END USER LICENSE AGREEMENT

 

Effective as of September 23, 2013

 

PLEASE READ CAREFULLY THE FOLLOWING END USER LICENSE AGREEMENT (THE “LICENSE”). YOUR USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS LICENSE. PLEASE NOTE THAT THE SOFTWARE IS BEING LICENSED, NOT SOLD TO YOU.

 

BY INSTALLING, USING OR ACCESSING THE SOFTWARE (AS SPECIFIED BELOW) OR ANY MATERIALS INCLUDED IN IT, YOU HEREBY ACCEPT THE TERMS OF THIS LICENSE. IF YOU USE OR INSTALL THE SOFTWARE (INCLUDING ANY RELATED WEBSITE, SUBSITE, SERVICE OR FEATURE THERETO), IT SHALL CONSTITUTE AS YOUR AGREEMENT TO THESE TERMS, CONDITIONS, COVENANTS, POLICIES AND NOTICES (THE “TERMS”).

 

IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS LICENSE, YOU ARE NOT PERMITTED TO USE THE SOFTWARE. PLEASE NOTE THAT IF THE TERMS OF THIS LICENSE ARE NOT ACCEPTABLE TO YOU, WE REQUEST YOU NOT TO USE OR INSTALL THE SOFTWARE.

 

PLEASE NOTE THAT THESE ARE INDICATIVE SUGGESTIONS ONLY. PLEASE VERIFY THE VALIDITY OF ANY OFFER WITH THE STORE STAFF BEFORE PLACING YOUR OFFER ON THE APPLICABLE GOODS AND SERVICES. PLEASE ENSURE THAT YOU INFORM THE BILLING STAFF ABOUT YOUR INTENT TO AVAIL THE OFFER BEFORE THE BILLING PROCESS IS INITIATED.

 

This document is an electronic record in terms of the Indian Information Technology Act, 2000 (“Act”) and rules there under (as applicable) and the amended provisions pertaining to electronic records in various statutes as amended by the Act.

 

This electronic record is generated by a computer system and does not require any physical or digital signatures.

 

This License is an agreement between Orangut Labs Private Limited, a private limited company incorporated under the Indian Companies Act, 1956 and having its registered office at Flat number 62 D, Pocket BW, Shalimar Bagh, New Delhi - 110088, India (hereinafter referred to as “Cardback”, which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors and permitted assignees) and you. For the purpose of this License, wherever the context so requires you”, “your or User shall mean any natural or legal person who has agreed to be bound by the terms of this License.

 

This License governs your use of this software product and all related documentation, and updates and upgrades that replace or supplement the software in any respect and which are not distributed with a separate license (collectively, the “Software”).

 

TERMS OF LICENSE

 

1.         Grant: Through this Software, Cardback grants you a personal, limited, non-exclusive license to install and use the Software solely for your non-commercial use, as set forth in this License and any commercial use of the Software and License is prohibited. Your acquired rights are subject to your compliance with this License. You are expressly prohibited from sub licensing, renting, leasing or otherwise distributing the Software or rights to use the Software. The term of your License shall:

 

(a)        commence on the date that you install or otherwise use the Software;

 

(b)        end on the earlier of the date that you dispose of or transfer the Software; or

 

(c)        end on Cardback's termination of this License; or

 

(d)        be terminated immediately if you attempt to circumvent the technical protection measures for the Software or breach the terms of this License.

 

2.         Access to Software, Online Features and/or Services: In order to access the License and the Software thereafter, you are required to create a user account with Cardback. On acceptance of the License, the Software and its related online services including, but not limited to, Software updates and patches (if any) shall be available to you. This License is for the Software granted to you by Cardback and is a limited, non-transferable license to use the Software on any compatible device (computers, mobile phones, tablets etc.) that you own, control or use at any given point of time.

 

3.         Restrictions: Your right to use the Software is limited to the license granted under this License, and you cannot otherwise copy, display, seek to disable, distribute, perform, publish, modify, create works from, or use the Software or any component of it, unless expressly authorized by Cardback. You are prohibited from making the Software available over a network where it could be downloaded by multiple users. You cannot remove or alter Cardback’s trademarks or logos, or legal notices included in the Software.

 

4.         Reservation of Rights: You have obtained a license to the Software and your rights are subject to this License. Except as expressly licensed to you herein, Cardback reserves all right, title and interest in the Software, and all associated copyrights, trademarks, and other intellectual property rights therein. You cannot decompile, disassemble, or reverse engineer the Software, or any component thereof, by any means whatsoever. You cannot remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the Software. All rights not expressly granted herein are reserved by Cardback.

