These Terms of Service (these “Terms”) are a contract between you (either in your individual capacity as an independent consultant or as a representative of a firm), on the one hand (“you”), and Onyomark Tech, a privately incorporated company on the other hand (collectively, the “Company”, “Onyomark Tech”, “we” or “us”). You must read, agree with and accept all of the terms and conditions contained in these Terms in order to use the website located at www.onyomark.com and related software and services (collectively, the “Onyomark Tech Platform Services”). The Company may revise these Terms at any time. If any such revision results in a material change to these Terms, as determined by the Company in its sole discretion, Onyomark Tech will notify you by posting on www.onyomark.com or by sending you an email at the address you have registered with us. Continued use of the Onyomark Tech Platform Services after the effective date of any revisions to these Terms constitutes your acceptance of the revised Terms.
YOU UNDERSTAND THAT BY SIGNING UP FOR AND USING THE ONYOMARK TECH PLATFORM SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE ONYOMARK TECH PLATFORM SERVICES. IF YOU AGREE TO THESE TERMS ON BEHALF OF A LEGAL ENTITY: (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ANY REPRESENTATIVES IT ALLOWS TO ACCESS THE ONYOMARK TECH PLATFORM SERVICES OR TO PROVIDE SERVICES VIA THE ONYOMARK TECH PLATFORM SERVICES TO THESE TERMS; (B) SUCH ENTITY IS RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY ANY OF ITS REPRESENTATIVES; AND (C) “YOU” AND “YOUR” AS USED HEREIN WILL REFER AND APPLY TO THAT ENTITY.
1. THE ONYOMARK TECH PLATFORM SERVICES
The Onyomark Tech Platform Services provides a venue for you to meet and offer your professional services (“Services”) as an individual independent contractor or firm (“Contractor”) to individuals or businesses that are in the market for such Services (“Clients”) for one or more projects (“Projects”). Under these Terms, the Company provides services to you in your capacity as a Contractor, including operating and providing the Onyomark Tech Platform Services, curating Clients and Projects, and functioning as the payment processor for you and Clients. Clients post Projects and Contractors may submit profiles. If a Client accepts your profile, you may then draft and negotiate a contract, statement of work (“SOW”), consulting agreement, or other service or project agreement directly with such Client (“Service Contract”), though any such Service Contract you enter into with a Client must contain the required terms as further described in Section 1.7 below. The Company reserves the right in certain cases and with respect to certain Projects to select the set of profiles to forward to the applicable Client.
The Onyomark Tech Platform Services are available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. In order to create an account, you must provide us with your legal or business name, contact information, and profile information regarding your professional qualifications and the Services you will offer to provide via the Onyomark Tech Platform Services. In addition, by creating an account, you represent and warrant that you are not (a) a citizen or resident of a country in which use or participation in the Onyomark Tech Platform Services is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to India or other sovereign country sanctions or embargoes; or other economic sanction rules of any sovereign nation.
In addition, you confirm that you are not prohibited or limited in any way from acting as a In addition, you confirm that you are not prohibited or limited in any way from acting as a Contractor on the Onyomark Tech Platform Services by (a) any contract (e.g., employment, consulting, confidentiality, or non-disclosure agreements), (b) your current employer’s policies or codes of conduct if you are employed, (c) any similar policies or obligations that limit your conduct in any way or (d) any rules of conduct applicable to your profession or industry or any similar laws, rules or regulations. Further, to the extent your ability to consult is limited in any way, you confirm that you have obtained all necessary consents or waivers (e.g., the consent of your employer, any company or organization for which you have consulted, or any affiliated academic or government organization) to offer your Services as a Contractor on the Onyomark Tech Platform Services. Notwithstanding the foregoing, the Company may determine your eligibility to create an account on the Onyomark Tech Platform Services in its sole discretion.
