This Google Analytics Services Agreement (the “Agreement”) is made and entered into between Tatvic and the entity or person agreeing to these terms (“Customer”) and comes into effect, once the Order Confirmation Form or equivalent is signed by the Customer. 

The Service Provider is an authorised reseller of, and an authorized service provider in relation to, the Google Analytics service.

The Customer is desirous of obtaining a revocable, non-exclusive license to use the Google Analytics service and has approached the Service Provider for the same. Further, the Customer has also requested the Service Provider to provide the support services in relation to Google Analytics service, and the Service Provider has agreed to provide such services to the Customer.

Accordingly, the Parties are desirous of entering into this Agreement in order to inter alia record the terms and conditions on which the Customer shall be granted license to use the Google Analytics Service and on which the Service Provider shall provide the support services to the Customer and the rights and obligations of the Parties with regard thereto.

THEREFORE, IN CONSIDERATION OF THE COVENANTS AND AGREEMENTS CONTAINED IN THIS AGREEMENT THE PARTIES, INTENDING TO BE LEGALLY AND CONTRACTUALLY BOUND, AGREE AS FOLLOWS: 

1.  Definitions And Interpretation

1.1  Definitions

In this Agreement, the following capitalized terns shall have the meanings set forth below unless otherwise specified:

(i)  “Affiliate” means with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party.

(ii)  “Agreement” means this agreement along with the terms, conditions, annexures, appendix and any amendments thereto.

(iii)  “Analytics Services” means the services mentioned in Appendix A.

(iv)  “Beta Feature” means any Service feature that can be identified by Google as “Beta”, “Alpha”, “Experimental”, “Limited Release” or “Pre-Release” or unsupported.

(v)  “Brand Features” means each Party’s trade names, trademarks, logos and other distinctive brand features.

(vi)  “Company Data” means the following: (i) with respect to Analytics 360, the data collected through use of an OSCI and then processed by Analytics 360 and (ii) with respect to Tag Manager 360, data concerning the volume and frequency of Company’s and Customer’s code (e.g., HTML) or web beacons (e.g., pixel tag, clear GIF) served via a Tag Container.

(vii)  “Confidential Information” means information that one party (or an Affiliate) discloses to the other party under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is lawfully given to the recipient by a third party without confidentiality obligations or becomes public through no fault of the recipient.

(viii)  “Customer Data” means the data derived from the Customer’s use of the Analytics Service.

(ix) – “Effective Date” means the date when Customer signed the Order Confirmation Form as ‘effective date”.

(x)  “Event” means a base unit of measurement that is processed in Google Analytics or the Analytics 360 service through a GA4 Property, which may include but is not limited to a page view, transaction, call to the Google Analytics system by an OSCI, screen view, custom event or other interactions with GA4 Properties capable of supporting multiple data streams.

(xi)   “Fees” means the fee payable by Customer for availing the Analytics Service under this Agreement.

(xii)   “Google” means Google Asia Pacific Pte. Ltd.

(xiii)  “Google India” means Google India Private Limited (and its Affiliates).

(xiv) “Google Terms” shall have the meaning ascribed to it in clause 2.1 below.

(xv)  “Minimum Support Obligations” means the support described at https://marketingplatform.google.com/about/reseller/MSO/.

(xvi)  “OSCI” means an “Officially Supported Client Interface”, which is a mechanism made available by or supported by Google that can be used to send Hits or Events, as applicable, to the Analytics Service.

(xvii)  “Services” means collectively, the Analytics Services.

(xviii)  “Target Property” means a property on which an advertising content is served via the Services (i.e., web sites, consent-based e-mail publications, approved software applications or other properties as approved by Google).

(xix)  “Taxes” means any taxes, duties, customs fees, GST (other than Service Provider’s income tax) associated with the sale of the Service, including any related penalties or interest that arise due to delay in payment.

(xx)  “Term” means the term of this Agreement as set out in Section B of Appendix A plus any renewal terms.

(xxi)  “Material Breach” means a breach of any of the term of this Agreement that materially and adversely affects the interests of a Party and is of a serious nature.

1.2  Interpretation

In this Agreement:

(i)  the words “hereof”, “herein”, hereto and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(ii)  words denoting the singular shall include the plural and words denoting any gender shall include all genders;

(iii) the headings to Sections, sub-sections and paragraphs of this Agreement shall only serve the purpose of easier orientation and shall not affect the contents and interpretation of this Agreement;

(iv) references to recitals, sections or annexures are, unless the context otherwise specifically requires, to recitals of, to sections of, or annexures to, this Agreement.

