YUTHAKACART ADVERTISING AGREEMENT
This ADVERTISEMENT AGREEMENT (“Agreement”) is made on this _________ day of __________ 2020 at Bangalore
YUTHAKA BUSINESS SOLUTIONS PRIVATE LIMITED (TRADING AS YUTHAKACART), a private limited company incorporated under the Indian Companies Act, 2013 and having its corporate office at #53, 3rd main, 5th cross, Banashankari 3rd stage, Bangalore-560085, India (hereinafter referred to as “Yuthakacart” which expression shall unless it be repugnant to the context or meaning thereof include its heirs, successors and permitted assigns) of the First Part.
_______________________________, a private limited company incorporated under the Indian Companies Act, 2013 and having its registered office at ________________________/ Mr./Ms.______________________a sole proprietorship firm / individual, having its address at _______________________, ______________________Limited Liability Partnership Firm having its address at _________________________( hereinafter referred to as “Customer, “You”/ “you” or “your” which expression shall unless it be repugnant to the context or meaning thereof include its heirs, successors and permitted assigns) of the Second Part.
Yuthakacart provides advertisement services enabling you to advertise products and services on Yuthakacart Site (“Ad Services”).
BY REGISTERING FOR OR USING THE AD SERVICES, CUSTOMER (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREES TO BE BOUND BY THIS AGREEMENT. “We,” “us,” “our,” and “Yuthakacart” means Yuthakacart Business Solutions Private Limited. “Customer,” “You”, “you,” or “your” means the applicant (if registering or using the Ad Services as an individual) or the business employing the applicant (if registering for or using the Ad Services as a business).
- As used in this Agreement, the following terms have the following meanings:
“Ad” means products and services advertisement or promotional content in any form, including text-based, graphical, interactive, mobile, video, audio, or rich media, and all included copy and creative content, trademarks contained therein, and related technology.
“Ad Policies” means the policies, guidelines, specifications, and other information regarding use of the Ad Services (as updated from time to time).
“Ad Services Data” means Performance Data, Site Data, and all other data provided, made available, or collected in connection with the Ad Services.
“Affiliate” means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity.
“Applicable Laws” means all applicable Indian laws, by-laws, rules, regulations, orders ordinances, protocols, codes, guidelines, policies, notices, directions, judgments, decrees or other requirements or official directive of any governmental authority or person acting under the authority of any governmental authority of India;
“Customer Materials” means all Ads, any Customer Trademarks or other trademarks, copyrightable works under Applicable Law, information, data, photographs, images, videos, and any other materials and items provided or made available by Customer or its Affiliates to Yuthakacart or its Affiliates under this Agreement.
“Intellectual Property Rights” means any patent, copyright, trademark (and the goodwill represented thereby), moral right, trade secret right, and any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation, or infringement of any of the foregoing.
“Performance Data” means any data regarding the performance of an Ad under this Agreement, gathered during delivery of such Ad, and whether a User viewed or clicked on an Ad (i.e., User-level data)), but excluding Site Data and Ad Details.
“Publisher” means an entity or person that has Ad placements available through the Ad Services, which may include Yuthakacart or its Affiliates.
“Publisher Property” means a website, application, device, or other online point of presence or physical point of presence containing Ad placements made available by a Publisher for purchase or delivery through the Ad Services.
“Site Data” means any data that is (a) our preexisting data used or made available by us or our Affiliates through the Ad Services, including our Ad pricing information, Ad placement supply cost and inventory data, and targeting and audience data, (b) gathered during delivery of an Ad that identifies or allows identification of us, any User or device, our Affiliates, any Publisher Property, or a Publisher Property’s brand, content, context, or Users as such, or (c) collected regarding Users or devices on any Publisher Property other than Performance Data.
“User” means a user of any website, portal, browser, device, application, or other online service.
“Yuthakacart Data” means data that Yuthakacart collects, uses, or otherwise “processes” pursuant to this Agreement.
“Yuthka Site” means the applicable Yuthakacart website identified by the url: www.Yuthakacartcart.com.