1.3 Your Account
The Company reserves the right to validate your identity and account information at any time. You are responsible for ensuring and maintaining the secrecy and security of your account password, and are responsible for any activities that occur on the Onyomark Tech Platform Services under your account. You must notify Company support at email@example.com immediately if you suspect that your password has been lost or stolen.
1.4 Independent Contractor Status
As a Contractor, you acknowledge and agree that your relationship to the Company is that of an independent contractor and vendor rendering professional services, and that
(a) You have no authority to act on behalf of the Company;
(b) The Company does not, in any way, supervise, direct, or control your performance of Services; and
(c) The Company is not a party to any contract you may enter into with Clients and will not have any liability or obligations whatsoever under any such contracts. Further, consistent with your status as an independent contractor/vendor of the Company, neither you nor any of your principals, employees or agents (if applicable) shall be entitled to participate in or receive any compensation or benefits from the Company, that the Company provides or makes available to its employees pursuant to legal requirements or otherwise including, without limitation, worker’s compensation insurance, travel accident insurance, medical/dental insurance, life insurance, short- term and/or state disability insurance or benefits, long-term disability insurance, holiday pay, sick pay, paid vacation, bonuses, salary continuation pay, leaves of absence (paid or unpaid), pension plan benefits, retirement savings plan benefits or lease vehicle benefits. You are solely responsible for:
(i) Compensating any of your principals, employees and agents who provide any services to the Company or Client on your behalf, including, without limitation, wages and employee benefits;
(ii) Reporting to all applicable government agencies all amounts paid to such principals, employees and agents;
(iv) Compliance with all applicable laws with respect to your principals, employees and agents including, without limitation, and equal employment opportunity laws.
1.5 E&O Insurance Coverage
You agree that:
(a) This is not a contract of insurance or a contract to procure insurance on your behalf.
(b) Onyomark Tech is not an insurer or insurance producer, and is not licensed as such. Onyomark Tech does not sell, solicit or negotiate insurance for any class or classes of insurance, are not authorized to do so on your behalf, and have not done so on your behalf. Onyomark Tech does not exchange contracts of insurance by any means, for money or its equivalent, on behalf of an insurance company, have not done so on your behalf, and are not authorized to do so on your behalf. Onyomark Tech does not attempt to sell insurance or ask or urge anyone to apply for a particular kind of insurance from a particular company, have not done so on your behalf, and are not authorized to do so on your behalf. Onyomark Tech does not confer directly with or offer advice directly to purchasers or prospective purchasers of a particular contract of insurance concerning any of the substantive benefits, terms or conditions of an insurance contract, do not sell insurance or obtain insurance from insurers for purchasers, have never done so on your behalf and are not authorized to do so on your behalf.
1.6 No Conflict
You hereby represent and warrant that you are not party to any written or oral agreement or understanding, or bound by or otherwise subject to any rules of conduct applicable to your profession or industry or any similar laws, rules or regulations, that would restrict or prevent you from performing Services for a Client with which you enter into a Service Contract or with respect to a Project for which you entered into a Service Contract. You hereby represent and warrant that you will not incorporate into any Work Product produced under any Service Contract any confidential information or trade secrets of any other person or entity, or any material in which any other person or entity asserts any copyright, patent right, trademark, or other proprietary or intellectual property right. For purposes of these Terms, "Work Product" means all inventions, discoveries, designs, developments, methods, modifications, improvements, ideas, products, processes, algorithms, databases, computer programs, formulae, techniques, know-how, trade secrets, graphics or images, and audio or visual works and other works of authorship, whether or not patentable or copyrightable, that are created, made, conceived or reduced to practice by you for Client during the term of the Service Contract.
1.7 Service Contract Required Terms
Unless otherwise agreed to in a writing signed by the Company, each Service Contract must contain terms and conditions substantially similar to and at least as protective of the Company as the following, provided that such terms and conditions do not constitute legal advice from the Company, and you and your Clients should consult independent counsel in drafting and negotiating any Service Contracts.
