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This Agreement contains the complete and entire understanding and agreement between the User, as defined herebelow, and ZipDial Mobile Solutions Pvt. Ltd., a company incorporated under the Companies Act, 1956, having its principal place of business at E702, Brigade Gardenia Apartments, J.P. Nagar, 8th Phase, RBI Layout, Bangalore – 560078, Karnataka, India, being the owner of this website (the “Company”).
The Company is a provider of patent-pending mobile services that is an interactive mobile platform called the ZipDial platform (“ZipDial”) for content providers with users in lead generation, market research, polling, games, social networking, advertising, online and offline payments and other activities.
(Each a “Party”, collectively, the “Parties”)
- 1. DEFINITIONS
1.1 “Equipment” shall mean the phone/cellular device used by a User to avail of ZipDial services.
1.2 “Intellectual Property Rights” or “Intellectual Property” shall mean all trademarks, tradenames, copyrights, patents, design, trade secrets etc. that relate to ZipDial and the ZipDial services.
1.3 “Mobile Carrier” shall mean the telecom operator or provider of mobile network and communication services.
1.4 “Short Message Service (SMS)” shall mean a service available on most digital mobile phones, other mobile devices (example, a Pocket PC, or occasionally even desktop computers or any similar device) and some fixed phones, that permit the sending of short messages between mobile phones, other handheld devices, landline telephones and any other device having such capability.
1.5 “Transaction” shall mean any activity by a User in using or interacting with the ZipDial Service or ZipDial System.
1.6 “User(s)” shall mean end user(s) of the website www.zipdial.com and / or ZipDial Services made available either by the Company or jointly by the Company and its customers.
1.7 “ZipDials” or “ZipDialling”, as the context may require, shall mean the action of a User in dialing a predefined phone number of the Company attached to the ZipDial System.
1.8 “ZipDial Phone Number(s)” shall mean any phone number owned or leased by the Company or associated with any ZipDial Services.
1.9 “ZipDial Service/s” shall mean the current or future services provided by the Company, either by itself or in association with third party service providers, to its customers and to Users either through the website www.zipdial.com or using the ZipDial System.
1.10 “ZipDial System” shall mean a commercial technology for secure transactions using mobile phones, developed and owned by the Company or its licensor, for providing ZipDial Services.
- 2. RESPONSIBILITIES AND RIGHTS OF THE USER
2.1 The User accepts this Agreement and agrees to abide by and be bound by all terms and conditions contained herein and thereby become entitled to the usage of the ZipDial Service/s.
2.2 The User shall strictly adhere to the terms and conditions contained in this Agreement.
2.3 The User has the right to create or organize poll/s on this website by using ZipDial Services and the Company will allow the User to avail this facility free of cost (without any payment / consideration), for a limited duration of time as specified by the Company, so long as such poll/s are meant for non-commercial / non-business purposes. However, if the Company is of the opinion or becomes aware that the poll/s created by the User is meant for commercial purpose, then the Company shall have the right to discontinue such poll service, unless the User makes payment for the same service immediately upon notification by the Company. The User may promote the ZipDial Services to third parties such as advertisers or retailers.
2.4 The User will also have the right to use other services of the Company made available on this website, for commercial purposes or for gain, and for that purpose the User shall also execute / accept a separate customer agreement with the Company in addition to accepting this Agreement.
2.5 The User shall have the right to participate in or make use of various services offered on the website, www.zipdial.com or through any print or electronic media either by the Company or third parties and will be bound by separate terms and conditions, if any, for each such service and in its absence, the terms and conditions contained herein.
2.6 The User shall have the right to make use of various interactive services, including creation of online campaigns, offered by the Company either on its website or any other interface permitted by the ZipDial System, whether developed by the Company or third party developers and the User will be bound by the separate terms and conditions, if any, for each such service and in its absence, the terms and conditions contained herein.
2.7 The User shall be strictly responsible for any third party claims and actions that may arise solely owing to the breach of the terms and conditions contained herein by the User. Further, the User shall also assume any and all liability and responsibility for such of User’s actions which result in the breach of the terms and conditions contained herein or the violation of any domestic or international laws.
- 3. RESPONSIBILITIES AND RIGHTS OF THE COMPANY
3.1 The Company shall have the right to discontinue offering free services for the User at any point in time.
3.2 The Company shall have the right to append / post its own messages or advertisements together with the free polls/campaigns created and utilized by the User.
