A. Onikowe is a service provider providing Platform (defined herein below) for displaying/hosting Creative Content (defined hereinbelow), facilitating content buyers to purchase Creative Content on the basis of real time price bidding system.
B. The Creative Content will be hosted by Content Providers on the Platform, depending upon the needs and demands of the various content purchasers. The content purchaser shall purchase the Creative Content from the Platform on the basis of the real time bidding between the Content Providers and the content purchasers.
C. The content purchaser wishes to obtain from Onikowe, and Onikowe wishes to provide to content purchaser, such software technology and Creative Content platform services, as hereinafter described.
In this Agreement including the recitals, the following words shall have the following meanings:
o “Agreement”: shall have the meaning ascribed to it in the preamble.
o “Creative Content”: shall mean and include the content including write ups as required by content purchasers through the Platform.
o “Content Providers”: shall mean the individuals or companies who are engaged in the profession of content writing, who shall write Creative Content for and on behalf of various customers/companies who shall approach the Content Providers through the Platform.
o “Intellectual Property Rights”: shall mean and include any rights, copyrights, design rights, patents, designs, registered designs, trademarks, service marks (or an application for any of these), trade secrets, knowhow, data base rights, moral rights, trade or business names and any other rights of a similar nature and any licenses under or in respect of such rights.
o “Platform”: shall mean the platform which is an internet based software which caters to the need of content requirement of various content purchasers. The platform shall connect the content providers and the content purchasers on a common footing where the sale and purchase of Creative Content will take place under a real time bidding process.
o Services: shall mean Services as per Section [2.1].
o Onikowe hereby provides non-exclusive, limited, non-assignable, revocable access to the Platform to the content purchaser which enables the content purchaser to purchase Creative Content from Content Providers. The sole obligation of the Platform is to connect the Content Providers and the content purchasers for facilitating sale and purchase of Creative Content through the Platform on the basis of real time bidding procedure time (hereinafter referred to as “Services”). Onikowe may charge the content purchaser for its services in future which will be duly communicated to the content purchaser.
o Onikowe shall charge commission @ 10% on the withdrawal amounts of the Content Provider plus service tax and swachh bharat cess as applicable.
o Subject to Section 10 ("Confidentiality") and upon receipt of the content purchaser’s express consent, Onikowe shall have the right to use third parties ("Third Parties") in performance of its obligations and the Services hereunder.
o Violation of Onikowe's Terms of Service may get your account disabled permanently.
o Users who have violated our Terms of Service and had their account disabled may contact our Customer Support team for more information surrounding the violation and status of the account.
o Onikowe reserves the right to put any account on hold or permanently disable accounts due to breach of these terms or any illegal or inappropriate use of the site or services. Users with accounts on hold will not be able to sell or buy on Onikowe.
o Onikowe may modify its Terms of Service from time to time.
o You understand and agree that if you use Onikowe after the date on which the Terms of Service have changed, Onikowe will treat your use as acceptance of the updated Terms of Service.
o The content purchaser will be required to make an advance payment to Onikowe through the online payment gateway provided on the Platform by Onikowe. Once payment is confirmed, the content purchaser will be able to assign his order to the chosen Content Provider. The content purchaser will be able to purchase the Creative Content to the maximum value of such advance payment made by it. Once such advance payment has been exhausted, the content purchaser will be required to replenish the advance payment as and when necessary to make new purchases of Creative Content from the Platform. The advance payment will be used to purchase the Creative Content from the Content Providers.
o As a buyer, the content purchaser’s identity is kept anonymous at all times. To protect its privacy, avoid requesting or providing Email addresses, Skype/IM usernames, telephone numbers or any other personal contact information to communicate outside of Onikowe.
o The content purchaser shall not pay, or make payment using any method other than through the Onikowe to pay the Content Provider.
o Content purchaser may not pay other users directly using any method other than ordering through the Onikowe order page.
o Once the Creative Content is sent to the content purchaser, it may either accept, return or decline the Creative Content. If the Creative Content is returned for rework, the Content Provider shall make necessary changes to the same and send it again to the content purchaser. In the event the content purchaser chooses the “decline” option, that would signify that the Creative Content is absolutely below expectation and the content purchaser is not desirous of making any payment to the Content Provider.
o Once the content purchaser has chosen the “decline”, the Content Provider if aggrieved by such decision will refer a dispute to the Onikowe Arbitrator, who shall decide the dispute on the basis of the facts and merits of the case and the Arbitrator’s decision would be final and binding between the Parties.