Client Payments and Billing: Client will pay Onyomark Tech Pvt. Ltd. (“Onyomark Tech”) the fees for the Project in accordance with its agreement with Onyomark Tech. Except in the event of termination, we will pay you by the end of the calendar month following any calendar month in which the earned balance in your Account equals or exceeds the applicable payment threshold.
Unless expressly authorised in writing by Onyomark Tech, you may not enter into any type of arrangement with a third party where that third party receives payments made to you under the Agreement or other financial benefit in relation to the Services.
Payments will be calculated solely based on our accounting. Payments to you may be withheld to reflect or adjusted to exclude any amounts refunded or credited to Clients and any amounts arising from invalid activity, as determined by Onyomark Tech in its sole discretion. In addition to our other rights and remedies, we may (a) withhold and offset any payments owed to you under the Agreement against any fees that you owe us under the Agreement or any other agreement, or (b) require you to refund us within 30 days of any invoice, any amounts we may have overpaid to you in prior periods. If you dispute any payment made or withheld relating to the Services, you must notify Onyomark Tech in writing within 30 days of any such payment. If you do not, any claim relating to the disputed payment is waived.
If a Client whose Project is posted on the Onyomark Tech Platform Services defaults on payment to Onyomark Tech, we may withhold payment or charge back your account.
To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information in your Account. You are responsible for any charges assessed by your bank or payment provider.
You may terminate the Agreement at any time by completing the account cancellation process. The Agreement will be considered terminated within 10 working days of Onyomark Tech's receipt of your notice. If you terminate the Agreement and your earned balance equals or exceeds the applicable threshold, we will pay you your earned balance within approximately 90 days after the end of the calendar month in which the Agreement is terminated. Any earned balance below the applicable threshold will remain unpaid.
Onyomark Tech may at any time terminate the Agreement, or suspend or terminate the participation of any Property in the Services for any reason. The parties agree to waive any provisions of local law which may limit, restrict, require a court order or otherwise inhibit Onyomark Tech’s ability to terminate this Agreement at its sole discretion. If we terminate the Agreement due to your breach or due to invalid activity, we may withhold unpaid amounts or charge back your account. If you breach the Agreement or Onyomark Tech suspends or terminates your Account, you (i) will not be allowed to create a new Account and (ii) may not be permitted to utilize the services offered by the Onyomark Tech Services Platform.
Third Party Beneficiary: Client and you understand and agree that Onyomark Tech is an intended third party beneficiary of each Service Contract and that Onyomark Tech has the right to enforce its rights and obligations under the Service Contract on its own behalf.
For a period of twelve (12) months from the later of (i) the time you first identify a Client or are first identified by a Client through the Platform or (ii) the time you complete your last Project with a Client (“Exclusivity Period”), you will use the Platform as your exclusive method to offer Services and receive all payments for Services, directly or indirectly, with that Client and/or that Client’s business entity or arising out of your relationship with that Client and/or that Client’s business entity. Furthermore, during the Exclusivity Period, you shall not encourage, solicit or accept complete or partial payment for Services outside of the Onyomark Tech Platform Services, or otherwise circumvent the Company’s role as payment processor or the Onyomark Tech Platform Services’s payment methods, and any violation of the foregoing restrictions is a material breach of these Terms. By way of illustration and not in limitation of the foregoing, within the Exclusivity Period you will not: (a) submit proposals to, deliver services to, invoice or receive payments or other consideration from any Clients for whom you have performed services or been introduced to through the Onyomark Tech Platform Services except via the Onyomark Tech Platform Services; (b) contact a Client outside of the Onyomark Tech Platform Services in order to secure a Project that the Client has posted on the Onyomark Tech Platform Services; or (c) invoice or report on the Onyomark Tech Platform Services an invoice amount lower than that actually agreed between you and a Client through the Onyomark Tech Platform Services. Upon expiration of the Exclusivity Period, you are free to directly deal with the applicable Client outside of the Platform and independently from these Terms. YOU WILL NOTIFY THE COMPANY IMMEDIATELY IF A CLIENT SUGGESTS MAKING PAYMENTS OUTSIDE OF THE ONYOMARK TECH PLATFORM SERVICES WITHIN THE EXCLUSIVITY PERIOD.
