Terms and Conditions

1. TERM:

The Conditions shall come into force on and from the date from which the Merchant started procuring Service(s) or the date mentioned in the MAF, whichever is earlier, and shall remain in existence as per the terms mentioned under the MAF or unless terminated by either Party in accordance with the Conditions (“Term”).

2. SCOPE OF SERVICES:

During the Term, Oximobimedia shall provide various business (B2B) services to the Merchant as per the scope of services mentioned in the MAF. In case of any value-added/other services are rendered/made available by Oximobimedia, the terms and conditions of the said services shall be mutually agreed by the Parties.

3. FEES/COMMERCIALS:

1. As a consideration for rendering the Services, Oximobimedia shall charge/be paid by the Merchant, the fees as per the rates mentioned under the MAF and any mutual amendment thereof (“Service Fees”).
2. Unless otherwise agreed between the Parties, Service Fees/charges shall be subject to revision as decided mutually between the Parties.
3. Unless otherwise agreed between the Parties, Merchant agreed to pay to Oximobimedia all Service Fees/charges (along with applicable taxes/GST), within 15 (fifteen) days from the date of invoice as raised by Oximobimedia.
4. In case Merchant fails to pay the Service Fees/charges, within stipulated time period, then Oximobimedia shall be entitled to levy interest @ 18% per annum from the due date till the date of actual realization.
5. Service Fees/charges shall be strictly non-refundable.
6. All the payments shall be subject to tax deducted at source (TDS) at applicable rates in compliance.
7. On a quarterly basis, Merchant shall issue the TDS certificate to Oximobimedia.
8. Merchant shall reimburse Oximobimedia on actuals for out-of-pocket expenses incurred by Oximobimedia/influencer, provided prior approval of such expenses is obtained from the Merchant.
9. In the event Merchant request cancellation of Services/campaign/termination of the MAF then notwithstanding anything contrary provided under the Conditions, the Merchant hereby explicitly agrees to pay the full amount agreed and there shall be no refund of the already paid amount.

4. MERCHANT’S COVENANTS:

1. Merchant shall assist Oximobimedia in rendering of the Services under the Conditions by providing necessary briefs, materials, data information and other resources from time to time as may be reasonably required and as may be asked by Oximobimedia.
2. Merchant shall solely be liable to ensure that the products/services of the Merchant, which is being promoted by Oximobimedia/influencers engaged by Oximobimedia on behalf of the Merchant, shall not in any manner be violating any applicable law or is against public morality, decency and/infringe any/all third-party rights including, but not limited, to intellectual property rights.
3. Merchant, during the Term and thereafter, shall not (directly or indirectly) without prior written authorization from Oximobimedia contact any influencer/third party engaged by Oximobimedia for performance of Services.
4. Merchant shall solely be liable, at its own cost and expense, to send the goods / products to Oximobimedia/influencer, as the case maybe for the purpose of Services.
5. Merchant hereby explicitly agrees that in case of any delay providing the brief / goods / products to Oximobimedia / influencer / payment of Service Fees, the timeline of the Services shall also be delayed and Oximobimedia shall no liability / reasonability towards such delay.
6. Merchant hereby agrees that any information/data/document provided to Oximobimedia shall be true, accurate, correct, complete, and up to date, to the best of Merchant’s knowledge.
7. Merchant hereby agrees that the Services provided by Oximobimedia will not be used/utilized for any unauthorized, unlawful, or illegal purposes.

5. PARTIES COVENANTS:

1. Either Party shall not commit, execute, bind, or contractually obligate anything to any person on behalf of the other Party, without prior consent/authorisation of the other Party.
2. Each Party shall comply with the Condition.
3. Each Party shall at all times and at its own expense:
  - strictly comply with all the applicable laws, now or hereafter in effect, relating to its performance of the Conditions.
  - pay all fees and other charges required by such applicable law.
  - maintain in full force and effect all licenses, permits, authorizations, registrations, and qualification from any authority to the extent necessary to perform its obligations under the Conditions.
4. Each Party shall be solely responsible for payment of its own taxes, legal compliances, statutory registrations, and reporting under applicable laws.