o Once the Content Provider has completed the order, it will be posted to the content purchaser’s account for review.
o The content purchaser can accept the order or request a revision to the same.
o The content purchaser can reject the order only after at least one revision request.
o After the content purchaser accepts the order, funds equaling the cost of that order will be debited from the content purchaser‘s account.
o If the content purchaser does not accept, request a revision, or reject the order from 120 hours (5 days) after delivery, the order will be automatically accepted and the appropriate funds will be debited from the content purchaser’s account.
o Content purchaser is responsible for scanning all transferred files for viruses and malware. Onikowe will not be held responsible for any damages which might occur due to site usage, use of content or files transferred.
o Content Provider must deliver completed files and/or proof of work using the “Send completed order” button (located on the Order page).
o Responding and posting a review: Once Creative Content is delivered, the content purchaser and Content Provider have thirty days to post a review about experience working with each other.
o Content purchaser may use the "Reassign" option located on the Order page while an order is marked as “Content Delivered” if the delivered materials do not match the Content Provider’s order description or instructions sent to the Content Provider at the start of the order.
o Feedback reviews provided by buyers while completing an order are an essential part of Onikowe's rating system. Reviews demonstrate the content purchaser overall experience with their Content Provider. Content purchasers are encouraged to communicate to the Content Provider any concerns experienced during their active order in regards to the Services provided by the Content Provider. Our Customer Support team can help review any cases of misconduct experienced in a Onikowe order.
o Leaving a content purchaser’s feedback is a basic prerogative of a content purchaser. Feedback reviews will not be removed unless there are clear violations to our Terms of Service.
o To prevent any misuse of our Feedback system, all feedback reviews given to a Content Provider must come from legitimate sales executed exclusively through the Onikowe platform from users within our community. Any purchases arranged from services outside of Onikowe to enhance your ratings or to abuse the Platform using fraudulent purchases will result in a permanent suspension of the Content Provider’s account.
o Content Providers are required to meet the delivery time agreed with content purchaser. Failing to do so will allow the content purchaser to cancel the order and may affect the Content Provider’s overall rating and review.
o Both Content Provider and content purchaser have the option to cancel an order. Such cancellations have negative effect on rating on the side that initiated cancellation.
o Unanswered mutual cancellation requests will automatically be accepted after 48 hours.
o A Content Provider may cancel an order without the content purchaser’s consent at any given moment (Force Cancellation). However, this will have a negative effect on the Content Provider’s rating and levels eligibility.
As of the Effective Date and at all times thereafter, the content purchaser represents and warrants that:
o not to use the Creative Content for any illegal purposes or in any way offensive in manner, including to violating the applicable laws of the land;
o will not order for creative content which may be obscene, indecent, pornographic, vulgar, profane, racist, sexist, discriminatory, offensive, derogatory, harmful, harassing, threatening, embarrassing, malicious, abusive, hateful, menacing, defamatory, untrue or political and which facilitate betting and gambling;
o provide the Content Provider with all necessary, accurate information with regard to its requisition for the preparation of the Creative Content by the Content Provider;
o not hold Onikowe responsible in any manner whether directly or indirectly for any Intellectual Property infringement of the Creative Content;
o it is a duly organized and validly existing under the laws of India and has all legal power and authority to execute this Agreement and carry out the terms, conditions and provisions hereof;
o the execution, delivery and performance of this Agreement has been duly authorized by all requisite corporate and other actions and will not violate or contravene any material provisions or requirements of any government instrumentality or any rule, regulation, statute or ordinance or other applicable laws or approvals, or violate or contravene any provisions of its charter or bye-laws or any indenture, agreement, document or instrument to which it is a party or by which it or its property may be bound or affected;
o no representations or warranty by content purchaser contained herein or in any other agreement by content purchaser to Onikowe contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances in which it was made; and
As of the Effective Date and at all times thereafter, Onikowe represents and warrants that:
o there are no claims, disputes, actions, suits or proceedings, including, without limitation, suits for any Intellectual Property infringement, pending or, to the knowledge of Onikowe, threatened against or affecting the rendering of the Services under this Agreement;
o the Services rendered by Onikowe shall not violate the intellectual property rights of any third party;
o if the Services include any third party software, it shall be solely responsible for obtaining licenses to such third party software if such software is not already in such parties' possession, including the right to use the same for implementing it in the Services; and
o it will provide the Service in a workman like manner and shall extend its best efforts to ensure that the Services meet the content purchaser’s expectation and specifications.