3.3 The Company shall have the right to limit the quantum of free services to any number it desires at any point in time.
3.4 The Company shall have the right to refuse offering ZipDial Services to the User if the User does not or fails to register himself/herself/itself with the Company for specific services requiring mandatory registrations, as indicated by the Company.
- 4. CONSENT FOR RECEIPT OF COMMERCIAL COMMUNICATIONS
4.1 The User understands and agrees that the Company will issue SMS when a User ZipDials a designated ZipDial Phone Number and that such SMS is issued only in response to a User ZipDialling and not voluntarily dispatched by the Company.
4.2 Opting in: The User may, by way of a one time ZipDialling of a specified ZipDial Phone Number choose to continue receiving User unsolicited SMSs from or on behalf of all customers of the Company, both transactional and non-transactional promotional SMS (“General Communication” or “GC”). The User may also choose to receive continuous unsolicited SMSs from select User preferred customers of the Company (“User Preferred Customers” or “UPC”) and/or SMSs relating to select areas of User’s interest (“User Area of Interest” or “UAI”). Should the User opt to receive GC or UPC or UAI category of SMSs on a continuous basis, the User will be dispatched relevant category SMSs and the User agrees and covenants as follows:
- For receipt of User’s preferred category of SMSs, the User explicitly waives against the Company and its customers any prior registrations made by the User relating to receipt, blocking or partial blocking of unsolicited commercial communications relating to such category;
- For receipt of User’s preferred category of SMS, the User explicitly authorizes the Company and its customers to send SMSs, whether transactional or non-transactional promotional, on a regular or irregular basis;
- The User shall not hold the Company and/or its customers dispatching SMSs for having violated any statutory regulations or the like issued by Telecom Regulatory Authority of India (TRAI) or any other statutory authority from time to time relating to issuance of unsolicited commercial communications; and
- In the unlikely event that an SMS outside User’s preferred category is received by the User, the User shall first bring such occurrence to the notice of the Company for appropriate resolution by the Company and shall always afford such first opportunity to the Company for a resolution as above.
4.3 Opting out: The User shall have the option of opting out of any of the preferred categories detailed in 4.2 above.
4.4 The User may also access information relating to the relevant ZipDial Phone Numbers for the purposes of this clause on the Company’s website www.zipdial.com.
- 5. TERM
5.1 The term of this Agreement will be coterminous with the period of a single usage or multiple usages, either intermittent or continuous, of the Company’s website or ZipDial Service/s or ZipDial System for any Transactions whatsoever by the User.
- 6. INTELLECTUAL PROPERTY RIGHTS
6.1 The User acknowledges and agrees that all the rights, title and interests in the ZipDial System and all the Intellectual Property rights therein or related thereto are solely and absolutely owned by the Company or its licensor and shall continue to vest with the Company or its licensor during and after the term of this Agreement.
6.2 Nothing in this Agreement provides any right, title and interests of license, assignment or ownership in the ZipDial System or the Intellectual Property rights therein or associated therewith, and the Company reserves all rights in relation thereto not expressly granted to the User under this Agreement.
6.3 The User hereby undertakes that the User shall not apply, either by himself/herself/itself or through any third party, for any copyright, trademark or any Intellectual Property for any aspect of the Intellectual Property rights relating to ZipDial System and/or ZipDial Services, whether or not such Intellectual Property has been provided under this Agreement or developed by the Company for the purposes of this Agreement.
6.4 The User agrees not to (i) copy, modify, create any derivative work of, or include in any other products or any portion thereof, or (ii) either directly or indirectly decompile, disassemble, decipher, reverse engineer, reengineer or otherwise attempt to derive Source Code or the underlying ideas, algorithms, structure or organization from ZipDial or ZipDial System or directly or indirectly permit any employee/personnel of the User to decompile, disassemble, decipher, reverse engineer, reengineer or otherwise attempt to derive Source Code or the underlying ideas, algorithms, structure or organization from ZipDial or ZipDial System.
6.5 The Company may procure third party components such as software, solutions, etc., (“Third Party Component”), to develop the ZipDial System. In this regard, in the event the Company procures any Third Party Component in relation to the development of the ZipDial System, all title, ownership and rights to such Third Party Component shall continue to vest either with such third party or with the Company. Consequently, the User may only have a restricted right to use the Third Party Component in relation to the ZipDial System as contemplated under this Agreement and the User shall have no further right, title or interest in such Third Party Component other than as specifically contemplated under this Agreement.