1.9 Third Party Websites
The Onyomark Tech Platform Services may include links to third party websites. The Company has no control over, is not responsible for and does not endorse any such sites, and the Company will have no liability for any damages or losses you incur by visiting or using such third party websites.
1.11 Onyomark Tech Code of Conduct
By accessing and using the Onyomark Tech Platform Services, you agree to abide by the Onyomark Tech Code of Conduct (“Code of Conduct”), which is incorporated herein by reference.
2. LICENSE AND RESTRICTIONS; OWNERSHIP
2.1 License Grant
Subject to your compliance with these Terms, the Company hereby grants you a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) to access and use the Onyomark Tech Platform Services for your internal business purposes only, and subject to the limitations set forth below. The Company reserves any and all rights not expressly granted to you pursuant to these Terms. The limited rights granted to you to access and use the Onyomark Tech Platform Services comprise a limited license and do not constitute the sale of any software program or other intellectual property.
You agree that:
(a) You will only use the Onyomark Tech Platform Services in full compliance with all applicable laws and these Terms; and
(b) You will not use the Onyomark Tech Platform Services for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct. Further, except as specifically permitted herein or approved in advance in writing by the Company, you agree that you will not directly or indirectly:
(i) Distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time- share or otherwise exploit the Onyomark Tech Platform Services in any unauthorized manner;
(ii) Copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Onyomark Tech Platform Services or any part thereof in any form or manner or by any means;
(iii) Harvest or scrape any content or data from the Onyomark Tech Platform Services;
(iv) Remove or alter any copyright or other proprietary rights notice or restrictive rights legend contained or included in the Onyomark Tech Platform Services;
(v) Decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Onyomark Tech Platform Services or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law);
(vi) Utilize the Onyomark Tech Platform Services to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or (b) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(vii) Circumvent any functionality that controls access to or otherwise protects the Platform; or
(viii) Permit any third party to engage in any of the foregoing. Any attempt to do any of the foregoing is a material breach of these Terms and a violation of the rights of the Company and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.
2.3 Onyomark Tech Platform Services Ownership
The Onyomark Tech Platform Services “look and feel” (e.g., text, graphics, images, logos), proprietary content and software code, information and other materials are protected under intellectual property laws. You acknowledge and agree that the Company and/or its licensors own all rights, title and interest in and to the Onyomark Tech Platform Services (including all intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. Any and all: (a) suggestions for correction, change and modification to the Onyomark Tech Platform Services and other feedback, information and reports you provide to the Company (collectively “Feedback”); and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by the Company or otherwise relating to the Onyomark Tech Platform Services (collectively, “Revisions”), are and will remain the property of the Company. All Feedback and Revisions become the sole and exclusive property of the Company and the Company may use and disclose Feedback and Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all rights, title and interest that you may have in and to any and all Feedback and Revisions.
3.1 Your Content
3.2 Workspace and Work Product
During the course of your Projects, the Company will provide you storage space on the Onyomark Tech Platform Services (“Workspace”) for the exchange of documents and other information related to your Projects between you and the applicable Client, including any Client Materials and Work Product. The Company reserves the right to delete your Workspace and all data therein forty five (45) days after the end of the associated Project. For the purposes of these Terms, "Client Materials" means the instructions, materials, and information that Client provides to you in connection with a particular Service Contract, and any intellectual property rights contained therein.
3.3 Disclosure of Your Content
Onyomark Tech's confidentiality obligations with respect to your Content shall be governed by Section 5 herein. Notwithstanding the foregoing, you acknowledge and agree that the Company may preserve and/or disclose your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
(a) Comply with legal process, applicable laws or government requests;
(b) Enforce these Terms;
(c) Respond to claims that any of your Content violates the rights of third parties; or
(d) Protect the rights, property, or personal safety of the Company, its affiliates, officers, employees, representatives and agents, as well as Platform users and the general public.
