Terms and Conditions
01-May-2023
1. General
1.1. Soul Vision Creations Private Limited is a company incorporated under the provisions of the Companies Act, 2013, with its registered office at 9th Floor, South Tower, Vaishnavi Tech Park, Sarjapur Main Road, Bangalore 5601023 (hereinafter referred to as “Avataar”, “our”, which expression shall, unless repugnant to the context or meaning hereof, be deemed to mean and include its successors and assigns).
1.2. Avataar has developed and owns all rights, title and interests in an interactive augmented reality (AR), virtual reality (VR) and automated 3D content creation solution (“Product”). The user (hereafter referred to as “User”, “you”, “your”, expression shall, unless repugnant to the context or meaning hereof, be deemed to mean and include the authorized representatives, employees, officers and directors of an entity who is above the age of 18 years) is desirous of using the Product to evaluate or further create content on its website and mobile applications (“Purpose”).
1.3. These terms and conditions set out and is an End User License Agreement (“EULA”) under which Avataar makes available to the User, the Product for the Term. By signing up to use the Product, the User agrees to have read and understood the terms and conditions set out in this EULA and agrees to be bound by this EULA.
1.4. For the purpose of this EULA, wherever the context so requires the “User” and “Avataar” are hereinafter individually referred to as a “Party” and collectively as “Parties”.
2. Definitions
2.1. Definitions
In this EULA, unless the context otherwise requires, the following words and expressions shall bear the meanings ascribed to them below:
2.1.1. “Affiliate” means with respect to a Party, any person who: directly or indirectly, Controls, is Controlled by, or is under the common Control with, that Party;
2.1.2. “Applicable Law(s)” shall refer to any statute, law, regulation, ordinance, rule, judgment, notification, rule of common law, order, decree, by-law, permits, licenses, approvals, consents, authorisations, government approval, directive, guideline, requirement or other governmental restriction, or any similar form of decision of, or determination by, or any interpretation, policy or administration, by any Governmental Authority having jurisdiction over the matter in question, whether in effect as of the date of this EULA or thereafter, having the force of law;
2.1.3. “Avataar Indemnified Party” shall have the meaning ascribed to the term in Clause 9.1;
2.1.4. “Business Days” means any day other than a Saturday or a Sunday or any day on which commercial banks in Bengaluru, India are open for business;
2.1.5. “Confidential Information” shall have the meaning ascribed to the term in Clause 9.1;
2.1.6. “Control” (including the terms “Controlled” by or under common “Control” with) as used with respect to any Party means the direct or indirect beneficial ownership of, or the right to vote in respect of, directly or indirectly, more than 50% (fifty percent) of the voting shares or securities of a Party, the power to control majority of the composition of the board of directors of a Party, and/or the power to create or direct the management or policies of a Party by contract, through any or all of the above, or otherwise;
2.1.7. “Cyber Security Incidents” shall mean any incident that results in, or may lead to, unauthorized access to the User’s information technology systems as defined under applicable Data Privacy Laws and shall include defacement of website or intrusion into a website and unauthorised changes such as inserting malicious code, links to external websites etc.; malicious code attacks such as those caused by virus / worm / trojan / bots / spyware / ransomware / cryptominers; attack on servers such as database, mail and DNS and network devices such as Routers; identity theft, spoofing and phishing attacks; Denial of Service (DoS) and Distributed Denial of Service (DDoS) attacks; attacks on the Product, User’s website and applications; data breaches or data leaks; attacks on Internet of Things (IoT) devices and associated systems, networks, software, servers; attacks or incidents affecting digital payment systems; attacks through fake or malicious mobile applications; attacks or malicious/ suspicious activities affecting cloud computing systems/servers/software/applications; and attacks or malicious/ suspicious activities affecting systems / servers / software / applications related to artificial intelligence and machine learning.
