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B. BY REGISTERING ON OR OTHERWISE BY ACCESSING OR USING THE APPLICATION / SERVICE IN ANY MANNER, YOU (a) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND CONSENT TO BECOME A PARTY TO IT, (b) REPRESENT THAT YOU ARE IN COMPLIANCE WITH ALL REQUIREMENTS IN THIS AGREEMENT, AND (c) AGREE TO BE BOUND BY AND TO COMPLY WITH THIS AGREEMENT.
C. THE APPLICTION AND THE SERVICE MAY BE USED ONLY BY USERS (as defined below) WHO ARE LAWFUL OWNERS OF, OR, AT THE RESPONSIBILITY OF SUCH OWNERS, HAVE THE NECESSARY AUTHORIZATION FOR (a) USING THE MSISDNs (defined below) AND DEVICES (defined below) AND (b) FOR MAKING PAYMENTS, IF ANY, THROUGH OR IN CONNECTION WITH THE USE OF THE APPLICATION AND THE SERVICE. IF YOU ARE NOT SUCH A USER OR IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN PLEASE DO NOT ACCESS OR USE THE APPLICATION AND DISCONTINUE THE REGISTRATION PROCESS.
E. WYNK MAY AMEND THE TERMS OF THIS AGREEMENT BY POSTING A COPY OF THE MODIFIED OR AMENDED AGREEMENT ON THE APPLICATION OR AT www.games.wynk.in. YOUR CONTINUED USE OF THE SERVICES AFTER NOTIFICATION OF SUCH CHANGE WILL SIGNIFY YOUR ACCEPTANCE OF ANY AMENDMENT.
Affiliate(s) means any entity that is Controlling, Controlled by, or is under the common Control with that entity. Control means the power to direct or cause the direction of management and policies of an entity, either directly or indirectly, whether through direct or indirect ownership, voting rights, contract or otherwise. “Controlling”, ˜Common Control” and ˜Controlled by” will be construed accordingly.
Application means the 'Wynk Games' mobile software application that Wynk has provided to you and to which this Agreement is attached or linked. 'Application' includes the Documentation.
Contaminant means a virus, worm, trojan, time bomb, contaminant, or disabling or malicious code, files or programs.
Content means all games and content (including gaming applications, and metadata) that is made available to Users through the Application as part of the Service.
Device means any device (including mobile handsets and tablets) on which Wynk allows the downloading and use of the Application for providing the Services.
Documentation means any information, manuals, usage instructions and other documentation that Wynk provides along with the Application.
Financial Information will have the meaning specified in Article 10.2.
Information will have the meaning specified in Article 4.1. Information includes Financial Information.
Marks means any proprietary logo, branding, name, trademark and other marks.
MSISDN means the Mobile Subscriber Integrated Services Digital Network-Number that a User uses to register on the Application for availing the Service.
Personally Identifiable Data means any sensitive personal data or any other information that can be used to identify the User when combined with any other information available with Wynk.
Proprietary Materials means the Service, Application, Content and Wynk's or any third party's Marks.
Service(s) means Content browsing, downloading and/or playing service that Wynk provides to Users through the Application by enabling Users to access the Content on the Application.
SNS will have the meaning specified in Article 6.1.
Unique Identifiers will have the meaning specified in Article 5.1.
User(s) means an end user of the Application who (a) has downloaded the Application on his or her Device for availing the Services for personal and non-commercial use, (b) if applicable, has validly registered for the Service through the required registration process, and (c) fulfils all prerequisites and conditions under this Agreement, including under paragraph “C” above. The term ˜User(s)” includes you.
User Materials will have the meaning specified in Article 3.11(b).
You will need to download and install the Application on your Device to use the Service. The Service may allow you to (a) browse, search, access and play the Content made available on the Application, (b) subscribe to the Services or Content, and (c) download certain Content. The foregoing at all times will be subject to Wynk's discretion and availability of necessary rights with Wynk and may require you to pay a one-time fee or recurring subscription fees, as applicable. All features and functionalities that Wynk provides as part of the Application / Service will be at Wynk's discretion. Notwithstanding anything to the contrary in this Agreement, Wynk may modify the method in which Wynk provides access to the Content or allows registration to or use of the Services, with or without prior notice.
