Updated on: 30/09/2020


TERMS OF USE


BY INSTALLING, CREATING A USER ACCOUNT AND/OR USING THE MOBILE APPLICATION, WEBSITE WWW.THEWYSH.COM OR WWW.WYSH.APP ("PLATFORM"), ANY OF THE SERVICES, FEATURES, CONTENT, FUNCTIONALITIES OR APPLICATIONS OF EMOJIFI PRIVATE LIMITED ("COMPANY" or "WE"), OFFERED THROUGH THE PLATFORM OR OTHERWISE (COLLECTIVELY REFERRED TO AS "SERVICES"), YOU INCLUDING THE PERSONS WHO BROWSE, OR WHO AVAIL THE SERVICES ("USERS") AND THE INFLUENCERS AND THE CELEBRITIES WHO ARE CONTRIBUTORS OF THE CONTENT (“ARTISTS”), AGREE TO THESE TERMS OF USE INCLUDING AND TO THE EXTENT APPLICABLE THOSE ADDITIONAL TERMS AND CONDITIONS AND POLICIES REFERENCED HEREIN AND/OR AVAILABLE BY HYPERLINK SUCH AS THE CANCELLATION & REFUND POLICY AND PRIVACY POLICY AS AVAILABLE ON THE PLATFORM AND ANY AGREEMENT THAT MAY BE EXECUTED BY YOU WITH THE COMPANY (“TERMS OF USE”).

This document is an electronic record in terms of the Information Technology Act, 2000 ("IT Act") and the rules thereunder as applicable and the provisions pertaining to electronic records in various statutes as amended by the IT Act and is published in accordance with the provisions of applicable laws, including the Consumer Protection (E-Commerce) Rules 2020, that require publishing the rules and regulations, privacy policy and terms of use for access or usage of the Platform. This electronic record is generated by a computer system and does not require any physical or digital signatures.

We reserve the right to update or modify these Terms of Use at any time with or without prior notice. Your access and use of the Platform or the Services following any such change constitutes your agreement to follow and be bound by these Terms of Use, as updated or modified. For this reason, we encourage you to review these Terms of Use each time you access and use the Platform and/or avail the Services. If you are an Artist, please also refer to Artist Special Terms, which form an integral part of these Terms of Use.

Notwithstanding anything contained herein, if you breach the Terms of Use, the Company reserves the right to take any legal or other action against you, including but not limited to, denying or revoking access to the Platform and the Services and referral to the appropriate authorities.

Additional Terms – Products for Users who are not Brand Owners

Wysh

In addition to the terms applicable to the Platform and the Services generally as set forth under the Terms of Use, the following terms apply to your access and use of the “Wysh”.

  1. Through the Platform, you have the opportunity to purchase "Wysh" from the Artists listed on the Platform. A “Wysh” is a personalized video message from your favorite Artist. You can place a request with your message to us for a Wysh video using the Platform.
  2. Subject to the payment of the applicable charges, you will have a non-exclusive, limited, revocable, non-transferable and a worldwide license from the relevant Artist to use a Wysh purchased on the Platform, for your own personal, non-commercial, entertainment and non-promotional purposes. A Wysh is only licensed to you and not sold to you. You shall not modify or edit a Wysh or re-sell your rights therein in anyway.
  3. You may, at its cost and risk, publish or upload a Wysh, or any part thereof, on any media including any social media platform.

Celebrity Chat

Through the Platform, the User has the opportunity to avail the Service of the Celebrity Chat whereby the User may avail a one to one chat session with the Artists listed on the Platform for the Celebrity Chat Service. In addition to the terms applicable to the Platform and the Services generally, as set forth under the Terms of Use, the following terms apply to your access and use of the “Celebrity Chat”. To the extent that these additional terms conflict with any of the Terms of Use, these additional terms will govern your access and usage of the Celebrity Chat.

