THIS AGREEMENT IS A LEGAL, BINDING AGREEMENT BETWEEN MARKET SIMPLIFIED INDIA LIMITED, (hereinafter referred to as "MSIL", "Company""We", "Us" or "Our") AND ANY PERSON LOGGING IN AND/OR REGISTERING ON THE PLATFORM(As defined herein below)AND/OR ACCESSING OR USING THE SERVICES (as defined herein below)(hereinafter referred to as the "User", "You" OR "Your").
By You either clicking a button/checking a box indicating your acceptance, or by registering on the Platform, and/or by executing any document that references this Agreement and/or by accessing and/or using the Services (as defined herein below)provided to You by MSIL ( either directly or in affiliation with any other third party), You hereby expressly acknowledge and agree to be bound by this Agreement, policies and guidelines incorporated by reference in this Agreement and any future amendments and additions to this Agreement as published from time to time on the website www.smartd.in ("Website") . Should you disagree with any of the terms & conditions stipulated herein (in part or in entirety), You are hereby directed to refrain from accessing, registering, logging-in on the Platform or have any access to our Services.
By acceding to the terms of this Agreement and/or registering as a User on the Platform, You represent and warrant that: (a) You are an individual of at least 18 years old and eligible to contract per Indian Contract Act, 1872;(b)There is no contract of any nature, operative and in force, to which You are a party (directly or indirectly) or under which You may be otherwise bound or subject to, which contain any terms or provisions that in any manner restrict, limit, prevent, prohibit or make unlawful Your compliance and/or performance of the terms of this Agreement and (c) You will at all times during the subsistence of this Agreement comply with all applicable laws and regulations.
The terms of this Agreement are subject to change at any time without notice. To make sure You are duly aware of any changes, please review this Agreement periodically at the Website. Continued use of the Platform after any such changes shall constitute Your consent to any such changes.
This Agreement shall become effective immediately upon acceptance (as indicated by clicking on the "I accept " button or downloading the Program or checking a box or otherwise accepting this Agreement) of the Agreement by the User. The date of such acceptance shall hereinafter be referred to as the "Effective Date".
Unless specified otherwise, MSIL and User shall hereinafter be referred to collectively as "Parties" and individually as "Party" and also deem to mean and include their respective successors, assigns and/or legal heirs as may be applicable.
(A) The Company along with its Affiliates have developed a web/mobile/cloud based proprietary user interface application referred to as"SmartD"("Platform") that provides You i.e. the User(hereinafter defined)access to, amongst other things, Variable Information(hereinafter defined)regarding User's, in limited geographies and facilitates User and User's to connect with each other (" Services").
(B) The Merchant(s) (defined herein below) is generally engaged in the business of providing products and/or services pertaining to food and beverages and such similar sphere;
(C) Further by virtue of you downloading the Application and/or accessing, browsing and/or using the Platform, registering Yourself on the Platform and based on the representations, warranties and information provided by You, MSIL hereby agrees to provide you a personal, non-exclusive, non-transferable, limited privilege to enter, download, access and use the Platform on the terms and conditions contained herein.
NOW, THEREFORE, IN CONSIDERATION OF THE TERMS, CONDITIONS AND COVENANTS HEREINAFTER CONTAINED THE PARTIES HERETO HEREBY AGREE AS FOLLOWS
1. DEFINITIONS AND INTERPRETATION
The following words and expressions used in this Agreement shall, to the extent not inconsistent with the context thereof, have the following meanings respectively:
1.1.1. "Affiliate" of a Party shall mean (i) in the case of any Party other than a natural person, any other Person that, either directly or indirectly through one or more intermediate Persons, Controls, is Controlled by or is under common Control with such Party; (ii) in the case of any Party that is a natural person, any other Person who is a Relative of such Party and any Person (other than a natural person) that is Controlled by such Party.
1.1.2. "Agreement" means this agreement, and includes the preamble, recitals, annexures, schedules and exhibits attached to it, and any amendments made hereto and thereto in accordance with the provisions hereof;
1.1.3. "Applicable Law" means any applicable national, state, local or other law, statute, regulations, rules, by laws, ordinances, constitution, principles of common law and includes notifications, guidelines, policies, directions, directives, judgment, decree and orders of any statutory authority, court, tribunal or recognized stock exchange, and having the force of law;
1.1.4. "Confidential Information" shall have the meaning ascribed to it in Clause 13.1;
1.1.5. "Copyrights" means: (a) all copyrights whether they are registered, unregistered or pending registration, in India and/ or the rest of the world, that are owned by, used by or applied for, (b) all common law rights in the words and names in India or anywhere else in the world; and (c) all rights to bring an action for passing off, infringement or any other action in respect thereto;
1.1.6. "Device" means a device, usually electronic, that processes data according to a set of instructions, which may include but not be limited to workstations, personal computers, laptops, net-books, personal digital assistants, tablets, smart-phones, etc.
