TERMS OF SERVICE
Effective as on November 29, 2021
These Terms of Subscription Service (“Agreement”) are entered into by and between the entity or person placing an order or accessing the solutions (as defined below) (“Client”) and the One Nought One entity specified on the Price Quote or other order form. Wherein, 101 Communications Limited Liability Partnership is referred to herein as “One Nought One”
The “Effective Date” of this Agreement is the date that is the earlier of (a) the effective date of the first Quote referencing this Agreement and (b) Client’s initial access to the Solutions through any One Nought One online registration, provisioning, or order process.
If you are entering into this Agreement on behalf of a company or any other legal entity, you represent that you have the authority to bind such an entity to this Agreement in which case the term “Client” shall refer to such entity. If you do not have such authority, or if you do not agree to the terms of this Agreement, do not accept this Agreement or use the Solutions. You may not use or access the Solutions if you are a direct competitor of One Nought One or if you are accessing or using the Solutions for the benefit of a direct competitor of One Nought One.
This Agreement permits Client to purchase a subscription to Solutions and related Professional Services from One Nought One pursuant to Price Quotes and sets forth the terms and conditions under which those Solutions and Professional Services will be delivered. This Agreement shall govern Client’s initial purchase as well as any future purchases made by Client that reference this Agreement. This Agreement includes any and all Exhibits, referenced policies and attachments, and any and all Price Quotes and SOWs.
From time to time, One Nought One may modify this Agreement with ten (10) days’ notice to Client. Unless otherwise specified by One Nought One, changes become effective for existing Clients upon posting of the modified Agreement. If Client does not agree to such changes, Client must notify One Nought One of such disagreement within the ten (10) day notice period, and One Nought One (at its option and as Client’s exclusive remedy) may permit Client to continue under the prior version of this Agreement until the next renewal of the current Order Term, after which the modified Agreement will apply (for example, if Client is on an annual Order Term, then the modified Agreement will apply starting from the beginning of Client’s next annual Order Term after it is posted). Client may be required to click to accept the modified Agreement before using the Solutions in a renewal Order Term, and in any event continued use of the Solutions during the renewal Order Term will constitute Client’s acceptance of the version of the Agreement in effect at the time the renewal Order Term begins.
Each party expressly agrees that this Agreement is legally binding upon it.
Definitions and Interpretations
1.1 Definitions – Capitalized terms not included in this Section are defined contextually in this Agreement.
(a) “AaaS”, or “Application as a Service”, means the use of social media algorithms and its configurations via a Client Application (created and modified by One Nought One remotely) under these Terms which are more fully described in the applicable Service Description.
(b) “API” means the application programming interface made available by One Nought One in connection with the Services, including the technical and administrative specifications, standards, requirements, procedures and communication protocols promulgated by One Nought One in connection with such application programming interface
(c) “Applicable Laws” means any applicable law, statute, by-law, regulation, order, regulatory policy (including any requirement or notice of any regulatory body), compulsory guidance, industry code of practice, rule of court or directives, binding court decision or precedent, or delegated or subordinate legislation, and includes applicable data protection, data privacy, data security, and breach notification, laws, rules, regulations and regulatory guidance, each of the above as may be amended from time to time;
(d) “Authorised Users” means Client’s employees, Contractors, and Affiliates (and its Affiliates’ employees and Contractors), who is authorized by a Client to provision, manage and administer certain aspects of the Client Services.
(e) “Client Application” means all configurations, updates and security measures that are applicable to a client and their particular requirements that are applied on the server, managed by One Nought One.
(f) “Client Data” means all data collected by or on behalf of Client through the Tagging Methods, as well as the results, reports, and data feeds based on such collected data that are uploaded to the server through the Solutions. If Client uploads any data directly or indirectly into the Solutions or via Third Party Platforms like Facebook Business Suite, that data is also included in Client Data.
(g) “Client Materials” means any Client Materials (including Solutions Data or Client Content) reasonably required for One Nought One to perform the Professional Services.
(h) “Credentials” means a unique login user ID and password that enables Client, and Client Authorized Users to access and use the Services.
(i) “Deliverables” means any deliverables provided by One Nought One to Client in connection with the Professional Services.
(j) “Design Deliverables” means any Deliverables provided by One Nought One as part of Digital Marketing Services that consist of and are expressly identified in the applicable SOW as visual design elements specific to Client (excluding any underlying One Nought One Technology).
(k) “Digital Marketing Services” means strategic, advisory, design, and/or other consulting services related to digital marketing provided by One Nought One in connection with Client’s use of the Solutions.
