2. ACCEPTANCE OF TERMS
- a. This document is an electronic record in terms of Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.
- c. M/s. CANDIPHI HEALTHCARE PRIVATE LIMITED, (hereinafter referred to as “Company”), a Limited Liability Partnership, having its registered office at “No. 60, K.No.312/7, Manjunatha Nagar, Kalkere Village, Bangalore, India - 560043”, where such expression shall, unless repugnant to the context thereof, be deemed to include its respective representatives, administrators, employees, directors, officers, agents and their successors and assigns. The Company conducts its business using the domain name of the Website www.candiphi.com and the corresponding Mobile Applications ‘Candiphi Health Platform’ and ‘Candiphi Online Doctor Consultation/Telemedicine Platform’, to provide the services as listed below.
- d. For the purpose of these Vendor Terms (“Terms”), wherever the context so requires,
- i. The term ‘You’ and ‘Vendor’ shall mean any natural or legal person accessing or using the Platform to offer for sale to Customers of the Platform, services providing medical tests at home or office based on individual requirements, and through a Platform to monitor the same, request consultations and other health care services as may be made available by the Company, and requested by Customers (“Services”) and other related services, and who is competent to enter into binding contracts, as per the provisions of the Indian Contract Act, 1872; and in the case of an entity, the individual acting on its behalf, and who is authorised to act on behalf of the entity and bind the entity to these Terms;
- ii. The terms ‘Party’ & ‘Parties’ shall respectively be used to refer to the Vendor and the COMPANY individually and collectively, as the context so requires.
- iii. The terms ‘Customer’ or ‘Buyer’ or “User” mean any natural or legal person accessing or using the services provided on the Platform to buy any of the services offered for sale on the Platform and who is competent to enter into binding contracts, as per the provisions of the Indian Contract Act, 1872; and in the case of an entity, the individual acting on its behalf, and who is authorised to act on behalf of the entity and bind the entity to these Terms.
- e. The headings of each section in these Terms are only for the purpose of organizing the various provisions under these Terms in an orderly manner, and shall not be used by either Party to interpret the provisions contained herein in any manner. Further, it is specifically agreed to by the Parties that the headings shall have no legal or contractual value.
- f. The use of the Platform by the Vendor is solely governed by these Terms, and any modifications or amendments made thereto by the COMPANY from time to time, at its sole discretion. Using the platform provided on the Platform to facilitate the sale of any service of the Vendor (“Service”), shall be deemed to signify the Vendor’s unequivocal acceptance of these Terms, and the Vendor expressly agrees to be bound by the same.
- g. The Vendor unequivocally agrees that these Terms constitute a legally binding agreement between the Vendor and the COMPANY, and that the Vendor shall be subject to the rules, guidelines, policies, terms, and conditions applicable to any service that is provided by the Platform, and that the same shall be deemed to be incorporated into these Terms and shall be treated as part and parcel of the same. The Vendor acknowledges and agrees that no signature or express act is required to make these Terms binding on the Vendor, and that the Vendor’s act of using the Platform or any part of the services therein to sell or advertise the sale of any service constitutes the Vendor’s full and final acceptance of these Terms.
- i. These Terms form an electronic contract that establishes legally binding terms that the Vendor must accept to use the Service provided through the Platform. These Terms include by reference any other terms disclosed and agreed to by the Vendor in the event the Vendor purchases or accepts additional features, services in addition to the Service, including but not limited to terms governing features, billing, free trials, discounts, promotions, preferential positioning, etc.
- ii. The Vendor is aware and agrees that the COMPANY reserves the sole and exclusive right to amend or modify these Terms without any prior permission or intimation to the Vendor, and the Vendor expressly agrees that any such amendments or modifications shall come into effect immediately. The Vendor has a duty to periodically check the Terms and stay updated on its requirements. If the Vendor continues to use the Platform following such a change, the Vendor will be deemed to have consented to any and all amendments / modifications made to the Terms. In so far as the Vendor complies with these Terms, the Vendor is granted a personal, non-exclusive, non-transferable, revocable, limited privilege to access and use the Platform to sell and advertise the sale of services.