2. Terms of Service by Service Provider

2.1   Service Provider grants to Customer the right to use the Analytics Service subject to compliance by Customer of (i) the Sales Terms available at https://www.google.com/doubleclick/analytics/apac_in/sale_terms/ provided by Google India (“Sales Terms”), (ii) general Google Platform Services Terms and Conditions (“Platform Terms”) available at https://www.google.com/doubleclick/platform/apac_in/terms/ and (iii) the Google Marketing Platform Analytics Service Specific Terms (“Analytics Service Specific Terms”) available at https://marketingplatform.google.com/intl/en_in/about/ads_platforms/gmp/analytics/terms/ (each as updated by Google or its Affiliates from time to time and, collectively, the “Google Terms”), for the purpose of Terms, “Company/Client” shall be read as “Customer”.  The Terms shall be deemed to have been incorporated into this Agreement by reference. Notwithstanding anything contained herein, the terms of this Agreement shall override the Terms.

2.2  The Customer shall also be eligible to get the Minimum Support Obligations described at https://marketingplatform.google.com/about/reseller/MSO/ which Google India or its Affiliates may update from time to time with respect to the product features. The Service Provider owns all rights, title and interest in the support services that it provides pursuant to this Agreement and all its products it employs to provide the support services. The Customer agrees to contact only the Service Provider (and not Google India) for availing the support service.

2.3  Google India and/or Service Provider shall have no liability under this Agreement (including any indemnification obligations) arising out of or related to any use of Beta Features by Customer, its Affiliates, or any person authorised to act on behalf of Customer. Any use of Beta Features shall be solely at Customer’s own risk and may be subject to additional requirements as specified by Google India/Service Provider from time to time. Google India and/or Service Provider is not obligated to provide support for Beta Features and Google India may, at its sole discretion, cease providing Beta Features as part of Service.

2.4  Google will use commercially reasonable efforts to ensure that the Analytics Service meets the service levels indicated at https://marketingplatform.google.com/about/analytics_products/reseller-sla (the “SLA”).

3. Payment Terms

(i)  In consideration of providing the Services by the Service Provider, the Customer will pay the Service Provider the Fees.

Fee for Analytics Service

(ii)  The amount in the invoice for the Analytics Services will be determined as per the Pricing Table provided in section “C” of APPENDIX A and the Customer hereby agrees to pay the Fees to the Service Provider as per terms stated therein.

(iii)  The Service Provider shall raise an invoice for every 3 (three) months (“Billing Quarter”), in advance, to the Customer for rendering the analytics service. For the first billing, the Service Provider will issue an invoice for the quarter starting from the Effective Date for the upcoming 3 (three) months based on prices mutually agreed and as provided in the base tier mentioned in the section “C” of APPENDIX A. For subsequent Billing Quarters, invoices will be raised by the Service Provider, based on the Customer’s Events consumption (usage) in the immediately previous month and the same shall be duly paid by the Customer within a period of 30 (thirty) days from the date of respective invoice. Failure on the part of the Customer to pay the amount raised in the invoice within the aforesaid 30 (thirty) days shall entitle the Service Provider and Google to terminate the Services and any unpaid payment shall be considered delinquent after 30 (thirty) days from the date of invoice. The Service Provider would report the total number of Events to the Customer on quarterly basis.

General Payment Terms

(iv)  In the event the Customer has any issues with respect to the invoice raised by the Service Provider, then the Customer shall raise the query within 7 (seven) days from the date of receipt of invoice, failing which the invoice issued by the Service Provider shall be deemed to have been approved by the Customer.

(v)  If Service Provider determines that certain billing inaccuracies are attributable to the Service Provider, the Service Provider will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, then the Service Provider will apply the amount in the credit memo to the disputed invoice and the Customer will be responsible for paying the resulting net balance due on that invoice.

(vi)  In all other cases of inaccuracy in the billing (i.e. where the accuracy is not attributable to Service Provider or where the disputed invoice has already been paid), the Service Provider shall issue a separate credit note showing the excess/ deficit amount paid by the Customer and such excess/ deficit amount shall be appropriately adjusted by the Customer in the next invoice.