(l) “Emergency Incident” means an Incident that renders the Services inoperative or causes a complete failure of the Services and impacts a large number of users, for which an effective workaround is not available.
(m) “Excusing Event” means: (i) an act or omission of a Client, Client Authorized User or third party for which Client is responsible, including failure to supply accurate, complete, and timely information when requested; (ii) the occurrence of an event of force majeure; (iii) any operating system, database, application or other code or materials not provided by One Nought One or a third party for which One Nought One is responsible, including configuration issues in connection with the foregoing; (iv) any act or omission of a third party or that is not caused by One Nought One or a third party for which One Nought One is responsible (for example, hacking, denial of service attacks and the introduction of viruses), provided that One Nought One uses reasonable efforts to maintain current versions of Software patches; (v) where One Nought One is required by Applicable Law or requests of governmental entities to stop providing the Services; or (vi) any scheduled maintenance carried out in accordance with Section 8.b., in each case that adversely affects One Nought One’s ability to provide the Services.
(n) “Incident” means a failure of the Services to conform in a material respect with the applicable SOWs. This includes any incident other than the emergency incident.
(o) “Incident Correction” means a bug fix, patch, or other modification or addition that brings the Services into material conformity with the applicable Service Description.
(p) “Order Term” means the subscription term specified for each Solution in the applicable Quote and, in the event that such Quote does not include a “start date”, the Order Term will commence on the date that One Nought One electronically confirms Client’s order to the applicable Solution.
(q) “Professional Services” means professional services provided by One Nought One under this Agreement, including configuration, implementation, or review sessions and other Digital Marketing Services.
(r) “Price Quote” means One Nought One-generated order documentation (including any One Nought One online registration, provisioning, or other order process) referencing this Agreement and mutually executed or electronically accepted by Client.
(s) “Solutions” means the specific online application-as-a-service products ordered by Client as identified on the applicable Quote. The term “Solutions” includes the related Social Media Algorithms and Documentation (but excludes Professional Services).
(t) “Solutions Data” means Client Data and Third Party Data.
(u) “Statement of Work” or “SOW” means a statement of work for Professional Services executed by both parties describing the work to be performed, fees, and any applicable milestones, assumptions, and other technical specifications or related information.
(v) “Service Request” means a request by Client to One Nought One for Technical Support.
(w) “Troubleshooting” means answering questions and providing information regarding the Solution and Professional Services but excludes Incident Correction.
(x) “Tagging Methods” means the One Nought One configured algorithm, code, tags, application programming interfaces (“APIs”), software development kits (“SDKs”), beacons, cookies, or other tracking, data collection, and content optimization methods made available to Client for use with Client Applications.
(y) “Third Party Data” means non-personally identifiable analytics data retrieved by or on behalf of Client from Third Party Platforms through One Nought One’s access to Client’s credentialed accounts.
(z) “Third Party Platform” means Public Software and other software owned by third parties that One Nought One uses or makes available to Client in connection with the Solutions.
1.2 Interpretation – In this Agreement, the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions. Further, headings in this Agreement are for convenience only and do not affect its interpretation.
Our Solutions and Professional Services
2.1 Solutions Overview – One Nought One offers various Solutions to collect Client Data from Client Applications (and, if applicable, retrieve Third Party Data from Third Party Platforms) for analysis, reporting, testing and targeting. The Solutions are provided on a subscription basis for specified Order Terms. One Nought One may make available optional add-ons or code, which are also included in the “Solutions” under this Agreement and may be subject to supplementary terms specified by One Nought One.
2.2 Access and Usage – Client may utilise the Solutions specified on the applicable Price Quote during the applicable Order Terms solely for Client’s purposes and in accordance with the terms and conditions of this Agreement, and any scope of use restrictions designated in the applicable Price Quote. One Nought One reserves the right to copy Tagging Methods and to deploy Tagging Methods on Client Applications, except that One Nought One may not take any action that would subject the Tagging Methods to any third party terms, including any open source license terms. Use of the Solutions is charged based on, or limited to, the Order Term. The Order Term will be specified in the applicable Price Quote and will expire at the end of the applicable period.
2.3 Authorised Users – Client may allow its Authorised Users to monitor the Solutions, provided (i) Client remains responsible for compliance by each Authorised User with all of the terms and conditions of this Agreement,, and any scope of use restrictions designated in the applicable Price Quote, and (ii) any use of the Solutions by a Authorise User is for the sole benefit of Client or its Affiliates. Only Client and its Authorised Users may use the Solutions, and use of the Solutions by Client and its Authorised Users in the aggregate must be within the scope of use restrictions designated in the applicable Price Quote, including the period of Order Term.