1.1.7. "Intellectual Property" shall mean and include MSIL's interest in any and all intellectual and industrial property of any kind protected or protectable in any jurisdiction throughout the world, including, without limitation: (a) all software, computer programs, layouts, interfaces, templates, applications and tools, and code of all types, including object and source code, and including ephemeral aspects, "look and feel", graphic design and user interface design ("Software"); (b) all information and data, databases, database layouts and data structures ( whether or not subject to copyright protection) ("Databases"); (c) all literary, graphical, pictorial, artistic, audio-visual and other works, including apps, webpages and webpage designs, templates, scripts, and similar material, and all compilations of any of the foregoing ( together with Software and Databases, "Works"); (d) all common law trade-marks, registered trade-marks, trade-mark applications, trade names, business names, corporate names, service marks, certification marks, trade dress, logos and other marks, and the goodwill associated with any of the foregoing ("Marks"); (e) all registered domain names ("Domain Names"); (f) all patents, inventions, discoveries, arts, systems, methods, processes, machines, manufactures, developments and improvements ("Inventions"); (f) all copyrights, copyright registrations and applications for copyright registration; (g) all industrial designs, industrial design registrations, industrial design registration applications and integrated circuit topographies; (h) all formulae, confidential information, proprietary information, trade secrets and know how (" Know-How"); and (i) and any other works or other subject-matter that is subject to intellectual or industrial property protection under the laws of any jurisdiction throughout the world, in all cases whether or not registrable, registered or the subject of applications for registration, including Intellectual Property Rights;
1.1.8. "Intellectual Property Rights" means: (i)any and all statutory, common law or other intellectual and industrial property rights and interests of any kind or nature in and to Intellectual Property provided or protectable under the laws of any jurisdiction throughout the world, including all Copyrights and other rights in and to Works, moral rights and benefits in all waivers of moral rights, patents, patent rights and other rights in and to Inventions, rights to Marks, rights and benefits in and to domain name registrations, industrial design and design patent rights, trade secret rights and other rights in and to Know-How; (ii)all registrations, pending applications for registration, and rights to file applications, and rights of priority, reissues, divisional, re-examinations, renewals, extensions, continuations (in whole or in part) or other derivative applications and registrations, for any of the foregoing; (iii)all licenses or other contractual rights in and to any of the foregoing (including third party software licenses) and all licenses granted in respect of any of the foregoing Intellectual Property, rights and interests;(iv) all future income and proceeds from any of the foregoing Intellectual Property, rights, interests or licenses; and all rights of enforcement and to obtain remedies, including to damages and profits, by reason of any past, present or future infringement of any of the foregoing Intellectual Property, rights, interests or licenses.
1.1.9. "Merchant(s)"shall refer to all entities enrolled and subsisting from time to time under the Platform rendering business of providing products and/or services pertaining to food and beverages and such other allied activities.
1.1.10. "Merchant(s) Content" means any and all text, files, images, graphics, illustrations, information, data, Platform usage details & information (including data provided in the Registration Form) in any format, provided by the Merchant in any manner whatsoever and/ or run on or through, the Platform.
1.1.12. "Payment Service Provider" shall mean and include MMP Mobi Wallet Payment Systems Limited (MMPL) which owns the brand 'mRUPEE' and such further or other providers which may be enlisted by MSIL from time to time.
1.1.13. "Person" means any individual, partnership, corporation, company, unincorporated organization, association, joint venture, trust, society or other entity (whether or not having a separate legal personality) and includes a governmental authority;
1.1.15. "Trade Marks" shall mean (a) all trademarks and service marks, whether they are registered, unregistered or pending registration, in India and/ or the rest of the world, that are owned by, used by or applied for, and includes the trademark and service marks in the representation, form and manner therein, (b) all common law rights in the words and names in India or anywhere else in the world; and (c) all rights to bring an action for passing off, infringement or any other action in respect thereto;
1.1.16. "User Content" means all text, files, images, graphics, illustrations, information, data, Platform usage details & information in any format, provided by You in any manner whatsoever and/ or run on or through, the Platform pursuant to Your enrolment with MSIL.
1.1.17. "Variable Information" shall mean all information relevant to the Merchant and the Services provided to the User which are variable in nature such as the kind and nature of food available, price menu for the products, services, offers and discounts.
1.1.18. "Wallet" means a pre-paid payment instrument which is associated with the Services and User's account to be provided by MMPL as per the applicable terms and conditions.
2.1. MSIL hereby enlists the User on the Platform, and the User have access to its Services rendered by the Merchant(s) subject to the compliance by the User of all the terms and conditions set forth in this Agreement and the Other Mandatory Terms. It is further clarified that MSIL vide the Platform is only a provider of online marketplace service, where various registered Merchants offer their products and/or services and user can avail, purchase the same subject to the terms and conditions contained herein.
2.2. Pursuant to such engagement, subject to compliance with the terms set out herein, including but not limited to complying with all the conditions stipulated herein, during the Term (As defined hereunder), the User shall be entitled to avail the various Services on the Platform by way of:
2.2.1. Creation of a User account using a distinctive user name and password ("Account"). This Account will enable the User to:
a. Create its customised profile detailing his/her own identity, personal details and User Services;
b. Transact on the said Platform;
c. Make payments through the Wallet and/or other forms;
d. You shall be entitled to host, display, upload, modify, publish, transmit, update or share any information as feedback, comments regarding the Services, Website, Merchants or ideas on how to improve them.
