occurrence. Infinitech Solutions is not liable for any discrepancies not reported within this time frame and the Publisher waives all rights, titles, and intent to dispute payment to Infinitech Solutions based upon any discrepancy not reported within this time frame. The targeting set on the Publisher‘s campaigns is solely its own responsibility. Infinitech Solutions accepts no responsibility for advertisement campaigns that deliver incorrectly because targeting was set incorrectly. Once any selection of device or genre has been made by the Publisher, it shall be responsible for the same and shall not raise any dispute with Infinitech Solutions in this regard. Infinitech Solutions has no obligation to review the Publisher‘s Content, targeting, or destination URLs. Infinitech Solutions reserves the right to suspend, restrict, or terminate service, advertisement campaign or any Application for any reason at any time.
- 5.6. The using of the correct destination URLs for the purpose of provision of service by or to Infinitech Solutions is the sole responsibility of the Publisher. Infinitech Solutions is not responsible for the Sites and landing pages the Publisher links through to or otherwise, or services/products/brands that the Publisher is advertising. Infinitech Solutions has no obligation to review the Publisher‘s Site(s), Content/Services, or billing methods and the Publisher is solely responsible for the same.
- 5.7. The Publisher agrees to direct to Infinitech Solutions, all communications regarding any matter arising out of its use of the Services within a period of 2 (two) days.
- 5.8. The Publisher agrees to collaborate with press releases and/or be mentioned as a client. The Publisher shall make no press releases, promotional or merchandising materials, or general public announcements without the prior consent of Infinitech Solutions. The Publisher agrees that Infinitech Solutions shall have the right to co-brand along with the Publisher’s brand and tradename for promotional and advertising activities provided Infinitech Solutions acknowledges that the intellectual property of the Publisher’s brand and trade-name belongs to the Publisher, and Publisher has permitted Infinitech Solutions use its brand and tradename for the promotional and advertisings activities only.
- 5.9. The Publisher is solely responsible for its services offered by it on behalf of or generated by its customers, affiliates, agents or partners. The Publisher agrees to and shall ensure the quality of service delivered by its Sites/ISV. The Publisher is authorised to advertise its services or on behalf of your customers, affiliates or partners. However, Infinitech Solutions will not responsible or held liable for anything in the Publisher’s Sites.
6.1. Infinitech Solutions shall update the Publisher‘s details on all the Publisher‘s dashboards on a regular basis. The Publisher can login to access the data at any given point in time.
6.2. The Charges in terms of the terms of the Agrement shall be in the manner as agreed beteween the Publisher and Infinitech Solutions.
6.3. The Publisher shall receive a percentage of the Net Revenue associated with its use of the Services as solely determined by Infinitech Solutions. The Publisher agrees and acknowledges that any payments that may become due to it are specifically conditional upon Infinitech Solutions’s receipt of full payment from the applicable telecom operator. If Infinitech Solutions does not receive the applicable payment in full from any such Telecom Operator, Infinitech Solutions shall have no liability or responsibility to the Publisher and the Publisher hereby releases Infinitech Solutions with respect thereto.
6.4. Infinitech Solutions may at its sole discretion and with an intent to maintain relationship, may pay the net revenue to the publisher even if the same is not received from the telecom operator. However such payment will not be treated as acceptance of liability for past, present or future transactions and Infinitech Solutions reserves its right to claim refund of such amount or adjust from future payments.
6.5. The portion of Net Revenue received by the Publisher shall be determined every 30 days and the payment shall be made to the Publisher within 60 days from the said date of determination. Payments to the Publisher shall be sent by Infinitech Solutions only if the Publisher’s earned balance is greater than or equal to INR 5000 (Rupees Five Thousand). If the Publisher‘s earned balance is less than INR 5000, no payment shall be sent for a further 30 days when Infinitech Solutions shall make the aforesaid determination anew.
6.6. The Publisher accepts Infinitech Solutions’s call count as final as reflected in the Publisher’s dashboard provided by Infinitech Solutions. However, there may be an adjustment of (+/-) 5 (five) percent in the call count as per the final call count provided by the Telecom Operator. No other measurements or statistics of any kind shall be accepted by Infinitech Solutions or have any effect under these Terms and Conditions. Infinitech Solutions’s technology and systems will be the official counter for determining number of calls. Whilst Infinitech Solutions makes every effort to keep statistics error free, the Publisher acknowledges that Infinitech Solutions does not guarantee the statistics will be error free at all times. If Infinitech Solutions discovers a fault then Infinitech Solutions will provide the Publisher with an explanation and an adjustment as the case may be. In the event the Publisher disagrees with any such calculation, it shall submit a support ticket immediately to Infinitech Solutions, detailing, with reasonable specificity, their objections to the calculations. Thereafter, Infinitech Solutions will provide the Publisher with further explanation or, if such calculations are determined by Infinitech Solutions to be incorrect, an adjustment, of the numbers with explanation or adjustment, as the case may be. This shall be final and binding. In the event that no adjustment is necessary, the Publisher shall reimburse Infinitech Solutions for its expenses in responding to your requests under this sub-clause. The Parties agree that the decision of Infinitech Solutions on the pay outs by the Publisher to Infinitech Solutions pursuant to the call counts in terms herein shall be final.