(vii)  The Customer agrees that if there is any requirement of purchase order (“Purchase Order”) as an internal process of the Customer before payment of an invoice then the Customer will arrange to have the Purchase Order issued before the due date of invoicing, i.e. before the first day of the Billing Quarter or as and when tier change happens. If at any point of time invoicing and payment cycle gets delayed due to the non-receipt of Purchase Order from the Customer, then it would attract interest clause for delay in payment/invoicing.

(viii) In case of delay in providing Services and/or completion of the milestone as per timeline/delivery schedule defined in respective SOW/Agreement for delivery of Service when such delay is solely attributable to the Customer, then the Service Provider will continue to invoice the Customer as per the invoicing Schedule defined in the [SOW]/Agreement and the Customer shall be under obligation to pay the invoices so raised as per standard payment terms defined in such [SOW]/Agreement. Any delay from Customer’s end for the period beyond 07(seven) days in providing confirmation of delivery of Service/any other action required from Customer’s end to provide such Services by Service Provider shall automatically attract applicability of this clause

(ix)  In case the Customer wants to avail a service from Service Provider apart from the ongoing service provided through the existing Agreements and/or Addendums/SOW which is not part of respective signed agreement between the Parties, the Service Provider shall prepare the draft proposal/SOW for the service so required by the Customer and on approval of such proposal/SOW through an official email id of Customer, it shall be considered as express acceptance of such proposal/SOW, which, then shall be considered  as part of the Agreement between the Parties and the Customer shall be legally bound and liable to adhere to the terms of such proposal/SOW including but not limited to pay for the Services defined in such proposal/SOW.

(x) It is expressly agreed between the Parties hereto, that all payments shall be made by the Customer in INR Currency. 

(xi) Without prejudice to any other rights available to the Service Provider under this Agreement or under law, the Service Provider has informed the Client that the Service Provider is registered as a medium enterprise under the Micro, Small and Medium Enterprises Development Act, 2006 (“MSME Act”). The Client acknowledges and agrees that the MSME Act vests certain statutory privileges and rights on the Service Provider inter alia in the event of delay in payment or non-payment of dues by any customer of the Service Provider and the Client agrees that the Service Provider shall be entitled to take benefit of such privileges and rights granted to it under the MSME Act in addition to the contractual rights agreed under this Agreement.

3.1  Tier Change Cost/Overage

(i)  It is expressly agreed that if actual usage during any of the months crosses the current tier (for which invoice is generated at the beginning of the Billing Quarter), then a “Tier Change Cost” invoice will be generated for the difference between new tier price and current tier price. This Tier Change Cost invoice will be generated at the end of the month in which the usage has crossed the current tier for the remaining months of the Billing Quarter. Once this tier change happens, then invoice for the next Billing Quarter shall be generated as per revised tier.

(ii)  However, if by the end of the Billing Quarter, it turns out that actual usage was of lower tier, then the Customer will be given a credit note for the excess amount paid at the end of the Billing Quarter which can be used to pay for the next Billing Quarter’s invoice.

(iii)  It is expressly agreed that Tier Change cost will have to be paid within a period of 30 (thirty) days from the date of concerned Tier Change invoice by the Customer.

3.2  Increase in Estimated Events

(i)  Simultaneously with execution of this Agreement, Customer has indicated in the Order Form, its Estimated Events Cusmptions which shall be the maximum number of Events per month across all Properties (“Estimated Event/Estimated usage”). The Customer declares and represents to the Service Provider that it has obtained all requisite internal approvals (whether from its board of directors, finance department or any other officer as may be required as per the internal processes of the Customer) for sanctioning the budget/Service Provider’s Fee in relation to the Estimated Events.

(ii)  In the event the Customer’s actual usage [actual Event consumption] in any month exceeds the Estimated Event, then the Service Provider may intimate the Customer of the same, requiring the Customer to confirm whether it wishes to continue using the Services under this Agreement over an email. The Customer shall get requisite internal approval and confirm such continued usage to the Service Provider [if such approval is required as per Customer’s internal policy]. Notwithstanding anything contained herein, Customer shall be in any event required to make payments for its actual usage, even if it is in excess of the Estimated usage.

(iii)  In the event the actual usage in any month exceeds the Estimated Event which results in a tier change, then the Service Provider shall raise invoice for tier change as applicable and all the terms and conditions for tier change invoice as set out in clause 3 above shall apply accordingly.