2.1.8. “Data Privacy Laws” shall mean all Applicable Law relating to data protection, data sharing and/or privacy, including but not limited to the Information Technology Act. 2000 and the rules thereunder (as amended from time to time) and similar national, state, province and local statutes or regulations governing the privacy, security or breach of Personal Data;
2.1.9. “Deliverables” shall mean any work products developed and delivered by Avataar upon specific request by the User and as specified in the applicable SoW;
2.1.10. “Effective Date” shall mean the date on which the User agrees to this EULA;
2.1.11. “Fees” shall have the meaning ascribed to the term in Clause 7.1;
2.1.12. “Force Majeure Event” shall have the meaning ascribed to the term in Clause 15.1;
2.1.13. “Governmental Authority” means any national, state, provincial, local or similar government, governmental, regulatory or administrative authority, branch, agency, any statutory body or commission or any non-governmental regulatory or administrative authority having or purporting to have jurisdiction over any Party, or other to the extent that the rules, regulations and standards, requirements, procedures or orders of such authority, body or other organization have the force of Applicable Law or any court, tribunal, arbitral or judicial body, or any stock exchange of India or any other country;
2.1.14. “Indemnified Party” shall have the meaning ascribed to the term in Clause 11.3;
2.1.15. “Indemnifying Party” shall have the meaning ascribed to the term in Clause 11.3;
2.1.16 “Intellectual Property” includes designs, database rights, methodologies, software, computer programmes (including all Source Code), technical information, manufacturing, engineering and technical drawings, know-how, rights to inventions, copyright and related rights, moral rights, patents, utility models, trade secrets, industrial models, processes, trademarks and service marks, business names and domain names, derivative works, goodwill and the right to sue for passing off or unfair competition, rights to use, image rights, rights in personality and similar rights, and all other intellectual property rights, in each case whether registered or unregistered, and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
2.1.17. “Materials” shall mean written materials relating to the Products and Services, including but not limited to user manuals, user guides, technical manuals, release notes, and online help files provided by Avataar, and any other materials prepared in connection with any improvements, modification, correction, or enhancement, and shall include any updated versions of Materials as may be provided by Avataar from time to time (i) in the course of providing the Services; (ii) as part of an online tutorials or help files; or (iii) in the course of providing web seminars to User or its authorised Personnel;
2.1.18. “Minimum Technical Requirements” means the minimum systems, telecommunications and internet service required to access and use the Product as more particularly set out in the SoW.
2.1.19. “Personal Data” means all information and data of any kind, that is collected from any natural person, including such natural person’s: (i) personally identifiable information (e.g., name, address, telephone number, email address, financial account number, and any other data used or intended to be used to identify, contact or locate a natural person) or (ii) Internet Protocol address or other persistent identifier or any other piece of information defined as “sensitive personal information or data” “personally identifiable information”, “personal information”, or “personal data” under Data Privacy Laws;
2.1.20. “Personnel” shall, with respect to Avataar, mean its employees including key employees, and any contractors and subcontractors engaged by it and their respective employees, and shall, with respect to User, mean its respective employees, representatives, advisors and consultants;
2.1.21. “Product” shall have the meaning ascribed to the term in Clause 1.2;
2.1.22. “Product Component” means each constituent part of the Product, including without limitation all Avataar Intellectual Property, Avataar services, Avataar data and Avataar Confidential Information;
2.1.23. “Purpose” shall have the meaning ascribed to the term in Clause 1.2;
2.1.24. “Services” shall have the meaning ascribed to the term in Clause 5.1;
2.1.25. “Service Level Agreement” shall mean the service levels in relation to the Services and the Product specified in the applicable SoW;
2.1.26. “Source Code” means computer software and code for a piece of software in form other than object code form, including related programmer comments and annotations, help text, data and data structures, instructions and procedural, object-oriented and other code, which may be printed out or displayed in human readable form;
2.1.27. “SoW” shall mean a statements of work executed between the Parties pursuant to this EULA, laying out the terms and conditions for the Services;
2.1.28. “SPDI” shall mean sensitive personal data or information as defined under applicable Data Privacy Laws;
2.1.29. “Term” shall have the meaning ascribed to it in the SoW;
2.1.30. “Territory” shall have the meaning ascribed to it in the SoW;
2.1.31. “Transaction Documents” shall have the meaning ascribed to the term in Clause 5.1;
2.1.32. “Update” means any bug or error fixes, corrections, patches, modifications, enhancements, updates, or any other modification made to ensure that the Product is compliant with the specifications;
2.1.33. “Upgrades” shall mean a change, modification, new features or functionalities or subsequent release that do not constitute Updates under the Transaction Documents; and
2.1.34. “USD” shall mean United States Dollars.
3. Grant of License
3.1. Avataar grants to User a limited, non-transferable, non-exclusive, Territory-wide, revocable license to use the Product made available to it, for the Purpose.
3.2. Avataar may from time to time make general Updates to the Product. The general Updates will be made by Avataar automatically.
3.3. The Parties agree that this EULA will not, in any way restrict or limit Avataar’s right to use the Product in respect of any business and the User agrees that nothing in this EULA shall prevent or restrict the use of the Product by any third party deriving their rights from Avataar in respect of any business.