 

5.         Your Contributions: In exchange for use of the Software, and to the extent that your Contributions through use of the Software give rise to any copyright interest, you hereby grant Cardback an exclusive, perpetual, irrevocable, fully transferable and sub licensable worldwide right and license to use your Contributions in any way and for any purpose in connection with the Software and related goods and services. This shall include the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means, whether now known or unknown, and distribute your Contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive any rights of publication, reputation, or attribution with respect to Cardback’s use and enjoyment of such contribution in connection with the Software and related goods and services under applicable law. The provisions of this clause shall survive termination of this Licence. “Contributions” here would mean and include the data shared with us, your personal information, user generated data and content, feedback, your location or any other details obtained by Cardback during your use of the Software pursuant to this License.

 

6.         Consent to Use of Data:

           

(a)        You agree that Cardback may collect and use technical data and related information, including, but not limited to, technical information about your device, system and application software, and peripherals, that is gathered periodically in order to facilitate the provision of software updates, product support and other services to you (if any) related to the Software. Cardback may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.

 

(b)        To facilitate and support the provision of software updates, any dynamically served content, product support and other services to you, including marketing and advertising, you agree that Cardback and its affiliates may collect, use, store and transmit technical and related information that identifies your device (including an internet protocol address and hardware identification), operating system and application software and peripheral hardware. Cardback and its affiliates may also use this information in the aggregate, in a form which does not personally identify you, to improve our products and services and may share anonymous data with our third party service providers.

 

(c)        If you agree to use the Software as per the License, Cardback and its affiliates may collect, use, store, transmit and publicly display statistical data regarding your activities on the Software, or identify content that is created and shared by you with other users of the Software.

 

(d)        Cardback shall have access to the following features in the mobile phone app context: Precise location (GPS and network-based), Full network access, View network connections, Receive data from Internet, Read phone status and identity, Modify or delete the contents of your USB storage, Find accounts on the device, Test access to protected storage, Control vibration, Prevent device from sleeping.

 

(e)        Cardback shall have a right to use the information and data collected from the User, including, but not limited to, the personal information, card details and transaction pattern of a User for any purpose whatsoever.

 

7.         Termination: This License is effective until terminated. In the event you fail to comply with any of the terms and conditions of this License, your rights under this License shall terminate immediately and automatically without any notice from Cardback. Simultaneously with termination of this License, your user account with Cardback shall be deleted and you shall cease all use of the Software and destroy/remove all copies of the Software in your possession or control. Termination shall not limit any of Cardback’s other rights or remedies at law. Clauses 3, 4, 5 and 6 of this License shall survive termination or expiration of this License for any reason.

 

8.         Representation and Warranties: To the fullest extent permissible under applicable law, the Software is provided to you on “as is” basis, with all latent faults, without warranty of any kind, without performance assurances or guarantees of any kind, and your use of the Software is at your sole risk. The entire risk of satisfactory quality and performance resides with you. Cardback does not make, and hereby disclaim, any and all express, implied or statutory warranties, including implied warranties of condition, uninterrupted use, satisfactory quality, fitness for a particular purpose, non-infringement of third party rights, and warranties arising from a course of dealing, usage, or trade practice. Cardback does not warrant against:

 

(a)        interference with your enjoyment of the Software;

 

(b)        that the Software shall meet your requirements;

 

(c)        that operation of the Software shall be uninterrupted or error free; or

 

(d)        that the Software shall be compatible with any other software or that any errors in the Software shall be corrected. No oral or written advice provided by Cardback or any authorized representative shall create a warranty.

 

9.         Limitation of Liability:

 

(a)        To the fullest extent permissible by applicable law, in no event shall Cardback, its subsidiaries or its affiliates be liable to you for any personal injury, property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, work stoppage, computer/device failure or malfunction or any other form of direct or indirect, special, incidental, consequential or punitive damages from any causes of action arising out of or related to this License or the Software, however arising, whether or not Cardback has been advised of the possibility of such damage.

 

(b)        You agree that the provisions in this License that limit liability are essential terms of this License.

 

(c)        The Software may enable access to Cardback’s and any other third party services and web sites (collectively and individually, "Services"). You accept and understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that Cardback shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable. By using the Services, you acknowledge and agree that Cardback is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Services. Cardback does not warrant or endorse and does not assume and shall not have any liability or responsibility to you or any other person for any Services, or for any other materials, products, or services of third parties. Services are provided solely as a convenience to you.

 

(d)        You accept and understand that the Services are indicative suggestions only. Please verify the validity of any Service with the actual service provider before believing and taking action on it.

 

(e)        Cardback shall not be liable for any information being inaccurate or misleading, or if an offer is no longer available or the services are no longer rendered by a service provider. The User should verify the validity of any offer with the store staff before placing offer on the applicable goods and services. Please ensure that you inform the billing staff about your intent to avail the offer before the billing process is initiated.