6.7. Infinitech Solutions will charge all applicable taxes as may be levied from time to time by the Government or other authority in connection with the Services provided. The Publisher shall be responsible for all payments, transaction charges including bank charges and credit card charges. As a condition to Infinitech Solutions’s obligation to make payments hereunder to the Publisher, the Publisher must have on file with Infinitech Solutions, complete and accurate taxation documents which may be required by law.
6.8. All payments will be made in Rupee (INR). All payments will be subject to withholding taxes wherever applicable.
6.9. Infinitech Solutions reserves the right to set and negotiate payment terms and rates on a user-by-user basis. Infinitech Solutions may change its rate card at any time without prior notice. Infinitech Solutions reserves the right to institute new charges at any time, upon prior notice to the Publisher, which may be sent by email or posted on its site. 6.10. If the Publisher disputes any payment made in connection with the Services, it must notify Infinitech Solutions in writing within thirty (30) days of any such payment. Failure to notify Infinitech Solutions shall result in the waiver by the Publisher of any claims related to such disputed payment. Payment shall be calculated solely based on records maintained by Infinitech Solutions. No other measurements or statistics of any kind shall be accepted by Infinitech Solutions or have any effect under these Terms and Conditions. Infinitech Solutions shall not be liable for any payment based on any breach of these Terms and Conditions by the Publisher.
6.11. To ensure proper payment, the Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with its account.
Subject to Infinitech Solutions giving 14 days’ prior written notice to the Publisher, Infinitech Solutions may apply a usage limit in respect of access to the Services and, subject to 7 days’ prior written notice, may suspend access to the Services if this limit is exceeded. If the Publisher requests Infinitech Solutions to increase its usage limit, Infinitech Solutions may ask the Publisher to reimburse Infinitech Solutions for its reasonable costs and expenses in dealing with these requests.
8.INFINITECH SOLUTIONS’S LIABILITY
9.SUSPENSION OF SERVICES
8.1. Infinitech Solutions shall exercise reasonable skill and care in the provision of the Services.
- 8.2. Except as expressly stated in these Terms and Conditions, in relation to the provision of Services, Infinitech Solutions shall have no obligation, duty or liability in or for contract, tort (including negligence and breach of statutory duty) or otherwise and all other conditions, warranties, terms, representations and undertaking, express or implied (whether they are implied by statute, common law or in any other way) are excluded.
- 8.3. Infinitech Solutions shall not be liable for any indirect or consequential losses, damage or expenses suffered by the Publisher including (but not limited to) loss of anticipated profits or savings, goodwill, business contracts or losses resulting from third party claims.
9.1. Infinitech Solutions reserves the right to suspend all or part of the Services or any of them or disconnect the Infinitech Solutions Code at any time without notice if:
- 9.1.1. the Publisher is in material breach of these Terms and Conditions including, without limitation, in breach of any provision in clause 5;
- 9.1.2. the Publisher exceeds any usage limit set in accordance with clause 7;
- 9.1.3. the Publisher acts in such a way or suffers anything to be done or has anything done which, in the reasonable opinion of Infinitech Solutions, relates to the Services and may impair or jeopardise the operation of the Services or any part of the Network;
- 9.1.4. if requested to do so directly or indirectly as a result of a determination, adjudication or other decision or requirement of any court or competent authority; or
- 9.1.5. the Telecommunication Network or any part of it breaks down or requires modification or maintenance.
- 9.1.6. the agreement between Infinitech Solutions and the Telecom Operator is terminated
- 9.2. Save for suspension or disconnection pursuant to clause 9.1.4, 9.1.5 and 9.1.6 above, the Publisher shall remain liable for all charges during the period of suspension and, in the case of disconnection, Infinitech Solutions shall be entitled to make a charge for reconnection and to require different payment terms as a condition of reconnection. In circumstances of suspension pursuant to clauses 9.1.4 and 9.1.5 Infinitech Solutions shall allow the Publisher a refund of applicable Charges in respect of the period of suspension.