2.2.2. Your entitlement to review Your usage history detailing the transactions done, reports (including analytical analysis) etc as shall be offered on the Platform.
2.3. During the Term MSIL shall be entitled to modify/ delete/ add any terms and conditions including but not limited to the facilities offered on Your account, also those relating to payment, charges, fees, registration in the Platform and/or for the usage of Services, provided however MSIL will provide adequate prior notice of such modification, deletion or addition.
3.1. MSIL reserves the right to charge fees for certain listings, registration, subscription and/or usage and/or access fee(s)and/or transaction fee(s) based on certain completed transactions for using the Services. MSIL further reserves the right to alter any and all fees from time to time, without notice, provided however any such alteration shall be duly intimated from the effective date of such alteration. The User shall be completely responsible for all charges, fees, duties, taxes, and assessments arising out of the use of the Services.
3.2. In case, there is a short charging by MSIL and/or any amounts due to MSIL for any reason whatsoever, including but not limited to any listing, services or transaction fee or any other fee or service, MSIL reserves the right to deduct/charge/claim the balance subsequent to the transaction at its own discretion.
3.3. Any increase in the price charged by MSIL and/or any Merchant(s) on account of change in rate of taxes or imposition of new taxes by Government shall have to be borne by You.
3.4. In the rare possibilities of any Services (in part or in full) confirmed for any reason whatsoever, MSIL will process the refund and intimate you of the same. MSIL is not under any obligation to indemnify or to compensate/ replace You in any manner whatsoever. All subsequent transactions will be treated as new transactions with no reference to the earlier disputed transaction.
3.5. The User agrees and acknowledges that MSIL shall use third-party payment processors ("Payment Processors") for any payments made on the Platform. The processing of all payments/fees will be subject to the terms, conditions and privacy policies of the Payment Processors in addition to this Agreement. The User further agrees and acknowledges that neither MSIL nor any of its directors, shareholders or other representatives shall be liable to the User under any circumstances for any direct, indirect, punitive, incidental, special or consequential damages that result from or arise out of User's use of the Payment Processors, User's payment through the Payment Processors or User's ability or inability to complete the payment.
3.6. MSIL and/or its Affiliates reserve the right to charge and recover from You, fees for availing the Services. Furthermore, You specifically authorize MSIL to recover its amounts by appropriating and/or set-off any amounts due and outstanding from You. These changes shall be effective from the time they are posted on to the Website or over the MSIL Affiliate channel through which you are availing the Service.
4. COVENANTS, UNDERTAKINGS, ACKNOWLEDGEMENTS & WARRANTIES
The User hereby agrees, acknowledges, warrants and undertakes that:
4.1. All the Recitals, the terms and conditions stated herein do form a part and parcel of this Agreement and each and every averment stated herein is true, correct and applicable to You;
4.2. There is no contract of any nature, operative and in force, to which You are a party or under which You may be otherwise bound or subject to, which contain any terms or provisions that in any manner restrict, limit, prevent, prohibit or make unlawful the execution of this Agreement;
4.3. The User has not in any manner breached the intellectual property of any third party in the set up and conduct of its business.
4.4. The User shall at all times directly (and not through any other person) access the Platform and/or Services only using authorized and lawful means and per the terms and conditions herein. Furthermore, You shall not use the Services and access the Platform only for personal purposes and in no event You shall use and/or attempt to avail the said Services for any commercial, resale, trade, and/or wholesale purposes. It is further clarified that You are acting as principal only and not as agent for another Person while requesting and/or receiving the Services.
4.5. Any configuration and/or set up of the Device(s) for access to the Platform and/or Services shall be User's sole cost and responsibility. User shall upgrade the Devices and/or operating systems therein from time to time as shall be applicable.
4.6. MSIL reserves the right, at its sole discretion, to prevent access should the User be using the Services with an incompatible or unauthorized Device or in the event of breach of any of the terms and conditions herein. Furthermore, MSIL at its sole discretion reserves the right to not to accept any order from You without assigning any reason thereof.
4.7. MSIL's Platform solely provides the Services as provided under this Agreement and does not provide or purports to provide any other services. You shall use the Services only for Your personal purposes. For the sake of avoidance of any doubt, it is hereby clarified that MSIL merely provides a user friendly platform to showcase the various Merchants and the Variable Information in accordance with the Agreement and does not intend to directly provide the User Services and it is herby categorically clarified that MSIL is and shall not be responsible in any manner whatsoever for the correctness, truthfulness, completeness, accuracy of the various statements made by the Merchant(s) and the User is recommended to individually verify them to his satisfaction;
4.8. MSIL does not in any manner endorse or guarantee the completeness and/or quality of the Services rendered by any of the Merchant(s).