2.4 Authorisation – Each Authorised User shall receive access to Credentials, which may not be shared. Clients shall require that all Authorised Users keep their authentication factors (such as user ID and user credentials) strictly confidential and not share such information. Client shall be responsible for any and all actions taken in Client’s Account by its Authorised Users, and shall immediately notify One Nought One of any unauthorized access to or use of its Account.
2.5 General Restrictions – Client shall not (and shall not permit any third party to):
(a) provide access to, or sublicense any Solution or Services to a third party (except for Authorised Users as authorized in Section 2.3), copy any Solutions Data for purposes not covered under this agreement.
(b) use or knowingly permit the use of any bots, automations software, in order to amplify, interfere, or attempt to penetrate or ascertain the security or vulnerability of any Solution; or
(c) use any Solution to share any harmful links (e.g., viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs) or objectionable content (eg. hateful speech, pornographic content, political propaganda, racist comments or fake information)
2.6 One Nought One shall provide a Social Media Manager and other Professional Services if purchased in the applicable Price Quote or SOW. The Professional Services may include (i) configuration, implementation, or advisory services and/or (ii) Digital Marketing Services. The scope of the Professional Services, and the fees for the Professional Services (whether on a fixed-fee or hourly rate basis), shall be as set forth in an applicable Price Quote or SOW.
2.7 Client may use any Deliverables solely in support of its authorized use of the applicable Solution, subject to the same terms and conditions that apply to such Solution and any additional terms in the applicable Price Quote or SOW. As an exception to the preceding sentence, for any Design Deliverables, effective upon full and final payment of all fees and expenses owing to One Nought One, One Nought One grants Client a non-exclusive, perpetual, worldwide, non-transferable, royalty-free license to use, reproduce, publicly display and perform, distribute, and create derivative works of the Design Deliverables for Client’s business purposes. While Client may continue to use the Design Deliverables after termination or expiration of this Agreement, such continued use is “AS IS”, with no warranty or other obligation from One Nought One.
2.8 Client Materials – Client shall provide One Nought One with access to Client Materials and hereby grants One Nought One a limited right to use Client Materials solely for the purpose of performing the Professional Services hereunder. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to One Nought One for such purpose.
2.9 Limited Professional Services Warranty – One Nought One warrants that the Professional Services will be of a professional quality and conform to generally prevailing industry standards. Client must give written notice of any material breach of the foregoing warranty within thirty (30) days from the date the Professional Services are completed. In such event, at One Nought Ones’ sole discretion, One Nought One shall either:
(a) use commercially reasonable efforts to re-perform the Professional Services in a manner that conforms to the foregoing warranty; or
(b) if One Nought One fails to re-perform or decides not to re-perform the Professional Services, refund to Client the portion of fees paid by Client to One Nought One for the nonconforming Professional Services.
The foregoing procedures shall constitute One Nought Ones’ sole liability (and Client’s sole and exclusive remedy) for any breach of the warranty in this Section 2.9.
Solutions Data and Client Obligations
3.1 Collection of Client Data – The Tagging Methods are provided with a default set of data points for collection of Client Data. In addition, Client may request to configure the Tagging Methods to collect other specific data points in accordance with this Agreement. Client Data may be aggregated or individualized as configured by One Nought One and as further described in the Statement of Work. Further, the default set of data points varies based on the particular Solution and over the Order Term.
3.2 Rights in Solutions Data; Right to Use Solutions Data – As between the parties, Client shall retain all right, title, and interest (including any and all intellectual property rights) in the Client Data, and One Nought One claims no right, title or interest in Client’s Third Party Data. Subject to the terms of this Agreement, Client hereby grants to One Nought One a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and perform and display in Client’s Application the Solutions Data solely to the extent necessary to provide the Solutions to Client. Further, One Nought One may periodically access Client’s Application and Solutions Data to improve, support, and operate the Solutions (e.g., for quality assurance, benchmarking, technical support, or billing purposes).
3.3 Client Obligations
(a) Client is solely responsible for the accuracy, content, and legality of all Solutions Data and for its Client Applications. Client shall ensure that Client’s use of the Solutions and all Solutions Data is at all times compliant with Clients’ and any applicable Third Party Platform’s privacy policies and all Laws, governing data tracking across sites. Subject to One Nought One’s obligations in Section 3.5(b) regarding Third Party Terms, Client shall obtain all third party licenses, rights, clearances, consents and approvals that may be required for Client (and One Nought One on behalf of Client) to collect and use Solutions Data and represents and warrants that such collection and use will not violate any Laws or any intellectual property, publicity, privacy, or other rights of any third party.