3.4. User acknowledges and agrees that the license granted hereunder is subject to all of the following agreements and restrictions:
3.4.1. except as expressly stated herein, no part of the Product or Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means;
3.4.2. User agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Product;
3.4.3. subject to Clause 8 (Intellectual Property Rights), User acknowledges and agrees that Avataar or its third party service providers shall own all right, title and interest in and to all Intellectual Property rights in the Product and the Materials and any insights that are gained from the Product, or its use, or any suggestions, feedback, or recommendations provided by User relating to the Product or the Materials or revealed through observation;
3.4.4. unauthorized use, resale or commercial exploitation of any part of the Product or Materials in any way is expressly prohibited;
3.4.5. User does not acquire any rights in the Product or Materials, express or implied, other than those expressly granted under these Terms and Conditions and all rights not expressly granted to User are reserved by Avataar and third party service providers;
3.4.6. this EULA is not a sale and does not convey any rights of ownership in or related to the Product, or Materials to User;
3.4.7. User shall use the Product exclusively for authorized and legal purposes, consistent with all Applicable Laws, regulations, and the rights of others, including the Data Privacy Laws;
3.4.8. Neither the User shall nor shall it allow any third party to use the Product to capture, transmit, publish, or distribute any material or information:
3.4.8.1. for which User does not have all necessary rights and licenses, including any material or information that infringes, violates, or misappropriates the Intellectual Property Rights of any third party;
3.4.8.2. that contains a computer virus or other code, files, or programs designed to disrupt or interfere with the functioning of the Product; or
3.4.8.3. that is or that may reasonably be perceived as being harmful, threatening, offensive, obscene, illegal, or otherwise objectionable.
3.4.9. The User shall not:
3.4.9.1. attempt to interfere with or disrupt the Product or any Product Components;
3.4.9.2. attempt to gain access to any systems or networks that connect thereto except for the express purpose of using the Product for its intended use;
3.4.9.3. attempt to scan or probe, hack, defeat, or otherwise compromise any security or technological measures of the Product, or any systems or networks operated by Avataar;
3.4.9.4. use the Product or any underlying components for any other purpose other than the Purpose;
3.4.9.5. license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Product or the Materials available to any third party other than as expressly permitted under this EULA;
3.4.9.6. modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Product and/or Materials that are provided as a part thereof, or access the Product or Materials in order to build a similar or competitive product or service;
3.4.9.7. “frame” or “mirror” any part of the Product, including any content contained in the Product, on any other server or device;
3.4.9.8. merge all or any part of the Product or any portion of the Product Components with another software program;
3.4.9.9. reproduce the Product or any portion of the Product Components;
3.4.9.10. remove, alter or cancel from view any copyright or other notices of proprietary rights, marks, or legends appearing on the Product or any portion of the Product Components; and
3.4.9.11. use the Product or any portion of the Product Components, except as provided for within this EULA.
3.4.9.12. shall not allow any third party to gain access of your device and indulge in any prohibited or violative activity
4. Terms of Use of the Product
4.1. The User agrees and acknowledges that any delay by User to provide any information reasonably sought by Avataar for making available the Product and the Services shall result in a day-for-day extension of Avataar’s dependent obligations under the Transaction Documents. In this regard, the User shall at all times provide Avataar access to such information as may be reasonably necessary for Avataar to provide the Product or Services.
4.2. Avataar may suspend or terminate the User’s access to the Product upon notice to User if Avataar believes that the User has violated this EULA or any of the Transaction Documents. Following such a suspension of access, the Parties shall reasonably cooperate with each other in reviewing compliance and Avataar will reinstate such access if it determines, in its sole discretion, that the User has complied with this EULA or the applicable Transaction Documents.
4.3. User shall be solely responsible for acquiring and maintaining Minimum Technical Requirements, including any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
4.4. If you are a guest user i.e if you have not subscribed to one of our paid plans, you agree that all the works/content created by you on Avataar’s Product shall be publicly visible and published to all for viewing. Avataar maintains no responsibility in relation to violation of your intellectual property or confidentiality in relation to such public publishing and sharing of your created content. This shall not be considered as a breach of Avataar’s obligations under this EULA.
4.5. The User acknowledges and agrees that Avataar shall not be responsible for:
4.5.1. monitoring or policing communications or data transmitted through the Product by User;
4.5.2. the content of any communication or transmission made by the User using the Product; and
4.5.3. and shall have no liability of any kind with respect to any materials or information (including any User data) that User, or any third-party inputs into or transmits, publishes, or distributes through the Product.