4. CREATION OF AN ACCOUNT
- a. The Vendor represents and warrants that he/she is competent and eligible to enter into legally binding agreements and that he/she has the requisite authority to bind himself/herself to these Terms, as determined solely by the provisions of the Indian Contract Act, 1872. The Vendor may not use the Platform if he/she is not competent to contract under the Indian Contract Act, 1872, or is disqualified from doing so by any other applicable law, rule, regulation or judicial verdict currently in force.
- b. In the event of the Vendor being an entity, the individual acting on the entity's behalf represents and warrants that he/she is authorised to act on behalf of the entity and bind the entity to these Terms, and also that the entity is in compliance with any and all rules, regulation and Statues applicable to it, and that it has all requisite permissions and licenses required for its operations.
- c. Furthermore, it is mandatory for vendors to register themselves on the Platform.
In order to use Service, the Vendor is first to register through the Mobile Application: ‘Candiphi Consultation/Telemedicine’, or in a method as prescribed by the Company, and then they may link their bank account details, where money can be transferred online straight into the bank accounts of the vendors/seller from the Platform payment accounts, or Vendors may opt for manual payment. On Registration, Vendors are also required to provide other details, including but not limited to their area of expertise, qualifications, services offered and other information as may deemed necessary as well as documentation to the same effect. Only on verification of the submitted information and documentation will a Vendor complete the registration process.
5. TERM AND TERMINATION
These Terms will remain in full force and effect while the Vendor avails of the Service and/or is in possession of an active account. The Vendor is aware that the COMPANY may terminate or suspend the Vendor’s account at any time, without cause or notice, if the COMPANY believes that the Vendor has breached the Terms, or for any other reason, in its sole discretion, whether or not such action is instigated by complaints from the users of the Platform. The Vendor is further aware and expressly agrees that even after the Vendor’s account is terminated for any reason, these Terms shall survive such termination, and continue to operate in full force and effect, except for any terms that by their nature expire or are fully satisfied.
6. ACCOUNT SECURITY
The Vendor is responsible for maintaining the confidentiality of the Vendor's username and password, assigned to the Vendor during the registration process, and the Vendor is solely responsible for all activities that occur under the Vendor’s username and password, including but not limited to listing / delisting of services, modifications to prices listed for said services and communication with users of the Platform. The Vendor agrees to immediately notify the COMPANY of any disclosure or unauthorized use of the Vendor’s username or password, or any other breach of security with respect to the Vendor’s account, and also to ensure that the Vendor logs out from the account at the end of each session.
7. ROLE OF THE COMPANY & PLATFORM
8. INTERACTIONS WITH USERS OF THE PLATFORM
- a. The Vendor acknowledges and agrees that the COMPANY merely provides a platform for the Vendor to list services for sale to the users of the Platform, and collects amounts on behalf of the Vendor arising out of the sale of such services.
- b. The COMPANY will advertise and promote the Vendor’s services on the Platform at regular intervals that shall be decided by the COMPANY. The Vendor shall be solely responsible for the sale of the services to the buyers during their visit to the Platform store and the COMPANY has nothing to do with the same.
- c. The Vendor shall be solely responsible for payment of any and all taxes on the services offered by him/her on the Platform, including but not limited to, sales tax, GST and VAT. The Vendor shall also be responsible for and agrees to bear, any additional cost associated with successful execution of orders placed on the Platform, including but not limited to, travel cost and setting up cost.
- d. The Vendor shall be paid¬¬¬¬¬¬¬¬¬¬¬ on completion of the payment process by Customers to the COMPANY for services provided.