3.3  Other Payments Terms

(i)  Any delinquent payments, or delinquent invoicing for non-receipt of Purchase Order from the Customer or for any reason attributable to the Customer, shall bear interest at the rate of 18% (eighteen percent) per annum, compounded monthly from the date of invoice until the amount is actually paid in full.

(ii)  Any returned/ dishonored cheques will be subject to legal action under the provisions of Negotiable Instruments Act, 1988 or any modification thereof as well as any civil action for recovery of the amount as may be deemed fit by the Service Provider. The Service Provider will be entitled to recover the bank charges and the legal fees incurred in relation to recovery of the amounts due and payable to it from the Customer.

(iii)  In case of failure of the Customer to pay the Fee as per the terms set out in the invoice, Service Provider will be entitled to pursue any legal actions that the Service Provider may deem fit against the Customer for non-payment or delayed payment of the Fee.

3.4  Taxes

(i) The Customer acknowledges that the Customer shall be responsible for the payment of all Taxes (including GST) and agrees to pay the Service Provider for the Services without any reduction in Taxes, save and except any deduction of Tax Deducted at Source (TDS) applicable under the Income-Tax Act, 1961 and no other deductions shall be made from the Fees payable to Service Provider.  Any additional amount deducted by the Customer from the Fees shall be reimbursed by the Customer to the Service Provider within 07 (seven) days from the end of the respective month.

(ii) If the Service Provider is obligated to collect or pay any Taxes on behalf of the Customer (e.g. GST), the Taxes will be invoiced to the Customer based on the Tax Identification No. (e.g. GSTN) as per the details provided by the Customer to the Service Provider in addition to the Pricing provided in this Agreement (i.e. the any amount of Fees set out in this Agreement is exclusive of any taxes including GST).

(iii)  If the Customer is required by law to withhold any Taxes (e.g. TDS) from Customer’s payments to the Service Provider, the Customer must provide the Service Provider with an official tax receipt/certificate (e.g. Form 16A) or other appropriate documents to support the reduction in payments.

(iv) It is clarified between the Parties that if the Customer fails to furnish the official tax receipt/certificate or other appropriate documents for supporting the reduction in payments to the Service Provider and/or or to reimburse the amount additionally collected under clause 3.4(i) above then the Customer shall indemnify, defend and hold harmless the Service Provider and its subsidiaries and Affiliates and their directors, officers, agents, employees, successors and assigns and authorized representatives against any such loss of tax credit which is deducted by the Customer from the Service Fees payable to the Service Provider including but not limited to loss of credit, tax, interest, penalty thereon.

4. Term and Termination

4.1  Term

The Service will be provided for the Term unless terminated earlier under Section 4.2 of this Agreement. Thereafter, this Agreement shall stand automatically renewed every year (“Renewal Terms”) unless either Party provides written notice to the other Party, at least 60 (sixty) days before the expiration of the then-current term, of its intention of not to renew the Agreement.

4.2 Termination and Suspension

Termination

This Agreement may be terminated only in accordance with this clause 4.2.

4.2.1  Either Party may provide a written notice to the other Party, at least 60 (sixty) days before the expiration of the then-current Term of this Agreement, of its intention of not to renew the Agreement, in which case, the Agreement shall be terminated upon the completion of the Term.

 4.2.2  The Service Provider may terminate this Agreement with immediate effect in the following cases:

  (I) if Customer is in Material Breach of the Agreement;

1.  where the breach is incapable of remedy, the termination shall be effective upon receiving a termination notice from the Service Provider, or
2. where the breach is capable of remedy and the Customer fails to remedy that breach within 7 (seven) days after receiving a notice from the Service Provider, the termination shall be effective upon completion of the aforesaid 7 (seven) day period notice, or
3. on more than two occasions, even if the previous breaches were remedied in the earlier occasions.

   (II) if Customer fails to comply with the Google Terms as mentioned in the clause 2.1 of this Agreement, or

  (III) if there is a change in control of the Customer, if so deemed fit by the Service Provider as provided in clause 12.4, or

  (IV) If Service Provider/Google India is unable to provide Service due to any changes in law or regulations or

   (V) If the Customer ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 (ninety) days; or

  (VI) If in the reasonable opinion of Google India this Agreement needs to be terminated, or

 (VII) In accordance with clause 12.5 of this Agreement.