As of the Effective Date and at all times thereafter, Content Provider represents and warrants that:
o it shall provide the Services in a workmanlike manner and shall adhere the requirements of the content purchaser and endeavor to adhere to the timelines decided with the content purchaser;
o it shall ensure that no third party Intellectual Property right is infringed with regard to the Creative Content and does not and will not constitute a defamation or invasion of the rights of privacy or publicity of any third party;
o the license granted to the content purchaser herein shall be exclusive. The Content Provider warrants and represents that (i) the Creative Content has not previously been used displayed performed, published, transmitted, distributed, advertised, demonstrated, promoted or otherwise exploited, directly or indirectly by or to the public and (ii) during the agreement and thereafter, the Creative Content will not be used, displayed, performed, published, transmitted, distributed, advertised, demonstrated, promoted or otherwise exploited in any manner directly or indirectly, by or to the public.
o it agrees and understand that breach of this Section by the Content Provider shall entitle the content purchaser to injunctive relief for breach thereof along with appropriate damages.
o it is the author or creator or legitimate licensee of all Creative Content provided pursuant to this Agreement with the necessary rights to distribute the Creative Content which includes authorizing the content purchaser to provide, promote and display the Creative Content on its websites to be distributed to the users;
o the Creative Content does not violate the laws, statutes and/or regulations of any jurisdiction including India;
o the Creative Content furnished by Content Provider to the content purchaser for the purpose of this Agreement are true, consistent and accurate at all times;
o it is an entity duly organized and validly existing under the laws of India and has the power and capacity to execute, deliver and perform the terms of this Agreement and has taken or shall take all necessary corporate and other action to authorize the execution, delivery and performance of this Agreement.
o This Agreement shall remain in effect for such time till the same is terminated by the Parties as per the provisions of this Agreement.
o In addition to the rights to terminate provided in Section 8.1 above, Onikowe and the content purchaser may in its sole discretion terminate this Agreement for convenience for any reason or no reason at all with thirty (30) days prior written notice.
o Following service of a termination notice under this Agreement but prior to the effective date of such termination, each Party shall continue to abide by the terms and conditions of this Agreement in effect at such time and comply fully with its obligations hereunder and it shall not in any way hinder or interrupt the performance of this Agreement between the date of service of a termination notice and the date of actual termination.
o Each Party will retain all Intellectual Property Rights in and to its respective sites and other proprietary materials such as Confidential Information.
o Subject to Section 9.1 above, the content purchaser shall permit Onikowe to use the content purchaser’s name and logo in presentations, marketing materials, customer lists, financial reports, web site listings of the content purchaser.
o The trademarks, service marks, designs and logos (collectively, the "Trademarks") used and displayed on this website are registered and unregistered Trademarks of Onikowe Pvt. Ltd.. Other trademarks, service marks and trade names may be owned by others. Nothing on this website should be construed as granting, by implication or otherwise, any license or right to use any Trademark or any other Site intellectual property including the name crowd content displayed on this website without prior written permission from Site.
o The Parties agree that: (a) Onikowe retain and own all proprietary rights in and to Onikowe's Platform and any Services provided hereunder (including all software, source code, modifications, updates and enhancements thereof or any other aspect of the Services, Platform). Onikowe’s marketing materials, as well as all of its entities' websites.
o Content purchaser shall be the sole and rightful owner of the Creative Content and all intellectual property including the moral rights in the Creative Content shall vest with the content purchaser. For the duration of the Agreement, Onikowe shall have access to and rights to use the context and behavior data as stored in cookies created by the Platform, or Services.
o No implied licenses are granted herein, and content purchaser may not use any Service nor the Platform except pursuant to the limited rights granted in this Agreement.
o Content purchaser shall not reverse engineer any Service nor the Platform, or disassemble, decompile, or otherwise apply any procedure or process to same in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code for same or other software provided or made available for use and/or access under this Agreement, or any algorithm, process, procedure or trade secret information contained in same or any software provided by Onikowe.
o Content purchaser shall not redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights or provide access to any third party to any part of the Services, Platform or other software provided or made available for use and/or access under this Agreement. content purchaser shall not copy or otherwise reproduce the software provided by Onikowe hereunder or remove, alter or destroy any proprietary markings contained in or on such software.