(b) The Solutions are not designed for processing of Prohibited Data and the default configurations of the Tagging Methods (as provided by One Nought One) do not collect Prohibited Data. Notwithstanding any other provision included herein, Client will not order One Nought One to configure the Tagging Methods or use the Solutions to collect, upload, retrieve, transmit, store, analyze, create, or deliver Prohibited Data and will not otherwise provide Prohibited Data to One Nought One. Client acknowledges that One Nought One is not a Business Associate or subcontractor (as those terms are defined in HIPAA). Notwithstanding anything to the contrary herein, One Nought One shall have no liability under this Agreement for Prohibited Data.
(c) One Nought One offers geo-location based Tagging Methods. When selecting a restricted geographical option (i.e., India only or New Delhi only), Client acknowledges that it will forgo the data collection and content delivery performance advantages offered by One Nought One outside the selected geographical option.
(d) Client and its Authorised Users are solely responsible for their availability for the configuration and activation of Solutions within the Stipulated Period mentioned under section 4.3. Client acknowledges that it will forfeit its subscription fees, and any claims due to their non availability or non conformity, thereafter.
3.5 Third Party Platforms – If Client uses the Solutions (i) to retrieve Third Party Data from a Third Party Platform (such as Facebook, Instagram, or Twitter) or (ii) to share Solutions Data with a Third Party Platform (such as Facebook Business Suite or Instagram Creator Studio), this Section 3.5 applies.
(a) One Nought One shall have no responsibility for any Third Party Platforms, including for their availability, security, functionality, operation, or integrity, or for any use of Solutions Data by Third Party Platforms. Client acknowledges that Third Party Platforms may impose quotas or other usage restrictions. From time to time, One Nought One may change which Third Party Platforms may be used with the Solutions or discontinue integration with any Third Party Platforms.
(b) One Nought One may make available functionality that enables Client to access its own accounts on Third Party Platforms through Professional Services. Client authorizes One Nought One to access such Third Party Platforms, retrieve and use Third Party Data, or share Solutions Data, as permitted in this Agreement. Each of Client and One Nought One is responsible for its own compliance with the applicable terms between such party and a Third Party Platform (e.g., account terms for Client and API integration terms for One Nought One) (“Third Party Terms”).
Fees, Payments and Order Term
4.1 Fees and Payment - The Client is obliged to pay in due time all fees for the use of the Solutions according to the selected Plan, Pack or Package in accordance with the payment schedule and in the currency set forth in the applicable Quote or SOW (and if none, within seven (7) days of the date of issue). Client is required to pay any sales, use, Goods and Services Tax (GST), value-added, withholding, or similar taxes or levies, whether domestic or foreign (other than taxes based on the income of One Nought One), and all such taxes and levies are excluded from any rates or prices provided by One Nought One.
4.2 Order Term and Renewal - Access of the solution is provided to the User after reception of the subscription fee calculated on the basis of the selected Pricing Plan (pre-paid subscription). One Nought One offers monthly, quarterly, triannual, biannual, annual subscriptions. Each billing cycle consists of 28 days and renewed based on the order term in multiples of 28 day credits. The current plan and pricing offer is available at: https://www.onenought.one.com/upgrade
4.3 Activation of Solutions - The Client Application is configured on the receipt of payment and Client (a) is expected to complete the activation of solutions within ten (10) days of making the payment or ten (10) days prior to the activation date set forth in the Price Quote or SOW, and (b) may set a future date of not more than seventy-five (75) days from the date of payment to activate the subscription. One Nought One will use reasonable efforts to provide Client with notice and a reasonable opportunity to cure, unless One Nought One reasonably determines that such action may cause harm to other clients or threaten the security or integrity of a Solution, in which case suspension may be immediate.
4.4 Suspension of Solutions – If (a) One Nought One has sent Price Quote for a subscription, and Client fails to pay the amount due within seven (7) days after receiving such payment reminder, or (b) Client has breached its obligations under Section 2.5 (General Restrictions) or Section 3.4 (Client Obligations), then, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), One Nought One reserves the right to suspend Client’s access to the applicable Solution, content delivery and any related support, or Professional Services, without liability to Client, until payment has been made or the breach has been cured. Prior to suspending Client’s access for Client’s breach of Section 2.5 (General Restrictions) or Section 3.4 (Client Obligations), One Nought One will use reasonable efforts to provide Client with notice and a reasonable opportunity to cure, unless One Nought One reasonably determines that such breach may cause harm to other clients or threaten the security or integrity of a Solution, in which case suspension may be immediate.