Suspension

4.2.3  If Customer (or its Affiliate) is in violation (or if Google India reasonably suspects a violation) of the Agreement, then Google India may require the Service Provider to immediately suspend or deactivate all or any part of Service.

4.3  Effect of Termination

(i)  It is agreed between the Parties that upon the termination or expiration of this Agreement, the Service Provider shall stop providing the Services to the Customer.

(ii)  The Customer will be entitled to the refunds of the advance Fees for unutilized month/s, if any,  after deduction of (a) any amount that has remained unpaid from the Customer which is payable to the Service Provider  and (b) GST deposited by the Service Provider and (c) TDS deducted by the Customer and/or Affiliate. The Customer or any of its Affiliate shall not be entitled to any refund for unutilized days of the month in which the termination takes place.

(iii)  All payments owed by the Customer and/or its Affiliate to the Service Provider for Services rendered by the Service Provider prior to the effective date of termination shall become immediately due and payable by the Customer.

(iv)  Within a reasonable time after the Customer provides written notice to the Service Provider to delete the Customer Data, the Service Provider shall intimate Google India to render all Customer Data permanently inaccessible.  

5. Data Access, Security and Collection Limits

5.1  Data Ownership and Authority to Access

(i)  As between the Service Provider and the Customer, the Customer Data shall be owned by the Customer provided Customer and/or its affiliates make timely payment as mentioned in Clause 3 and Appendix A of this Agreement. If Customer fails to make timely payment for the Services used under this Agreement, then Customer shall abandon its right on its Data post 7 days from the due date of Payment.

(ii)  Notwithstanding the ownership of the Customer to the Customer Data, the Customer hereby grants the authority to Google India and the Service Provider (and their respective Affiliates) to access, monitor, use and disclose Data within Customer’s Analytics Service account. It is expressly agreed that Customer shall not pass information to Google and/or Service Provider (or its Affiliates) that could be used or recognized as personally identifiable information.

(iii)  The Customer, hereby, agrees and acknowledges that the Service Provider can access, reprocess, store, analyze or use Customer’s non aggregated data through Google Analytics Reporting Interface and Google Analytics API for data tracking issues and debugging, research, creating comparative studies, statistical analysis, carrying out integration with other Google Product, reporting, segment/audience/filter/view creation, edition, export, integration or for any other purpose for which the Service Provider is commissioned to carry out any task on behalf of the Customer.

6. Privacy

6.1  The Customer shall ensure that its Privacy Policy is in compliance with all privacy related laws applicable to the Customer.

6.2  The Customer agrees and acknowledges that, in respect of the Customer’s relation with the Customer’s visitors/customers and the usage of the Customer Data and giving access of the same to the Service Provider, it shall be the duty of the Customer to ensure compliance with any and all privacy related applicable laws. The Customer, further, agrees and acknowledges that the Service Provider shall not be responsible for such legal compliance obligations in respect of the visitors or the Customer Data.

7.  Confidentiality

7.1  Parties Obligations

(i)  Each Party acknowledges that it shall receive Confidential Information from the other Party during the Term of this Agreement. The Parties agree that they shall protect the other Party’s Confidential Information (including Google’s Confidential Information that the Customer may obtain from its use of the Service) with the same degree and standard of care and procedures used by themselves to protect their own Confidential Information (but in no event using less than a reasonable standard of care);

(ii)  Subject to Section 7.1, the Parties shall not disclose Confidential Information except to their Affiliates, employees and agents who need to know it for the purpose of performing obligations and exercising rights and remedies under this Agreement and who have agreed in writing to keep such information confidential and take all reasonable precautions for protecting such information.

(iii)  Upon termination of this Agreement, the Parties will promptly either return or destroy all the Confidential Information of the other Party, which is in their possession.

(iv)  Notwithstanding the obligations contained above in this Section 7.1  but subject to applicable laws, the Service Provider shall be entitled to use, process and/or store all information and data of the Customer for research, creating comparative databases, statistical analysis, market research report/analyses or other studies as it may deem fit without the requirement of obtaining any prior authorization from the Customer or any of its Affiliates, provided that such information shall not include personally identifiable information or information that identifies or would reasonably be expected to identify the Customer. It is expressly agreed that data formulated by the Service Provider on account of the re-processing of data for research, comparative studies, statistical analysis, market research report/ analysis would be considered as Confidential Information of the Service Provider.