5. Order of Prevalence
5.1. This EULA and SoWs/definitive MSAs if any (collectively, the “Transaction Documents”) shall constitute the entire agreement between the Parties relating to the subject matter hereof, and supersede all prior representations, agreements, statements and understandings, whether verbal or in writing, provided always that nothing in the Transaction Documents will be construed as excluding any liability or remedy as under Applicable Law. The terms of the Transaction Documents shall be harmoniously construed, and in the event of any inconsistencies between the EULA and the SoWs, the EULA shall prevail over the SoWs unless specifically stated otherwise in the SoW.
5.2. Where multiple SoWs have been executed, each SoW shall be separate and severable, unless otherwise specified, and will not be deemed to amend, modify, cancel, or waive the provisions of this EULA or any other SoW in any way.
6. Intellectual Property Rights
6.1. The Product, the Product components, insights derived from use of the Product by the User or insights derived from and during provision by Avataar of the Services or such other services as are specified in the SoW, and all Intellectual Property rights therein or relating thereto (including derivative works based on the aforesaid), are and shall remain the exclusive property of Avataar or its licensors, whether or not specifically recognized or perfected under Applicable Law. User shall not take any action that jeopardizes Avataar’s Intellectual Property rights. None of the provisions of this EULA shall be deemed to transfer, assign or license the Product or Product Components save and except the rights of access and usage granted herein.
6.2. To the extent an SoW specifies the creation and delivery of a Deliverable by Avataar to the User, unless otherwise specified in such SoW, all Intellectual Property rights in the Deliverables developed by Avataar under the Transaction Documents, shall be owned by, and stand assigned hereby to, User, on an fully paid up, irrevocable, enterprise-wide, royalty-free, perpetual, and worldwide basis. For the avoidance of doubt, the Parties agree and acknowledge that any and all insights derived from use of the Product by the User or insights derived from provision by Avataar of the Services or such other services as are merely made accessible to the User, as are specified in the SoW, shall belong to Avataar and Avataar shall be free to use such insights in any manner that it deems fit, without requiring any consent from the User. Notwithstanding anything in this Clause 8, the license to the Product shall be governed by Clause 3.
7. Confidentiality
7.1. During the course of performing the Services, each Party may have access to information concerning the other Party’s operations, procedures, strategies, finances, policies, techniques, agreements, technology, software, clients, personnel, customer lists, trade secrets, strategic plans, cost figures and projections, profit figures and projections, business methods or other technical or business information, SPDI and information that is confidential or proprietary to a third party and is in the possession of the disclosing Party, which is not generally known and which is considered proprietary by such Party or to persons affiliated with such Party or their respective customers or client (“Confidential Information”). The receiving Party agrees to maintain all such Confidential Information in confidence to the same extent that it safeguards its own Confidential Information, but in no event exercising less than reasonable care to prevent the disclosure of the information to any unauthorized third Party, and not to (a) disclose such Confidential Information except to its authorised Personnel who need to know it, (b) disclose or permit access by any third person to any such Confidential Information, except to the extent disclosure is expressly permitted by the other Party, and not to use any such Confidential Information except as required for the purposes of the Transaction Documents. If there is any breach of security or confidentiality obligations imposed under this EULA, including but not limited to use of any Confidential Information for any purpose other than for the Purposes or disclosure of any Confidential Information any third party without the prior written consent of the disclosing Party, the receiving Party shall notify the disclosing Party immediately and shall take all steps required to mitigate or cure such disclosure including, but not limited to, disciplinary action against the particular individual, and to prevent any further dissemination of the Confidential Information.
7.2. Except with respect to any SPDI, the foregoing obligations shall not extend to any information which the receiving Party can establish was (a) at the time of disclosure, generally available to the public through no fault of the receiving Party, (b) in the receiving Party’s possession before the Effective Date of this EULA without obligation of confidentiality and was not obtained from the disclosing Party or an affiliate of the disclosing Party, (c) lawfully received from a third party who rightfully acquired it and did not obtain or disclose it in violation of any confidentiality agreement or obligation, (d) independently developed without reference to the disclosing Party’s Confidential Information, or (e) required to be disclosed by a court or other Governmental Authority where, subject to Applicable Law, reasonable advance notice was given to the disclosing Party.
