Services Agreement
This Services Agreement (“Agreement”) effective as of date of execution (“Effective Date”) along with the Annexures, covers the commercial and other relevant terms and conditions between the BUYER (“You”) and Comviva Technologies Limited, with its office at 8th floor, Capital Cyberscape, Golf Course Extension Road, Gurugram, Haryana 122102 (“Comviva” along with its Affiliates, successors, liquidators, receivers and permitted assigns), for a business relationship wherein You will use Comviva MobiLytix Rewards Extension for Magento (MR Extension). Comviva and You are individually referred to as the “Party” and collectively referred to as the “Parties.
Terms and Conditions:
A. Definitions
The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.
1. Definitions
a. “Account” means a unique account created for You to access the MR Extension.
b. “Adobe Market-place” means the Adobe Marketplace at the Adobe site (see: https://commercemarketplace.adobe.com/ )
c. “Affiliate” means an entity that controls, is controlled by or is under common control with the Company, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
d. “Country” for the purposes of governing law shall mean the laws of India.
e. “Device” means any device that can access the MR Extension such as a computer, a cellphone or a digital tablet.
f. “Feedback” means feedback, innovations or suggestions sent by You regarding the attributes, performance or features of our MR Extension.
g. “MR” means and refers to Mobilytix Rewards software of Comviva.
B. Agreement
1. This Agreement governs Your download of the MR Extension from Adobe Market-place. This Agreement set out the rights and obligations of all users regarding the download of the MR Extension only. Use of the MR Extension will be governed by the definitive agreement to be executed between Comviva and You.
2. Your access to and download of the MR Extension is conditioned on Your acceptance of and compliance with this Agreement. Use of the MR Extension is subject to purchase of MR product directly from Comviva on agreed terms and conditions. This Agreement apply to all visitors, users and others who access or download the MR Extension.
3. By accessing or downloading the MR Extension, You agree to be bound by this Agreement. If You disagree with any part of this Agreement, then You may not download the MR Extension.
4. Your access to and download of the MR Extension is also conditioned on Your acceptance of and compliance with the Privacy Policy of Comviva. Comviva’s Privacy Policy describes its policies and procedures on the collection, use and disclosure of Your personal information when You use the Website and tells You about Your privacy rights and how the law protects You. Please read Comviva’s Privacy Policy carefully before using Comviva service.
C. Term
1. Term: This Agreement shall commence from the date of download of MR Extension from Adobe Market-place. You will be required to necessarily purchase MR from Comviva in order to use the MR Extension. This Agreement will be co-terminus with the MR license agreement. Upon expiration/non-renewal/termination of this Agreement, You will not have access to the MR Extension and use of its features. The Agreement may be renewed at the end of the term based on mutual acceptance.
D. Payment
1. Fee: The price for the MR Extension shall be determined between Comviva and You.
2. Taxes: As applicable.
E. User Accounts
1. When an Account is created, You must provide Comviva information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of this Agreement, which may result in immediate termination of the Account.
2. You are responsible for safeguarding the password that You use to access the MR Extension and for any activities or actions under Your account, whether Your password is with Comviva or a Third-Party Service. You agree not to disclose Your password to any third party. You must notify Comviva immediately upon becoming aware of any breach of security or unauthorized use of Your account.
3. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than You without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.
F. Intellectual Property
1. The MR Extension is and will remain the exclusive property of the Comviva and its licensors. The MR Extension is protected by copyright, trademark, and other laws of both the Country and foreign countries.
2. Comviva trademarks, tradename and trade dress may not be used in connection with any product or service without the prior written consent of the Comviva.
G. Your Feedback to Us
1. You assign all rights, title and interest in any Feedback You provide Comviva. If for any reason such assignment is ineffective, You agree to grant Comviva a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback without restriction.
H. Links to Other Websites
1. Our MR Extension may contain links to third-party web sites or services that are not owned or controlled by the Comviva. Comviva has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party web sites or services. You further acknowledge and agree that Comviva shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.
2. Comviva strongly advises You to read and abide by the terms and conditions and privacy policies of any third-party web sites or services that You visit.
I. Termination
1. Comviva may, at our discretion, terminate or suspend Your Account immediately, without prior notice or liability, for any reason whatsoever, including without limitation, if You breach this Agreement.