3.4 Prohibited Content
You are solely responsible for all of your Content, and agree not to upload any Content prohibited by applicable law or the restrictions in this Section. The Company reserves the right to investigate and take appropriate legal action against any Contractors who violate this Section. Specifically, you represent and warrant that none of your Content:
(a) Constitutes protected health information;
(b) Infringes any intellectual property, proprietary, contractual or privacy rights of any party;
(c) Constitutes material, non-public information the disclosure of which would be in violation of securities laws;
(d) Contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(e) Constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “contests”, “sweepstakes”, or any other form of solicitation;
(f) Is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libellous, or otherwise objectionable; or
(g) In the sole judgment of the Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Onyomark Tech Platform Services, or which may expose the Company or its users to any harm or liability of any kind. The Company has the right, but not the obligation; to monitor your use of the Onyomark Tech Platform Services, your Content and the Services you perform to determine your compliance with these Terms.
4. FEES AND PAYMENT
The Company collects fees for each Project that is completed on the Onyomark Tech Platform Services. When you submit a bid for a Project, you shall add a 20% commission over and above your bid amount. All fees are non-cancellable and non- refundable. If you have further questions about Onyomark Tech's fees, please contact us at www.onyomark.com
The Company functions as the payment processor for amounts Clients pay for your Services on the Onyomark Tech Platform Services, and the Company will automatically disburse funds to you in accordance with the payment terms under the applicable Service Contract. Unless otherwise agreed upon in the applicable Service Contract, all disbursements to you shall be made in Indian Rupees or U.S. Dollars. In cases of fraud, abuse or violation of these Terms, the Company reserves the right to setoff against any amounts due to you via the Onyomark Tech Platform Services any damages or costs the Company incurs as a result of such fraud, abuse or violation.
4.3 Tax Reporting
You will be solely responsible for determining whether you are required by applicable law to file any Indian or foreign tax forms or remit to the appropriate authorities any taxes or similar charges applicable to the amounts the Company remits to you for Services, as well as filing any such tax forms and remitting any such taxes or charges to the appropriate Indian or foreign authorities.
4.4 Books and Records
During the time these Terms are in force, and for a period of three (3) years thereafter, you will create and maintain records to document compliance or non-compliance with these Terms and the terms of any Service Contract. You will, upon at least ten business days prior written request by Company (a “Review Request”), make available to Company and its auditors such records and provide reasonable cooperation to the extent necessary to verify the accuracy of the amounts owed and charged pursuant to these Terms and the terms of any Service Contract.
During the term of this Agreement and for a period of three (3) years thereafter (or perpetually with respect to Content), each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, agents and/or representatives who have a need to know such Confidential Information for purposes of this Agreement and who are bound to protect such Confidential Information as required hereby, or to legal, financial or other professional advisors who are providing professional services to the Receiving Party subject to obligations of confidentiality. In addition, without the Disclosing Party’s written permission, the Receiving Party shall not use any Confidential Information of the Disclosing Party other than in connection with fulfilling the obligations or exercising the rights of the Receiving Party under this Agreement (including, without limitation, as may be necessary to support or defend a claim arising under this Agreement). Neither party may engage in any purchasing nor selling of securities based on any Confidential Information or any material, non-public information and may not communicate any such information to any person or entity when it is reasonably foreseeable that such person is likely to purchase or sell securities based on such information.
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure. The Receiving Party will cooperate reasonably with the Disclosing Party in any effort the Disclosing Party undertakes to obtain a protective order and, if disclosure is nonetheless required, will furnish only such Confidential Information as is legally required to be disclosed.
Upon request by the Disclosing Party, the Receiving Party agrees to return or destroy all Confidential Information in its possession. Services.