4.9. The photograph(s) and/or any representations of the products and/or services offered by any Merchant on the Platform are for illustration purposes only and may not depict the true, accurate, complete and actual particulars that shall be served and/or delivered and hence You shall at your sole risk ascertain the truthfulness, completeness and/or accuracy of the same and only upon having satisfied yourself shall transact with the Merchant(s).
4.10. The recourse available to the User in the event of any claim with respect to any of the Services rendered by any Merchant, including any third party services, is solely against the relevant Merchant and shall not be against MSIL and/or MMPL or any other entity affiliated with MSIL. The User's recourse in the event of any claim with respect to any Merchant's Services is solely against the said Merchant. In no event will any agreement and/or arrangement between theUser and any Merchant be binding on MSIL or impose upon MSIL any additional obligations or any obligations inconsistent with this Agreement.
4.11. MSIL shall not be held liable for any Merchant Content including but not limited to any pictorial representations, quality and quantity of the Services rendered by the Merchant(s), opinions, ratings, customer reviews or comments posted by any User vide the Platform pertaining to the User or User Services.
4.12. The User shall not in any manner misuse any Merchant Content or any information obtained vide the Platform;
4.13. Additionally, the Merchant(s) themselves may provide terms and guidelines that govern particular features, offers or the operating rules and policies applicable to each Service (for example, offers on items on the menu, branch related offers, duration related offers, combo offers, etc.). The User shall be responsible for ensuring compliance with the terms and guidelines or operating rules and policies of the Merchant(s) with whom the User elects to deal, including terms and conditions set forth in a Merchant(s)'s fare rules, contract or other rules.
4.14. You further agree not to register falsely or under any pseudo name as a User to generate positive feedback or reviews about any Merchant(s) business or to defame or post derogatory remarks about any other Merchant(s).
4.15. MSIL has the exclusive right to but not the obligation to moderate including flag, filter, modify, refuse or remove any or allUser Content or Variable Information or Merchant Content uploaded on the Platform, provided however MSIL is not responsible for or liable in any manner whatsoever for any damage or loss arising out of the User Content or Variable Information or User Content that has been uploaded by the User or the User irrespective of whether or not such User Content or Variable Information or User Content was moderated;
4.16. MSIL may at any time at its discretion (however not have the obligation) verify the User Content or Variable Information provided by the User provided however that MSIL is not responsible for or liable in any manner whatsoever for any claim arising out of the User Content or Variable Information irrespective of whether or not such User Content or Variable Information was verified;
4.17. MSIL shall not have any liability or responsibility with respect to any agreement, understanding or contract (whether oral or in writing) entered into by User with any third party whether or not directly or indirectly associated with the Platform and/or Services provided by MSIL under this Agreement.
4.18. You have not relied on the future availability of the Platform or any Services in entering into the payment obligations hereunder;
4.19. All information provided by User to MSIL (including but not limited to the User Content, Variable Information and credit information) is and shall be true, correct and accurate in all respects;
4.20. MSIL shall not be liable for any failure or default to provide access to the Platform and/or Services or delisting of the User from the Platform on account of the failure of the User to fulfill its obligations and comply with the terms and conditions as set out in this Agreement;
4.22. that You will not take any action (express or implied) that interferes with, degrades or adversely affects MSIL, the Platform and/or Services or any third parties engaged by MSIL;
4.23. You will not use the Platform or Services in a manner (i) that is prohibited by any law or regulation, or facilitates the violation of any law or regulation; or (ii) will disrupt a third parties' similar use; (iii) violate or tamper with the security the Platform and/or Services;
4.24. MSIL shall be entitled to and User hereby provides its consent to use the User Content, Variable Information and any other data arising out of the User's usage of the Platform and Services in any manner whatsoever including without limitation for the purpose of creation and generation of reports and analyses, any benchmark testing information or results, research, presentation, development purposes and analytics by MSIL or any other third party contracted by MSIL for such purposes.
4.25. MSIL IS NOT RESPONSIBLE FOR AND/OR LIABLE (DIRECTLY OR INDIRECTLY) IN ANY WAY FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF THE USER'S AND USER'S INTERACTIONS OR DEALINGS WITH ANY MERCHANT INCLUDING BUT NOT LIMITED TO ANY CLAIM ARISING DIRECTLY OR INDIRECTLY ON ACCOUNT OF THE USER'S SERVICES;
4.26. When requested by MSIL, the User may provide his/her feedback of the Platform and Services and MSIL shall be entitled at its sole discretion to act on such feedback including but not limited to choosing to post such feedback on its Platform and/or other medium ( print, television, radio, video, terrestrial, website internet and such media which is in existence today for advertising, display, exhibition, relay, broadcast, transmission, and communication ).It is further clarified that MSIL does not have any obligation to act and/or perform on any feedback provided by You.