2. Upon termination, Your right to use the MR Extension will cease immediately.
J. Limitation of Liability
1. Except for its non-disclosure of Confidential Information and indemnity for infringement of intellectual property rights, notwithstanding any damages that a Party might incur, but subject to Your payment obligations under this Agreement, the entire liability of each Party (and in case of Comviva including any of its suppliers) under any provision of this Agreement shall be limited to USD 5,000 (USD Five thousand dollars only).
2. To the maximum extent permitted by applicable law, in no event shall Comviva or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the MR Extension, third-party software and/or third-party hardware used with the MR Extension, or otherwise in connection with any provision of this Agreement), even if Comviva or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
3. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. In these states, each party’s liability will be limited to the greatest extent permitted by law.
K. CONFIDENTIALITY
1. “Confidential Information” means all information provided by You (“Discloser”) to Comviva (“Receiver”) whether orally or in writing that is designated as confidential. Confidential Information will include customer data, content, and information about the Discloser’s business plans, technical data Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser; (iii) is developed independently by the Receiver without use of the Disclosure’s Confidential Information; (iv) is rightfully obtained by the Receiver from a third party without restriction as to disclosure.
2. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
3. The same applies even in case of Comviva (“Discloser”) sharing with You (“Receiver”) all information that is designated as confidential, either orally or in writing.
L. “AS IS” and “AS AVAILABLE” Disclaimer
1. The MR Extension is provided to You “AS IS” and “AS AVAILABLE” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, Comviva, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the MR Extension, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, Comviva provides no warranty or undertaking, and makes no representation of any kind that the MR Extension will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
2. Without limiting the foregoing, neither Comviva nor any supplier makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the MR Extension, or the information, content, and materials or products included thereon; (ii) that the MR Extension will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the MR Extension; or (iv) that the MR Extension, its servers, the content, or e-mails sent from or on behalf of the Comviva are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.
3. Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.
M. Indemnification
1. You will indemnify, defend and hold Comviva harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Comviva (and Comviva officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with Comviva to the extent that such action is based upon or arises out of (a) unauthorized or illegal use of the MR Extension by You, (b) Your noncompliance with or breach of this Agreement, (c) Your use of third-party products, including without limitation, Third-party Social Media Service, or (d) the unauthorized use of the MR Extension by any other person using Your Account or user information. Comviva shall notify You in writing within thirty (30) days of Our becoming aware of any such claim; give You sole control of the defense or settlement of such a claim to the extent possible; and provide You (at Your expense) with any and all information and assistance reasonably requested by You to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on Comviva; (ii) requires Comviva to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Comviva without our prior written consent.
N. Governing Law
1. The laws of the Country (India), excluding its conflicts of law rules, shall govern this Agreement and Your use of the MR Extension. Your use of the MR Extension may also be subject to other local, state, national, or international laws. Any action may be brought against Comviva under this Agreement only in a civil court located in Delhi, India. EACH PARTY HEREBY IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT, ANY TRANSACTION RELATING HERETO, OR ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH AND ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
O. Disputes Resolution
If You have any concern or dispute about the MR Extension, You agree to first try to resolve the dispute informally by first contacting Comviva directly in writing to mrextensions@comviva.com
P. For European Union (EU) Users
1. If You are a European Union consumer, You will benefit from any mandatory provisions of the law of the country in which Your business is incorporated.
Q. United States Legal Compliance
1. Either Party represent and warrant that (i) it is not located in a country that is subject to the United States Government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (ii) it is not listed on any United States Government list of prohibited or restricted parties.
R. Severability and Waiver
1. Severability: If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
2. Waiver: Except as provided herein, the failure to exercise a right(s) or to require performance of an obligation under this Agreement shall not effect a party’s ability to exercise such right(s) or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach(es).
S. Changes to This Agreement
1. Comviva reserves the right, at our sole discretion, to modify or replace these terms at any time. If a revision is material to these terms, Comviva will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
2. By continuing to access or use Comviva MR Extension after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, You must stop using the Website and the MR Extension.
T. Contact Us
1. For any questions about this Agreement, You can contact Comviva at:
By email: mrextensions@comviva.com
Postal Address: Comviva Technologies Limited, 8th floor, Capital Cyberscape, Golf Course Extension Road, Gurugram, Haryana 122102