6. WARRANTY DISCLAIMER
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE ONYOMARK TECH PLATFORM SERVICES OR ANY ACTIVITIES OR ITEMS RELATED TO THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS OR LOSS OF DATA, PRODUCTION OR PROFIT. THE TOTAL AGGREGATE LIABILITY OF THE COMPANY TO YOU FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR USE YOUR OF THE ONYOMARK TECH PLATFORM SERVICES WILL NOT EXCEED THE AMOUNTS REMITTED TO YOU BY THE COMPANY DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
You agree to indemnify and hold harmless the Company and its affiliates, officers, employees, representatives and agents (each, an “Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to: (a) Your use of the Onyomark Tech Platform Services;
(b) Any Services you provide;
(c) Your Content; and
(d) Your violation of these Terms.
Subject to your obligation to complete Services for which you are engaged, you have the right to cancel your account at any time upon notice to the Company, and the Company has the unlimited right to terminate or limit your account and/or access to the Onyomark Tech Platform Services at any time and for any reason, including, without limitation, for violation of these Terms and/or the Code of Conduct. For the avoidance of doubt, canceling your account does not relieve you of your obligations with respect to the Exclusivity Period set forth in Section 1.8.
Sections 1.7, 1.8, 3.1, 3.3, 5, 6, 7, 8, 9.2, 10 and 11 of these Terms will survive any termination thereof.
10. DISPUTE RESOLUTION
10.1 Informal Process First
You agree that in the event of any dispute between you and the Company, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to arbitration under this Agreement.
10.2 Binding Arbitration
Any dispute or claim that remains unresolved after the informal dispute resolution described in Section 10.1, except for disputes relating to the infringement of the Company’s intellectual property rights or the access or use of the Onyomark Tech Platform Services in violation of these Terms (a “Claim”), will be resolved by binding arbitration, rather than in court.
10.3 No Judge or Jury
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would.
10.4 Arbitrator and Rules
The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the Arbitration and Conciliation Act 1996, Consumer Protection Act, 1986, and Supplementary Procedures for Resolution of Consumer Related Disputes.
10.5 Starting an Arbitration
To begin an arbitration proceeding, you must send us a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to us at the following address: firstname.lastname@example.org.The Company will send any notice of dispute to you at the email address you have registered with us.
10.6 Format of Proceedings
The arbitration will be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
10.7 Individual Basis; Jury Trial Waiver
To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve a Claim will be conducted only in the respective party’s individual capacity and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action (“Class Action”). If for any reason a Claim proceeds in court rather than in arbitration, you and the Company each waive any right to a jury trial. You and the Company expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
10.8 Limitation Period
In no event will any Claim, or any other action or proceeding by you (including arbitration under this Section 10) be instituted more than one (1) year after the cause of action arose.
Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods will have no applicability.
If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and the Company each agree to the exclusive jurisdiction of the High Court located in Mumbai, Maharashtra, and you and the Company each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
10.11 Opting Out
If you do not want to arbitrate disputes with the Company and you are an individual, you may opt out of this arbitration agreement by sending an email to within thirty (30) days of the first of the date you access or use the Onyomark Tech Platform Services.
You may not assign these Terms or any of your rights or obligations hereunder without the Company’s prior written consent. The Company may freely assign these Terms. Any attempted assignment or transfer in violation of this Section 11.1 will be null and void. Subject to the foregoing restrictions, these Terms will inure to the benefit of the successors and permitted assigns of the parties.
11.2 Entire Agreement
These Terms and the Schedules attached hereto set forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
11.3 Governing Law
These Terms and any controversy, dispute or claim arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the jurisdiction in which you reside.
11.4 Notices; Consent to Electronic Notice
You consent to the use of electronic means to deliver any notices pursuant to these Terms. Notices will be given:
(a) by the Company via email (in each case to the email address that you provide when registering your account);
(b) a reasonably prominent posting on the Onyomark Tech Platform Services; or
(c) by you via email to email@example.com
11.5 No Waiver
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
If and to the extent any provision of these Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties.