These Terms (including any schedules attached to it and any documents
in which these Terms may be referred to) set out the terms and conditions
pursuant to which Superior IT Service having registered office at Basement No.
15, Shivaji Enclave Main Road, New Delhi, India-110027 (Supplier) agrees to
provide design, development, hosting and support services (as agreed from time
to time) (Services) to the customer (as indicated in the quotation or invoice)
(Customer). These Terms govern and apply to the contract between the Supplier
and the Customer.
This User Agreement ("Agreement") means the conditions of sale, services and quotes set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between, the user, any company or other business entity you are representing, if any (collectively, "Licensee"), This Agreement comes into effect when you register for using Ezeebiz services or sign in an application for utilizing services of Ezeebiz. By Registering or signing with Ezeebiz, you sign if your absolute and unconditional consent to all the provisions of this agreement in their entirety.
This agreement is a legally binding agreement between Licensee and Superior IT Services. Please read this Agreement carefully. If you are not agreeable to any terms and conditions, you should not use this Service and notify the same to Superior IT Services.
Not with standing anything contained in the foregoing, this Agreement will not bind Ezeebiz unless you meet the eligibility criteria for entering into this Agreement as set forth in Section A of this Agreement.
The following terms shall have the meanings defined below when used in capital letters herein:
1.2 "Ezeebiz" or "Ezeebiz application" or "Software" or "Supplier" means the software Platform ("Software") provided by Superior IT Services.
1.3 Services means the merchants services provided by Superior IT Services, including hosting of the online store, site design, email services, marketing services, domain name registration, and other related services as may be offered from time to time. Software and/or Services provided by Ezeebiz on SAAS (software as service) model.
1.4 "Ezeebiz License" or "Ezeebiz Application License" has its meaning described in Section2 of this agreement. Superior IT Services site" or "Superior IT Services website" refers to the Superior IT Services product website– www.superioritservices.in.
1.5. "Affiliate" means, with respect to each Party, any person or entity directly or indirectly Controlling, Controlled by, or under direct or indirect common Control with a Party. For the purpose of this definition, the expression "Control", "Controlled" or "Controlling" shall mean, with respect to any person or entity, any circumstance in which such person or entity is controlled by another person or entity by virtue of the latter person or entity controlling the composition of the board of direct or sorrowing the largest or controlling percentage of the voting securities of such person/entity or by virtue of any contractual arrangements or otherwise.
2. EZEEBIZ (SOFTWARE), TRADEMARK OWNERSHIP AND EZEEBIZ LICENSE
2.1 The Software provided by Superior IT Services, and all intellectual property rights therein, are the exclusive property of Superior IT Services.
2.2 Subject to the terms and conditions of this Agreement, Superior IT Services grants to Licensee an on-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for Superior IT Services ("Superior IT Services Servers" ) through the Ezeebiz Application solely for the purpose of building and maintaining an interactive store hosted by the Superior IT Services Servers on which Licensee offer Licensee's or a third party's products or services ("Licensee's Store").
2.3. The Software and its structure, organization, and source code constitute valuable trade secrets of Superior IT Services. Accordingly, except as expressly allowed Licensee will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party.
2.4. Certain additional features that Superior IT Services may make available to Licensee may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions ("Additional Software"). Similarly, Superior IT Similarly, Services may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions ("Additional Services"). Such software and services are subject to additional payments as required and are subject to Licensee's consent to such terms and conditions associated with the use of additional software and services.
3. ACCEPTANCE CRITERIA, DEVELOPMENT & SERVICES
3.1. The Supplier shall run acceptance procedures in the design, development and "go live" of the Site. The procedure set out in this clause 3 shall be repeated in respect of any further development works agreed by the parties from time to time. The Software license and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software and Services are not available to children (persons under the age of 18). If You are registering as a business entity, You represent that You have the eligibility to enter into an agreement and the authority to bind the entity to this Agreement. Superior IT Services various techniques to verify the accuracy of the information you provide when you register on the Ezeebiz. If for any reason, Superior IT Services, in its sole discretion, believes such information to be incorrect, it reserves the right, to revoke any and all licenses under this Agreement or to refuse to provide the Software license and Services under this Agreement to You.
3.2.Upon activation of Licensee's account and subject to the payment of applicable fees, Superior IT Services will provide certain hosting, support and other miscellaneous Services for the Software licensed by Licensee under this Agreement and Licensee's Store during the term of this Agreement as published on the Ezeebiz Site. Licensee's Store shall be hosted on a Superior IT Services Server on which several merchants may share their sources and network capacity of that Superior IT Services Server.
3.3. At Licensee's request, and subject to Superior IT Services's acceptance of Licensee's request and Licensee's payment of applicable fees, Superior IT Services will provide or instruct one of its "affiliates" to provide, design and customization Services for Licensee's in accordance with Superior IT Services's then current customization terms and conditions.
3.4. At Licensee's request and subject to your agreement to applicable terms and conditions and the payment of applicable fees, Superior IT Service's Additional Services may include acquisition and registration of a second- level domain name ("Domain Name") for Your Store on Your behalf. You here by appoint Superior IT Services and third parties who provide domain name registration services to Superior IT Services as Your agent in the acquisition, registration and ongoing administration of Domain Names on Your behalf and You authorize Superior IT Services and third parties who provide domain name registration services to Superior IT Services to select and issue binding instructions to domain name registrars and registries used to acquire, register and administer Domain Names on Your behalf .Superior IT Services provides this Service as a convenience to You only and You hereby waive any and all claims that You may have, or which may later arise, against Superior IT Services for any and all damages, losses, claims or expenses arising out of or related to the acquisition, registration and/or use of such Domain Name. In addition, Superior IT Services reserves the right, in Superior IT Services sole discretion, to refuse to acquire or register any domain name requested by You, and to discontinue the use of any domain name requested by you.
4. STORE CONTENT
4.1.Licensee will be solely responsible for the development, operation and maintenance of Licensee's Store, including the operation of Licensee's Store, accepting, processing and filing customer orders generated through Licensee's Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Licensee's Store. Licensee agree that Superior IT Services has no obligation to back-up any data related to Licensee's Store's operations and Licensee should independently take appropriate steps to maintain such data in accordance with Licensee's needs and requirements.
4.2.Licensee will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on Licensee's Store, regardless of whether Superior IT Services provides any design or customization Services to Licensee under this Agreement, including all descriptions of the products and services Licensee offer to customers of Licensee's Store and user-generated content on and related Licensee's Store. As a conduit, Superior IT Services will give Licensee complete discretion over Licensee's content provided it is compatible and interoperable with the Software and Services provided by Superior IT Services under this Agreement. Licensee retains all rights, title and interest in and to all intellectual property rights embodied in Licensee's content, exclusive of any content provided by Superior IT Services. Notwithstanding anything contained in the foregoing, if Licensee breach any of the covenants in Section5.1 of this Agreement, Superior IT Services is entitled to suspend or terminate Licensee's Store and/or any access to information or data related to Licensee's account and the Software in accordance with Clause 10 of this Agreement.
4.3.Licensee acknowledge that, by only providing Licensee with the ability to publish and distribute Licensee's own or third party products, services or content, Superior IT Services and its Software are acting only as passive conduits for the distribution and/or publishing of such products, services or content on the Store. Superior IT Services has no obligation to Licensee or any third party, and undertakes no responsibility, to review Licensee's Store, the products or services listed there in or any other content, including but not limited to user-generated content, published and/or distributed on Licensee's Store to determine whether any such product, service or content may incur liability to third parties. Not with standing anything to the contrary herein, if Superior IT Services believes in its sole discretion (as applicable) that Licensee's Store or any products, services, content or other materials in the Store or on Superior IT Services Servers may create liability, Superior IT Services may take any actions with respect to the content or materials.
4.4.Licensee here by grant Superior IT Services and its affiliates an irrevocable, royalty-free, worldwide license to reproduce, distribute, created privative works of, transmit, publicly perform, publicly display and digitally perform Licensee's content solely for the purposes provided in this Agreement. Licensee further agrees that Superior IT Services has the exclusive right, in its sole discretion, to share or distribute the content provided by Licensee and to either allow or to disallow, any or all web crawlers to index sites or page sore-stores hosted with Superior IT Services. Superior IT Services shall not be held responsible in the event Licensee violates any intellectual property rights of the other Parties and Licensee shall alone responsible for such violations.
4.5. In the event the Licensee updates the Site from time to time, the Licensee shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) ("Inappropriate Content").
4.6. Superior IT services may include the statement and/or link "Designed by superior it service", "Powered by Ezeebiz" or similar on the home page of the Site. The Licensee shall not remove nor change the statement and/or link without the Supplier's prior written consent.
Under clause 5 Licensee agree to bind under the commitment that any products, services, or content published and distributed on Licensee's Store and Licensee's related activities shall not violate the Superior IT Services Acceptable Use Policy that is incorporated herein by reference and as it may be amended from time to time, nor shall they:
i) Be false, inaccurate or misleading.
ii) be fraudulent or involve the sale of counterfeit or stolen items
iii) In fringe or misappropriates any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy.
iv) Violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, anti discrimination or false advertising).
v) Be defamatory or libelous or unlawfully threatening or harassing, or advocating or promoting or providing assistance for acts involving violence that may cause significant risk of death or injury, or other unlawful activities.
vi) Be obscene or contain pornography.
vii) contain any viruses, Trojan horses, worms, time bombs, cancel bots, eastereggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
viii) involve the transmission of any unsolicited commercial or bulk e mail (known as "spamming") and Licensee shall not use Licensee's account or Licensee's Store as a return address for unsolicited commercial mail originating else where or participate in any activities
ix) involve the collection or attempt to collect personally identifiable information of any person or entity, except with the express consent of that person or entity and of which consent Licensee shall maintain are cord for a period of three (3) years after any termination of this Agreement.
x) be harmful or potentially harmful to the Superior IT Services Server infrastructure as determined in Superior IT Services sole discretion, including without limitation overloading the Superior IT Services technical infrastructure.
xi) create liability for Superior IT Services and its subcontractors or expose them to undue risk or otherwise engage in activities that Superior IT Services, in its sole discretion, determines to be harmful to Superior IT Services' affiliates, operations, reputation, or goodwill, and
xii) Link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation, or that violate Superior IT Services Prohibited and Restricted Items clauses that are incorporated herein by reference and may be amended from time to time.
5.2.Licensee shall not, directly or indirectly, offer, attempt to offer, trade or attempt to trade in any item, the dealing of which is prohibited or restricted in any manner under the provisions of any applicable law, rule, regulation or guideline for the time being in force or any item mentioned in Superior IT Services. Prohibited and Restricted Items list provided on the website.
5.4.Licensee's failure to comply with the commitments set forth in Clause 5.1 of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination under Clause11 of this Agreement.
6. CHARGES AND PAYMENT
6.1. The Supplier shall issue VAT invoices in respect of the charges as set out in the relevant quotation or invoice, and the Customer shall pay to the Supplier the Charges set out in such Supplier's invoice within 14 days of the date of the Supplier's invoice, save for the initial Invoice payment for which shall be required upfront in advance of the Services.
6.2 All Charges are quoted exclusive of VAT.
6.3. Superior IT Services will invoice Licensee and Licensee agrees to pay for i) non-refundable monthly subscription and other annual or one-time fees, in advance, including fees for the license of Software and Services to be rendered to Licensee by or on behalf of Superior IT Services in the following month, and ii) Transaction fees and all other fees designated in the Fees Policy to be paid in arrears based on the value of goods and services sold through Licensee's Store during the previous calendar month, in accordance with the invoicing and payment requirements set forth in the Fees Policy.
6.4. If the Licensee fails to pay any amount payable by it under these Terms, the Supplier shall be entitled, but not obliged, to charge the Licensee interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base (reference) rate. Such interest shall accrue on a daily basis and be compounded quarterly.
7.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform these Terms.
7.2 Superior IT Services shall perform the Services with reasonable care and skill.
7.3 The Supplier warrants that the Site will perform in accordance with the Site specification from Acceptance. If the Site does not so perform within the first two weeks of go-live, the Supplier shall, for no additional charge, carry out any work necessary in order to ensure that, to the Supplier's sole reasonable opinion, the Site substantially complies with the Site specification. Any additional defects shall be remedied in accordance with a separate Support Contract.
7.4 The warranty set out in clause 7.3 above shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site specification is caused by any Materials or Non-Supplier Defects.
7.5 These Terms set out the full extent of the Supplier's obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into these Terms or any collateral contract (whether by statute or otherwise) are hereby expressly excluded to the fullest extent permitted by law. .6 The Supplier does not warrant that the servers or use of the internet will be free from defects, unauthorized users or hackers.
8. LIMITATION OF LIABILITY
8.1. To the fullest extent permitted by law, Superior IT Services, its suppliers, or service providers, or their officers, directors, employees, contractors or agents excludes and shall not be liable to the licensee for damage to or loss of data (and the Licensee is sole responsible for taking necessary back-up of all data) or any special, incidental or consequential damages arising out of or in connection with the software, the additional software, the services or this agreement (however arising, including negligence). Superior IT Services', its suppliers' ,and service providers', cumulative liability, and the liability of their officers, directors, employees, contractors and agents to Licensee or any third parties in any circumstances shall be limited to payment received by Superior IT Services for that particular service or month. There is no warranty in respect of the Ezeebiz Software or Services.