 

10.        Indemnity: You shall indemnify and hold harmless Cardback, its officers, directors, promoters, shareholders, employees, licensee, affiliates, subsidiaries, group companies (as applicable) and their respective officers, directors, agents, and employees, from any claim or demand, or actions including reasonable attorneys' fees, made by any third party or penalty imposed due to or arising out of your breach of the License, or your violation of any law, rules or regulations or the rights (including infringement of intellectual property rights) of a third party.

 

11.        Intellectual Property:

 

(a)        Intellectual Property” includes:

 

(i)         all patents, trademarks, business processes, domain names, works of authorship, designs, utility models, copyrights whether registered or unregistered, which are owned by Cardback or acquired or developed by Cardback in the course of its business, including, but not limited to moral rights and any similar rights in any country, whether negotiable or not and also includes any applications for any of the foregoing and the right to apply for them in any part of the world; and

 

(ii)         all processes, inventions, ideas, programs, codes, software, algorithms, discoveries, correspondence, trade secrets, databases, know-how, creations or improvements upon, additions or any research effort relating to any of the above, whether registrable or not.

 

(b)        The Intellectual Property, including the Software, is controlled and operated by Cardback. The Intellectual Property is for your personal, non-commercial use only. You must not copy, reproduce, republish, upload, post, transmit or distribute the Intellectual Property in any way, including by email or other electronic means and whether directly or indirectly and you must not assist any other person to do so. Without the prior written consent of Cardback, modification of the Intellectual Property, use of the Intellectual Property on any other website or networked computer environment or use of the Intellectual Property for any purpose other than personal use is a violation of the copyrights, trademarks and other proprietary rights of Cardback, which are secured by the laws of India, and is prohibited.

 

            (c)        Intellectual Property belonging to a Third Party: The Software may contain brand names, product names, or trademarks belonging to third parties. All such third party content and all intellectual property rights related to such content belong to the respective third parties. All third party trademarks and/or logos used on the Software are the trademarks, service marks, or logos of their respective owners. Nothing in this License shall confer any right of ownership of any of such third party content and/or trademarks to the User.

 

(d)        Unless explicitly stated herein, nothing in this License shall be construed as conferring to you any license to any Cardback or third party intellectual property rights, whether by estoppel, implication, or otherwise. Unless explicitly stated herein, no permission is granted to you to copy, remove, publicly display, modify, or otherwise use any Cardback trademarks, third party trademarks, or other content on the Software.

 

12.        Governing Law and Jurisdiction: If any dispute arises between Cardback and a User during the subsistence or thereafter, in connection with the validity, interpretation, implementation or alleged breach of any provision of the License or regarding any question, including the question as to whether the compliance / termination of the License by Cardback and/or the User has been legitimate, the courts at New Delhi, India shall have exclusive jurisdiction.

 

13.        Grievance officer: In accordance with the Act and rules made thereunder, the name and contact details of a grievance officer are provided as below:

 

Mr Nikhil Wason,

Orangut Labs Private Limited

Flat number 62 D, Pocket BW,

Shalimar Bagh,

New Delhi 110 088, India

.

Email: swipe@cardback.in

Available during following working days and hours: Mon to Fri, 10 am to 7 pm

 

14.        General Terms:

 

(a)        Severability: If any provision of this License is found by a court of competent jurisdiction to be illegal, void, or unenforceable, the unenforceable provision shall be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; if a court finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this License shall not be affected in any way.

 

(b)        Notices and Service of Process: We may notify you via postings on cardback.in. You may contact us via mail or courier at: Orangut Labs Private Limited, Flat number 62 D, Pocket BW, Shalimar Bagh, New Delhi - 110088, India. Additionally, Cardback accepts service of process at this address. Any notices that you provide without compliance with this section shall have no legal effect.

 

(c)        Entire Agreement: You agree that this License constitutes the entire, complete and exclusive agreement between you and Cardback regarding the Software and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this License. You also may be subject to additional terms and conditions that may apply when you use certain other Cardback services, third-party content or third party software.

 

(d)        Amendments to this License: We reserve the right to modify, supplement, or replace the terms of this License, effective prospectively upon expiry of 15 (fifteen) days from posting at cardback.in or notifying you otherwise. For example, we may present a banner on the Software when we have amended this License or the privacy policy so that you may access and review the changes prior to your continued use of the Software. If you do not want to agree to changes to this License, you can terminate this License at any time per Section 7 (Termination).

 

(e)        No informal waivers, agreements or representations: Our failure to act with respect to a breach of this License by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the License, no representations, statements, consents, waivers or other acts or omissions by any Cardback affiliate shall be deemed legally binding on any Cardback affiliate, unless documented in a physical writing hand signed by a duly appointed officer of Cardback.

 

(f)         No Injunctive Relief: In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Software, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Software or any content or other material used or displayed through the Software.

 

(g)        Assignment and Delegation: You may not assign or delegate any rights or obligations under the License. Any purported assignment and delegation shall be ineffective. Cardback may freely assign or delegate all rights and obligations under the License, fully or partially without notice to you.