4.5 Termination of Solutions- Non-payment of the Subscription Fee in the payment deadline specified in the Invoice shall result in termination of the agreement. All configurations related to your Client Application will be erased. One Nought One does not store any code or data derived from Client Materials and therefore the termination of the Solution is permanent. Payment made by the User post deadline will result in reactivation of the solution from basic configurations. And professional services, required for reconfiguration will be charged to the client separately and additionally.
Refund and Cancellation Policy
5.1 Client may choose to cancel their Subscription at any time, and will continue to have access to the Digital Marketing Services through the end of the Order Term. The Client Application will automatically be terminated at the end of Order Term. No refund will be granted on cancellation of subscription after the Client Application is configured, and the client may choose to extend their activation schedule as per the terms set forth in Section 4.3
5.2 Client may choose to revoke access by removing One Nought One (Business Manager ID: 982982528863067) as Agency from Facebook Business Suite. This will erase all solutions data connected to the platform(s), and your client application will be terminated immediately. Client and Authorised Users are solely responsible for any changes made to the Credentials. Except as expressly set forth in Section 8.2 (Termination for Cause), Section 9.1 (Limited Warranty), Section 11.4 (Limited Professional Services Warranty), and Section 13.1 (Indemnification by One Nought One), all fees are non-refundable.
5.3 Client may choose to upgrade in the middle of an Order Term. All upgrades will be pro-rated for the remainder of the then-current Order Term and will be coterminous with the then-current Order Term. “Upgrade” means any Solution purchased as an add-on in a mutually executed Price Quote, purchase order, or invoice.
5.4 One Nought One reserves the right, at our sole discretion, to refuse or cancel any order for any reason, without any claims or liability to pay finance charges or interest on the amount. Some situations that may result in your order being cancelled include but are not limited to inaccuracies or errors in Solutions or pricing information, technical or technological problems or problems identified in relation to credit/debit fraud. We may also require additional verifications or information before accepting any order. We will contact you if all or any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled by the Company after your credit/debit card has been charged, the said amount will be refunded to that credit/debit card account.
Data Protection and Privacy
6.1 One Nought One agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of the Client Data, as further described in Solutions Security. Except to the extent caused by One Nought One’s breach of this Solutions Security, One Nought One shall have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond One Nought One’s control. Further, notwithstanding anything to the contrary herein, One Nought One is not responsible in any way for Solutions Data after such Solutions Data is transmitted, copied, extracted, or removed from One Nought One’s servers by any Third Party Platform.
6.2 Subject to Section 3.4(b) (Prohibited Data), as part of its authorized use of the Solutions, One Nought One may configure the Tagging Methods to collect certain personal data from users of Client Applications. Without limiting its obligations in Section 6.1, One Nought One agrees to process personal data only for the purpose of performing this Agreement and in accordance with Client’s instructions (as set forth in this Agreement, through the use of the selected geolocation option, and any applicable Order Form or SOW), and applicable Laws.
The terms “controller”, “process”, “processor”, and “personal data” have the meanings given to them in the GDPR. The parties acknowledge that, pursuant to the GDPR and applicable data protection Laws, Client is the controller and data exporter and 101 Communications LLP. is the processor and data importer.
This is a subscription agreement for access to and use of the Solutions. Client acknowledges that it is obtaining only a limited right to the Solutions and that irrespective of any use of the words “purchase”, “sale”, or like terms hereunder, no ownership rights are being conveyed to Client under this Agreement. Client agrees that One Nought One or its licensors retain all right, title and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Solutions (including Tagging Methods, APIs, SDKs and Documentation), Deliverables (excluding Client Materials), all report templates and pre-existing content and materials of One Nought One, all related and underlying technology, documentation, work product, tools, designs, methodologies, processes, techniques, ideas, and know-how, and all derivative works, modifications, or improvements of any of the foregoing, as well as all comments, questions, suggestions, or other feedback relating to the Solutions or Professional Services that Client submits to One Nought One (collectively, “One Nought One Technology”). Except for the limited right to access and use the Solutions as expressly set forth in this Agreement, no rights in any One Nought One Technology are granted to Client. Further, Client acknowledges that the Solutions are offered as an on-line, remote, Application-as-a-Service (AaaS) solution, and that Client has no right to obtain a copy of any underlying code or technology in any Solution.
8.1 Term – This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Order Terms.
8.2 Termination for Cause – Either party may terminate this Agreement (including all related Quotes) if the other party:
(a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice;
(b) ceases operation without a successor; or
(c) seeks protection under any bankruptcy, insolvency event, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
Upon termination by Client for One Nought One’s breach in accordance with this Section 8.2, One Nought One shall promptly refund to Client any such Solution fees already paid with respect to the terminated portion of the applicable Order Terms. Upon termination by One Nought One for Client’s breach, Client shall pay One Nought One for the total fees contractually committed for all Order Terms.