(v) The Customer shall keep the Service Provider informed of any breach of the confidentiality obligations and shall provide necessary assistance and co-operation to the Service Provider as may be required in this regard.

(vi)  Each Party shall be responsible for any of the actions of its Affiliates, employees and agents resulting in the violation of this Section 7.1.

7.2  Required Disclosure under Law

Each Party may disclose the other Party’s Confidential Information when required by law. Provided that so far as it concerns the Confidential Information of the Service Provider, the Customer shall, if legally permissible, use commercially reasonable efforts to notify the Service Provider; and give the Service Provider the chance to challenge the requirement for the disclosure.

7.3  Publicity

Neither Party will issue any press release, public announcement, or public statement regarding the existence or content of this Agreement without the other Party’s prior written approval. Google and the Service Provider may use Customer’s Brand Features (e.g., name and logo) in marketing the Service for the purpose of showcasing its clientele. In addition to this, the Customer hereby authorises the Service Provider and Google India (i) to use its reference when required and /or to make Customer a reference. (ii) to feature the Customer in a case study or industry whitepaper/research (iii) to publish news about its engagement with the Customer (e.g., Announcing the relationship commencement) with or without formal intimation to Customer

8.  INTELLECTUAL PROPERTY RIGHTS

8.1  The intellectual property rights in the analyses and reports drawn up by the Service Provider pursuant to the provision of the Services under this Agreement shall vest in the Customer and the Service Provider agrees and undertakes not to set up an adverse claim in respect of the same at any time either during the Term of this Agreement or at any time thereafter.

8.2  All the intellectual property rights in respect of the software code, tools, methodology or technology used by the Service Provider for the performance of Services under this Agreement is a property of the Service Provider and shall continue to vest in it and the Customer agrees and undertakes not to set up any adverse claims to the ownership or right to use or license of or in respect of the same.

8.3  All the intellectual property rights in respect of any software code, tools, methodology or technology developed and conceptualised by the Service Provider during the course of its performance of Services under this Agreement shall be a property of the Service Provider and shall solely belong to the Service Provider and the Customer agrees and undertakes not to set up any adverse claims to the ownership or right to use or license of or in respect of the same.

8.4  The Service Provider shall be entitled to use, process and/or store all information and the data of the Customer for research, creating comparative databases, statistical analysis, case studies, reports or other studies as it may deem fit without the requirement of obtaining the consent of the Customer.

8.5 The Customer hereby authorises the Service Provider to use its brand name and trademark for the purpose of its marketing activities.

9.  Indemnification

9.1  Customer (and its Affiliates) (the “Indemnifying Party”) will defend and indemnify the Service Provider and its officers, directors, employees, and agents (each, an “Indemnified Party”) from any and all demands, liabilities, claims (including third-party claims), interests, damages, losses, costs and including reasonable attorneys’ fees, arising out of or related to:

(i)  the Indemnifying Party’s breach or alleged breach of the Agreement or

(ii)  Infringement of a third party’s patent, trademark, trade secret or copyright by the Customer, in connection with the creative, technology, data or other materials provided by the Customer to Service Provider or otherwise provided and utilized by the Customer in connection with the  hereunder 

(iii)  Customer Data, Target Properties or Customer’s Brand Features

(iv) any use of Service(s) by a Customer Partner, or

(v) any direct claims brought by a Customer Partner against Service Provider relating to Service Provider’s provision of the Service(s) for such Customer Partner.

9.2  Service Provider or its Affiliates shall have no obligation towards any claims to the extent arising from (i) Customer’s use of the Service in violation of the Agreement or the Terms; or (ii) the combination, operation, or use of the Service(s) with any product or service not provided or authorized in writing by Service Provider. Without affecting either party’s termination rights and to the maximum extent permitted by law, Clause 10 of this Agreement states the sole liability of the Service Provider, and the sole remedy of the Customer, with respect to any claim arising out of the Indemnifying Party’s breach of the Agreement or intellectual property infringement.

9.3  The Indemnified Party must (i) promptly notify the Indemnifying Party in writing of any indemnity claims under this clause 9 (except that failure of the Indemnified Party to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter and (iii) give the Indemnifying Party primary control of the defense of the matter (if so required by the Indemnified Party) and negotiations for its settlement, at the cost of the Indemnifying Party. Any settlement requiring the Indemnified Party to admit liability, pay money, or take (or refrain from taking) any action, will require the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

10. Limitation of Liability

Neither party will be liable under this agreement for lost revenues, losses, or expenses related to such lost revenues, or any indirect, special, incidental, consequential, exemplary, or punitive damages, even if the party knew or should have known that such damages were possible and even if direct damages do not satisfy a remedy.