The Vendor agrees and acknowledges that the Vendor is solely responsible for any and all interactions with Users of the Platform. The Vendor understands that the COMPANY does not conduct any criminal background checks or screenings on any of its users or vendors. The Vendor is further aware that the COMPANY also does not attempt to verify or validate the information provided by its users. The COMPANY makes no representations or warranties as to the conduct of its users, or their interactions with the Vendor. The Vendor is solely responsible for any and all interactions with users of the Platform, and the Vendor expressly agrees and acknowledges that the COMPANY will not be liable for the same in any manner whatsoever. The Vendor agrees and acknowledges that Users of the Platform may rate the Vendor and may also write reviews relating to the Vendor and the services listed on the Platform by the Vendor. The Vendor is aware that some of these reviews may not be flattering and may affect the future sales of the Vendor, however the Vendor agrees that the COMPANY will be under no obligation to remove any such negative reviews, although the Vendor may appeal to the COMPANY to do the same if the Vendor feels that such review is unjustified or made with malafide intent.
9. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
10. SERVICES LISTED BY THE VENDOR ON THE PLATFORM
- a. The Vendor is aware that the COMPANY owns and retains all proprietary rights in the Platform and Service, and in all content, trademarks, trade names, service marks, copyrights and other property rights related thereto. The Platform and Service contain the copyrighted material, trademarks, and other proprietary information of the COMPANY and its licensors, and the Vendor agrees not to copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible through the Service, without first obtaining the prior written consent of the COMPANY, or if such property is not owned by the COMPANY, the owner of such intellectual property or proprietary rights. The Vendor agrees to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
- b. The Vendor is aware that for the purpose of availing of the Service, the Vendor will be required to upload on the Platform images and descriptions of all services the Vendor wishes to sell through the Platform. The Vendor is further aware that the same will be visible to and accessible by all users of and visitors to the Platform, and that the COMPANY has no control over their actions, and will not be liable in any manner should any such user or visitor infringe on the intellectual property of the Vendor by accessing / misusing / copying / using / creating derivative works from said service listings, and the Vendor hereby expressly agrees that the COMPANY shall have absolutely no liability for the same, and further agrees not to involve the COMPANY in any resulting legal proceedings, and expressly agrees to indemnify the COMPANY and reimburse the COMPANY for any expenses incurred in this respect.
- c. The Vendor expressly agrees and accepts that the intellectual property of the Vendor is required to be displayed on the Platform in the form of service listings, and the Vendor does hereby expressly authorise the COMPANY and the Platform to use the same in this connection, and also expressly agree to continue to allow the COMPANY to do so, without the COMPANY ever being required to pay any manner of license, fee or amount in this respect, for any such incidental usage. The Vendor further agrees and hereby expressly authorises the COMPANY to continue to display said service listings of the Vendor even after the Vendor has stopped supplying the same, and even if the Vendor has deleted the account assigned to the Vendor and has stopped availing of the Service. If the Vendor does not agree to these provisions, then the Vendor is not authorised to use the Platform or avail of the Service.
11. PROHIBITED ACTIVITIES
- a. The Vendor expressly agrees that the Vendor shall honour any and all orders successfully placed, whether or not paid for in advance, and shall directly deliver the service within the timeline mentioned on the Platform to the address provided by the Customer, while placing an order on the Platform.
- b. The Vendor shall ensure that the service delivered to a Customer shall conform with the service description/ photographs/quality assurance as displayed on the Platform. The Vendor agrees that in the event of non-conformance, the Platform shall not be responsible or liable in any manner and agrees to indemnify and hold the Platform, its officers, agents and employees harmless from any loss, claim or dispute that may arise from the non-conformance of the service to the description, quality or photographs on the Platform.
- c. The Vendor agrees to take responsibility for quality and delivery of the products or service in a timely and efficient manner, and to the satisfaction of the Customer. In case a Vendor is unable to provide a service or services ordered on the Platform, the Vendor must inform the COMPANY of the same atleast 12 hours in advance or as and when the unavailability of the services or service becomes known to the Vendor, whichever may be earlier.