- 9.3. Infinitech Solutions’s rights pursuant to clause 9.1 may be exercised for such period as Infinitech Solutions reasonably thinks fit. If the period of suspension exceeds, however, 60 days, then Infinitech Solutions shall have the right, upon 14 days’ prior written notice to the Publisher, to terminate these Terms and Conditions. In these circumstances, the provisions of clauses 10.4 to 10.7 shall apply.
11. OWNERSHIP OF INTELLECTUAL PROPERTY
10.1. Infinitech Solutions shall have the right to immediately terminate any Services arising out of these Terms and Conditions.
- 10.2. The Publisher may dis-continue with the services by deactivating the Account with Infinitech Solutions.
- 10.3. Any termination of these Terms and Conditions shall be without prejudice to the rights of either party accrued to the date of termination.
- 10.4. Upon termination/deactivation of Account, Infinitech Solutions shall cease to supply the Services to the Publisher.
- 10.5. All Infinitech Solutions Codes shall revert to Infinitech Solutions and will no longer be available for use by the Publisher. The Publisher shall remove Infinitech Solutions code from all its Sites.
- 10.6. Any Charges payable to Infinitech Solutions by the Publisher shall immediately become due to Infinitech Solutions and the Publisher shall promptly on demand pay the same.
- 10.7. The Publisher shall not be entitled to any compensation in respect of such termination.
- 10.8. All provisions of these Terms and Conditions, which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, confidentiality and limitations of liability.
12. OWNERSHIP OF DATA
- 11.1. Subject to the limited licenses granted to Infinitech Solutions and the Publisher hereunder, each party shall own and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, internet domain names, short codes, software, copyrights, patents, trade secrets, know-how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future (“Intellectual Property”). Except as provided in these Terms and Conditions, one Party may not distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.
- 11.2. Except as permitted under these Terms and Conditions, the Publisher may not alter copy, modify, take, sell, re-use, or divulge in any manner any Content or computer code provided by Infinitech Solutions without Infinitech Solutions’s prior written consent.
- 12.1. Infinitech Solutions does not collect any data through the use of Infinitech Solutions Code, as for the Services only the mobile / phones numbers of the customer’s of the Publisher is mapped to the Infinitech Solutions Code.
- 12.2. Infinitech Solutions does not seek any data from the Publisher (profile, data, content on sites etc). Infinitech Solutions gets the Infinitech Solutions Code from the Telephone Operators and provides alternate premium numbers for the use of the Publisher’s customers to call.
- 13.1. The Publisher agrees not to disclose Confidential Information received by the Publisher or coming to its knowledge as a result of these Terms and Conditions, without prior written consent except as provided herein. “Confidential Information” includes (i) Advertisements or other Content, prior to publication, (ii) submissions or modifications relating to any advertising campaign, (iii) click through rates or other statistics, (iv) all commercial information about campaigns, (v) any technical information, (v) any information about Infinitech Solutions or its affiliates (vi) any other information designated in writing as “Confidential”, (vii) submissions or modifications relating to any software applications (viii) any technical information, (ix) information that is confidential and proprietary to a party or a third- party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential. It does not include information that has become publicly known through no breach by a party, or has been (i) independently developed without access to the other party’s Confidential Information; (ii) rightfully received from a third party; or (iii) required to be disclosed by law or by a governmental authority.
- 13.2. The Publisher will be responsible for a breach of these Terms and Conditions by any of its representatives. The Publisher shall promptly notify Infinitech Solutions of discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with Infinitech Solutions in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use.
- 14.1. Infinitech Solutions expressly disclaims all representations and warranties about the quality, suitability, reliability, availability, merchantability, delivery, lack of viruses or other harmful components or accuracy of information relating to the Services sought to by the Publisher.
- 14.2. The Publisher understands and agree that from time to time the Services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Infinitech Solutions may undertake from time to time; or (iii) causes beyond the control of Infinitech Solutions or which are not reasonably foreseeable by Infinitech Solutions, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Sites or interfaces, network congestion or other failures. While Infinitech Solutions will attempt to provide the Services on a continuous basis, the Publisher hereby acknowledge and agree that Infinitech Solutions gives no guarantee of the availability of the Services on a continuous or uninterrupted basis. Terms of these Terms and Conditions are subject to Infinitech Solutions hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of these Terms and Conditions.
- 14.3. Infinitech Solutions makes no guarantee regarding number of calls generated at the Publisher’s sites, nor any guarantee of any revenues. If the Publisher has been given such figures before enabling the service the Publisher understands that they are offered merely as a guide.