8.3 Effect of Termination – Upon any expiration or termination of this Agreement, Client shall:
(a) immediately cease any and all use of and access to its Account and the Solutions (including any and all related One Nought One Technology);
(b) Erase any and all copies of the Documentation, any One Nought One-related passwords or access codes, and any other One Nought One’s Confidential Information in its possession; and
(c) remove One Nought One as Agency from Facebook Business Suite
Upon request, Client shall certify to One Nought One in writing that it has fully complied with the foregoing requirements. Client acknowledges that, following termination, it shall have no further access to its Client Application or any Solutions Data, and that One Nought One may delete Client’s Applications and Erase any Solutions Data in its possession at any time, except for backup copies kept for disaster recovery purposes or as required to comply with Laws. Neither party shall have any liability resulting solely from a permitted termination of this Agreement in accordance with its terms. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4 Survival – The following Sections shall survive any expiration or termination of this Agreement: 2.5 (General Restrictions), 3.3 (Data Retention Policy), 6 (Ownership), 7.2 (Fees and Payment), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 11.2 (Rights to Deliverables) (solely with respect to Design Deliverables, if applicable), 12 (Limitation of Remedies and Damages), 13 (Indemnification), 14 (Confidential Information), and 16 (General Terms).
Limited Warranty and Disclaimer
9.1 Limited Warranty – One Nought One warrants, for Client’s benefit only, that the Solutions will operate in substantial conformity with the applicable Documentation. One Nought One’s sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty shall be, in OneNought One’s sole discretion and at no charge to Client, to use commercially reasonable efforts to correct the reported non-conformity or, if One Nought One determines (in its sole discretion) such remedy to be impracticable or fails to correct the non-conformity, either party may terminate the applicable Order Term and Client shall receive as its sole remedy a refund of any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Term.
The limited warranty set forth in the first sentence of this Section 9.1 shall not apply:
(a) unless Client notifies One Nought One within thirty (30) days following the date on which Client first noticed the non-conformity;
(b) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software or services; or
(c) to any use of the Solutions provided on a no-charge basis (e.g., Trial Subscriptions).
9.2 EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, THE SOLUTIONS AND ALL RESULTS AND REPORTS GENERATED THEREFROM AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER ONE NOUGHT ONE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT (BUT FOR CLARITY THIS DISCLAIMER OF WARRANTIES OF NON INFRINGEMENT DOES NOT LIMIT ONE NOUGHT ONES’ INDEMNIFICATION OBLIGATIONS IN SECTION 13). WITHOUT LIMITING ONE NOUGHT ONES’ EXPRESS OBLIGATIONS IN SECTION 5 (SOLUTIONS SECURITY & PRIVACY), 9.1 (LIMITED WARRANTY) OR 10 (SUPPORT SERVICES; SLA), ONE NOUGHT ONE DOES NOT WARRANT THAT CLIENT’S USE OF THE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT IT WILL REVIEW THE SOLUTIONS DATA FOR ACCURACY, THAT IT WILL PRESERVE OR MAINTAIN THE SOLUTIONS DATA WITHOUT LOSS, OR THAT THE SOLUTIONS WILL MEET CLIENT’S BUSINESS GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE). ONE NOUGHT ONE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ONE NOUGHT ONE (INCLUDING BUT NOT LIMITED TO ANY THIRD PARTY PLATFORM). CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF SUCH STATUTORY RIGHTS, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
During the applicable Order Terms, (a) One Nought One shall provide Client with important information and advisory services in accordance with the then current version of the Knowledge Base located at https://www.onenought.one/documentation/ (or such other URL as One Nought One may provide from time to time) for the subscription plan specified in the applicable Price Quote and SOW.
11.1 Provision and Payment – One Nought One shall provide a Social Media Manager and other Professional Services if purchased in the applicable Price Quote or SOW. The Professional Services may include (i) configuration, implementation, or training services and/or (ii) Digital Marketing Services. The scope of the Professional Services, and the fees for the Professional Services (whether on a fixed-fee or hourly rate basis), shall be as set forth in an applicable Price Quote or SOW.