4.27. The User will not use the Platform, or any other medium, to transmit, publish, post, upload, distribute or disseminate any inappropriate, harassing, abusive, defamatory, libellous, obscene, illegal or deceptive content;
4.28. The User authorizes MSIL and its Affiliates to directly or indirectly contact, deal with transact, or otherwise be involved with any corporation, partnership, proprietorships, trust, individuals, or other entities introduced and/or referred by the User (directly or indirectly) without the specific written permission of the User and MSIL shall not have any obligation to the User.
4.29. The Website and/or the Platform may contain links to other websites or URL ("Linked Sites"). The Linked Sites are not under the control of MSIL or the Website and MSIL is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. MSIL is not responsible for any form of transmission, whatsoever, received by the User from any Linked Site. MSIL is providing these links to the User only as a convenience, and the inclusion of any link does not imply endorsement by MSIL or the Website of the Linked Sites or any association with its operators or owners including the legal heirs or assigns thereof. Furthermore, MSIL is not responsible for any errors, omissions or representations on any Linked Site. MSIL does not endorse any advertiser on any Linked Site in any manner. The Users are requested to verify the accuracy of all information on their own before undertaking any reliance on such information.
4.30. The User will ensure that the Platform is not used to upload, post, transmit, or otherwise make available any content that contains a virus or any other form of malicious code or data that is likely or intended to have an adverse impact on, or provide unauthorized access to the Platform or any other software, hardware, services or data;
4.31. The User will not attempt to gain unauthorised access to any accounts, computer systems or networks connected to the Platform, through hacking, or any other means, or obtain or attempt to obtain any materials or information through any means not intentionally made available to the User;
4.32. The User will not use the Platform to develop, or to assist anyone in developing a competitive product or service or for other competitive purposes;
4.33. The User will refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Platform or attempt to do so, or acquiesce, authorize or encourage any other party to do the same
4.34. The User shall be solely responsible for (i) procuring and maintaining its network connections and telecommunications links from its systems to MSIL's data centers, and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to its network connections or telecommunications links or caused by the internet;
4.35. It shall be the obligation of the User to ensure that any Person who has any access to the Platform and/or the Services in full or in part pursuant to this Agreement shall at all times be bound by the same obligations of the User as set forth in this Agreement and MSIL shall have the same rights against any such Person;
4.36. The User acknowledges that from time to time, MSIL may apply Upgrades (hereinafter defined) to the Platform, and that such Upgrades may result in changes in the appearance and/or functionality of the Platform. User may be required to install certain Upgrades or updates to the software in order to continue to access or use the Platform, or portions thereof. "Upgrades" means new versions of, and updates to, Platform whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of Platform.
5. COMMUNICATION POLICY:
5.1. By accepting the terms and conditions You accept that MSIL may send the alerts to the mobile phone number provided by You while registering on the platform and/or the Service or to any such number replaced and informed by You.
5.2. You further acknowledge that the alerts will be received only if the mobile phone is in 'On' mode to receive the SMS. If the mobile phone is in 'Off' mode then You may not get/get after delay any alerts sent during such period.
5.3. MSIL will make best efforts to provide the service and it shall be deemed that the YOU shall have received the information sent from MSIL or its Affiliate as an alert on the mobile phone number provided during the course of your registration on the Platform or Website and MSIL shall not be under any obligation to confirm the authenticity of the person(s) receiving the alert. You cannot hold MSIL liable for non-availability of the service in any manner whatsoever.
5.4. You acknowledge that the SMS service provided by MSIL and/or its Affiliate could be as an additional facility provided for Your convenience or as required under Applicable Law and that it may be susceptible to error, omission and/ or inaccuracy. In the event You observe any error in the information provided in the alert, MSIL shall be immediately informed about the same by You and MSIL will make reasonable efforts to rectify the error as early as possible. However, You shall not hold MSIL liable for any loss, damages, claim, expense including legal cost that may be incurred/ suffered by the customer on account of the SMS facility.
5.5. You further acknowledge that the clarity, readability, accuracy, and promptness of providing the service depend on many factors including the infrastructure, connectivity of the service provider. MSIL shall not be responsible for any non-delivery, delayed delivery or distortion of the alert in any way whatsoever.
5.6. In addition to the indemnity provisions set out in Clause 10.1, You agree to indemnify and hold harmless MSIL, its Affiliates and the SMS service provider including its officials from any damages, claims, demands, proceedings, loss, cost, charges and expenses whatsoever including legal charges and attorney fees which MSIL and the SMS service provider may at any time incur, sustain, suffer or be put to as a consequence of or arising out of (i) misuse, improper or fraudulent information provided by You, (ii) of You providing incorrect number or providing a number that belongs to that of an unrelated third party, and/or (iii) You receiving any message relating to any of the Services from MSIL and/or the SMS service provider.
5.7. You also agree to receive information regarding what MSIL perceives to be of their interest based on usage history via SMS, email & phone call. This includes offers, discounts and general information. In case You does not want such information, they have to explicitly ask to be excluded.
5.8. By accepting the terms and conditions the customer acknowledges and agrees that MSIL may call the mobile phone number provided by You while registering or to any such number replaced and informed by You, for the purpose of collecting feedback from You regarding the quality, ambience, facilities and/or other services offered by the Merchant.