6.6 The User acknowledges that during the term of this Agreement and use of the ZipDial System, the Third Party Component shall continue to be owned solely and exclusively by such relevant third parties or the Company, as specified above in this Agreement.
6.7 The User agrees not to represent ZipDial, ZipDial System or ZipDial Services to be his/her/its own product or services or brand or Intellectual Property and technology.
6.8 In addition to the foregoing, the User shall always identify and respect the intellectual property rights of third parties over any subject matter and shall not use them in any manner during the Transactions, unless specifically authorized by the holder/s of such intellectual property rights.
- 7. INDEMNITY
7.1 Each Party shall indemnify and keep each other indemnified with respect of any actions, claims, costs, damages, demands, expenses, losses and liabilities made against, suffered and / or incurred by the other arising directly or indirectly from or in connection with breach of obligations by the other Party as contained herein.
7.2 Each Party agrees to defend and indemnify the other Party and his/her/its officers and directors, employees, agents, and representatives from any and against all losses, claims, costs, liabilities, or expenses incurred, whether based in claims of tort or contract (including court costs and attorney fees) incurred or sustained due to any negligence, fraud, gross misrepresentation, or breach of confidentiality, leading to a third party claim.
- 8. DISCLAIMER
8.1 All terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the ZipDial System or the ZipDial Services, which are contrary to all that is contained in this Agreement, are specifically excluded. Notwithstanding anything contained in the Agreement, the Company shall not, under any circumstance whatsoever, be under any liability to the User or to any other party, claiming under or independent of the User, for any loss or damage (including consequential loss or damage) caused or incurred arising directly or indirectly relating to the services provided under this Agreement or in respect of the Equipment.
8.2 Notwithstanding the foregoing, the Company shall have no obligation for any non-conformance or non-performance of ZipDial System which arises out of a defect in any other software or hardware product in use by the User or any service incompatibility with a Mobile Carrier, which causes ZipDial System not to perform in the manner it is designed to.
8.3 The liability of the Company shall not apply, where the infringement is caused by modifications to ZipDial System effected by the User and where the infringement is based on said modifications or attributably caused by any use of ZipDial in combination, operation or use with any machine, program or other material not designated for use with ZipDial.
8.4 Unless the Company has provided its express written consent to the User, ZipDial and ZipDial Services may not be used in any manner in which the failure of ZipDial could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). The Company expressly disclaims any express or implied warranty or condition of fitness for High-Risk Activities.
8.5 Except as expressly warranted above, the ZipDial platform and applications are provided “as is” without other warranties or conditions of any kind, including but not limited to implied warranties and conditions of customerability, fitness for a particular purpose and non-infringement. Nothing stated in this Agreement shall imply that the operation of ZipDial shall be uninterrupted or error free or that error shall be corrected.
8.6 The Company shall, at anytime, have the right to discontinue providing the ZipDial Services.
8.7 The Company is merely an intermediary inasmuch as offering its services either through its website, www.zipdial.com or ZipDial System to its customers or to the Users. The User shall be solely and absolutely responsible for any and all content uploaded by the User on to this website of the Company or transmitted to the Users using the said website, ZipDial Services and/or ZipDial System, and all consequences arising therefrom. The Company will not be responsible to edit, control or deal with such content in any manner whatsoever nor assume any responsibility to do so and the Company disclaims specifically any responsibility or liability arising therefrom.
8.8 The Company shall not be responsible or liable to the User for any promotional offers, gifts or rewards assured to the User by any person who uses the Company’s website or ZipDial Service/s or ZipDial System for making such promotional offers or assurances of gifts or rewards. The User shall only approach the person making such promotional offers or assurances of gifts or rewards.
8.9 If the Company makes any promotional offers or offers rewards or reward points or loyalty points to the User for the User’s usage of the ZipDial Service/s or other Transactions, the User shall be entitled to the same subject to being capable of accepting such offers in a manner / mode specified by the Company and in relation to such services as specified by the Company. However, the Company shall have the right to denote the redeemable value for such offers or points and also the right to either vary such value or cancel such offers or points at any point in time at its sole discretion, unless the User has paid direct consideration to the Company by using ZipDial Service/s for accumulation of reward points or loyalty points.