Notwithstanding anything contained herein, the aggregate cumulative liability of Service Provider under this Agreement shall in no case exceed the amount of fees paid by Customer to Service Provider in the immediately preceding one month before the claim arises. in case of breach of Service Level Agreement by Google pursuant to this Agreement, Service Provider shall be liable to reimburse only that quantum of fees to Customer which is paid by Google to Service Provider for Service Level Agreement breach by Google.

Disclaimer of Warranties

Service Provider hereby disclaims and excludes any warranty of any kind, whether implied, statutory, or otherwise, all warranties of merchantability, fitness for a particular use, and non-infringement.

11.  Settlement of Dispute & Governing Law

11.1  Dispute Resolution and Jurisdiction

Any dispute, controversy or claim arising out of or in connection with this Agreement shall be resolved through arbitration in accordance with the Arbitration and Conciliation Act, 1996 through a sole arbitrator to be appointed by the mutual consent of the Parties and if the Parties fail to reach consensus on the appointment of such sole arbitrator then the same shall be appointed by a reference made to the Court by either of the Parties as provided in the Arbitration and Conciliation Act, 1996. The seat and venue of Arbitration shall be Ahmedabad. The arbitration proceedings shall be conducted in English and a record of the proceedings shall be maintained in English.

Subject to the foregoing clause, the courts in Ahmedabad, Gujarat shall have exclusive jurisdiction.

11.2  Governing Law

This Agreement shall be governed and construed in accordance with the laws of India.

12.  Miscellaneous

12.1  Representations of the Customer:

(i)   The Customer represents and warrants that the Services and the support services are intended for its own use under this Agreement. The Customer shall not resell, distribute, lease or allow any third party to use/resell the Services or the support services.

(ii)   It has all necessary rights, and has obtained all necessary consents where needed, to allow Google and the Service Provider to access the Properties and all information and needed by it in order to render the Services and the support services under this Agreement.

(iii)  each of Customer’s Properties utilizing the Analytics Service(s) shall at all times comply with the Google Analytics Policies

(iv)  The Customer represents that the principal place of its business (being the place where the majority of the business of the Customer is carried out) is located within India.

(v)  It is not, or isn’t an Affiliate of, a customer of the Google Marketing Platform Advertising Services; or wasn’t or wasn’t an Affiliate of a customer of the Google Marketing Platform Advertising Services less than 6 months prior to the Effective Date of this Agreement

(vi)  It shall at all times comply with the Terms.

12.2  Notices

All notices, requests, demands or other communications which are required or may be given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been duly given: (a) when verified by written receipt if delivered by hand (b) when shown as received in the records of the courier agency if sent by courier, or (c) when out of the control of the sender, if sent by email, unless the sender receives a delivery failure notification. The addresses, e-mail addresses and phone numbers of the Parties for the purpose of sending any notices, requests, demands or other communications pursuant to this Agreement is as under (which may be modified by the concerned Party by sending a prior written notice of 10 (ten) days’ to the other Party) shall be the same as mentioned in the Order Confirmation Form.

12.3  Assignment

Neither Party may assign or transfer any part of this Agreement without the written consent of the other Party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign shall be void. Notwithstanding anything contained herein, Service Provider shall at all times have the right to assign this Agreement to Google India without Customer’s consent.

12.4  Change of Control

Upon a change of control of the Customer (for example, through a stock purchase or sale, merger, or other form of corporate transaction) the Customer shall provide written notice to the other Party within 30 (thirty) days after the change of control. Google India and/or Service Provider may, at their sole discretion, immediately terminate this Agreement after it receives the written notice regarding the change of control of the Customer.

12.5  Transition

If Service Provider  is unable to provide the Service at any time during the Term hereof for any reason whatsoever, including, without  limitation, an occurrence of bankruptcy or a discontinuation  of Service Provider’s business and if Google India elects not to assume the terms of such Agreement, then Customer will enter into Google India ‘s standard agreement(s) with respect to the Service for a period of no less than the balance of the Term of such Agreement, the pricing terms for which will be negotiated in good faith at the time of such transition. Customer shall assume the same privacy and other obligations which the Service Provider assumes under the reseller agreement between Google India and Service Provider.