6. REPRESENTATIONS AND WARRANTIES:

Merchant hereby warrants and represents to Oximobimedia that:

1. it is duly organized and validly existing under the laws of the jurisdiction in which it is established.
2. it has the requisite power and authority to execute, deliver and perform the obligations specified in the Conditions.
3. its obligations hereunder constitute legal, valid, binding and enforceable obligations.
4. the execution and delivery of the Conditions herein do not breach its organizational documents, or any applicable law, provisions of any contract or court order.

7. INDEMNITY:

1. Each Party (“Indemnifying Party”) hereby agrees to indemnify, defend and hold the other Party, its director, officers, employees, service providers, and agents (“Indemnified Party”) harmless from and against claims, demands, actions, liabilities, costs, interest, damages, and expenses of any nature whatsoever (including all legal and other costs, charges and expenses) incurred or suffered by the Indemnified Party, arising out of any:
  - any wrongful or negligent act or omission of the Indemnifying Party.
  - any breach by Indemnifying Party of its obligations, undertakings, warranties or covenants under the Conditions.
  - any breach of applicable law, rules, regulations, legal requirements by the Indemnifying Party.
  - any third-party action or claim made against the Indemnified Party, by reason of any actions undertaken/omission to take any action by the Indemnifying Party under the Conditions.
2. Notwithstanding anything to the contrary elsewhere stated in the Conditions, no Party shall, in any event, be liable to any other person/other Party under the Conditions, either in contract, tort, or otherwise, for any consequential, incidental, indirect, special or punitive damages, including loss of future revenue, income or profits, diminution of value or loss of business reputation or opportunity.

8. TERMINATION AND CONSEQUENCES OF TERMINATION:

1. Either Party, with a written notice to the other Party, may terminate the Conditions on the occurrence of any of the following events:
  - immediately, if other Party is declared insolvent or bankrupt or is unable to pay its debts or makes a composition with its creditors.
  - immediately, if other Party is dissolved or wound up compulsorily or if an order made or an effective resolution is passed for the winding up of the such Party.
  - in case of any material breach of the Conditions by the other Party, however, after giving 15 (fifteen) days prior written notice to the other Party to rectify such breach and the Party in breach is unable to rectify such breach within such 15 (fifteen) days.
2. In addition, the Conditions may be terminated by either Party, for convenience, by giving 30 (thirty) days prior written notice to the other Party.
3. The termination of the Conditions shall not relieve any Party of any obligation or liability accrued prior or after the date of termination. Any cost/fees incurred by Oximobimedia before the termination/expiry of the Conditions shall be borne by the Merchant.

9. CONFIDENTIALITY:

1. Each Party hereby agrees not to utilize any information received by it/its staff, personnel, agent, representatives from the other Party under/pursuant to the Conditions (“Confidential Information”) for its own use or disclose to other persons during or after cessation of the Conditions, except as required for fulfilling the Services/obligations under the MAF.
2. Upon expiration/termination of the Conditions, or at any time at disclosing Party’s request, the receiving Party shall, to the extent possible, return to the disclosing Party all Confidential Information in its possession and, if so requested, delete irretrievably any Confidential Information that it may have stored on any magnetic or optical disk or memory or otherwise in electronic form in its possession or control.
3. The obligations set out in this Clause shall not apply to Confidential Information that:
  - is or becomes publicly known other than through breach of this Clause.
  - is in possession of the receiving Party prior to disclosure by the other Party.
  - is rightfully furnished to the receiving Party by a third party without disclosure restriction on the third party. or
  - is required to be disclosed to/by law, judicial court, recognized stock exchange, government department or agency or other regulatory authority.