- Advertisement Services
During the Term and subject to the terms of this Agreement, Yuthakacart will enable Customer to place products and services Ads on the Yuthakacart Site. We reserve the right to determine all aspects of the Ad Services, and may modify, restrict, or discontinue any services offered through the Ad Services at any time without notice. We may charge for any service of the Ad Service at any time upon notice to Customer. Your Advertisement will be advertisement Yuthakacart may reject or remove any Customer Materials or suspend any Ad without notice. Yuthakacart will have no liability for any such action. Yuthakacart may also reject or remove any Customer Materials or suspend any Ad if: (a) the Customer Materials or Ad violates the Ad Policies or this Agreement; (b) your account has been, or our controls identify that it may be used for deceptive or fraudulent or illegal activity; (c) Yuthakacart believes the Customer Materials would expose Yuthakacart to liability; or (d) for other risk management reasons. Except as expressly provided in writing by Yuthka, we do not guarantee that Customer’s Ads will be displayed on or made available through any Publisher Property, nor do we guarantee Customer’s Ads will appear in any particular position or rank. Customer acknowledges that we and any of our Affiliates may participate in the Ad Services to market any of our or our Affiliates’ products and services;
Customer further agrees that your Advertisement Material shall include the product SKU, HSN and GST (CGST/SGST/IGST) number as Yuthakacart may reasonably request.
- Customer’s Obligations
3.1. Ad Policies. Customer’s use of the Ad Services will comply with the Ad Policies, which Customer accepts and are incorporated into this Agreement. Yuthakacart may make changes to Ad Policies at any time.
3.2. Responsibility for Customer Materials, Use of Ad Services, and Contractors. Customer is solely responsible for all Customer Materials and its use of the Ad Services. Customer agrees that nothing in the Customer Materials or its use of the Ad Services will: (a) be false, misleading, defamatory, harassing, or threatening; (b) will constitute unfair competition or unfair commercial practice; (c) will violate any Applicable Law; or (d) will infringe or misappropriate the Intellectual Property Rights of any third party. Customer is solely responsible for the activities of any contractor, representative, or any of Customer’s agents or other persons acting on Customer’s behalf (e.g., third-party advertisement management service) in connection with this Agreement (collectively, “Contractors”). Customer will ensure that its Contractors comply with all Applicable Law.
3.4. Prohibited Activities. In connection with the Ad Services, Customer agrees that: (a) the Ads, and Customer use of the Ad Services will comply with all Applicable Law; (b) the Ads will not contain, include, or link to content that violates the Ad Policies; (c) Customer will not, nor will Customer permit or encourage any third party to, use any means to generate fraudulent or invalid clicks or impressions; (d) Customer will not use or generate for advertisement any content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable; and (e) Customer will not generate or use for advertisement any Advertising Material that is not accepted by Yuthakacart.
- License to Customer Materials
Customer grants us a worldwide, non-exclusive, royalty-free, fully-paid, and sublicensable right and license to use the Customer Materials for the Ad Services; provided, however, that we will not alter any trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, or other source or business identifier protected or protectable under any laws that Customer provides to us via the Ad Services in non-text form and separate from any product-specific information or materials (“Customer Trademarks”) from the form provided by Customer (except to re-size to the extent necessary for presentation, so long as the relative proportions of such Customer Trademarks remain the same) and will comply with Customer’s removal requests as to specific uses of Customer Trademarks on the Yuthakacart Site (provided Customer is unable to do so using standard functionality made available to it).
You agree to pay fees as per the fee schedule which shall be provided to You. You shall pay the fees to Yuthakacart on monthly basis for the Ad Services. The fees shall be paid in advance and are non-refundable. The fees may be paid in two instalments. The first instalment shall be paid by the 5th of every month and the second instalment shall be paid by the 10th of every month.
You further agree that in the event you opt for daily, weekly and fortnightly Ad Services, you shall pay the fees as per the fee schedule which shall be provided to you.
The fees shall be paid in advance and are non-refundable. We may require payment of (a) interest at the rate of 1.5% per month compounded monthly (19.56% compounded annually) or the highest legally permissible rate, whichever is lower, on all amounts not paid when due until all amounts are paid in full and (b) reasonable expenses and attorneys’ fees we incur in collecting late payments that are not disputed in good faith. In addition, Customer agrees that in the event, if any amount owing by you under this Agreement for our Ad Services is not paid to Yuthakacart in advance, we shall suspend the Ad Services provided to you until such amounts are paid in full.
All taxes or surcharges imposed on fees payable by you to Yuthakacart will be your responsibility.
You further agree that the fees paid is solely for the purpose of Ad Services on the Yuthaka Site and not for advertisement on any other third party advertisement site.