o “Confidential Information” means any information, technical data, trade secrets or know-how, including but not limited to passwords, username / user id, research, business plans, services, proposals, names of the employees, customer / clients lists of the content purchaser, prospective customers, personnel data, markets, software, developments, inventions processes, formulas, technology, marketing, distribution and sales methods, sales and profit figures, finances, techniques, strategies, discoveries and any other business information disclosed by either party (“Disclosing Party”) to the other (“Receiving Party”) during the performance of this Agreement, or otherwise, that should reasonably have been understood by the recipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to the Disclosing Party or to a third party. Confidential Information may be disclosed in written or other tangible form or by oral, visual or other means shall be reduced to writing within seven (07) days of such disclosure.
o No such information, including the provisions of this Agreement, shall be disclosed by the recipient without the prior written consent of the Disclosing Party, except as required by law. If Receiving Party is required to disclose any confidential information of the Disclosing Party, the Receiving Party shall notify the Disclosing Party immediately and shall co-operate in seeking a reasonable protective order.
o Confidential Information does not include any information that (i) was publicly known at the time of Disclosing Party’s communication thereof to Receiving Party; (ii) becomes publicly known through no fault of Receiving Party or its representatives subsequent to the time of Disclosing Party’s communication thereof to Receiving Party; (iii) was in Receiving Party’s possession free of any obligation of confidence at the time of Disclosing Party’s communication thereof to Receiving Party; (iv) is developed by Receiving Party independently of and without reference to any of Disclosing Party’s Confidential Information or other information that Disclosing Party disclosed in confidence to any third party; (v) is rightfully obtained by Receiving Party from third parties authorized to make such disclosure without restriction; or (vi) is publicly disclosed by Disclosing Party or identified by Disclosing Party as no longer proprietary or confidential.
o The provisions of this Section 10 shall survive any expiry or termination of this Agreement. Such obligation shall continue for a period of one (1) year after the expiry/ termination of this Agreement.
o To the fullest extent permitted by law, Onikowe disclaims all warranties, express or implied, including without limitation for non-infringement, satisfactory quality, merchantability and fitness for any purpose.
o In particular, but without limitation, the Onikowe shall not be liable for any loss arising from: (a) any error on the Platform; (b) any error, fault, computer virus or other computer or data-corrupting or data-damaging material transmitted through the Platform; (d) all third party services outside Onikowe’s reasonable control; (e) use of or reliance on other websites to which the content purchaser has gained access by means of hyperlinks published on the advertisement in the Platform; or (f) any inaccurate information, material or opinions published on the payment gateway; or those published in the advertisement on the Platform.
o Onikowe does not guarantee to the content purchaser the service of the Content Provider or the quality of its work as Onikowe only acts as a platform to bring together the content providers and content purchasers.
o Without prejudice to any other provisions of this Agreement, Onikowe shall not be liable for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the use of the Platform or payment gateway provided on the Platform or the services provided by Onikowe.
o Subject to the fullest extent permitted by law: (a) neither Party will be liable for any consequential, special, indirect, exemplary, or punitive damages (including without limitation loss of profits, revenue, interest, goodwill, loss or corruption of data or for any loss or interruption to the content purchaser's business) whether in contract, tort (including without limitation negligence) or any other legal theory, even if advised of the possibility of such damages; and (b) Onikowe’s aggregate liability to the content purchaser, under this Agreement is limited to the payment received by Onikowe from the content purchaser preceding the month in which the claim arises.
o Neither Party is liable for failure or delay resulting from a condition beyond the reasonable control of the Party, including without limitation to acts of god, government, terrorism, natural disaster, labor conditions and power failures.
You hereby indemnify, defend, and hold harmless Site and all of its predecessors, successors, parents, subsidiaries, affiliates, coaches, officers, directors, shareholders, investors, employees, agents, representatives and attorneys and their respective heirs, successors and assigns (collectively, the "Indemnified Parties") from and against any and all liability and costs, including, without limitation, reasonable attorneys' fees, incurred by the Indemnified Parties in connection with any claim arising out of or relating to any breach by you of this agreement or the representations, warranties, and covenants you have made by agreeing to the terms of this agreement. You shall cooperate as fully as reasonably required in the defense of any such claim. Site reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
o Onikowe does not refund payments made for cancelled orders back to your payment provider. Funds from order cancellations are returned to the content purchaser's balance and are available for future purchases on Onikowe.
o Payment refunds, when available from the payment provider, can be performed by our Customer Support team. To prevent fraud and abuse, we limit the total amount of times users can request a payment provider refund from their account which is subject to review by our Customer Support team.
o Filing a dispute or reversing a payment through your payment provider or your bank prior to attempting to resolve the matter by working it out with the Content Provider through the Onikowe dispute resolution tools and contacting customer support through this Site may get your account disabled to investigate possible security violations.
