Please read the T&C carefully before signing up for the Services. The User accepts and understands that the Company shall have the absolute right to amend these T&C at any point of time unilaterally with or without any notice. Lack of knowledge related to any of the T&C or the amendments thereto to the T&C from time to time will not absolve the User from any of your liabilities under the T&C.
- DEFINITIONS AND INTERPRETATION Application/Platform” shall mean the online store application hosted by and accessed from the Service Provider for the Customer;
SCOPE OF THE SERVICES
- Company shall provide access the Application/Platform and provide the services as more particularly set out in the relevant proposal document accepted by the User (“Services”);
- You shall provide the information required to populate the Application/Platform more particularly set out in Schedule I hereto (“Platform Information”) to the Company within maximum 30 days from the execution of this Agreement or from the payment of the Set Up Charges, whichever is earlier. In the event the necessary information has not been provided within 30 days as mentioned above, the Set up charges shall be retained by the Company, and the User to avail the Services will have to pay the Set-Up Charges once again; and
- In the event You fail to provide the necessary Platform Information to the Company within the period as set out above or the User desires to discontinue with the Services, then this Agreement shall be terminated and the Set Up Charges already paid shall not be refunded;
- The parties hereto agree that the Domain shall remain the property of the Company during the Domain Period, if provided by the Company. In the event the User discontinues the tenancy at any time prior to the expiry of the Domain Period then the Domain shall continue to remain the property of the Company. The Companywill have all rights to take any action with respect to the domain, without any objection from the User;
- In the event the tenancy of the Application/Platformis live until the expiry of the Domain Period then the Company shall hand over the Domain ownership rights to the User at the expiry of such Domain Period. Further, in the event the User has discontinued the tenancy of the Application/Platform during the Domain Period and is desirous of obtaining the same, then the Company may at its sole discretion sell the same to the User at a mutually agreed price or deal with the Domain in any manner the Company deems fit;
- The parties agree that the Companywhile acting on behalf of the Customer shall enter into agreements with the third party vendors and the Customer. Hence, the Customer shall solely be liable for any acts or omissions of the Customer and the End Users, which results in any loss to the Service Provider or its third party vendors or which breaches any term of the agreements, which the Service Provider has entered into with the third party vendors; and
- Notwithstanding anything else contained in this Agreement, the Domain related provisions given under Clauses 2.4 and 2.5 and 3.1.2 shall not apply to the Customer in the event the Customer owns the Domain prior to the Execution Date.
In consideration of the Company providing the Services to the User, the User agrees to make the following payments to the Company
- The Useragrees to pay a one time Set Up Charge which shall be due and payable to the Company upon execution; and
- The User agrees to pay in advance, via the Application/Platform account, a monthly or yearly Membership Charge. The payment period cycle of Membership Charge is more particularly given in the proposal accepted by the User. The User shall ensure that the Application/Platform account has sufficient funds for an auto debit for the Membership Charge on the due date. In case the funds are insufficient then an email will be sent informing the User to load the said account (“Payment Email”). In the event the further advance for Membership Charge is not paid on the stipulated date,as mentioned in the Payment Email, then the Company reserves the right to close the User’s account and terminate this Agreement. Prior to closing the account and terminating the Agreement, the Application/Platform will be shut down immediately and the Application/Platform will be suspended for 30days (“Suspension Period”). Susbequent to the Suspension period, the Application/Platform will be deleted (“Application/Platform Deletion”). Upon non-payment, the Domain (if provided by the Company) will be confiscated by the Company. During the period where payments remain due and unpaid, the Userwill not be allowed to migrate its clientele from the Application/Platform.However, upon the Application/Platform Deletion, the User agrees to lose its right to migrate its clientele from the Application/Platform even after payment of all dues.The shut down of the Application/Platform, upon non payment of Membership Charge within prescribed timelines, is automatic and it needs no manual intervention from the Company. The Company will not be responsible for any direct or indirect losses to the User or any third party as a result of such shut down, and it shall be the sole responsibility of the User.
- The Company will issue an invoice to the Userup on successful collection of the payment of Membership Charge and the Set Up Charge ("Invoice").