- d. The Vendor shall not be authorised to subsequently refuse delivery of services purchased, or increase the cost thereof for any reason whatsoever. The Vendor further agrees to honour any and all services by users of the Platform even if such order has been placed against services listed at an incorrect price, subject to availability. In the event that the Vendor is unable to deliver a service, the Vendor does hereby expressly agree to compensate the COMPANY with an amount that may extend to 3 (three) times the listed value of the service in question, and in accordance with the losses suffered as a result of the actions of the Vendor.
- e. The Vendor shall abide by the Cancellation Policy of the Platform and have a similar policy of its own, while catering to the orders placed by Customers through the Platform. The Company shall not entertain any claims for refunds beyond the scope specified in the Terms of Service. The Platform shall not be involved or responsible for such requests or transactions.
- f. The Vendor acknowledges and agrees to be solely responsible for the content and information posted, uploaded, published, linked to, transmitted, recorded, displayed or otherwise made available (“Post”) on the Platform or transmitted to other users, including but not limited to item listings on the Platform and communication with users of the Platform, whether publicly posted or privately transmitted. The Vendor may not Post as part of the Service, or transmit to the COMPANY or to any user of the Platform, any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material, or any material that infringes or violates another person’s rights (including intellectual property rights, and rights of privacy and publicity). The Vendor represents and warrants that (i) all information that the Vendor submits upon creation of the account is accurate and truthful, and that the Vendor will promptly update any information that subsequently becomes inaccurate, incomplete, misleading or false and (ii) the Vendor has the right to Post the information / material on the Platform and grant the licenses set forth below; and (iii) that the Vendor is the owner of all intellectual property associated with services listed by the Vendor on the Platform, and that the Vendor has the right to list such services for sale.
- g. The Vendor understands and agrees that the COMPANY may, but is not obligated to, monitor or review any content the Vendor Posts as part of the Service. The COMPANY may delete any content, in whole or in part, that in the sole judgment of the COMPANY violates these Terms or may harm the reputation of the Platform, Service or COMPANY, or may offend, injure or be prejudicial to the interests of any of its users.
- h. By Posting information / content as part of the Service, the Vendor automatically grants to the COMPANY, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, transferable, sub-licensable, fully paid-up, worldwide right and license to (i) use, copy, store, perform, display, reproduce, record, play, adapt, modify and distribute the content, (ii) prepare derivative works of the content or incorporate the content into other works, and (iii) grant and authorize sublicenses of the foregoing in any media now known or hereafter created. The Vendor represents and warrants that any Posting and use of the Vendor content by the COMPANY will not infringe or violate the rights of any third party, and hereby expressly agrees to indemnify the COMPANY against the same.
- i. The Vendor may not Post, upload, display or otherwise make available content or behave in such a manner that:
- i. promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- ii. advocates harassment or intimidation of another person;
- iii. requests money from, or is intended to otherwise defraud, other users of the Service;
- iv. involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming” (or “spamming”, “phishing”, “trolling” or similar activities);
- v. promotes information that is false or misleading, or promotes illegal activities or conduct that is defamatory, libellous or otherwise objectionable;
- vi. promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
- vii. contains video, audio photographs, or images of another person without his or her permission (or in the case of a minor, the minor’s legal guardian);
- viii. contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
- ix. provides material that exploits people in a sexual, violent or other illegal manner, or solicits personal information from anyone under the age of 18;
- x. provides instructional information about illegal activities such as making or buying illegal weapons or drugs, violating someone’s privacy, or providing, disseminating or creating computer viruses;
- xi. contains viruses, time bombs, trojan horses, cancel bots, worms or other harmful, or disruptive codes, components or devices;
- xii. impersonates, or otherwise misrepresents affiliation, connection or association with, any person or entity;
- xiii. provides information or data the Vendor do not have a right to make available under law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information);
- xiv. disrupts the normal flow of dialogue, causes a screen to “scroll” faster than other users are able to type, or otherwise negatively affects other users’ ability to engage in real time exchanges;
- xv. solicits passwords or personal identifying information for commercial or unlawful purposes from other users or disseminates another person’s personal information without his or her permission; and
- xvi. publicises or promotes commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
- i. The COMPANY reserves the right, in its sole discretion, to investigate and take any legal action against any Vendor who violates this provision, including removing the offending item listing / content from the Service and terminating or suspending the account of such Vendor.