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 12, ONIKOWE DISCLAIMS ALL OTHER WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED "AS IS." ONIKOWE DOES NOT WARRANT THAT THE SERVICES OR PLATFORM WILL OPERATE UNINTERRUPTED OR ERROR-FREE. ONIKOWE MAKES NO REPRESENTATION OR WARRANTY REGARDING THE RESULTS CONTENT PURCHASER WILL OBTAIN BY USING THE PLATFORM.
o Headings. The section headings used in this Agreement are intended for reference purposes only and shall not affect the interpretation of this Agreement.
o Counterparts. This Agreement may be executed in counterparts (which may be exchanged by facsimile), each of which shall be deemed an original, but which together shall constitute one and the same instrument.
o Waiver. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver thereof.
o Remedies not Exclusive. Except as expressly set forth herein, no remedy hereunder is intended to be exclusive of any other remedy available hereunder or at law or in equity.
o Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision. The illegality, invalidity, or unenforceability of such provision shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement. The fact that any provision of this Agreement is held to be illegal, invalid or unenforceable in a particular jurisdiction shall have no effect upon the legality, validity, or enforceability of such provision in any other jurisdiction.
o Non-Exclusivity. This Agreement is non-exclusive. Nothing in this Agreement restricts either Party from developing, marketing, selling, licensing, and/or distributing its products or services, or products and services similar to those of the other Party, in the normal course of business or through its standard sales channels.
o No Strict Construction. If an ambiguity or question arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement.
o Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party except that this Agreement may be assigned without consent to an affiliate and to an entity acquiring control of the assignor or substantially all of the assignor's business (“Acquiring Entity”). Notwithstanding the above, prior written consent of the other Party will be required if the Acquiring Entity is a direct competitor of the non-assigning Party.
o Independent Contractor Relationship. Onikowe is an independent contractor and this Agreement does not create an agency, partnership, or joint venture relationship between Onikowe and content purchaser or Onikowe and any content purchaser personnel. Onikowe has sole responsibility for activities of its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate content purchaser in any manner.
o Force Majeure. Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event. “Force Majeure Event” means (i) floods, earthquakes, or other similar elements of nature or acts of God; (ii) riots, civil disorders, rebellions or revolutions in any country; or (iii) any other cause beyond the reasonable control of the non-performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans or other reasonable precautions.
o Notices. Unless otherwise stated, all notices, approvals, instructions and other communications for the purposes of this Agreement shall be given in writing and may be given by personal delivery or by sending the same by registered post or by facsimile addressed to the Party concerned at the address stated herein, or any other address subsequently notified to the other Parties for the purposes of this Clause and shall be deemed to be effective in the case of personal delivery or delivery by registered post at the time of delivery.
o Publicity. Content purchaser hereby grants Onikowe the limited right to use content purchaser’s name and any trademarks or service marks used in connection with content purchaser’s name in advertising and promotional material of Onikowe, and to include content purchaser in any of Onikowe customer lists. Such use of content purchaser’s name and trademarks shall be solely to identify content purchaser as a customer of Onikowe, and shall not be used in any manner that content purchaser, in its sole discretion, deems to be an explicit or implicit endorsement of Onikowe, or which is likely to cause confusion as to content purchaser’s relationship to Onikowe’s Services. content purchaser shall allow Onikowe to use content purchaser as a reference.
o Marketing Materials. Both Parties agree to use any marketing materials provided by the other party only for the purpose of marketing the Services detailed in this Agreement. Neither Party shall not use such provided marketing materials in any manner not authorized by the other party.
o Governing Law / Jurisdiction. This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of India, without regard to its conflict of laws rules applicable to contracts to be performed entirely within India. For all such matters, each Party irrevocably submits to the exclusive jurisdiction of courts located in Gurgaon and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
o Entire Agreement. This Agreement and its Exhibit(s) constitute the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
o Survival. The obligations under sections that contemplate performance or observance subsequent to termination or expiration of this Agreement, including the following sections: (“Representations and Warranties”), (“Confidentiality”), (“Indemnity”) (Limitation of Liability”), (“Miscellaneous”) and this Section (“Survival”), and any other sections that state that they are to survive expiration or termination, shall survive the expiration or termination of this Agreement.