  1. You agree that the Artist may refuse to accept your request without citing any reason in which case any amount paid by you shall be refunded in full. Further, you agree that we retain the right, in our sole discretion, to cancel any request from the User in the event such requests violate the Terms of Use, these additional terms and the other applicable laws.
  2. You agree that the Celebrity Chat Service may be provided by us through any mode or medium as deemed fit by us. We will share the details of the session in advance before the scheduled date and time of the session. You can join your session by logging into the link provided by us. You will be placed in a virtual waiting room until your session time. At the onset of the session, your computer or mobile device will automatically connect you to your Artist. We reserve the right to cancel your session in the event you do not log on to the link provided at the scheduled time. You agree and acknowledge that the Celebrity Chat Service may be provided over a third party delivery platform not maintained or controlled by us. Your use of such platforms shall be subject to the terms of service and privacy policy of such platforms. The Company is therefore not responsible for the availability, content or accuracy or privacy practices of other platforms, services or goods that may be linked to, or advertised on, such platforms website.
  3. You are responsible at your sole cost for all equipment, devices, and internet or mobile or cellular access to use the Celebrity Chat. You must also ensure that your use of the Celebrity Chat is not in violation of your mobile device agreement or any wireless data service agreement.
  4. We shall not permit more than 4 attendees for a single session.
  5. You agree that we shall have the right to record your sessions (collectively, “Recorded Events”) with the Artists for the purpose of quality control and monitoring. You further agree that we reserve the right to moderate or join any of the sessions for the purposes of fulfilment of the Services.
  6. You agree that we shall own all the right, title and interest, including all intellectual property rights, in the Recorded Events. You hereby agree to grant us the worldwide, perpetual, transferable, royalty-free and irrevocable right to store, broadcast, modify or make derivative works of, make copies of, distribute, publicly display the video chat, your likeness, voice, image, comments, content, music and performance as contained in the Recorded Event in any all media and format, whether now known or created in the future. We reserve the right to use any portions of the Recorded Events for promotional purposes.
  7. You agree not to screen record or in any other way record any session.
  8. You acknowledge that the Celebrity Chat shall not be private and you shall not share or disclose any personal, private, or sensitive information relating to you or any third party during the session.
  9. You acknowledge and agree that by accessing or using the Celebrity Chat, you may be exposed to content from the Artist that you may consider misrepresentative, offensive, provocative, sexually suggestive, obscene, indecent misguiding, or otherwise objectionable to (including but not limited to) a person, nationality, community, religion, state, region, profession, caste, ethnicity, gender or otherwise. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities of any kind or nature incurred as the result of any such interaction. You hereby release the Company from any claims, demands, damages (actual and consequential) and all liabilities arising in relation to such offensive content on the Celebrity Chat. Further, you may report such offensive content to our Grievance Officer.
  10. You agree to use the Celebrity Chat in any manner that will not impair, damage, disable, or otherwise compromise our Services on the Platform. You agree not to abuse, harass, demean, threaten, abrogate, erode, disillusion, defame or otherwise violate the legal rights of Artist or any other person.
  11. You also acknowledge and agree that the Artist and we, as a moderator, shall have a right to disconnect the session in the event you are in breach of the Terms of Use.
  12. You undertake not to use the any information made available through our Platform or the Celebrity Chat for any unlawful purposes or to conduct or attempt to conduct any unlawful activity, including, but not limited to, stalking, embezzlement, fraud, money laundering, criminal intimidation, or identity theft.
  13. You agree to comply with all the applicable laws or regulations for the time being in force within or outside India and abide by any code of conduct or other guidelines, which may be applicable to Celebrity Chat or to any other Service.
  14. Prohibited Uses: You agree not to use the Celebrity Chat in any way or provide any Content or engage in any conduct that:
    1. is unlawful, illegal or unauthorized;
    2. is defamatory of any other person;
    3. is obscene, sexually explicit or offensive;
    4. advertises or promotes any product or business;
    5. is likely to harass, upset, embarrass, alarm or annoy any other person;
    6. is likely to disrupt our service in any way; or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
    7. infringes any copyright, trademark, trade secret or other proprietary right of any other person; or
    8. advocates, promotes or assists any violence or any unlawful act. impersonate any person or entity or provide false information on the Platform or the Celebrity Chat, whether directly or indirectly, or otherwise disguise your identity or the origin of any message or transmittal you send to us and/or any of our other visitors or users;
    9. falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that we or any third party endorses you, or any statement you make;
    10. violate any other user’s right to privacy or other rights, or harvest or collect personally identifiable information about other users or the Artist without their express and informed consent.
  15. You fully understand and agree that the charges once paid shall not be refundable or adjustable or transferable under any circumstances in future, except (i) in the event your request is rejected; (ii) the session could not be held or completed successfully due to technical issues; (iii) the Artist does not join the session at the scheduled time; (iv) the Artist disconnects the session before the completion of at least 50% of the duration of the session otherwise on account of the User being in breach of the Terms of Use. Any decision of the Company will be final and binding in this regard.
Additional Terms – Services for Users who are Brand Owners (“Brand Services”)

IF A USER IS AN OWNER OF A BRAND OR A BUSINESS (“BRAND OWNER”), IT CAN AVAIL VARIOUS SERVICES LISTED BELOW BY ACCEPTING THESE TERMS OF USE OR EXECUTING A SERVICE AGREEMENT, CAMPAIGN BRIEF OR ANY RELATED ADDENDUM THAT REFERENCES THESE TERMS OF USE.

  1. A Brand Owner may purchase the Services such as (a) “Brand Shout Out”, a personalized and customized video message from an Artist, marketing a brand or promoting a product of the Brand Owner; (b) “Brand Wysh”, a personalized video message from an Artist, on behalf of the Brand Owner; (c) “Performance Video” consisting of a video recording performance by an Artist, specially created for the Brand Owner; (d) “Brand Campaign” consisting of video or image stories or posts by an Artist for endorsing a brand or promoting a product of the Brand Owner; (e) “Celebrity Chat” providing an opportunity to the Brand Owner to avail one to one chat session with an Artist; or (f) any other Service as the Company may provide from time to time.