- 14.4. The Publisher acknowledges and agrees that Infinitech Solutions has no special relationship with or fiduciary duty to the Publisher and that Infinitech Solutions has no control over, and no duty to take any action regarding: user interaction; users gaining access to the Site or Services; what Content a user accesses or receives via the Site or Services; what Content other customers may make available, publish or promote in connection with the Services; what effects any Content may have on the Publisher or any customers; how the Publisher or its customers may interpret, view or use the Service; what actions the Publisher or its customers may take as a result of having been exposed to the Service, or whether Content is being displayed properly in connection with the Services.
- 14.5. Further, the Publisher specifically acknowledges and agrees that (i) Infinitech Solutions has no control over (and is merely a passive conduit with respect to) any call that maybe made by the Publisher’s customers (ii) Infinitech Solutions has no control over any Content that may be available or published on any Site (or otherwise); and that the Publisher is solely responsible (and assume all liability and risk) for determining whether or not such Content is appropriate or acceptable. The Publisher acknowledges and agrees that Infinitech Solutions through the Service and the Infinitech Solutions Code does not and cannot be involved in user-to-user dealings or control the behaviour of the Publisher’s customers, and therefore, in the event that the Publisher has a dispute with one or more of its customers, the Publisher releases Infinitech Solutions from claims, demands and damages (actual and consequential and direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes to the fullest extent permitted by law.
- 14.6. A Site may contain, or direct a user to sites containing, information that some people may find offensive or inappropriate. Infinitech Solutions makes no representations concerning any Content contained in or accessed through the Site or Services, and Infinitech Solutions will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or Services
The Publisher will indemnify and hold Infinitech Solutions, its parents, subsidiaries, affiliates, directors, officers, employees, publishers, advertisers and other Publishers (“Infinitech Solutions Indemnified Parties”) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of the Publisher’s or the Publisher’s customers access to the Site, use of the Services, the violation of these Terms and Conditions by the Publisher or the infringement by the Publisher, or any third party using the Publisher’s account, of any intellectual property or other right of any person or entity.
16. FORCE MAJEURE
Infinitech Solutions shall not be held liable or responsible to the Publisher nor be deemed to have defaulted under or have defaulted under or breached these Terms and Conditions for failure or delay in fulfilling or performing any term of these Terms and Conditions when such failure or delay is caused by or results from causes beyond the reasonable control of Infinitech Solutions or from a Force Majeure event. “Force Majeure Event” means any event due to any cause beyond the reasonable control of the Parties, including, without limitation, unavailability of any communication system, breach or virus, sabotage, fire, flood, explosion, acts of God, civil commotion, strikes or industrial action of any kind, riots, insurrection, war, acts of government, computer hacking unauthorized access to computer data and storage devices, computer crashes, etc.
17. LIMITATION OF LIABILITY
Infinitech Solutions shall not be liable for any direct, indirect, punitive, or other consequential, special, indirect or incidental damages, including for loss of data, loss of profits, based upon a claim of any type or nature (including, but not limited to, contract, tort, including negligence, warranty or strict liability), even if advised of the possibility of such damages. In any event Infinitech Solutions’s total obligations and/or liability can never exceed any amount in the aggregate in excess of the net amount paid/received by Infinitech Solutions to/from the user during the three month period immediately preceding the date of the relevant claim.
- 18.1. If any dispute arises between the Parties hereto in connection with or in relation to these Terms and Conditions including without limitation in respect of the validity, interpretation, implementation or alleged material breach of any provision of these Terms and Conditions or regarding a question, including the question as to whether the termination of these Terms and Conditions by one Party hereto has been legitimate, the Parties hereto shall endeavour to settle such dispute amicably by mutual discussion and deliberations. The attempt to bring about an amicable settlement is considered to have failed as soon as one of the Parties hereto, after reasonable attempts, which attempt shall continue for not less than fifteen (15) days, gives notice thereof to the other Party in writing. All disputes, controversies and differences of opinion arising out of or in relation to or in connection with these Terms and Conditions or for the breach hereof which cannot be settled amicably by the Parties hereto shall be settled by arbitration in accordance with the (Indian) Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof for the time being in force by a panel of three (3) arbitrators, one each appointed by the Parties respectively, and the third arbitrator being appointed jointly by the aforementioned two arbitrators.
- 18.2. The venue of the arbitration shall be Mumbai, India. The language of the arbitration proceedings shall be English. The arbitration award shall be a reasoned award and shall be final and binding on the Parties. When any dispute is under arbitration, except for the matters under dispute, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under these Terms and Conditions.