5.9. You may continue to receive unsolicited SMSs from or on behalf of MSIL, both transactional and non- transactional promotional SMS. You further explicitly waive against MSIL and its Affiliates any prior registrations made by the User relating to receipt, blocking or partial blocking of unsolicited commercial communications relating to such category; For receipt of User's preferred category of SMS, the User explicitly authorizes MSIL and its customers to send SMSs, whether transactional or non-transactional promotional, on a regular or irregular basis; You shall not hold the MSIL and/or its Affiliates dispatching SMSs for having violated any statutory regulations or the like issued by Telecom Regulatory Authority of India (TRAI) or any other statutory authority from time to time relating to issuance of unsolicited commercial communications; and in the unlikely event that an SMS outside User's preferred category is received by the User, the User shall first bring such occurrence to the notice of the MSIL for appropriate resolution by MSIL and shall always afford such first opportunity to MSIL for a resolution as above.
6.2 IT IS HERBY SPECIFICALLY CLARIFIED AND ACKNOWLEDGED BY THE USER THAT MSIL WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY OF YOUR TRANSACTIONS WITH THIRD PARTIES INCLUDING PAYMENT SERVICE PROVIDERS. ANY QUESTIONS, COMPLAINTS, OR CLAIMS RELATED TO ANY THIRD PARTY PAYMENT SERVICE PROVIDERS SHOULD BE ONLY DIRECTED TO THE APPROPRIATE PAYMENT SERVICE PROVIDERS UNDER THEIR RESPECTIVE AGREEMENTS. Provided however, MSIL shall without any obligation and on a best effort basis provide the level 1 customer care support to the User via a helpline and providing response to frequently asked questions by the User and providing ground level information.
7. LICENSE & EXCLUSIVITY
7.1. MSIL expressly reserves all rights, title and interest in and to the Platform. It is acknowledged that all rights, title and interest in the Platform will remain the sole property of MSIL and that usage of the Platform is licensed to the User upon registration and not "sold" to the User;
7.2. The User shall only have the non-exclusive, non-transferable, non-sub licensable, personal, limited license to use the Platform for the engagement as set out in Clause 2;
7.3. The User shall not, nor permit any third party to: (a) copy the Platform; (b) modify, translate or otherwise create derivative works of the Platform; (c) disassemble, decompile or reverse engineer the object code or source code of the Platform; or (d) publish, or otherwise make available to any third party, any benchmark testing information or results;
7.4. During the Term of this Agreement and for a period of 12(twelve) months thereafter, MSIL shall be entitled to:
7.4.1. display the name of the User as part of its clientele online or in promotional materials and use the User's trademark for such limited purposes;
7.4.2. mention User's registration on the Platform under this Agreement on any medium (print, television, radio, video, terrestrial, website internet and such media which is in existence today for advertising, display, exhibition, relay, broadcast, transmission, communication)
provided however in the event the User specifically requests MSIL to remove the User from any promotional materials, MSIL shall on a best efforts basis have such materials removed. Nevertheless, any past details and/or information and or testimonials may not be removed.
7.5. The engagement under this Agreement shall be exclusive with MSIL and the User shall not be entitled to enter into any similar arrangement with any other Person without the prior written consent of MSIL.
8. TERM & TERMINATION
8.1. This Agreement shall come into effect on the Effective Date and shall remain in force until mutually terminated in writing between the Parties or in accordance with Clause 8.2 hereunder ("Term").
8.2. MSIL shall be entitled to terminate this Agreement:
8.2.1. At its sole discretion, by providing prior notice of such termination; or
8.2.2. at any time with immediate effect by notice in writing to User, in the event that the User is in breach of any of the terms of this Agreement; or
8.2.3. in the event the User has been dormant (without any activity or log-in or access, etc)for a period of 6 (six) continuous months .In case there has been no transaction by the User, a notice will be given to User 15 days prior to expiry date/validity period on his/her registered mobile number as an SMS or on his registered e-mail address; to conduct at least one commercial transaction before the expiry date, failing which any unutilized balance remaining with the respective Payment Service Provider shall stand forfeited and proceeded with as per the RBI Guidelines.
8.2.4. at any time with immediate effect by notice in writing to User, in the event MSIL has received any complaints against the User or receives any negative feedback about the User on the Platform from the Users and/or Merchant(s).
8.3. Without prejudice to the other remedies available to MSIL under this Agreement or under applicable law, MSIL may limit the User's activity, or end the User's listing, warn other users of the User's actions, immediately temporarily/indefinitely suspend or terminate the User's registration, and/or refuse to provide the User with access to the website if:
8.3.1. The User is in breach of this Agreement and/or the documents it incorporates by reference;
8.3.2. MSIL is unable to verify or authenticate any information provided by the User; or MSIL believes that the User's actions may infringe on any third party rights or breach any applicable law or otherwise result in any liability for the User, other users of the website and/or MSIL;
8.4. MSIL may at any time in its sole discretion reinstate suspended Users. Once the User have been indefinitely suspended the User shall not register or attempt to register with MSIL or use the Website in any manner whatsoever until such time that the user is reinstated by MSIL.