- j. The Vendor’s use of the Service, including all content Posted by the Vendor through the Service, must comply with all applicable laws and regulations. The Vendor agrees and acknowledges that the COMPANY may access, preserve and disclose the Vendor account information and content if required to do so by law, or if it in good faith believes that such access, preservation or disclosure is reasonably necessary, to: (i) comply with any legal process; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; (iv) respond to the Vendor’s requests for customer service, or allow the Vendor to use the Service in the future; or (v) protect the rights, property or personal safety of the COMPANY or any other person.
- k. The Vendor agrees that any content the Vendor Posts on the Service may be viewed by other users, and may be viewed by any person visiting or participating in the Service, and that the COMPANY shall in no way deemed to be responsible or liable for the actions of such individuals, and the Vendor does hereby expressly agree to the same.
The COMPANY reserves the right to investigate, suspend and/or terminate the Vendor account if the Vendor has misused the Service or behaved in a manner the COMPANY regards as inappropriate or unlawful, including actions or communications that occur off the Service, but involve users of the Service or information obtained through the Service. The following is a non exclusive list of actions and activities that the Vendor is not permitted to engage in while availing of the Service:
12. CUSTOMER SERVICE
- a. impersonate any person or entity;
- b. solicit money from any user(s) in excess of amounts already paid / agreed to be paid by users, or in excess of amounts listed on Platform for the service in question;
- c. Offer money to any user, for any reason whatsoever without the express knowledge and consent of the COMPANY;
- d. post any content that is prohibited by these Terms or any applicable law currently in force;
- e. stalk or otherwise harass any person;
- f. express or imply that any statements the Vendor makes are endorsed by the COMPANY without the COMPANY’s specific prior written consent;
- g. use the Service in an illegal manner or to commit an illegal act;
- h. access the Service in a jurisdiction in which it is illegal or unauthorized;
- i. ask or use users to conceal the identity, source, or destination of any illegally gained money or servicess;
- j. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
- k. collect usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Service;
- l. interfere with or disrupt the Service or the servers or networks connected to the Service;
- m. email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- n. forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted to or through the Service (either directly or indirectly through use of third party software);
- o. “frame” or “mirror” any part of the Service, without the COMPANY's prior written authorization;
- p. use meta tags or code or other devices containing any reference to the COMPANY or the Service (or any trademark, trade name, service mark, logo or slogan of the COMPANY) to direct any person to any other Platform for any purpose;
- q. modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service any software used on or for the Service, or cause others to do so;
- r. post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any content or information obtained from the Service other than solely in connection with the Vendor use of the Service in accordance with these Terms;
The COMPANY may provide assistance and guidance through its customer care representatives. When communicating with the COMPANY’s customer care representatives, the Vendor agrees to not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, and to not otherwise behave inappropriately. If the COMPANY is of the impression that the Vendor’s behaviour towards any of its customer care representatives or other employees is at any time threatening or offensive as described hereinabove, the COMPANY reserves the right to immediately terminate the Vendor’s account.
13. MODIFICATIONS TO SERVICE
The COMPANY reserves the right at any time to modify or discontinue, temporarily or permanently, the Platform or Service (or any part thereof) with or without notice. The Vendor agrees and acknowledges that the COMPANY shall not be liable to the Vendor or to any third party for any modification, suspension or discontinuance of the Service, even if the same should lead to loss of profits, damage, injury, etc to the Vendor. To protect the integrity of the Service, the COMPANY reserves the right to block Vendors from certain IP addresses from accessing the Service, at any time and in its sole discretion.