- 18.3. The Parties agree that all negotiations connected with the dispute shall be conducted in confidence and shall not be divulged to any unconnected Third Party.
- 18.4. Subject to the foregoing, the Parties shall bear the costs of arbitration equally, unless otherwise ruled by the arbitral panel.
- 18.5. Each Party shall co-operate in good faith to expedite, to the maximum extent practicable, the conduct of any arbitral proceedings commenced under these Terms and Conditions. The arbitrator's award shall be substantiated in writing and the Parties hereto shall submit to the arbitral panel’s award and the award shall be enforceable in the competent court of Law.
- 18.6. If court proceedings to stay or compel arbitration are necessary, the Party who unsuccessfully opposes such proceedings shall pay all associated costs, expenses and attorney’s fees, which are reasonably incurred by the other party to the arbitration. Similarly, if any Party successfully opposes such proceedings, it shall be paid all associated costs, expenses and attorney’s fees which are reasonably incurred by it by the Party who had instituted the proceeding.
- 18.7. The provisions of this Clause shall survive termination of the Services.
- 19.1. Notices:
- 19.1.1. All invoices and notices to be given to Infinitech Solutions in connection with these Terms and Conditions shall be effective upon receipt, shall be made in writing and shall be sufficiently given if personally delivered or if sent by courier or other express mail service, postage prepaid, addressed to the Party entitled or required to receive such notice at the address for such Party as follows:
- To Infinitech Solutions:
[●] Infinitech Solutions
Opp. Kingston tower,Chincholi bunder road
Mumbai – 400064
- To Publisher:
- 19.1.2. All invoices and notices to be given to the Publisher in connection with these Terms and Conditions shall be effective upon receipt, shall be made in writing and shall be sufficiently given if personally delivered or if sent by courier or other express mail service, postage prepaid, addressed to the Party entitled or required to receive such notice at the address as provided by the Publisher at the time of Registration of the Account with Infinitech Solutions
- 19.1.3. Either Party may change such address by notice to the other Party.
- 19.1.4. All documents shall be deemed served 48 hours after posting.
- 19.2. Waiver:
- Failure by Infinitech Solutions to exercise any of its rights under these terms and conditions shall not be a waiver of forfeiture of such rights. No express or implied waiver by Infinitech Solutions shall be constructed as a continuing waiver, nor shall it prevent Infinitech Solutions from acting upon that or any subsequent breach or from enforcing any term and condition. No concession granted by Infinitech Solutions to the Publisher shall operate as a waiver or forfeiture nor shall it prejudice exercise of Infinitech Solutions rights (whether or not the Publisher shall have acted upon the same or shall have received any prior notice withdrawing such concession).
- 19.3. Entire Agreement:
- These Terms and Conditions constitutes the entire agreement between the Infinitech Solutions and the Publisher pertaining to the subject matter hereof and these terms and conditions shall override any other terms and conditions stipulated by the Publisher (even if submitted in a later document).
- 19.4. Amendments:
- Infinitech Solutions reserves the right at all times to vary or amend these terms and conditions or to introduce new terms and conditions. Any such variations or amendment or introduction will become effective and binding on you upon notification to you.
- 19.5. Survival of Provisions:
- If any provision of these term and conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected as a results.
- 19.6. Assignment:
- The Publisher may not assign its rights or transfer its obligations under these terms and conditions in whole or in part unless Infinitech Solutions is required to permit it to do so pursuant to any law or regulation. Infinitech Solutions shall be permitted to assign these terms and conditions in whole or in part to any third party. Reference in these terms and conditions to Infinitech Solutions shall be deemed to include a reference to its assigns.
19.7. Relationship between Parties:
- The Publisher and Infinitech Solutions are independent contractors and nothing in these terms and conditions shall make the Parties part joint ventures, partners, employees, agents or other representatives of the other hereto. The Publisher shall not make any representation that suggests otherwise.
- 19.8. Public Relation Release
- The Publisher and Infinitech Solutions shall issue a mutual public relation release to their cooperation and the availability of the Services and content of the Site. Each party may issue its own public relation release, upon its sole discretion, in order to promote the cooperation, Service and the content of the Site and furthermore, each party may use the other Parties names in its publications.
- 19.9. Governing Law:
- These terms and conditions shall be governed by and construed in accordance with the laws of India. The Parties consent to the exclusive jurisdiction of the courts of Mumbai over all matters and/or disputes arising from these terms and conditions.
- These “Terms and Conditions” and “Infinitech Solutions Privacy Statement” of Infinitech Solutions site constitute a binding agreement between You/the Publisher and Infinitech Solutions, and is accepted by You upon your use of this Website of Infinitech Solutions.