8.5. Notwithstanding the foregoing, if the User breaches this Agreement, MSIL reserves the right to recover any amounts due and owing by the User to MSIL and/or the any Merchant(s) and also to have the option to take strict legal action as MSIL deems necessary.
8.6. Consequences of Termination:
8.6.1. Upon termination of the Agreement as set out in Clause 8, the License shall stand automatically cancelled and User shall cease to have access to the Services including access to the Platform. The User shall be immediately delisted from the Platform.
8.6.2. With effect from the date of termination of this Agreement, MSIL, its representatives, directors and shareholders shall have no obligation to User in any manner whatsoever.
8.6.3. User shall be liable to make good all outstanding payments, if any, to MSIL and any person Affiliated with MSIL, which shall also include MMPL ( including any penalties for default)which have accrued prior to the effective date of termination.
8.6.4. User shall either return or, if specifically directed by MSIL, destroy all information received from MSIL including but not limited to all Confidential Information, in its possession, power or control in a manner that assures the same is rendered unrecoverable.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. The User hereby acknowledges that any and all Intellectual Property rights and other proprietary rights in and in relation to the Platform and/or Services including without limitation any derivatives, improvements or modifications which ownership is directly attributable to MSIL ( expressly excluding any personal information which belongs to the User) shall vest wholly completely and fully with MSIL throughout the territory of the world and User shall have no right or claim to such Intellectual Property in any manner whatsoever.
9.2. It is further agreed between the Parties that all the information pertaining the User including his personal details may be used by MSIL for any lawful purpose, provided that the information is used only in an anonymized and aggregated form and in a manner that does not permit the identification of You i.e. the User. By virtue of the User accessing the Platform and providing his details, he/she does hereby assign any and all rights pertaining the said information which shall mean and include the User Content, provided however such information is used only for a lawful purpose and in an anonymized, and/or aggregated form and in a manner that does not permit Your direct identification. This right shall survive termination of this Agreement.
10.1. The User shall defend, indemnify and hold MSIL, its directors, shareholders, officers and other representatives harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) its violation or breach of this Agreement or any applicable law or regulation; (ii) its violation of any rights of any third party, including any merchant or MMPL or Payment Service Provider; (iii) Its use or misuse of the Platform and/or Services; or (iv)any and all third-party claims based upon the content of any communications transmitted by the User, or (v) any fraud, misrepresentation or negligence of the User.
11. DISCLAIMER OF WARRANTIES
11.1. Notwithstanding anything contained elsewhere in this Agreement, MSILhereby explicitly and specifically disclaims any and all representations, warranties or guarantees, whether written, oral, expressed or implied including, without limiting the generality of the foregoing, any warranty of merchantability, quality or fitness for a particular purpose.
11.2. The Platform and Services are provided strictly on an "as is" and "as available" basis. Notwithstanding anything contained in this Agreement, MSIL does not warrant that the Platform: (i) will perform error-free or uninterrupted, or that MSIL will correct all or any errors or defects (ii) will operate in combination with the Devices, or with any other hardware, software, systems or data not provided by MSIL, (iii) will meet the User's requirements, specifications or expectations.
11.3. The User further acknowledges that MSIL does not control the transfer of data over communications facilities, including the internet, and that the Platform may be subject to limitations, delays, and other problems inherent in the use of such communications facilities; MSIL shall not be responsible for any (i) delays, delivery failures, or other damages as a result; (ii) issues related to the performance, operation or security of the Platform that arise from the User's Content or Merchant Content or any third party content.
11.4. MSIL does not make any representation or warranty regarding the reliability, accuracy, completeness, correctness, or usefulness of third party content (including those of any Merchant(s)), and disclaims all liabilities arising from or related to third party content including but not limited to any information pertaining to the User Content.
11.5. The Useracknowledges and agrees that the entire risk arising out of its use of the Platform remains solely with the User.
12. LIMITATION OF LIABILITY
12.1. Notwithstanding anything contained elsewhere in this Agreement, in no event shall MSIL be liable to the User or anyone claiming under the User for the cost or loss including but not limited to any special, exemplary, consequential, incidental, punitive or indirect damages on any theory of liability, whether in contract, tort (including without limitation negligence), strict liability or otherwise. The limitations set forth in this section shall apply even if the User is advised of the possibility of such damage.
12.2. In no event or circumstance will MSIL be under any liability to make good any loss whether by way of any monetary payment or otherwise.
12.3. MSIL will not assess the suitability, legality or ability of any Merchant and the User expressly waives and releases MSIL from any and all any liability, claims or damages arising from or in any way related to the User.
12.4. MSIL will not be a party to disputes, negotiations of disputes including but not limited to payments between theMerchant and/or any User and/or any Payment Service Provider.
12.5. Responsibility for the decisions a User makes regarding availing the Services of a merchant through the Platform, (with all its implications) rests solely with the User.