14. IPR POLICY
- a. The Vendor may not list for sale, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limitation to the foregoing, if the Vendor or any third party believes that his/her work has been copied and posted on the Service in a way that constitutes infringement of his/her intellectual property, he/she is required to contact the COMPANY and provide the COMPANY with the following information:
b. Notice of claims of misuse and infringement must be provided to the COMPANY’s grievance officer.
c. The COMPANY reserves the right to terminate the accounts of any Vendors found to have misused / infringed the intellectual property of another person/entity, in its sole discretion. The Vendor is aware that the Vendor may also face civil and criminal charges in the event of such misuse / infringement.
- i. an electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property;
- ii. a description of the work that the individual claims has been infringed;
- iii. a description of where such material is located on the Service (and such description must be reasonably sufficient to enable the COMPANY to find the alleged infringing material, such as a URL, user profile, etc.);
- iv. the individual’s address, telephone number and email address;
- v. a written statement by the individual that the individual has a good faith belief that the disputed use is not authorized by the owner of the intellectual property; and
- vi. a statement by the individual, made under penalty of perjury, that the above information supplied is accurate, and that the individual is the owner or authorized to act on the owner's behalf;
- a. The Vendor acknowledges and agrees that neither the COMPANY nor its affiliates or third-party partners are responsible for, and shall not be deemed to have any liability - directly or indirectly, any loss or damage, including personal injury or death, as a result of or alleged to be the result of:
- i. any Customer placing a false order on the Platform, blocking a service or related services on the Platform or refusing delivery of a successfully placed order;
- ii. any user of the Platform demanding a refund, whether or not due to a defect in the service;
- iii. any damage caused to the service and related servicess during delivery or storage, whether or not such damage is attributable to the COMPANY;
- iv. any theft of the services(s) of the Vendor, whether or not the COMPANY was in possession of the services at the time of such theft;
- v. any fire, flood, earthquake or other event beyond human control that causes damage to the servicess of the Vendor, whether or not the COMPANY is in any way attributable to such damage, and whether or not the COMPANY had been advised of such risk;
- vi. any infringement / misuse of the intellectual property of the Vendor by any visitor or user of the Platform;
- vii. any incorrectness or inaccuracy in the Vendor’s account or item listings, whether or not directly attributable to the COMPANY or the users of the Platform or any of the equipment or programming associated with or utilized in the Service;
- viii. the timeliness, deletion or removal, incorrect delivery or failure to store any item listing, content, communications or personalization settings;
- ix. the conduct, whether online or offline, of any user;
- x. any error, omission or defect in, interruption, deletion, alteration, delay in operation or transmission, theft or destruction of, or unauthorized access to, any information / material of the Vendor;
- xi. any problems, failure or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email on account of technical problems or traffic congestion on the Internet or at any Platform or combination thereof, including injury or damage to the Vendor’s or any other individual or entity’s computer(s) or device(s) related to or resulting from participating or downloading materials in connection with the internet and/or in connection with the Platform / Service;
- xii. Any loss, damage or injury whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, caused due to or alleged to be caused due to the actions or inactions of the COMPANY, or any of its employees/personnel, or any unrelated third party, and the Vendor hereby expressly acknowledges and agrees that the COMPANY has no responsibility or control over the same, and shall not be deemed liable in any manner whatsoever.
- b. The Vendor is aware and acknowledges that to the maximum extent allowed by applicable laws, the COMPANY provides the Service on an “as is” and “as available” basis, and grants no warranties of any kind, whether express, implied, statutory or otherwise with respect to the Service (including all content contained therein), including (without limitation) any implied warranties of satisfactory quality, merchantability, fitness for a particular purpose or non-infringement. The COMPANY does not represent or warrant that the Service will be uninterrupted or error free, secure or that any defects or errors in the Service will be corrected.
- c. The Vendor is further aware and acknowledges that any material downloaded or otherwise obtained through the use of the Service is accessed by the Vendor at his/her own discretion and risk, and the Vendor will be solely responsible for and does hereby waive any and all claims and causes of action with respect to any damage to the Vendor’s device, computer system, internet access, download or display device, or loss or corruption of data that results or may result from the download of any such material.