7.3. Upon the request of Avataar or upon expiration or termination of the Transaction Documents for any reason, the User agrees to promptly return to Avataar and/or securely destroy (at Avataar’s option) all Confidential Information and work in progress and copies of documents or other media in any form, written or mechanical, which contain Confidential Information, whether created by or for Avataar or furnished to Avataar by or on behalf of User.
7.4. Upon explicit consent from Avataar, user may disclose Avataar’s Confidential Information to third parties, including to third party service providers, as and to the extent necessary for User to obtain the benefits of the Services and Deliverables and to coordinate services with those of other service providers, where in each such case, the receiving entity is bound by confidentiality obligations similar to the obligations described in this Clause.
7.5. The obligations of the Parties with respect to the Confidential Information will survive the expiration or termination of the EULA.
8. Data Protection and Information Security
8.1. The Parties agree and acknowledge that Avataar may collect and use technical and related information, including about User’s computer systems, application software, and peripherals to monitor User’s usage of the Product and to facilitate the development and delivery of the Product Updates, Upgrades and Services to User (if any) related to the Product. Avataar may use this information to improve its technology or to provide services or technologies to User. User further consents to Avataar’s collection, analysis, display, benchmarking, and reporting of data and analytics related to User’s use of the Products and the Services, including third party products and processes of User that may be used in connection with the User’s systems.
8.2. Where any Confidential Information or data processed by Avataar contains Personal Data, including but not limited to SPDI of any of the Party’s Personnel, the User hereby agrees and acknowledges that it shall ensure that all Personal Data shared with or made available to Avataar is in accordance with applicable Data Privacy Laws and the User shall obtain necessary consents from individuals for sharing with and processing by Avataar of such Personal Data.
8.3. In the event of change in applicable Data Privacy Law, both Avataar and User would cooperate with each other to implement all such Updates and Upgrades as may be required to ensure that the Deliverables including the Product are in compliance with such modified Data Privacy Law.
8.4. The User understands that Avataar is required under Applicable Laws, to notify the relevant Governmental Authority of any Cyber Security Incidents involving the Product, provision of the Services, Avataar’s Confidential Information or User’s Confidential Information. Accordingly, the User agrees to promptly and no later than 48 (forty eight) hours inform Avataar of any Cyber Security Incidents in relation to the Product, Product, provision of the Services, or Avataar’s Confidential Information. The User further acknowledges and agrees that Avataar may disclose such Cyber Security Incident to the relevant Governmental Authority without the need to provide any advance notice to the User.
9. Indemnity
9.1. Indemnification by User
User shall defend, indemnify, and hold harmless Avataar, its officers, directors, and employees (collectively referred to as “Avataar Indemnified Parties”), from and against any claims, losses or damages, including court costs and reasonable attorneys’ fees, arising out of:
9.1.1. User’s breach of this EULA and representations mentioned herein, including without limitation the obligations set forth in Clause 4;
9.1.2. any claim or allegation by its employees, officers or directors that he/she has suffered injury, damage or loss (including but not limited to loss of reputation) resulting from his/her use of the Product to the extent such injury was caused by such user’s own negligence and not following Avataar’s instructions in relation to use of the Product; or
9.1.3. any claim or allegation by a third party (i) that it has suffered injury, damage or loss resulting from User’s use of the Product, (ii) for infringement and/or trade secret misappropriation by User resulting from a modification of the Product not performed by Avataar, or the combination of the Products with any non-Avataar service(s) and/or product(s), or (iii) that User has used the Product in a manner that violates the terms and conditions of this EULA.
10. Disclaimer of Warranties
10.1. Except as expressly provided in this EULA, use and access to the Product, and any Services are provided to User on an “as is,” “with all faults” basis, and Avataar (a) makes no representations or warranties of any kind whatsoever, express or implied, in connection with this EULA or the Services, (b) disclaims any warranty that the Services will be error free or uninterrupted or that all errors will be corrected within a given period of time, and (c) disclaims any and all implied warranties with respect to the Services as to merchantability, accuracy of any information provided, fitness for a particular purpose, title, and non-infringement, and any and all warranties arising from course of dealing or usage of trade.
10.2. Avataar has no knowledge, or control, over the types of data User will configure the Product to display. Accordingly, User is solely responsible for determining the proper handling, use, and disclosure of SPDI in accordance with all Applicable Law, Transaction Documents and the terms of this EULA and Avataar disclaims any and all warranties in relation to the data that is published or displayed by the User using the Product.