- The User agrees to intimate the Company 15 days prior to expiry of the Membership Period for renewal of the Service. The Company shall not be responsible for any loss caused to the User due to delay in intimating the Company of such renewal. In the event the User does not intimate its intention to terminate the Application/Platform will automatically shut down on the last day on failure to intimate of User’s intentions, the User will not be allowed to migrate its End Users from the Platform .
- In the event the User opts for an upgraded version of the Service than what they have currently paid for, the User agrees to pay the difference in the Membership Charge of the existing Service and the upgraded Service (“Difference”). However, if the User is on a yearly membership model, the User agrees to have an option of adjusting the Difference with the balance in its Application/Platform account (“Adjustment Model”). If the User decides to opt for the Adjustment Model, upon communication of such decision to the Company, the User agrees that the Company will provide a revised date of validity of the Service after taking into account the balance in the User’s Application/Platform account
- The Membership Charge and the Set Up Charge are exclusive of taxes including GST, and the User shall be responsible for payment of all applicable taxes (including (GST )) in connection therewith.
- In consideration of the Company providing the Services to the User, the User agrees to make the following payments to the Company
ROLES AND RESPONSIBILITIES OF PARTIES
The User hereto agrees and acknowledges that:
- The Company shall solely be responsible for developing and maintaining the Application/Platform. The Company shall not be responsible for any inaccuracies or errors with respect to information or source code contained on the Application/Platform or in the Customer Content. The Parties agree that human errors are inevitable in a source code and hence the User will not hold the Company responsible for any inaccuracies or errors with respect to the underlying source code pertaining to the Application/Platform. However, the Company shall be made responsible in the event that the inaccuracies or errors are caused due to gross negligence or fraud on the part of the Company. The User further agrees that during Beta Phase, the Company shall have no liability for any issues or damages caused by the Services (including un-scheduled downtimes);
- The Usershall be solely responsible for the Items and any sale transaction that occurs in respect of the Items on the Application/Platform. The Company shall not be involved in its relationship and/or any transaction with any actual or potential buyer of the Items;
- The Company shall not be responsible or provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the source code and service modules found or offered on the Application/Platform and the User shall always be responsible for the same;
- The User agrees to be solely and fully responsible for all activities that occur under the Application/Platform and Customer Content, whether authorised by it or nor and shall at all times comply with all applicable Laws; and
- The User understands and agrees that certain Services such as SMS and email services, payment gateway services, logistics services, web-hosting service etc. have been procured from third party vendors and the Userwill have to be bound by the terms of such vendors as amended from time to time.
The User further unconditionally agrees and undertakes that it shall not:
- Use the Application/Platform or Services for illegal or unauthorised purposes;
- Post, promote or sell any Prohibited Items on the Application/Platform;
- Post, transmit or display any Customer Content in a context which may be deemed as defamatory, libellous, obscene, harassing, threatening, abusive, racist, offensive, deceptive or fraudulent, encouraging unlawful conduct, or which otherwise violates the rights of the Companyor any third party (including any Intellectual Property Rights privacy rights, contractual rights);
- Copy, duplicate, sell, resell or exploit any portion of the Services or copyrightable materials or any other content on the Application/Platform which is or may be subject to intellectual property rights without the express written permission of Company;
- Falsely state or otherwise misrepresent affiliation with any person or entity, or falsely expressly or imply that the Companyor any third party endorses the User, the Application/Platform or the Items;
- Use or upload any software or material that contains, or which it has a reason to suspect that contains, viruses, damaging components, malicious code of harmful components which may impair or corrupt the Application's/Platform's data or damage or interfere with the operation of the Application/Platform and/or Services; and
- Act in a manner that may be perceived as damaging the reputation and goodwill or which brings the Company into disrepute or harm.
The Company shall be entitled to
- Monitor, screen and remove any Customer Content on the Application/Platform
- Report any activity it suspects to be in violation of any Law to the appropriate authorities and cooperate with such authorities;
- Request any information from the User in connection with the use of the Services and/or access to the Application/Platform at any time; and
- Do all acts required for the provision of the Services, including but not limited to procuring keys, access for an on behalf of the Usersfor the functioning of the Application/Platform. Hence, the Users agrees that they will not allege that any actions taken, for providing Services under this Agreement, has been done without their prior consent.