3. Requirements and Restrictions
3.1 Registration. To avail the Service you may need to register on Wynk's website or on the Application and create an account, which may involve (without limitation): (a) setting up a profile, (b) providing your MSISDN, name, email, gender and location, (c) creating a username and password, (d) providing your Financial Information (e) providing other data and information that Wynk may require for User registration, and (f) receiving and entering one-time passwords. You must ensure that all information you provide in connection with the foregoing is correct and accurate, and you will be solely responsible for the protection and confidentiality of your username, password and account. You will take all necessary precautions to prevent unauthorized and illegal use and unauthorized access to your account. Wynk will not be responsible for any misuse of the Customer's Device or unauthorized access to the Customer's account details by any third party. Wynk expressly disclaims any and all liability, howsoever arising, out of the misuse of the Application downloaded by the Customer. WYNK WILL NOT BE RESPONSIBLE FOR ANY UNAUTHORIZED, UNLAWFUL OR ILLEGAL USE OF THE SERVICE OR THE APPLICATION BY ANY CUSTOMER OR PERSON WHO IS NOT A VALID USER.
3.2 Territory. You may use the Application and the Service only in India.
3.3 Age. In order to use or register for the Service, you must be above 18 years of age.
3.4 MSISDN & Device. You agree that you are not allowed to gain access to or use the MSISDN, account, or device of any other User / person for using the Service in any manner. You hereby represent that you have the complete authority to use the Device you are using for availing the Service, and will be liable for any transactions made from that device in connection with the Service.
3.5 Device Compatibility. You acknowledge that the Service may be available / compatible only on select devices, depending on technical compatibility and rights available with Wynk and the Content owners. You understand that Wynk at any time may restrict the use of the Application and Service on any particular device, platform or format. You will not use the Services on any such restricted devices, platforms or format.
3.6 Connectivity. Access to and use of the Service may be internet based. You will be responsible for obtaining Internet connectivity (and all devices necessary for such connectivity) and paying all fees in connection with such use. Separate charges may be applicable for accessing and using the Service, including for subscription, and download.
3.7 Releases. The terms of this Agreement will also govern any upgrades, updates, modifications, enhancements or other releases of the Application.
3.8 Usage. Your use of the Proprietary Materials (a) must strictly be for your personal and non-commercial use in accordance with this Agreement, and (b) is revocable (in accordance with this Agreement), non-exclusive, non-transferable and limited by the terms of this Agreement and applicable laws, regulations, rules and guidelines.
3.9 No Public Exhibition. No public exhibition of the Service, Application, or any Content is permitted, with or without consideration.
3.10 Dissemination by You & Compliance with the Information Technology (Intermediary Guidelines) Rules, 2011.
You agree to the following:
3.10.1 You will not, and will not allow others to, use the Service, Application, other Proprietary Materials, and your Device and MSISDN, directly or indirectly, to upload, distribute, transmit, communicate, provide a link to, or publish any data, information or material using or through the Service, that: (a) belongs to another person and to which you do not have any right to, (b) is grossly harmful, pedophilic, libelous, defamatory, vulgar, obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive, against public interest and sentiment, disparaging, or relating or encouraging money laundering or gambling, (b) violates any law or regulation for the time being in force, or is unlawful in any manner whatever, or the rights of others, (c) harm minors in any way, (d) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Service, (e) infringes any patent, trademark, copyright or other intellectual property, proprietary rights or confidentiality obligations of any person or entity, (f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature, (g) impersonate another person, (h) contains Contaminants, software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource, or (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
You are solely responsible and liable for any such activity, behavior, use and conduct. Wynk will have no liability in this regard.
If you violate any rules, regulations, conditions or policies under this Article, including by accessing Wynk's computer resources in violation of the foregoing, Wynk will have the right to immediately terminate your access or usage rights to Wynk Services and Application, and remove any data, information or content published or uploaded by you.