11.2 Rights to Deliverables – Client may use any Deliverables solely in support of its authorized use of the applicable Solution, subject to the same terms and conditions that apply to such Solution and any additional terms in the applicable Price Quote or SOW. As an exception to the preceding sentence, for any Design Deliverables, effective upon full and final payment of all fees and expenses owing to One Nought One, One Nought One grants Client a non-exclusive, perpetual, worldwide, non-transferable, royalty-free license to use, reproduce, publicly display and perform, distribute, and create derivative works of the Design Deliverables for Client’s business purposes. While Client may continue to use the Design Deliverables after termination or expiration of this Agreement, such continued use is “AS IS”, with no warranty or other obligation from One Nought One.
11.3 Client Materials – Client shall provide One Nought One with access to Client Materials and hereby grants One Nought One a limited right to use Client Materials solely for the purpose of performing the Professional Services hereunder. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to One Nought One for such purpose.
11.4 Limited Professional Services Warranty – One Nought One warrants that the Professional Services will be of a professional quality and conform to generally prevailing industry standards. Client must give written notice of any material breach of the foregoing warranty within thirty (30) days from the date the Professional Services are completed. In such event, at One Nought Ones’ sole discretion, One Nought One shall either:
(a) use commercially reasonable efforts to re-perform the Professional Services in a manner that conforms to the foregoing warranty; or
(b) if One Nought One fails to re-perform or decides not to re-perform the Professional Services, refund to Client the portion of fees paid by Client to One Nought One for the nonconforming Professional Services.
The foregoing procedures shall constitute One Nought Ones’ sole liability (and Client’s sole and exclusive remedy) for any breach of the warranty in this Section 11.4.
Limitation of Remedies and Damages
12.1 Consequential Damages Waiver – NEITHER PARTY (NOR ITS LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, ANY LOSS OF USE, OR INTERRUPTION OF BUSINESS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2 Liability Cap – EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY’S AND ITS LICENSORS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO ONE NOUGHT ONE DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.
12.3 Excluded Claims – “Excluded Claims” means (a) amounts payable to third parties by Client pursuant to Section 13.2 (Indemnification by Client) or (b) any claim arising from Client’s breach of Section 2.5 (General Restrictions) or Section 3 (Solutions Data).
12.4 Failure of Essential Purpose – The parties agree that the limitations specified in this Section 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
13.1 By One Nought One – One Nought One shall defend Client from and against any claim by a third party alleging that One Nought Ones’ proprietary technology used in the performance of the Solutions, when used as authorized under this Agreement, actually infringes a U.S. or Great Britain (“GBR”) patent, U.S. or GBR copyright, or U.S. or GBR trademark, and shall indemnify and hold harmless Client from and against any damages and costs awarded against Client or agreed in settlement by One Nought One (including reasonable legal fees) resulting from such claim.
If Client’s use of any Solution is (or in One Nought Ones’ opinion is likely to be) enjoined, if required by settlement, or if One Nought One determines such actions are reasonably necessary to avoid material liability, One Nought One may, in its sole discretion:
(a) substitute substantially functionally similar products or services;
(b) procure for Client the right to continue using the Solution; or
(c) if (a) and (b) are not commercially reasonable, terminate the Agreement and refund to Client any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Terms.
The foregoing indemnification obligation of One Nought One shall not apply:
(1) if the Solution is modified by any party other than One Nought One, but solely to the extent the alleged infringement is caused by such modification;
(2) if the Solution is combined with products or processes not provided by One Nought One, but solely to the extent the alleged infringement is caused by such combination;
(3) to any unauthorized use of the Solution;
(4) to any action arising as a result of Solutions Data or any third-party deliverables or components contained within the Solution;
(5) to any release or version of the Tagging Methods other than the then-current release or version; or
(6) if Client settles or makes any admissions with respect to a claim without One Nought Ones’ prior written consent.
THIS SECTION 13.1 SETS FORTH ONE NOUGHT ONES’ AND ITS SUPPLIERS’ SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM THAT ONE NOUGHT ONES’ PROPRIETARY TECHNOLOGY USED IN THE PERFORMANCE OF THE SOLUTIONS INFRINGES A U.S. OR GBR PATENT, U.S. OR GBR COPYRIGHT, OR U.S. OR GBR TRADEMARK.
13.2 By Client – Client shall defend One Nought One from and against any claim by a third party arising from or relating to:
(a) any Solutions Data or Client Application; or
(b) any breach or alleged breach by Client of Section 3.4 (Client Obligations); or
(c) any service or product offered by Client through the Client Applications,
and shall indemnify and hold harmless One Nought One from and against any damages awarded against One Nought One or agreed in settlement by Client (including reasonable legal fees) resulting from such claim.
13.3 Indemnification Process – The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification:
(a) prompt written notice of a claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice);
(b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim; and
(c) all reasonable necessary cooperation of the indemnified party.