- The Userswho have opted for the logistics service or any other third party service provider from/through the Companyshall at all times be bound to use the logistics service provider or any other intermediary service provider that the Company has onboarded. In other words, if the Company decides to terminate the services of the current logistics service provider or any other third party service provider and onboards another logistics service provider or any other third party service provider, the User shall be bound to use the latter. User will be informed of the change in the service provider and the User agrees and undertakes that the User shall not create any hindrances or raise any objections, directly or indirectly, to such a change.
- Service levels, if any, relating to the Service shall be as set forth in the Schedule II (Service Level Schedule) (“Service Level”). The Companyshall cure any failure to achieve a Service Level within the period specified within the Schedule II. Remedies, if any, for failure to achieve a Service Level shall be as set forth in the Service Level Schedule. Basic support from the Companywill be provided, free of cost as given under the Service Level Schedule. Support beyond such basic support will be charged by the Company at the rate specified from time to time.
- The User hereto agrees and acknowledges that:
REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants individually to each other, that:
- it is duly organized and validly existing under the laws of its jurisdiction of incorporation.
- It has the power to carry on its business and has all necessary licenses, consents and approvals for the same.
- neither the execution or delivery of the Agreement, nor the consummation of the transactions contemplated herein, will conflict with or result in a breach of, or give rise to a right of termination of, or accelerate the performance required by, any terms of any agreement to which it is now a party or constitute a default, or result in the creation of any lien, charge or encumbrance, upon any of the assets or properties owned by it.
- this Agreement, and the transactions contemplated herein, have been duly authorized by all corporate action or such actions as may be required under
- there are no actions, suits or proceedings, commenced or threatened against it before any court, board or governmental or administrative agencies which, if adversely determined would materially affect its business, properties, assets or condition, financial or otherwise, its right to conduct their business, or its ability to enter into this Agreement and to consummate the transactions contemplated herein.
INTELLECTUAL PROPERTY RIGHTS
- The Usershall own all Intellectual Property Rights pertaining to the Customer's Content including to any designs, images, fonts, logos, illustrations, photographs, compositions, artworks, interfaces, text, literary etc. The User agrees to grant the Company a worldwide right to use the trademark of the User on its Application/Platform and/or Services for the purpose of providing the Services and for marketing or promotional activities.
- the User agrees that the Company will at all times be and remain the sole and exclusive owner of all Intellectual Property Rights of the Services and the Application/Platform source code. All rights, title and interest in and to the Services, including any copyrights and materials, are owned by or licensed to the Company. The Company grant’s the User as long as it actively uses the Services, through a non-exclusive, non-transferable, non-sub licensable, fully revocable, limited licence to use the Services for the purpose of displaying Items on the Platform and offering the items to the End Users solely within the ambit of the Services provided
- The User undertakes, acknowledges and agrees that it shall not use or publish or provide any information on its Application/Platform, which infringes the Intellectual Property Rights of any third person. The User agrees to indemnify the Company for any loss caused to the Company for breach of this provision.
Each Party may be privy to certain confidential information relating to this arrangement, this Agreement, the Application/Platform/process used for developing the Application/Platform, Technical Know How, data about the Application/Platform, including IntellectualProperty Rights, and anything designated as confidential (the “Confidential Information” ). Each Party agrees to keep confidential and shall not, without the prior written consent of the other Party, divulge the Confidential Information to any other Person or use the Confidential Information other than for carrying out the purposes specified herein, except:
- to the extent that such Confidential Information is in the public domain other than by breach of this Agreement;
- to the extent that such Confidential Information is required to be disclosed by any applicable law or required to be disclosed to any Governmental authority to whose jurisdiction the Parties are subject to. Provided that in such case, the disclosing Party shall, within a reasonable time before making any such disclosure, consult with the other Parties regarding such disclosure and seek confidential treatment for such portions of the disclosure as may be requested by the other Parties; and
- to the extent that any of such Confidential Information was previously known or already in the lawful possession of any of the Parties, as evidenced by its written records, prior to disclosure by any other Party hereto.