12.6  Force Majeure

Google or the Service Provider will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, pandemic and Internet disturbance) that was beyond their reasonable control.

12.7  No Waiver

All rights and remedies, whether conferred hereunder, or by any other instrument or law, unless otherwise expressly stated, shall be cumulative and may be exercised singularly or concurrently.  The failure of either Party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such Party thereafter to enforce such provisions.

12.8  Severability

If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.

12.9  No Agency

The Parties are independent contractors, and the Agreement does not create an agency, partnership or joint venture.

12.10  Further Assurances

Each Party shall do anything necessary (including executing agreements and documents) to give full effect to this Agreement.

12.11  Compliance with Laws

Each Party shall be individually responsible for ensuring compliance by them with all relevant laws or legal obligations relating to the subject matter of this Agreement and those required for performance of their obligations under this Agreement. 

12.12  Non-Solicitation

The Customer shall not during the Term of the Agreement (including renewal term if any) and for a period of at least 02 (two) years from the expiry/ termination of this Agreement because of any reason, directly or indirectly (a) solicit for employment or employ or hire on consultancy basis or as a freelancer or otherwise any person who is employed by the Service Provider (or such Service Provider’s Affiliates, agents, representatives or subsidiaries, clients, customers, suppliers) at the time of such expiry or termination and/or who was employed by the Service Provider (or Service Provider’s Affiliates, agents, representatives, subsidiaries, clients, customers, suppliers) any time during the 01 (one) year period preceding the termination/expiry of the Agreement (“Restricted Person”) (b) divert or attempt to divert any business from the Service Provider or the Restricted Person by any means or influence or attempt to influence any Restricted Person from terminating its services with the Company.

12.13 No third-Party Beneficiaries

There are no third-party beneficiaries to this Agreement.

12.14  Modification of Agreement

This Agreement may be supplemented, amended, or modified only by the mutual agreement of the Parties. No supplement, amendment, or modification of this Agreement or any other terms or conditions shall be binding unless it is in writing and signed by both the Parties unless expressly mentioned in this agreement.

12.15  Survival

The following Clauses shall survive the termination of Agreement Clause 3 (Payment Terms), Clause 8.3 (Publicity), Clause 8 (Intellectual Property Rights), Clause 9 (Indemnification), Clause 10 (Limitation of liability), clause 11 (Settlement of Dispute and Governing Law), Clause 12 (miscellaneous).

12.16  Entire Agreement

This Agreement, and all documents referenced in this Agreement, are the Parties’ entire agreement relating to its subject and supersede any prior or contemporaneous agreements whether verbal or written on that subject including Purchase Order.

12.17 Interpretation of Conflicting Terms

If there is a conflict between the documents that make up the Agreement, the documents will construe in the following order: this Agreement, and the Terms.

12.18  Validity  

This Agreement and any amendment may be signed by PDF, or other electronic means which shall be legally  binding and be treated, for purposes of validity, enforceability and admissibility, the same as handwritten signatures.

APPENDIX A

SERVICE BY SERVICE PROVIDER AND PRICING TERMS FOR GOOGLE ANALYTICS 4 SERVICE

A. EFFECTIVE DATE: As mentioned in the Order Form

B. TERM: Twelve (12) months from the Effective Date

C. PRICING TERM: As mentioned in the Order Form

D. SUPPORT SERVICE

Service Provider will also provide support service with respect to the product features as described in  https://marketingplatform.google.com/about/reseller/MSO/. 

E. PROPERTIES:

The Properties owned by Customer or Customer’s Affiliates and enabled by Google to process Events by the Service Provider.

F. ADDITIONAL TERMS:

Customer acknowledges that this Agreement is for the purchase of the Analytics Service and the Fees under the Analytics Service, and any Service Level Agreement under this Agreement do not include Universal Analytics (“UA”) Properties. To the extent Customer maintains UA Properties in connection with this Agreement (and not through any other agreement), Customer acknowledges that Google reserves the right to downgrade such UA Properties 90 days after the Effective Date of this Agreement, for Customer and their corresponding UA Properties (as applicable), but, in each case, no earlier than March 31, 2023 or any other date as may be specified by Google or its Affiliates.