8.10 The Company shall not be responsible for any direct or indirect loss that may accrue to the User owing to non-availability of ZipDial Service/s, or access to or use of the Company’s website, either due to any technical defect in the said website, ZipDial Phone Number(s) or in the ZipDial System.
8.11 The Company’s website or the ZipDial Service/s may link the User to other websites or web pages, but there is no endorsement, guarantee or warranty made or implied with respect to the content and information available at such websites or web pages, and the Company does not monitor any linked sites or evaluate the propriety or correctness of any information available at a linked site. The Company would not assume or accept any liability for any content available on such websites or web pages and the User shall access such links / websites at the User’s own risk and responsibility, to the complete exclusion of the Company.
- 9. SUSPENSION OF SERVICES
9.1 The Company shall have the absolute right and discretion to suspend all Transactions to be made under this Agreement either for convenience or if the User has committed breach of obligations herein, or has indulged in misrepresentation or fraud in the performance of this Agreement.
10. LIMITATION OF LIABILITY
10.1 Neither Party shall be liable to the other Party for indirect, incidental, consequential, special or exemplary damages (even if that Party has been advised of the possibility of such damages), arising from breach of this Agreement, the use of or inability to use ZipDial or its website or arising from any other provision of this Agreement, such as, but not limited to, loss of revenue or anticipated profits or lost business.
- 11. CONSEQUENCES OF TERMINATION
Notwithstanding any other rights and remedies provided elsewhere in the Agreement:
11.1 The termination of this Agreement pursuant to any of the provisions contained herein above shall not limit or otherwise affect any other remedy (including a claim for damages) which the Company may have against the User.
11.2 Any termination shall not affect any liabilities incurred prior to the termination nor any provision expressed to survive or to be effective on termination and (but without prejudice to the foregoing) Clause 4, Clause 6, Clause 7, Clause 8, Clause 10, Clause 15, Clause 16.8, Clause 16.10 and this Clause shall remain in full force and effect notwithstanding termination.
12.1 The Company shall have complete ownership over all data generated through the use of ZipDial Services, including data generated during polls, pledges, fan club activities or other services offered by the Company, and recorded over the Company’s website, ZipDial System and shall have the right to use or share such data with any person it deems appropriate, either for gain or otherwise.
12.2 Once a User has registered himself/herself/itself on the website or the ZipDial System, the Company shall have the right to send to the User messages through email, SMS or any other electronic medium, including the online social or professional networking websites used by the User, and the User accepts having waived his/her/its registration with the NDNC (National Do Not Call) Registry, or any such registrations affecting the Company’s rights to send communication to the User using an electronic medium, and the User shall never claim such communication from the Company as unsolicited communication using the Mobile Carrier or any other medium.
13.1 The Company will be entitled at any time to disclose information concerning the User to related parties including the Mobile Carrier. This clause shall survive the termination of this Agreement in addition to those detailed above.
13.2 The Company shall be the sole owner of any data provided by a User to it as well as any transaction data generated by a User’s use of ZipDial System and shall have the right to use or share such data with any person it deems appropriate, either for gain or otherwise.
14. NEGATIVE COVENANTS
14.1 The User shall not refuse to honour a valid ZipDial Transaction if the same is authorised by the Company on behalf of the User by virtue of this Agreement.
15. REPRESENTATIONS, WARRANTIES AND COVENANTS
15.1 Each Party represents and warrants that it has the right to disclose to the other and grant the other Party access to any information disclosed, or that may be disclosed, to the other Party.
15.2 The Company represents, warrants, and covenants to the User as follows; to the best knowledge of the Company, ZipDial does not contain any program, or other internal component which could damage, destroy, or alter any data or other information accessed through or processed by the User in any manner. The User shall immediately advise the Company in writing, upon reasonable suspicion or actual knowledge of any program or internal component that the Company has provided under this Agreement may result in the harm described above, and the Company will use best commercial efforts to get such ZipDial program or component repaired or replaced.
15.3 The User hereby represents and warrants that he/she/it shall not utilize ZipDial Service/s, ZipDial System and this website except for the purposes specifically contemplated under this Agreement or any other agreement entered into with the Company or specific purposes detailed by the Company separately and such purposes shall automatically form part of this Agreement. In the event that the Company learns that the User has utilized ZipDial for purposes other than what is specified in the Agreement, then the User shall be liable to indemnify the Company for such unauthorized use, including any third party claims arising therefrom.