- Each Party shall ensure that the obligation of confidentiality under this Clause 7 shall mutatis mutandis also apply to each of its employees, directors, officers or any Person employed by a Party in relation to development of the Platformor associated with it during the period of employment/association with such Party and for 4 (Four) years from the date of cessation of such employment/association with such Party
- In the event that for any reason this Agreement shall lapse and the transactions contemplated hereby shall not be implemented, the relevant Party shall, on written demand of the other Party(ies), immediately return or destroy the Confidential Information in relation to the said Party (to the extent it does not form part of Intellectual Property Rights), together with any copies in its possession.
- No formal or informal public announcement or press release which makes reference to any of the Parties (in relation to this Agreement) or the terms and conditions of this Agreement or any of the matters referred to herein, shall be made or issued by or on behalf of any Party without the written consent of all the Parties. If any Party is obliged to make or issue any announcement or press release required. It shall give the other Parties every reasonable opportunity to comment on any announcement or release before it is made or issued.
- Each Party may be privy to certain confidential information relating to this arrangement, this Agreement, the Application/Platform/process used for developing the Application/Platform, Technical Know How, data about the Application/Platform, including IntellectualProperty Rights, and anything designated as confidential (the “Confidential Information” ). Each Party agrees to keep confidential and shall not, without the prior written consent of the other Party, divulge the Confidential Information to any other Person or use the Confidential Information other than for carrying out the purposes specified herein, except:
- The User agrees to indemnify, defend and hold harmless the Company, their respective directors, officers, representatives, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs (including attorney fees) arising from (a) breach of any term of this Agreement; (b) breach of any third party right, including any copyright, property, or privacy right, resulting from the Application/Platform or Customer Content and use of the Services or Application/Platform; and (c) any other type of claim that the Application/Platform and/or Customer Content caused damage to a third party.
- Save and except in circumstances given under Clause 9 below, the Company agrees to indemnify, defend and hold harmless the User, their respective directors, officers, representatives, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs (including attorney fees) arising from (a) breach of any term of this Agreement; (b) breach of any third party right, including any copyright, property, or privacy right, resulting from the Service; and (c) any other type of claim that the Service caused damage to a third party, to the limited extent of the Set up Charge Fees and the Membership Charge paid by the User in the immediately preceding 6 months.
LIMITATION OF LIABILITY
- The Company its officers, directors, employees and agents shall not be liable to the Useror the End User for any direct, indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, including any damages resulting from (a) any access, use or in ability to use the Application/Platform or the Services; (b) errors, mistakes or inaccuracies of the performance in the Application/Platform or in any content (including Customer Content) made available through the Application/Platform and/or through the Services; (c) any unauthorised access to or use of our servers and/or any personal information and/or other information stored herein; (d) any interruption or cessation of transmission to or from the Services; (e) use of or access to any other website linked to the Application/Platform.
The Application/Platform and/or Services are provided on an "as is" and "as available" basis. All data and/or information contained in the Application/Platform and/or the Services are provided for informational purposes only. No representations or warranties of any kind, implied, express or statutory, including the warranties of non-infringement of third party rights, title, merchantability, satisfactory quality or fitness for a particular purpose are given in conjunction with the Application/Platform and the Services. Without prejudice to the generality of the foregoing, the Company does not warrant:
- the accuracy, timeliness, adequacy, commercial value or completeness of all data and/or information contained in the Application/Platform or the Services;
- the Application/Platform or the Services will be provided uninterrupted, secure or free from errors or omissions, or that any identified defect will be corrected;
- that the Application/Platform or the Services are free from any computer virus or other malicious, destructive or corrupting code, agent, program or macros; and
- the security of any information transmitted by the Useror to the User through the Application/Platform or the Services.
TERM AND TERMINATION
- This Agreement shall commence on the Commencement Date and, subject to Clause 10.2, remain valid unless terminated earlier by written consent.