- Confidentiality and Personal Data
During the course of your use of the Ad Services, you may receive Confidential Information. You agree that for the term of the Agreement and 1 years after termination: (a) all Confidential Information will remain Yuthakacart’s exclusive property except for customer personal data owned by the respective customer; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services and ensure that persons who have access to Confidential Information will be made aware of and will comply with the obligations in this provision; and (c) you will not, and will cause your affiliates not to, directly or indirectly (including through a third party) otherwise disclose Confidential Information to any individual, company, or other third party, including any Affiliates, except as required to comply with Applicable Law; (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement; and (e) you will retain Confidential Information only for so long as its use is necessary for participation in the Services or to fulfill your statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as no longer required for the fulfilment of statutory obligations. The foregoing sentence does not restrict your right to share Confidential Information with a governmental entity, provided that you limit the disclosure to the minimum necessary and explicitly indicate the confidential nature of the shared information to the governmental entity. You may not issue any press release or make any public statement related to the Ad Services, or use our name, trademarks or logo in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way. You may not use our name, trademarks, or logos in any way (including in promotional material) without our advance written permission.
- Representations and Warranties.
8.1 By Customer .Customer agrees that: (a) if it is a business, it is duly organized, validly existing and in good standing under Applicable Laws; (b) it has all requisite right, power and authority to enter into this Agreement and perform its obligations and grant the rights, licences and authorizations it grants hereunder; (c) it will comply with all Applicable Laws in its performance of its obligations and exercise of its rights under this Agreement; and (d) none of your Ad violate any third party Intellectual Property Rights.
8.2. By Yuthakacart. Yuthakacart represents and warrants that (i) it is duly organized, validly existing and in good standing under Applicable Laws; (ii) it is lawfully able to enter into contracts.
9.1. By Customer. To the fullest extent permissible by Applicable Law, Customer will indemnify, defend, and hold harmless us, our Affiliates and Publishers, and each of our and their directors, officers, employees, agents, successors, and assigns against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) in connection with any third party claim, suit, action, demand, or judgment (“Claim”) arising from or in connection with: (a) Customer’s use of the Ad Services; (b) Customer’s actual or alleged breach of the Agreement, including the Ad Policies; (c) any Customer Materials, including any actual or alleged infringement or misappropriation of any Intellectual Property Right by any Customer Materials; or (d) fraud, intentional misconduct, gross negligence, or violation of publicity or privacy rights by Customer or its Contractors, subcontractors, agents, or suppliers in connection with this Agreement.
9.3. Process. In connection with any Claim described in this Section 9, the Customer will (a) give Yuthakacart prompt written notice of the Claim (provided that any delay in notification will not relieve the Customer of its indemnity obligations except to the extent that the delay impairs its ability to defend), (b) cooperate reasonably with Yuthakacart (at the Customer’s expense) in connection with the defense and settlement of the Claim, and provided further that the Customer (at its cost) may participate in the defense and settlement of the Claim with counsel of its own choosing. The Customer’s duty to indemnify under this Section 9 is independent from its other obligations under this Agreement.
THE YUTHAKACART SITE AND AD SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION AVAILABLE OR PROVIDED IN CONNECTION WITH THE AD SERVICES, ARE PROVIDED “AS-IS.” AS A USER OF THE AD SERVICES, YOU ACCESS THE YUTHAKS SITE, THE SERVICES AND ANY ONLINE PORTAL OR TOOL PROVIDED BY YUTHAKACART TO HELP YOU AVAIL THE SERVICES AT YOUR OWN RISK. EXCEPT AS SET FORTH IN SECTION ABOVE, WE AND OUR AFFILIATES WAIVE AND DISCLAIM: (1) ANY REPRESENTATIONS, WARRANTIES, DECLARATIONS OR GUARANTEES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES, DECLARATIONS OR GUARANTEES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (2) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (3) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE YUTHAKACART SITE OR THE AD SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.
BECAUSE YUTHAKACART IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH OF YOU RELEASE YUTHAKACART (AND ITS AGENTS, AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) 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.
- LIMITATIONS OF LIABILITY.
YOU EXPRESSLY AGREE AND UNDERSTAND THAT WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, ANY TYPE OF CIVIL RESPONSIBILITY OR OTHER THEORY) OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR ANY COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR INDIRECT, INCIDENTAL CONSEQUENTIAL OR EXEMPLARY LOSS OR DAMAGES THAT MAY BE INCURRED BY YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF YUTHAKACART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FURTHER, EXCEPT IN CASE OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL EXCEED THE FEES PAID BY YOU TO YUTHAKACART IN THE 6 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
- Term and Termination; Survival.
12.1. The term of this Agreement begins upon Customer’s registration or use of the Ad Services and will end when terminated by any party (the “Term”).