12.6. The quality of the Merchant Services scheduled through the use of the Platform is the sole responsibility of the Merchant who ultimately provides such Services to the Userand that the User's use of the Platform shall be at his/her/its own risk and costs.
12.7. MSILor anyone else involved in administering, distributing or providing the Platform and/or Servicesfurther explicitly disclaims any and all liability for any mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses computer viruses or other harmful, disabling computer code, computer instructions, circuitry or other technological means whose purpose is to disrupt, damage or interfere with any computer and communications facilities or equipment ("Harmful Code") that may be transferred to the Devices when accessing the Platform. By way of clarification, Harmful Code shall include, without limitation, any code containing viruses, Trojan horses, worms or like destructive code or code that was intentionally written to self-replicate. The User is advised to obtain and use appropriate anti-virus and security software and to take all other appropriate measures to safeguard the integrity of its Devices.
13. MISCELLANEOUS PROVISIONS
13.1. Confidentiality : The User recognizes that in the course of the transactions envisaged by this Agreement, You may be privy to certain confidential information (whether or not the information is marked or designated as "confidential" or "proprietary") relating to MSIL and such Persons who the Userconnects, interacts with or views on the Platform including the Intellectual Property, legal, financial, technical, commercial, marketing and business related records, data, documents, reports, etc., User Content, the terms of this Agreement, the details of the negotiations between the Parties ("Confidential Information"). Save as otherwise provided under this Agreement, the Confidential Information shall not be disclosed to any third party and the User shall at all times be under the responsibility to maintain the Confidential Information in utmost strict confidence.
13.2. Survival: Any clause that by its nature should survive termination of this Agreement shall continue to remain in e ffect even after the termination of this Agreement including but not limited to Clauses 8.6 (Consequences of Termination), 9 (Intellectual Property Rights), 8 (Indemnification), 11 (Disclaimer of Warranties), 12 (Limitation of Liability)and 13 (Miscellaneous Provisions).
13.3. Governing Law and Dispute Resolution: This Agreement shall be governed by the laws of India and the courts at Chennai shall have the exclusive jurisdiction. Any claim, controversy or dispute (collectively referred to as "Disputes") arising out of or under this Agreement, if not settled by mutual agreement between the Parties shall be referred to arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be conducted by a sole arbitrator to be appointed by MSIL. The arbitral proceedings shall be conducted in English and shall be governed by and construed in accordance with the laws of India and such award shall be binding on the Parties. As such, the User waives any right to challenge the exclusivity of jurisdiction of Chennai courts to adjudicate any disputes arising out of this Agreement in accordance with the laws of India.
13.4. Further Assurances: Each Party shall, at its own cost and expense from time to time, on being required to do so by any other Party to this Agreement now or at any time in the future, execute and do ( or procure to be executed and done by any other necessary party) all such deeds, documents, acts and things as any other Party may from time to time require whether on or after the execution of this Agreement as may be necessary to give full effect to this Agreement.
13.5. Amendments: This Agreement may be amended, modified, superseded, or cancelled, and the same shall be updated online in the Website. The User undertakes to check and verify such amendments on a periodical basis during the Term of this Agreement. User's continuance of registration after the date of such amended terms shall be deemed to constitute acceptance of such amended terms.
13.6. Severability: If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part of such provision and the remaining part of such provision and all other provisions of this Agreement shall continue to remain in full force and effect
13.7. Assignment, resell, sub-license, transfer, etc: No right or obligation under this Agreement may be assigned, resold, sub-licensed, and/or transferred by User without the prior written consent of MSIL. Further, it is hereby explicitly stated that MSIL shall be entitled to assign, resell and/or transfer (in part or in full including but not limited to any right under this Agreement) this Agreement to any other person or entity without the consent of the User.
13.8. Waiver: The failure of any Party to insist, in one or more instances, upon strict performance of the obligations of this Agreement, or to exercise any rights contained herein, shall not be construed as waiver, or relinquishment for the future, of such obligation or right, which shall remain and continue in full force and effect. Any waiver can only be made by a written instrument.
13.9. Non-exclusivity: Notwithstanding anything contained anywhere in this Agreement MSIL shall be entitled to enter into similar arrangements with any other User without any restriction whatsoever.
13.10. Nature of Agreement: Nothing in this Agreement is to be construed to make either Party a partner, an agent or legal representative of the other Party for any purpose. Neither Party shall have any right or authority to accept any service of process or to receive any notices on behalf of the other Party or to enter into any commitments, undertakings, or agreements purporting to obligate the other Party in any way, or to amend, modify or vary any existing agreements to which the other Party may be a party.
13.11. Notices: MSIL may provide You with notices and communications by email, regular mail or postings on the Website or by any other reasonable means. Except as otherwise set forth herein, notice to MSIL must ALSO be sent by courier or registered mail to: MSIL, 13thFloor, Zenith Building, Ascendas International Tech Park, CSIR Road, Taramani, Chennai, Tamil Nadu, India - 600 113.
13.12. Force Majure: Neither Party shall be liable in damages for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of God, government restrictions, wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, or communications failure).