- The Company may terminate this Agreement if the User fails to pay the Membership Charge for the further periods once the Membership Charge paid in advance is depleted or for breach of the terms of this Agreement. Further, either Party may terminate this Agreement by providing the other Party 15 (Fifteen) days prior written notice
If this Agreement is terminated pursuant to Clause 10.2 above:
- The Company shall immediately suspend rendering the Services to User and the Application/Platform shall be deactivated;
- The Company shall have lien over the Customer Content upon termination due to non-payment;
- The Usershall settle all the outstanding invoices, if any, immediately and no later than 7 days from such termination;
- The Customer Content will be deleted from the Application/Platform upon settling all outstanding invoices or claims by the User; and
- The Application/Platform will be taken offline/de-activated.
- The termination of this Agreement shall be without prejudice to the rights of either Party accrued up to the date of termination.
- With effect from the date of termination of this Agreement this Agreement shall forthwith cease to be of effect; provided, however, the provisions of Clause7 (Confidential Information), Clause 6 (Intellectual Property Rights), Clause 10 (Term and Termination), Clause 11 (Governing Law) and Clause 12(Miscellaneous) shall survive the termination of this Agreement
- This Agreement shall be governed in all respects by the Laws of India and the courts at Mumbai, India shall have exclusive jurisdiction.
- In the event a dispute arises in connection with the interpretation or implementation of this Agreement, the Parties shall attempt in the first instance to resolve such dispute by referring the dispute for resolution to a mutually appointed sole arbitrator according to the Arbitration and Conciliation Act, 1996 (India) and the rules made thereunder. Arbitration shall be conducted in Mumbai, India under governing law stated in Clause 11.1above, as follows (a) All proceedings in any such arbitration shall be conducted in English; (b) The arbitration award shall be final and binding on the Parties, and the Parties agree to be bound by the award and to act accordingly; and (c) The arbitrator may, (but shall not be required to), award to a Party that substantially prevails on merits, its costs and reasonable expenses (including reasonable fees of its counsel).
- When any dispute is under arbitration, except for the matters under dispute, the Parties shall continue to exercise their remaining respective rights and fulfill their remaining respective obligations under this Agreement.
Fees and Expenses
It is hereby clarified that the Parties shall each bear their respective costs of their legal and other professional advisors incurred in connection with this Agreement. The Parties shall each bear an equal share of the stamp duty costs of this Agreement.
Remedies, Waivers, Amendments and Consents
- Unless otherwise provided for in this Agreement, no failure on the part of any Party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law; and
- has sole and complete authority to modify and amend this Agreement with or without any notice to You in this regard by posting the changes to the website Storzb.com or via an announcement. Company may change or discontinue the service at anytime, without any liability.
This Agreement (together with any other documents referred to herein or therein) constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes any prior agreements or understandings relating to such subject matter.
Each and every obligation under this Agreement shall be treated as a separate obligation and shall be severally enforceable as such and in the event of any obligation or obligations being or becoming unenforceable in whole or in part. To the extent that any provision or provisions of this Agreement are unenforceable, they shall be deemed to be deleted from this Agreement and any such deletion shall not affect the enforceability of the remainder of this Agreement not so deleted, provided the fundamental terms of the Agreement are not altered.
This Agreement may be executed in one or more counterparts including counterparts transmitted by facsimile, each of which shall be deemed to be an original, but all of which signed and taken together, shall constitute one document.
Independent Rights and Obligations
Each of the rights of the Parties hereto under this Agreement are independent, cumulative and without prejudice to all other rights available to them, and the exercise or non-exercise of any such rights shall not prejudice or constitute a waiver of any other right of the Party, whether under this Agreement or otherwise.
Unless otherwise agreed to by the other Party in writing, the Usershall not assign, transfer, charge or otherwise deal with all or any of its rights or obligations under this Agreement, nor grant, declare, create or dispose of any right or obligation or interest in it.
Nothing in this Agreement shall create or be deemed to create a partnership, or the relationship of a principal and agent, or employer and employee between the Parties.
A Party shall, at the request of the other Party, execute and deliver to the other Party all such further instruments, deeds, assignments, assurances and other documents, and shall do and perform such further acts and deeds as the other Party may reasonably request, in connection with the carrying out of this Agreement and the transactions envisaged in this Agreement.