  2. A Brand Owner may submit a request for purchasing any of the Brand Services by submitting a request on the Platform.
  3. Upon receipt of a request for availing one or more Brand Services we will liaise with the Brand Owner and the Artist shortlisted by the Brand Owner for finalising the engagement rates and the deliverables. Once the request of the Brand Owner is accepted, the Company and the Brand Owner shall execute a separate services agreement which shall set forth the details of the Brand Services to be provided by the Company (“Service Agreement”).
  4. All rights, title and interest in the Content shall be exclusively owned by the Artist and the Brand Owner shall only have the right to use the same subject to the Terms of Use. The license to use the Brand Services shall be limited in time as set forth in the Service Agreement and the Brand Owner shall to cease to use, or delete or remove reference to the Service and the Content from its social media or other platforms post expiry of such license period.
  5. The purchase of the Brand Services and the grant of rights to use the Brand Services and the Content shall not entitle the Brand Owner to use or refer to the Artist as its brand ambassador and the Brand Owner shall not be entitled to use the name, images or likeness of the Artist in connection with its brand and/or its products.
  6. The Brand Owner hereby grants the Company and the Artist shortlisted, a worldwide, non-exclusive, royalty-free, and transferable right to use the brand name, trademark, logo and other intellectual property rights in relations to its brand and products in order to enable the Company to provide the Services and the Artists to create the Content and for any and all promotional purposes of the Company on any online or offline platform, in print and electronic formats such as publications, videos, projects, and Platforms, as deem fit by the Company. The Company may in its sole discretion, publish, or press release, the name of or reference to the Brand Owner’s with the Company.
  7. .Further, the Company shall in no manner be held liable for any Content delivered by the Artist or any non-adherence of the Brand Owner’s requirements or applicable laws by the Artist.
Artist Special Terms

BY ACCEPTING THESE TERMS OF USE OR EXECUTING A SERVICE AGREEMENT, CAMPAIGN BRIEF OR ANY RELATED ADDENDUM THAT REFERENCES THESE TERMS OF USE:

  1. You hereby grant the Company a worldwide, non-exclusive, royalty-free, and transferable right to use, modify or edit to fit the format of delivery, reproduce, distribute, display, publish, adapt, make available online or electronically transmit, and perform the Content in connection with the Services and the Company's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Platform and/or the Services in any media formats and through any media channels. You provide the Company and its affiliates and partners, the undisputed and irrevocable right to apply its watermark, brand, logo including that of its partners and affiliates on the Product uploaded by you.
  2. You agree that the Company may use the images and names likeness, and social profile links and/or handles used by you on its social media sites for promotional and advertising purposes on any online or offline platforms, in print and electronic formats such as publications, videos, projects, and websites, as deem fit by the Company. You authorize the Company to publish press releases, advertise and/or other general marketing information in any medium, related to your engagement with the Company.
  3. The relationship between the Company and the Artist shall be on principal to principal basis and neither the Artist nor the Company shall constitute as joint ventures, partners, employees or agents of each other. Neither party shall bind the other to any agreement without the express written consent of the other.
  4. You represent, warrant, and agree that:
    1. you are eligible and free to enter into this arrangement and to grant the rights and licenses herein granted to the Company.
    2. you have obtained all the necessary licenses and/or authorization to provide and permit the Company to use the images, names, likeness, social profile links and/or handles, logos, trademarks, trade names and/or any other indicia or materials associated with you;
    3. you will obtain, at your own cost, any licenses, approvals, consents, registrations, etc. as may be required to provide the Products;
    4. you will personally create the Content required under this arrangement as per the Terms of Use;
    5. there are no prior or pending claims, proceedings, civil lawsuits, criminal prosecutions or other litigation matters, affecting you which would or might interfere with the Company’s full and complete exercise or enjoyment of any rights or licenses granted hereunder;
    6. the usage of the Content is permitted by you and is free from any claim by any other third party;
    7. adhere to all the laws applicable to you or your Products or your association with the Company.
  5. You further represent that all the Content uploaded by you:
    1. does not contain any material that is obscene, defamatory, libellous, slanderous or injurious to anyone. In the event of breach of this term, you shall fully indemnify and hold harmless the Company against any and/or all losses (direct and indirect), actions, claims, damages, costs and expenses incurred by the Company;
    2. any and all opinions and views stated in the Content are genuinely held by you;
    3. any and all statements in the relevant Services regarding your use and experience of the brand or brand’s product or services are true and correct and representative of your opinion;
    4. infringes the privacy rights, contract rights or other rights (including intellectual property rights) of any person, corporation or entity.
  6. You agree to indemnify, and must defend and hold harmless, the Company and its related bodies corporate, personnel, servants and agent, and the Users from and against any claims, liabilities, damages, losses and expenses (including reasonable legal fees) arising out of or in any way connected with any of the following (including as a result of your direct activities on the Platform):
    1. your content or access to the Platform;
    2. your breach of these Terms of Use, the rules and guidelines or any of the warranties or covenants given or made by you;
    3. your claim against a User for any reason;
    4. any claim by any third party (including any other brand or other artists) arising directly or indirectly from you breach of any of the provisions of these Terms of Use;
    5. any claim or allegation that the Service infringes a third party’s rights, including intellectual property rights.
    6. your violation of any applicable laws, rules or regulations; and
    7. any misrepresentation made by you.