3.10.2 By posting messages, submitting reviews, inputting data, suggesting ideas or engaging in any other form of communication through the Service (collectively, “User Material”), you are not forfeiting any ownership rights in such User Material and you continue to retain all of the same ownership rights. Provided that by submitting or posting User Material, you irrevocably grant Wynk a perpetual, fully-paid, royalty-free, sub-licensable, transferable license to use, display, reproduce, distribute, modify, delete from, add to, prepare derivative works of, publish any such content and all intellectual property rights associated therewith, throughout the world in any media formats and any media channel now known of hereinafter devised, for any promotional or commercial purposes, during the full term of copyright and all renewals and extensions thereof, without any obligation to make any payment to you or others or to give you credit. If Wynk decides to give you credit at Wynk's sole discretion, you further grant Wynk the right to use your name and likeness under the license contained in this paragraph in association with your User Material and the promotion and advertising thereof. You also waive any right to inspect or approve any final product in this regard. YOU WILL ENSURE THAT THE USER MATERIALS COMPLY WITH ALL TERMS OF ARTICLE ABOVE.
3.10.3 By submitting or posting the User Material, you represent and warrant that you own the User Material. You also represent and warrant that the posting of your User Material does not violate any right of any party, including privacy rights, publicity rights, and intellectual property rights. By submitting or posting the User Material, you agree that your submission of the User Material does not in any way implicate you as an employee, agent, or partner of Wynk. You also agree to comply with Wynk's community rules. By submitting or posting the User Material, you further forever release and discharge Wynk, its affiliates, advertising agencies, successors, assigns and their respective officers, employees, agents from any and all claims, actions and demands arising out of, or in connection with, the use of your User Materials, your name and biographical data, including any and all claims for invasion of privacy and libel. This release will inure to the benefit of the assigns, licensees and legal representatives of Wynk. You warrant that any User Materials will not contain any material that is obscene, defamatory/libelous to any party (including Wynk or its Affiliates and any of the Content providers), or in violation of any applicable public interest, privacy and other codes, guidelines and laws.
3.10.4 Wynk does not endorse the User Material, and the User Material does not reflect the opinions or policies of Wynk. Wynk reserves the right, but will have no obligation, to monitor the User Material and to restrict or remove the User Material that Wynk determines, in its sole discretion, is inappropriate or for any other reason. Please report inappropriate User Material posted by any User by emailing us at email@example.com.
3.11 Misuse. Misuse of the Services (or use not in accordance with the intended purpose for which the Service and Application is provided to Users) in any manner is strictly prohibited. You agree to comply with the following:
3.11.1 You will not use the Service in a way that (i) is not for your personal and non-commercial use, (ii) is meant to circumvent the use restrictions in place on the Application, or as specified under this Agreement, or notified by Wynk from time to time, or (iii) is meant to distort any data, information or other metrics collected or that may be collected by Wynk in relation to the provision of and Users' use of, or otherwise that in any manner adversely affects, the Services, Application, Content and other materials.
3.11.2 You also may not use, nor allow others to use, your MSISDN, Device, Service or Application, directly or indirectly, to: (i) attempt to or actually disrupt, impair or interfere with, or alter or modify, the Service, Application or any information, data or materials posted or displayed on the Application, (ii) act in a way that negatively affects Wynk's goodwill, the Service, or anyone else.
3.12 You agree to comply with all applicable laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Service, Application, Content, Device and MSISDN. You will not use any of the foregoing for any unlawful means and purposes.
Technical Restrictions; Other Limitations
3.13 No automation / data collection. The Service is provided for personal and non-commercial use only. You are not allowed to use any automated system for the selection, downloading or uploading of any portion of the Application, including by way of robots, spiders, offline readers or load testers that accesses the Service in a manner that sends more request messages or download requests to Wynk's servers in a given period of time than a human can reasonably produce in the same period by using the Application or Service. Further, you may not use any script or other mechanism to collect, scrape or gather any information or data from the Application or the Service. You will not gather information and data (including Personally Identifiable Information) of any other User's use of the Service for any reason.
3.14 Security. You will not, and you will not encourage, assist or authorize any other person to, for any reason whatsoever, violate the security of the Application / Service, including: (a) accessing data not intended for you, (b) logging onto a processor, communications or access device or account which you are not authorized to access, including those of any other Users, (c) attempting to probe, scan or test the vulnerability of the Service / Application or to breach security or authentication measures, regardless of your motives or intent, (d) attempting to interfere with or disrupt the Service or service to any user, processor, host or network, (e) introducing a Contaminant in the Service or Application, or in the Device of any other User, or (f) sending unsolicited e-mails or other information, including promotions or advertising. Violations of system or network security of Wynk or any of the Users by you may result in civil or criminal liability. Wynk will have the right to investigate such occurrences, which may include investigating your usage on the Application / Service. Wynk may involve, provide Information to and seek assistance from law enforcement authorities in seeking remedies against such violations.
3.15 Reverse Engineering. You will not, and you will not encourage, assist or authorize any other person to, for any reason whatsoever, reverse engineer, decompile, disassemble, or otherwise tamper with any components, usage rules or other protection measures applicable to the Proprietary Materials. You further agree that you will not, and will not enable others to, copy (except as expressly permitted hereunder), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, edit, alter, create derivative works of the Proprietary Materials or any software that is a part of the Application / Service, or any part thereof, even if such derivative works are not meant for commercial use (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of Wynk. You agree to abide by the rules and policies established from time to time by Wynk. Such rules and policies may include, for example, required or automated updates, modifications, or reinstallations of the Application and obtaining available patches to address security, interoperability, and/or performance issues.
3.16 Suspension; Discontinuation. You acknowledge that Wynk derives its rights to provide access to the Content through the Application from third parties. Such rights may be available to Wynk for a fixed time, for limited methods of distribution or for limited territories. You further acknowledge that due to the foregoing and technical difficulties, scheduled or unscheduled maintenance and upgrades, causes or events outside Wynk's control, or for any or no reason whatsoever, Wynk at any time may suspend or interrupt the Service and the Application, in whole or in part, temporarily or permanently. In addition, Wynk reserves the right to modify or discontinue, temporarily or permanently, any feature or functionality of the Application and Service with or without notice. You agree that Wynk will not be liable to you or any third party for any direct or indirect consequences of any modification, suspension, discontinuation or interruption of the Service and Application.
3.17 Take Down. Wynk may be required to take down certain media, Content or other materials off the Service (or otherwise restrict access to them) for compliance with applicable laws, regulations, guidelines, and rules, and for commercial reasons. Accordingly, Wynk reserves the right to remove any such Content from the Service or put in place any number and manner of restrictions on the access or use of such Content. You will have no claims whatsoever against Wynk for placing such restrictions with or without notice.
If you have any grievance or compliant regarding any Content, you may notify or may make a compliant in this regard to Wynk, by emailing Wynk at firstname.lastname@example.org
3.18 Loss or Change of Device. IF YOUR DEVICE IS STOLEN OR LOST AND IF YOU WISH TO UNSUBSCRIBE FROM USING THE SERVICES, YOU MAY INFORM WYNK'S CUSTOMER CARE REPRESENTATIVE FOR THE SAME. YOU WILL REMAIN RESPONSIBLE FOR ANY TRANSACTIONS MADE UNTIL YOUR ACCOUNT IS UNSUBSCRIBED BY WYNK IN SUCH CASES.
4. Data & Information
5. Unique Identifiers.
5.1 Wynk may insert identifiers in the metadata that accompanies the Content, or your account, and that uniquely identifies your account or the Content as Content you have accessed or purchased (“Unique Identifiers”). These Unique Identifiers may include a random number that we may assign to your account, to your order, to the Content you access, to the copy of the Content you access or download / purchase (including the date and time). Unique Identifiers may identify the genre, the origin of the Content, and other such information and may act as an indicator that the Content was accessed or downloaded from the Application using the Service. These Unique Identifiers do not affect the gaming experience. You will not, and will not encourage, assist or authorize any other person to, modify, reverse engineer, decompile or disassemble, or otherwise tamper with, the Unique Identifiers in any manner.
6. Social Networking Sites
6.1 You may also access the Services from a social networking site (“SNS”), such as Facebook. If you access the Services through the SNS, you agree to (a) provide us access to your Personally Identifiable Information that you may enter on the SNS in connection with your use of the SNS or the Service, (b) post certain notifications or events related to the Service on the SNS on your behalf; or (c) access your friends list and other activities. If you do not want the Application to post notifications on the SNS on your behalf or access your friends list, you may change the settings on the SNS, if available.
6.2 The Application may allow you to register using your SNS account. If you register for the Service using any SNS account(s), you will be entirely responsible for maintaining the privacy and security of such SNS accounts. Further, you understand that Wynk does not control such accounts in any way and Wynk in no way will be responsible for the safety and security of such accounts.
6.3 As part of the Service, Wynk may allow you to share your Service-related activities on SNS websites through the Application. You will be solely responsible for any materials that you share, provided that you allow Wynk to re-post, re-share and otherwise use such materials.
7.1 The Proprietary Materials, including the Service and Wynk's website may contain advertising content from Wynk or any other third party. Wynk does not take any responsibility of any such third party advertising materials, and will not be liable for any of your actions or purchases or losses that you may suffer in relation to or as a result of any such advertising.
8. Purchased Content; Per-Download Service
8.1 Depending on the availability of rights from the relevant third parties, you may be allowed to purchase and download certain Content through the Service. Upon Wynk's successful receipt of the payments related to such purchase, you will have the right to retain a copy of such Content for your use as the owner of that copy of the Content, subject to the underlying rights (including copyrights and other intellectual property rights of the authors, composers, performers, artists, publishers and record labels). Your use of such downloaded / purchased Content may be restricted as per applicable laws and rights of such third parties. You will be entirely responsible for your use in any manner of any purchased Content.
8.2 You may access the downloaded or purchased Content only on your Device and will not transfer the same to another device. You acknowledge that Wynk may place any access, read/write and other technical restrictions on the purchased or downloaded Content. Such restrictions may include disabling the copying or transfer of the Content to another device.
9.1 You understand and agree that you may not use any method or technology to record, capture, or otherwise copy or reproduce any Content which is made available to you by Wynk.
9.2 Any Content that you access on a subscription basis will be available to you only for the duration of the subscription for which you have paid. Your rights to use and access the subscribed Content will end automatically upon expiry of the subscription period.
10. Payment & Financial Information
10.1 You agree to pay requisite charges for the use of the Services in accordance with the rates published by Wynk, which may be modified from time to time.
10.4 You understand that all payments you make in relation to the use of the Service, including any subscription fees or one-time payments, will be final and non-refundable, except if Wynk cancels your subscription to its Service for convenience (in which case Wynk will refund you the subscription fee on a pro-rata basis). No refunds will be made if your access to the Service is terminated for your breach of this Agreement.
10.5 WYNK RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS SUBSCRIPTION AND ONE-TIME FEES. WYNK DOES NOT PROVIDE PRICE PROTECTION OR REFUNDS IN CASE OF PRICE REDUCTIONS OR PROMOTIONAL OFFERINGS AFTER YOUR PURCHASE.
11. Third Party Sites
12. Intellectual Property Rights
12.1 You must comply with all applicable laws, rules, regulation and guidelines in connection with your access to and use of the Proprietary Materials. You may not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sublicense or otherwise transfer or use the Proprietary Materials unless Wynk or the relevant third party consents in writing in each instance. Nothing in this Agreement grants you any synchronization, public performance, promotional use, commercial sale, resale, reproduction, rental or distribution rights in the Proprietary Materials.
12.2 You will not violate the copyright and any other intellectual property rights in the Proprietary Materials by any means for any purpose. The Proprietary Materials may contain third party materials, software, code, script or other materials licensed by Wynk from third parties. You acknowledge that such third parties retain ownership and all rights in such materials and you will not infringe the rights of such third parties in any manner, including by reverse engineering, decompiling, disassembling or otherwise tampering with such materials. Proprietary Materials are protected by copyright, trade dress, patent, trademark and other laws, international conventions and proprietary rights and all ownership rights to them remain with (as the case may be) the relevant third parties or Wynk, or their licensors or suppliers.
12.3 You acknowledge that Wynk retains exclusive ownership of the Service and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Proprietary Materials, and Wynk, its licensors and the relevant third party owners reserves all rights not expressly granted hereunder. You will promptly notify Wynk in writing upon your discovery of any unauthorized use or infringement of the Proprietary Materials or Wynk's patent, copyright, trade secret, trademarks or other intellectual property rights.
13.1 This Agreement shall be effective until terminated by Wynk or you.
13.2 This Agreement will terminate automatically if you breach or fail to comply with any terms and conditions of this Agreement. Further, Wynk may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement and the rights grants to you by giving you a notice. The foregoing will not limit any other rights or remedies under contract, law or equity available to Wynk and Wynk may take such measures available in contract, law and equity that it may deem appropriate.
13.3 Upon the termination of this Agreement, you must cease all use of the Proprietary Materials and uninstall the Application.
13.4 Termination of this Agreement by Wynk will not relieve you of any obligations to pay accrued charges, including any prorated charges accrued for the billing cycle in which this Agreement is terminated, or any other outstanding amounts for your use of the Service.
13.5 You may elect to discontinue using the Services and may request Wynk to unsubscribe your account from the Service by giving a 15 days' written notice by email at email@example.com or by informing Wynk's customer care representative 15 days in advance.
14.1 YOU UNDERSTAND AND AGREE THAT THE APPLICATION ONLY ENABLES USERS TO ACCESS THE CONTENT AND THAT WYNK IS NOT THE AUTHOR OF THE CONTENT AND HAS NO CONTROL OR RIGHT OVER THE CREATION OR THE SUBSTANCE OF THE CONTENT. ALL CONTENT IS CONTROLLED BY THE RESPECTIVE THIRD PARTY OWNERS AND LICENSORS WHO HAVE MADE AVAILABLE THE CONTENT FOR THE SERVICE.
14.2 YOU ACKNOWLEDGE THAT WYNK MAY NOT AND IS NOT REQUIRED TO SCREEN, CENSOR OR EDIT ANY PORTION OF THE CONTENT BEFORE PROVIDING ACCESS TO YOU THE USERS. BY USING THE SERVICE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT WYNK SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES, CLAIMS OR OTHER LIABILITY ARISING FROM OR RELATED TO YOUR ACCESS, USE OR DOWNLOAD OF ANY CONTENT IN ANY MANNER.
14.3 YOU FURTHER UNDERSTAND AND AGREE THAT ACCESS TO ALL CONTENT ON THE APPLICATION IS MADE AVAILABLE ON AN “AS-IS” BASIS. WYNK DOES NOT PROVIDE ANY REPRESENTATION OR WARRANTY, AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXPRESS IMPLIED OR STATUTORY) AND ALL RESPONSIBILITY AND LIABILITY, REGARDING THE CONTENT, INCLUDING, WITHOUT LIMITATION, THEIR (a) QUALITY, SUBSTANCE, ACCURACY, RELIABILITY, APPROPRIATENESS OR ANY OTHER STANDARDS, (b) COMPLIANCE WITH APPLICABLE LAWS, RULES, REGULATION AND GUIDELINES, OR (c) TITLE OR NON-INFRINGEMENT OF ANY PARTY'S RIGHTS. WYNK HAS NO LIABILITY FOR ANY CONTENT YOU FIND TO BE OFFENSIVE, INDECENT, OBJECTIONABLE, SLANDEROUS OR LIBELOUS.
Application & Service
14.4 IN ADDITON, YOU EXPRESSLY AGREE THAT THE APPLICATION AND SERVICE ARE PROVIDED ON AN “AS-IS” BASIS AND THE DOWNLOAD, INSTALLATION AND USE OF THE APPLICATION, SERVICE, AND CONTENT IS AT YOUR SOLE RISK. WYNK DOES NOT MAKE, AND DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE AND THE APPLICATION, OR ITS MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WYNK MAKES NO REPRESENTATION OR WARRANTY THAT THE MATERIAL DISPLAYED ON OR OFFERED THROUGH THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. WYNK ALSO MAKES NO REPRESENTATION OR WARRANTY THAT THE APPLICATION OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT YOUR ACCESS TO AND USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE APPLICATION WILL BE COMPATIBLE OR INTEROPERABLE WITH ANY USER'S DEVICE.
14.5 FURTHER, YOU ACKNOWLEDGE THAT, WHILE USING THE SERVICE / APPLICATION, COMPATIBILITY AND INTEROPERABILITY PROBLEMS MAY CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO SUCH DEVICE, INCLUDING LOSS OF THE DATA, SOFTWARE AND FILES ON THE DEVICE. YOU ACKNOWLEDGE AND AGREE THAT WYNK AND ITS AFFILIATES, AND LICENSORS WILL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSSES, COSTS OR CLAIMS SUFFERED AS A RESULT OF OR IN CONNECTION WITH SUCH COMPATIBILITY OR INTEROPERABILITY PROBLEMS.
15. Limitation of Liability
15.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WYNK, ITS LICENSORS, SUPPLIERS, PARTNERS, AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER UNDER LAW, CONTRACT (INCLUDING FUNDAMENTAL BREACH) OR TORT (INCLUDING NEGLIGENCE), FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUES, DATA, BUSINESS, PRODUCTION OR GOODWILL, OR FOR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, APPLICATION, CONTENT OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT WYNK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALL OTHER DISCLAIMERS AVAILABLE AT www.wynk.in, OR ANY OF THE ASSOCIATED PAGES OR LINKS THEREIN, ARE DEEMED TO BE INCORPORATED HEREIN BY REFERENCE.
16. Indemnity & Release
16.1 You agree to indemnify and hold harmless Wynk, its licensors, service providers, their Affiliates, and each of their employees, officers, directors and agents (together, “Indemnified Parties”) against any losses, expenses, costs or damages (including reasonable attorneys' fees, expert fees' and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of, or failure to comply with, the terms and conditions of this Agreement, and including infringement of the copyright or any intellectual property right in the Content, Application or Services, (b) your access and use of the Proprietary Materials, (c) your breach of applicable laws, rules, regulations and guidelines, (d) your negligence and misconduct, (e) your infringement or misappropriation of intellectual property rights of any party, (f) Wynk's execution of any of your instructions, or (g) the use of the Service by any other person using your MSISDN or Device.
16.2 To the fullest extent permissible under applicable law, you release and discharge the Indemnified Parties from any liability resulting from your use or possession of the Application, including in relation to the following: (a) any product liability claims, (b) any claim that the Proprietary Materials fail to conform to any applicable legal or regulatory requirement, (c) any claim arising under any consumer protection or similar legislation, and (d) any misuse or unauthorized access of your Wynk account.
17.1 Governing Law. Any dispute or claim (contractual or non-contractual) arising out of or in relation to this Agreement, including disputes as to its formation, will be governed by and construed in accordance with Indian laws, without regard to its conflict of laws rules. Wynk and you submit to the exclusive jurisdiction of New Delhi courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
17.3 Severability. The invalidity or unenforceability of any provisions of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will remain in full force and effect.
17.4 Survival. The provisions of this Article, and any provisions relating to licenses, indemnity, governing law, jurisdiction, arbitration, confidentiality, intellectual property rights and other provisions that by their nature survive expiry or termination, and those representations and warranties that are required to supplement the above Articles for making them effective, will survive the expiry or termination of the Agreement.
17.5 No Waiver. No failure to exercise or any delay in exercising any right, power or remedy by a party under the Agreement will operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made expressly in writing.
17.6 Amendments. Wynk may modify or amend the terms of this Agreement by posting a copy of the modified or amended Agreement on the Application or at www.games.wynk.in. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the Service / Application following the date on which the modified or amended Agreement is posted.
17.7 Interpretation. In this Agreement, unless specified otherwise: (a) “include” means “including without limitation”, (b) singular includes plural, and vice versa, (c) reference to one gender includes the other, (d) references to any time of day are to Indian Standard Time, (e) reference to a statute or a statutory provision include its amendments, modifications, re-enactments and consolidations, and (f) the rule of construction that an agreement should be interpreted against the party responsible for drafting it will not apply to this Agreement.
17.8 Assignment. You may not assign your rights under this Agreement without Wynk's prior written permission and any attempt by you to do so will be void from inception. Wynk may assign or transfer this Agreement in its entirety at any time without notice and without your consent.
17.9 Wynk's performance of this Agreement is subject to existing laws and legal process and the policies and business decisions of Wynk, and nothing contained in this Agreement is in derogation of Wynk's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Proprietary Materials or information provided to or gathered by us with respect to such use.
17.10 A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
18. Grievance Officer
You can reach our grievance officer at firstname.lastname@example.org.