10. INTELLECTUAL PROPERTY:

1. Oximobimedia is hereby granted a limited, non-exclusive, license to use, display and reproduce the Merchant’s name, brand name, logo, wordmark, service marks etc. (“Marks”) on a non-exclusive and royalty-free basis, solely in connection with the Services. Oximobimedia shall inter-alia at all times, use the Marks strictly in accordance with the Conditions, and notwithstanding anything contrary provided under the Conditions or otherwise, the Merchant allows the display the Marks on the social media handles of influencers/social media influencers engaged by Oximobimedia, Oximobimedia Platform and other platforms as agreed by the Parties under the MAF and accordingly the Merchant hereby release Oximobimedia from all liability relating to publication or use of the Marks for such purpose. Provided that, Oximobimedia may, with the prior written permission of the Merchant via email or any other mode (on case-to-case basis), use the Merchant’s name and logo for representation of its clientele base and to disclose the Merchant as its client/erstwhile client.
2. Nothing contained herein shall authorize the Parties to use, apply, invade or in any manner exploit or infringe the Intellectual Property rights of the other Party, without prior consent of the other Party. In addition, the Parties undertake not to infringe the Intellectual Property rights of any third party.
3. The Parties agree that all the Intellectual Property already developed and/or owned by each Party as on the Effective Date shall continue to vest with the concerned Party. Unless otherwise agreed by the Parties, the ownership for the services rendered by Oximobimedia under the MAF are works commissioned and ordered by the Merchant and made in accordance with the mutual conditions of the Parties for the Merchant. Merchant shall be deemed to be the owner of the Services rendered to the Merchant by Oximobimedia and shall own all the rights, title and interest including of intellectual property rights post fulfillment of Merchant’s obligation to pay the Oximobimedia as per the terms of the Conditions.
4. Notwithstanding anything contrary stated in the Conditions, if the Merchant fails / breaches to pay the Service Fees to Oximobimedia as per the agreed terms in the Conditions then Oximobimedia shall be the sole owner of the intellectual property rights and will have all the right and title over the services provided by Oximobimedia.

11. LIMITATION AND DISCLAIMER:

1. Notwithstanding anything stated in the Conditions, the aggregate liability of Oximobimedia to the Merchant under the Conditions shall not in any event exceed the amount equivalent to 50% (fifty percent) of Service Fees earned and received by Oximobimedia under the respective MAF. Further, in no event shall Oximobimedia be liable for any negative publicity of the Merchant/its products and services or shall be liable to any third party under the Conditions.
2. The Services may be linked to the services of third parties, affiliates and business partners. Oximobimedia has no control over such parties and accordingly Oximobimedia shall not be liable or responsible for content, accuracy, validity, reliability, quality of services provided by such parties.
3. The Merchant hereby acknowledges and agrees that use of the Services by the Merchant is at its sole risk and that the Services are provided on “as is” and “as available” basis. Oximobimedia does not provide or make any representation, warranty, or guaranty, express or implied about the Services, and to the fullest extent permitted by law disclaims all liability arising out of the Merchant’s use or reliance upon the Services.

12. MISCELLANIOUS:

1. Assignment: Merchant shall not assign its rights and obligations hereunder, without the prior consent of Oximobimedia. any such attempted assignment shall be null and void.
2. Force Majeure: Neither Party shall incur any liability or shall be deemed to be in breach of the Conditions due to any event beyond the reasonable control of such party (“Force Majeure”), including but not limited to an act of God, fire, strikes, acts of war, riots, acts of terrorism, pandemic/epidemic or governmental prohibition(s). If the Force Majeure conditions continue for more than 15 (fifteen) days, either Party may terminate the Conditions by giving a notice to the other Party.
3. Governing Law, Settlement of Disputes and Jurisdiction: The Conditions (and any dispute or claim relating to it, its enforceability, or its termination) is to be governed by and construed in accordance with the laws of India. Courts at New Delhi, India shall have the exclusive jurisdiction over any claims, disputes or any other matter arising from or in relation to the Conditions.
4. Survival: The terms and provisions of the Conditions that by their nature and content are intended to survive the performance hereof by any or all Parties hereto shall so survive the completion, expiration, and termination of the Conditions.
5. Entire Agreement & Amendment: The Conditions (including its recitals, schedules, and annexure) constitutes the entire agreement and understanding between the Parties, and supersedes any previous conditions, agreement,or understanding between the Parties (including any previous merchant acquisition form/LOI/MOU) Any modifications or amendments to the Conditions may be published or informed by Oximobimedia from time to time. In case of any conflict between the provisions of General T&Cs and MAF, the terms of MAF shall prevail.
6. Non-Exclusivity: It is agreed and clarified that the Conditions are on a non-exclusive basis and the Parties are at liberty to enter into similar Conditions with others.
7. Independent Contractor: Nothing in the Conditions (or any of the arrangements contemplated herein) shall be deemed to constitute a partnership/joint venture/employment between the Parties hereto, nor, except as may be expressly provided herein, constitute any Party as the agent of another Party for any purpose, or entitle any Party to commit or bind another Party in any manner.
8. Modifications: Oximobimedia reserves the right to update or modify the Conditions at any time and from time to time, in its sole discretion.