- d. The COMPANY may make third party opinions, advice, statements, offers, or other third party information or content available through the Service. The Vendor is aware that all such third party content is the responsibility of the respective authors thereof, and the COMPANY does not make any warranties or guarantees with respect to the same. The Vendor is further aware that the COMPANY does not: (i) guarantee the accuracy, completeness, or usefulness of any third party content provided through the Service, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears in the Service. The Vendor agrees and acknowledges that under no circumstances will the COMPANY or its affiliates be responsible or liable for any loss or damage resulting from the user reliance on information or other content available through the Platform, or transmitted to or by any users.
17. LIMITATION OF LIABILITY
- a. The Vendor is aware that the Service may contain or provide advertisements and/or promotions offered by third parties and links to other Platforms or resources. The Vendor acknowledges and agrees that the COMPANY is not responsible for the availability of such external Platforms or resources, and that the COMPANY does not endorse and is not responsible or liable for any content, information, statements, advertising, goods or services, or other materials on or available from such Platforms or resources. Vendor correspondence or business dealings with, or participation in promotions of, third parties found in or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between the Vendor and such third party. The Vendor further acknowledges and agrees that the COMPANY shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, information, statements, advertising, goods or services or other materials available on or through any such Platform or resource.
- b. The Vendor further agrees that in the event of the Vendor providing the users of the Platform with a link to a Platform owned / operated by the Vendor, the Vendor shall be solely liable for the same, and hereby agrees to indemnify and keep indemnified the COMPANY from the claims of any individual with regard to the same. Further, the Vendor shall not be authorised to provide the users of the Platform with a link to any Platform or domain wherein services are being sold, whether or not such Platform is owned / operated by the Vendor, and whether or not such Platform is in competition with the Platform, at the sole discretion of the COMPANY.
18. DISPUTE RESOLUTION AND JURISDICTION
- a. To the fullest extent allowed by applicable law, in no event will the COMPANY, its affiliates, business partners, licensors or service providers be liable to the Vendor or any third person for any indirect, reliance, consequential, exemplary, incidental, special or punitive damages, including, without limitation, loss of profits, loss of goodwill, damages for loss, corruption or breaches of data or programs, service interruptions and procurement of substitute services, even if the COMPANY has been advised of the possibility of such damages notwithstanding anything to the contrary contained herein, the COMPANY's liability to the Vendor for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid, if any, by the Vendor to the COMPANY for the Service while the Vendor maintains an account. The Vendor agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within One (1) year after such claim or cause of action arose or be forever barred.
- b. The Parties expressly agree that in the event of any statute, rule, regulation or amendment coming into force that would result in the COMPANY / Platform incurring any form of liability whatsoever, these Terms shall stand terminated one (1) day before the coming into effect of such statute, rule, regulation or amendment, and the Vendor shall be prohibited from accessing the Platform and availing of the Service beyond such date.
It is expressly agreed to by the Parties hereto that the formation, interpretation and performance of the Terms and any disputes arising herefrom will be resolved through a two-step Alternate Dispute Resolution (“ADR”) mechanism.
19. INDEMNITY BY THE VENDOR
- a. Mediation: In case of any dispute between the parties, the Parties will attempt to resolve the same amicably amongst themselves, to the mutual satisfaction of both Parties. In the event that the Parties are unable to reach such an amicable solution within thirty (30) days of one Party communicating the existence of a dispute to the other Party, the dispute will be resolved by arbitration, as detailed herein below;
- b. Arbitration. In the event that the Parties are unable to amicably resolve a dispute by mediation, said dispute will be referred to arbitration by a sole arbitrator to be appointed by the COMPANY, and the award passed by such sole arbitrator will be valid and binding on both Parties. The Parties shall bear their own costs for the proceedings, although the sole arbitrator may, in his/her sole discretion, direct either Party to bear the entire cost of the proceedings. The arbitration shall be conducted in English, and the seat of Arbitration shall be Bangalore, Karnataka.