10.3. Avataar does not assume and expressly disclaims any responsibility for acts or omissions of User which may result in any liability or damages due to malpractice, failure to warn, negligence or any other basis and User hereby agrees to indemnify, defend and hold harmless any Avataar Indemnified Party against any claims arising out of, or related to, any such malpractice, failure to warn, negligence or any similar claim whether arising out of contract, tort, regulatory or statutory causes of action.
11. Limitation of Liability
11.1. Neither Party shall be liable for any consequential, incidental, special, indirect, exemplary or punitive damages, or damages for any loss of profits, revenue or business, regardless of the nature of the claim, even if the other Party has been notified of the possibility of such damages.
11.2. Notwithstanding anything contained in the Transaction Documents, Avataar shall not be liable for any losses, injury or damages caused to the Use on account of failure to follow Avataar’s instructions while using the Product.
11.3. Avataar’s aggregate liability for all losses or claims arising out of or in connection with the Transaction Documents, tort or otherwise, including but not limited to negligence, will not exceed the amount paid or payable to Avataar in the last 6 (six) months of the date on which the claim arose.
12. Injunctive Relief
Each Party shall be entitled to an injunction, restraining order, right of recovery, suit for specific performance or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate, in order to restrain Avataar from committing any violation of, or enforce the performance of covenants, obligations and representations contained in the EULA. These injunctive remedies shall be cumulative, and shall be in addition to (and not in lieu of) any other rights and remedies that may be available to the Party under Applicable Law, or in equity, including without limitation a right of recovery for any amounts owed to it, related costs incurred by it, and a right to damages.
13. Dispute Resolution
13.1. If any Dispute arises in relation to or in connection with this EULA including in respect of the validity, interpretation, implementation or alleged breach of any provision of this EULA or regarding a question, and including the questions as to whether the termination of this EULA by a Party has been legitimately arising out of this EULA (“Dispute”) between the Parties, the Parties shall attempt to first resolve such Dispute or claim through discussions between authorised representatives of the Parties.
13.2. If the Parties are unable to resolve any Dispute by mutual agreement within a period of 30 (thirty) days from the date the Dispute arose, then pursuant to a written intimation given by a Party to the other Party of a notice invoking this Clause, such Dispute shall be referred to and finally resolved by binding arbitration by an arbitration panel composed of 3 (three) arbitrators, with each Party appointing 1 (one) arbitrator, and the 2 (two) arbitrators jointly appointing a third arbitrator, who shall chair the arbitration panel.
13.3. The arbitration proceedings shall be conducted in accordance with the Arbitration Rules of the Mumbai Centre for International Arbitration, as amended from time to time, which rules are deemed to be incorporated by reference in this Clause.
13.4. The arbitration proceedings shall be conducted in English and the seat of arbitration shall be in Bengaluru, India.
13.5. The Parties shall equally bear the costs of arbitration unless the arbitration panel decides otherwise.
13.6. The award rendered by the arbitration panel shall be final and binding on all the Parties.
14. Governing Law and Jurisdiction
This EULA shall be governed and interpreted by and construed in accordance with the laws of India, without giving effect to its conflict of laws principles. Subject to Clause 13 (Dispute Resolution) provisions herein, the courts in Bengaluru, India shall have exclusive jurisdiction in connection with any Dispute arising out of this EULA.
15. Force Majeure
15.1. Except with respect to the payment obligations hereunder, neither Party will be liable for any default or delay in the performance of its obligations under this EULA if, and to the extent, such default or delay is caused, by a cause beyond the reasonable control of such Party, provided the non performing Party is without fault in causing such default or delay, and such default or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the non performing Party through the use of alternate sources, workaround plans or other means (a “Force Majeure Event”).
15.2. In the case of a Force Majeure Event, the nonperforming Party: (a) shall immediately notify the Party to whom performance is due by telephone (to be confirmed in writing within two days of the inception of such delay) and describe with a reasonable level of detail the circumstances causing such delay; and (b) will be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such Party continues to use reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay.
16. Publicity
Except with the prior review and written approval of the other Party, neither may issue a press release announcing the Transaction Documents hereunder. Avataar may use User’s name and/or logo(s) in its customer lists, and its promotional or marketing materials, including Avataar’s website. In addition, Avataar shall have the right to produce, at its own expense, a statement detailing the usage by User of Avataar’s products or services and, subject to User’s prior review and written approval of the statement, to distribute such statement to third parties.
17. Severability
If any provision of this EULA is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision will be excluded from this EULA and the remainder of the terms will be interpreted as if such provision were so excluded and will be enforceable in accordance with its terms; provided however that, in such event, these Terms of Use will be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.