15.4 The User hereby represents and agrees that he/she/it shall refrain from publishing to the public or provide access to the public, using this website of the Company, the ZipDial System, the ZipDial Services or affiliated third party services, any content over which a third party has exclusive intellectual property rights or requisite protection thereunder or content which is derogatory, defamatory, slanderous, lascivious, pornographic, appealing to the prurient interest of individuals, and anything else which may incite public, political or religious unrest or disharmony, which may or may not result in affecting the law and order situation. However, if the User violates this particular clause, the User undertakes to bear all liabilities and responsibilities, civil and criminal, arising from such action/s of the User and shall keep the Company insulated and indemnified from the same.
15.5 The User hereby represents and warrants to the Company that in the event of any suits, claims, disputes or such differences as are brought directly or indirectly against the Company by a third party as a consequence of breach of the terms and conditions of this Agreement by the User, the User shall at his/its sole cost assist the Company in defending such suits, claims, disputes or differences or indemnify the Company for the same, and any los arising therefrom.
15.6 The User represents and warrants that no copies of this website or any portions thereof may be made by the User or any person under the User’s authority or control. The User agrees not to assign or share User’s passwords and user names, if any, with any person whosoever.
15.7 The User acknowledges that the User will be entitled to use certain of ZipDial Service/s only upon completing the requisite registration formalities as provided on the Company’s website or elsewhere, as designated by the Company.
16.1 Force Majeure: None of the Parties shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that Party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
16.2 Assignment: Parties shall not assign, in whole or in part, the benefits or obligations of this Agreement to any other person without the prior written consent of the other.
16.3 Representation: The Parties acknowledge and agree that they have not entered into this Agreement in reliance on any representation statement or warranty (whether written or oral and whether express or implied) made by or on behalf of the other Party, other than such as are expressly set out herein.
16.4 Entire Agreement: This Agreement constitutes the entire agreement between the User and the Company and pertains to the subject matter hereof and supersedes in their entirety over all other written or oral agreements between the Parties.
16.5 Relationship between Parties: The Parties to this Agreement are independent persons/entities and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other Party hereto and neither Party shall make any representation that suggest otherwise.
16.6 Severability: If any provision of this Agreement is determined to be unenforceable for any reason, then the remaining provisions hereof shall remain unaffected and continue to operate in full force and effect.
16.8 Rights and Remedies – Waiver: All rights and remedies hereunder shall be cumulative and may be exercised singularly or concurrently. If any legal action is brought to enforce any obligations hereunder, the prevailing Party shall be entitled to receive its attorney’s, fees, court costs and other collection expenses, in addition to any other relief it may receive. If the Company does not enforce any provision against the User, failure to enforce on that occasion shall not prevent enforcement on later occasions.
16.9 Survival of Provisions: Notwithstanding any other provision to the contrary herein, terms, which by their nature survive termination or expiration of this Agreement shall bind the Parties following any expiration or termination of this Agreement, in addition to those otherwise specifically detailed in this Agreement.
16.10 Jurisdiction and Governing Law: This Agreement shall be governed by the laws of India. All disputes, claims and actions arising out of this Agreement or its validity will be subject exclusively to the jurisdiction of the competent courts at Bangalore, Karnataka, India, irrespective of the place of residence or business of the User, or the place from which the website www.zipdial.com and/or the ZipDial Service/s are accessed or availed. The User specifically agrees that a part of cause of action for any legal action is deemed to have arisen at Bangalore owing to the Company’s registered office being situated at Bangalore and this Agreement having been partly executed at Bangalore, thereby vesting the courts at Bangalore with the jurisdiction to adjudicate such disputes. As such, the User waives any right to challenge the exclusivity of jurisdiction of Bangalore courts to adjudicate any disputes arising out of this Agreement in accordance with the laws of India.
16.11 Headings and Sub Headings: The Headings and sub headings in this Agreement are for convenience only and do not affect the meaning of the relative clause.
16.12 Defined Terms: Various terms defined in this Agreement shall be read and construed strictly and the said definitions are used and shall apply solely to this Agreement and not any other agreement/s which the User may execute with the Company.
16.13 Notices: Any notice, direction or instruction given under this Agreement shall be in writing and delivered (i) in the case of the Company to the User, by email, details of which if provided by the User, or SMS; and (ii) in the case of the User to the Company, by email to the Company’s designated email firstname.lastname@example.org.