12.2. Customer may terminate this Agreement for convenience at any time upon 15 days written notice to us. Yuthakacart may terminate this Agreement immediately without any notice to you at any time.
12.4. This Agreement will terminate immediately upon (a) termination of the Ad Services in accordance with this Agreement; (b) the institution by or against Customer of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of its debts, (c) Customer’s making an assignment for the benefit of creditors, or (d) Customer’s dissolution or ceasing to do business. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will end except Sections 7 (Confidentiality and Personal Data), 8 (Representations and Warranties), 9 (Indemnification), 10 (Disclaimer) and 11 (Limitation of Liability) will survive termination or expiration of this Agreement for any reason.
Yutaka reserves the right, at its sole discretion, to change or modify this Agreement at any time. In the event, we modify this Agreement, such modifications shall be binding on you with immediate effect. Your continued use of the Services after the effective date of any change to this Agreement in accordance with this Section 13.1 will constitute your acceptance of that change. If any change is unacceptable to you, you agree not to use the Ad Services and to end the Agreement as described in Section 12.2.
Yutaka may change, modify, suspend, or discontinue any aspect of the Yuthakacart Services at any time without notice or liability.
Our failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
13.3. Disputes; Governing Law; Venue
This Agreement will be governed by the laws of India. Any dispute or claim of any nature relating in any way to your use of any Services covered under this Agreement will be adjudicated through arbitration, by a sole arbitrator to be appointed by Yuthakacart. The arbitral proceedings shall be conducted in accordance with the provisions of the (Indian) Arbitration and Conciliation Act, 1996 or such statutory amendments thereof (“Arbitration Act”). The arbitration proceedings will be conducted in English and the venue of the arbitral proceedings shall be Bengaluru. Each party agrees that courts of Bengaluru will have the sole and exclusive jurisdiction over all arbitral applications. The fast track procedures under the Arbitration Act will apply to all proceedings as stipulated.
13.4. Assignment; Successors
Customer may not assign this Agreement without our prior written consent. We may (a) perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates and (b) assign this Agreement to an Affiliate or in connection with any merger, reorganization, sale of all or substantially all of Yuthakacart’s assets, or any similar transaction. Subject to the limitations in this paragraph, this Agreement will be binding on, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
13.5. Relationship of Parties; Non-Exclusivity; Reservation of Rights
Each party is an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship among the parties. Customer will not have any authority to make or accept any offers or representations on our behalf. Except as expressly set forth in this Agreement, nothing in this Agreement or the performance thereof, or that might otherwise be implied by Applicable Law, will grant Customer any right, title, or interest, implied or otherwise, in or to the Intellectual Property Rights of Yuthakacart. Yuthakacart expressly reserves all Intellectual Property Rights not expressly granted hereunder. Without limiting the generality of the foregoing, Yuthakacart retains ownership of the Ad Services. Nothing in this Agreement will prevent or impair Yuthakacart’s right to use Customer Materials without Customer’s consent to the extent that such use is allowable without a license from Customer under Applicable Law ( or is allowable under a valid license from Customer under a separate agreement or from a third party.
Yuthakacart will provide notice to you under this Agreement by sending you an email notification, or by similar means. You must send all notices and other communications relating to Yuthakacart to our support team via email, the contact us form, or similar means. For contractual purposes, you consent to receive such communications through any mode including SMS, e-mail, phone calls etc. It is Customer’s responsibility to keep its email address current.
13.7 Suggestions and Other Information
If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to the Yuthakacart Site or Services, you will, to the extent necessary and authorized by law, irrevocably grant to us, a royalty-free and worldwide license on all right, title, and interest in and to the suggestions for the duration of protection of the underlying rights. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history and posted content.
Customer may elect to provide suggestions, ideas, or other feedback (“Suggestions”) to us in connection with the Ad Services (including any related technology or content). We will be free to exercise all rights in such Suggestions without restriction and without compensating Customer. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity of our business and systems, we may access and disclose any information we consider appropriate, including User contact details, IP addresses and traffic information, usage history, and posted content.
13.8. Force Majeure
We will not be liable for any delay or failure to perform any of our obligations under this Agreement where the delay or failure results from any cause beyond our reasonable control.
IN WITNESS WHEREOF THIS AGREEMENT IS EXECUTED ON THE DAY AND DATE AFOREMENTIONED
FOR AND ON BEHALF OF YUTHAKA BUSINESS SOLUTIONS PRIVATE LIMITED
FOR AND BEHALF OF _________________________