- c. The Parties expressly agree that the Terms and any other agreements entered into between the Parties are governed by the laws, rules and regulations of India, and that the Courts at New Delhi, India shall have exclusive jurisdiction over any disputes arising between the Parties.
- a. The Vendor hereby expressly agrees to defend, indemnify and hold harmless the Platform and the COMPANY, its employees, directors, officers, agents and their successors and assigns and against any and all claims, liabilities, damages, losses, costs and expenses, including legal fees, caused by or arising out of any and all claims of any individual against the Vendor, including without limitation the non-fulfilment of any of the obligations or commitments of the Vendor under the Terms, or arising out of the Vendor’s infringement of any applicable laws, rules and regulations, including but not limited to infringement of intellectual property rights, payment of statutory dues and taxes, claims of libel, defamation, violation of rights of privacy or publicity, loss of service by other Vendors, or the infringement of any other rights of a third party.
- b. In no event shall the COMPANY be liable to compensate the Vendor or any third party for any special, incidental, indirect, consequential or punitive damages whatsoever, whether or not foreseeable, and whether or not the COMPANY had been advised of the possibility of such damages, or based on any theory of liability, including breach of contract or warranty, negligence or other tortuous action, or any other claim arising out of or in connection with the Vendor’s use of or access to the Platform, the Service, and any transaction involving a user of the Platform and services listed by the Vendor. The COMPANY reserves the right to assume exclusive control of its defence, and of any matter otherwise subject to indemnification by the Vendor, in which event the Vendor will fully cooperate with the COMPANY in connection therewith, and hereby expressly agrees to bear the cost thereof.
- c. The limitations and exclusions in this section apply to the maximum extent permitted by applicable law, and the Parties expressly agree that in the event of any statute, rule, regulation or amendment coming into force that would result in the COMPANY incurring any form of liability whatsoever, these Terms shall stand terminated one (1) day before the coming into effect of such statute, rule, regulation or amendment, and the Vendor shall be prohibited from accessing the Platform and availing of the Service beyond such date.
Any and all communication relating to any dispute or grievance experienced by the Vendor may be communicated to the COMPANY by the Vendor reducing the same to writing, and sending the same to the registered office of the COMPANY by Registered Post Acknowledgement Due / Speed Post Acknowledgement Due (RPAD / SPAD).
21. MISCELLANEOUS PROVISIONS
- a. Entire Agreement: These Terms, read with any specific guidelines or rules that are separately posted for particular services or offers in the Service, comprises the entire agreement between the Vendor and the COMPANY regarding the Vendor’s use of the Platform and the Service. If any provision of these Terms is held invalid by any court or governmental authority of requisite jurisdiction, the remainder of these Terms shall continue in full force and effect and the Parties shall attempt to give full effect to their original intention.
- b. Waiver: The failure of either Party at any time to require performance of any provision of these Terms shall in no manner affect such Party's right at a later time to enforce the same. No waiver by either Party of any breach of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such breach, or a waiver of any other breach of these Terms.
- c. Severability: If any provision/clause of these Terms is held to be invalid, illegal or unenforceable by any court or authority of competent jurisdiction, the validity, legality and enforceability of the remaining provisions/clauses of these Terms shall in no way be affected or impaired thereby, and each such provision/clause of these Terms shall be valid and enforceable to the fullest extent permitted by law. In such case, these Terms shall be reformed to the minimum extent necessary to correct any invalidity, illegality or unenforceability, while preserving to the maximum extent the original rights, intentions and commercial expectations of the Parties hereto, as expressed herein.
- d. Non-Transferability: The Vendor agrees that the Vendor’s account is non-transferable and all of the Vendor’s rights to the profile or contents within the account shall terminate upon the Vendor’s death or termination of the Vendor’s access to the Service.
- e. Relationship between the Parties: The Vendor is aware and agrees that no agency, partnership, joint venture or employment is created as a result of these Terms, and the Vendor may not make any representations or bind the COMPANY in any manner.