The indemnified party may participate in the defense of any claim with counsel of its own choosing at its expense. The indemnifying party may not settle a claim without the indemnified party’s prior written consent unless such settlement unconditionally releases the indemnified party from all liability and does not require the indemnified party to take or refrain from taking any action (except with respect to use or non-use of the Solutions or allegedly infringing materials).
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical, and financial information that it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Without limiting the foregoing, any One Nought One Technology, performance information relating to the Solutions, and the terms and conditions of this Agreement and all Price Quotes and SOWs shall be deemed Confidential Information of One Nought One without any marking or further designation. Except as expressly authorized herein, the Receiving Party will:
(a) hold in confidence and not disclose any Confidential Information to third parties; and
(b) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.
The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for One Nought One, the subcontractors referenced in Section 16.10), provided that: (i) such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14; and (ii) the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document:
(1) was rightfully in its possession or known to it prior to receipt of the Confidential Information;
(2) is or has become public knowledge through no fault of the Receiving Party;
(3) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
(4) is independently developed by employees of the Receiving Party who had no access to such information.
The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore, that upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Digital Marketing Services
Our Solutions are intended to enable Client Applications with improved organic growth in supported platforms. If engaging One Nought One Technology you understand, acknowledge and agree that:
9.1. One Nought One has no control over the policies, influences, signals and ranking factors of any supported platform with respect to how they choose to rank content in User Feed, now or in the future.
9.2 While it is unlikely that a platform will exclude a profile from search results, it is common for algorithms to take some time before new changes are included in results, and it is very common that even established accounts will not have all changes from the posts included.
9.3 One Nought One makes no representations, warranties or guarantees of any kind as to the level of sales, purchases, clicks, sales leads, search engine rankings or other performance that you can expect from the implementation of Solutions provided by One Nought One.
9.4 Organic reach can fluctuate any day, any time, and between different users because of on-going changes in the ranking algorithms, content efforts made by the competitors, and other factors.
9.5 Newly applied tagging methods may experience a temporary boost in ranking for some targeted keywords and buzzwords for a short period of time, before the rankings settle to a lower level. This is known as the ‘freshness boost effect’. You acknowledge that if this happens to your account, the subsequent drop in rankings is not poor performance by One Nought One, and is instead a common occurrence.
9.6 For the duration of this Agreement you agree not to engage with any other Digital Marketing Agencies, whether one-off services or ongoing services, without written agreement or consent from One Nought One in advance.
9.7 One Nought One is authorised to use all your logos, trademarks, website images, and the like, on your website and other websites, to create content that One Nought One deems may be useful for Solutions Data.
9.8 One Nought One may use Client’s name, logos, and trademarks to identify Client as a customer on One Nought Ones’ website, social media, and other marketing materials.
16.1 Assignment – This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities, provided that, in Client’s case, the assignee is not a competitor of One Nought One. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2 Severability – If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
16.3 Governing Law; Jurisdiction and Venue – This Agreement shall be governed by the Arbitration and Conciliation Act 1996 (hereinafter refer as “the said Act”) without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall New Delhi only and both parties hereby submit to the personal jurisdiction of such courts.
16.4 Attorneys’ Fees and Costs – The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
16.5 Notice – Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Quote or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee:
(a) if given by hand, immediately upon receipt;
(b) if given by overnight courier service, the first business day following dispatch; or
(c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
Notices and communications may also be provided via electronic mail (which notices and communications shall be deemed to have been received immediately upon receipt), except that neither party shall provide any notice or communication related to Section 8 (Term and Termination), Section 9.1 (Limited Warranty) or Section 13 (Indemnification) via electronic mail.
16.6 Amendments; Waivers – Except as otherwise expressly set forth herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
16.7 Entire Agreement – This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
16.8 Solutions Updates – Client acknowledges that the Solutions are on-line, remote, subscription-based products and that, in order to provide improved customer experience, One Nought One may make changes to the Solutions (including the Tagging Methods), and One Nought One will update the applicable Documentation accordingly.
16.9 Force Majeure – Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
16.10 Subcontractors – One Nought One may use the services of subcontractors and permit them to exercise the rights granted to One Nought One in order to provide the Solutions and Professional Services under this Agreement, provided that One Nought One remains responsible for:
(a) compliance of any such subcontractor with the terms of this Agreement; and
(b) the overall performance of the Solutions as required under this Agreement.
16.11 Independent Contractors – The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
This Agreement may be executed in counterparts (including execution by electronic signature, pdf or other electronic transmission), each of which will be deemed an original and legally binding and all of which together will be considered one and the same agreement.