No Third Party Beneficiaries
This Agreement shall be binding upon and inures solely to the benefit of the Parties and their permitted assigns and successors, and nothing herein, express or implied, is intended to or shall confer upon any other Person, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Sub-contracting and delegation
The Company reserves the right to delegate or sub-contract the performance of any of the functions in connection with the Platform and/or Services and reserve the right to use any service providers, subcontractors and/or agents on such terms, as we deem appropriate.
The Company will not be liable to the User or any third party for any failure to perform its obligations under this Agreement in the event that such non-performance arises as a result of the occurrence of an event beyond our reasonable control, including an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder or other event of force majeure.
- Fees and Expenses
“Activation Date” shall mean the date on which the Application/Platform is populated with all the products, prices etc. and the Service Provider approves sale to be conducted on the Application/Platform;
“Beta Phase” shall mean second phase of testing the Application/Platform wherein founder Customers who are onboarded with special benefits agree to render their assistance in testing the Service in a real-time environment which shall include the Customers flagging out the various bugs and issues with the performance of the Application/Platform for the Service Provider to clear the testing phase and move the Application/Platform to final implementation;
“Business Day” shall mean a day on which scheduled commercial banks are open for business in Mumbai, excluding Saturday and Sunday;
“Confidential Information” shall have the meaning ascribed to it in Clause 7.1
“Customer Content” shall only mean any data, graphics, information, images and links that are uploaded on the Application/Platform by the Customer;
“Customer Panel” means the dashboard made accessible and visible to the Customer, where all his information pertaining to the Service is visible to the Customer;
“Domain” shall mean the web address of the Application/Platform; “Domain Period” shall mean a period of 24 months commencing from the date of registration if registered by the Service Provider;
“End User” means visitors and users of the Application/Platform;
“End User Information” means all informationand content provided by the End User on the Application/Platform;
“Item” shall mean the products (physical and virtual) of the Customer that are posted, promoted and sold within the Application/Platform;
“Intellectual Property Rights” mean patents, copyrights (registered or unregistered), trademark (registered or unregistered), proprietary and Confidential Information in relation to the product, product name, product structure, Application/Platform, Domain, designs, methods and processes, software, content, materials, trade secrets, lay-outs, graphics, know-how, website, images, fonts, logos, illustrations, photographs, compositions, artworks, interfaces, text, literary or code files or any analogous rights to those set forth above (registered or unregistered) and any other intellectual property rights in any jurisdiction;
“Law” shall mean Indian statute, law, regulation, ordinance, rule, judgment, notification, rule of common law, order, decree, bye-law, governmental approval, directive, guideline, requirement or other governmental restriction, or any similar form of decision of, or determination by, or any interpretation, policy or administration, having the force of law of any of the foregoing, by any Governmental Authority having jurisdiction over the matter in question, whether in effect as of the date of execution of this Agreement or thereafter;
“Membership Charge” shall mean an amount being the payment made by the Customer to the Service Provider for providing authorization to access the Application/Platform and its provided associated services as per the proposal accepted by the Customer;
“ Membership Charge Due Date” shall mean the Activation Date or the 30th day from Setup Commencement date whichever is earlier (The tenancy is a prepaid model and not postpaid);
“ Party/ies” shall mean Company and the User.
“Prohibited Items” shall mean any products prohibited from being posted, promoted or sold under applicable Law. This shall include, but will not be limited to, drugs and narcotic substances without proper licenses, arms and ammunitions, pornography, seditious materials;
“Published Date” shall mean the date on which all the vendor partners are tied up and a final call to decide the fundamental strategy of the store is laid and the date on which the store is visible to the Customer but not to the End User;
Services” shall have the meaning ascribed to it in Clause 2.1 below;
“Set up Commencement date” shall mean the date on which intent is shown to start Application/Platform and Customer pays the Set Up Charges;
“Set Up Charges” shall meanthe amount of charges paid by the Customer to the Service Provider to onboard the Customer on the Application/Platform; and
“Technical Know How” shall mean all the know-how, knowledge and technology required to develop the Application/Platform.