8.2. Superior IT Services has made this software/service available to use as a matter of convenience. User agrees and acknowledges that user shall be solely responsible for their conduct and that Superior IT Services reserves the right to terminate Licensee's rights to use the service immediately, not withstanding penal provisions under the laws en acted by the government of India or any other statutory, legislative or regulatory authority authorized in this regard from time to time.
9.1. Licensee agree to indemnify and hold Superior IT Services, its suppliers, and service providers, and their officers, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses and harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Licensee's breach of the User Agreement or the documents it incorporates by reference, or Licensee's violation of any law or the rights of a third party.
10.1. Customer/Licensee's shall protect the Confidential Information against unauthorized use or disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
10.2. For the purpose of these Terms, "Confidential Information" means and includes all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is: a) Identified as confidential at the time of disclosure; or b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure. Confidential Information shall include any identification, password and security data related to the Licensee's Site and operation of it.
10.3.The obligations of confidentiality in this clause 10 shall not be affected by the expiry or termination of these Terms.
11. SUSPENSIONS AND TERMINATION
11.1. At the discretion of Superior IT Services and for any reason set forth in this section (Clause11) of this Agreement, Superior IT Services may suspend Licensee's account by deactivating any access by Licensee or by Licensee's customers to any information contained on the Superior IT Services Servers related to Licensee's account while maintaining the information and data related to Licensee's account up on the Superior IT Services Servers. Suspension shall specifically include the disabling of Licensee's Store and/or any access to information or data related to Licensee's account. In the event of any such suspension Licensee will be notified and given an opportunity to correct such breach. In the event that such breach is not corrected within ten(10) days of the receipt of such notice the account may be terminated under Section 11.2 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. Licensee will remain responsible for the payment of any such fees during any such period of suspension.
11.2. These Terms shall commence on the date set out in the Services and shall (subject to earlier termination pursuant to this clause 12) continue unless terminated in accordance with the provisions of this clause. a) as provided in this Agreement, b) after a period of suspension as set forth in Clause 11.1 of this Agreement, or c) upon thirty (30) days written notice Either party may terminate these Terms immediately via Mail, Email Or Telephone. Licensee's termination request may be recorded by Superior IT Services and will require Licensee's user name and password and verification code.
11.3. On expiry or termination of these terms by Superior IT Services for any reason, the licenses granted under Section2 of this Agreement shall automatically and immediately cease and Licensee shall destroy all copies of the Software in Licensee's possession, if any. Upon termination, there will be no refund provided to Licensee except asset forth in the Price Policy and all outstanding fees owed by Licensee shall become immediately due and payable. Termination shall not affect the rights of Superior IT Services to recover from Licensee losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney's fees or expert witnesses' cost or other costs of any kind under this Agreement.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 "Intellectual Property Rights" means all patents (whether registered or not), trademarks (whether registered or not), copyrights (whether registered or not), including design rights, trade secrets, copyright, know-how, confidential information, business names and domain names, service marks, trade names, petty patents, utility models, design rights, semi-conductor topography rights, database rights or any other intellectual property rights in Software licensed, granted or assigned by Superior IT Services to, or otherwise vested in, Licensee pursuant to the Agreement. Unless the parties agree in writing otherwise, all Intellectual Property Rights in the Site (including in the content of the Site, content management systems, software, code and scripts), but excluding the Materials, arising out of or in connection with the provision of the Services, shall be the property of the Supplier (Superior IT Services), and the Supplier hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of using the Site. For the purpose of these Terms Intellectual Property Rights in the Site mean and include all intellectual property rights in the nature of unfair competition rights or rights to sue for passing off arising out of or in connection with the Site.
12.2 The Customer agree to indemnify and hold Superior IT Services, subsidiaries, affiliates, officers and employees, harmless from any claim, demand, or damage, including reasonable attorneys' fees, asserted by any third party due to or arising out of Licensee's use of or conduct on the Superior IT Services products/sites/services,.
12.3 In the event the Supplier has notice of a claim in accordance with the provisions of clause 13.2, the Supplier shall: a) notify the indemnifier in writing of the claim; b) make no admissions or settlements without the Customer's prior written consent; c) give at Customer's request and expenses all information and assistance as Customer may reasonably require.
13.1.This agreement is governed and construed in accordance with the Laws of Union of India. Licensee hereby irrevocably consents to the exclusive jurisdiction and venue of courts in New Delhi, India, in all disputes arising out of or relating to the use of the Superior IT Services products/sites/services. Use of the software or its related services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. Licensee agree that Superior IT Services has absolute authority to modify or change the terms and conditions of the agreement without Licensee's consent and the modified terms and conditions can be kept in Superior IT Services website and or Ezeebiz document and no separate notice is required to be issued to Licensee.
13.2.Licensee shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Licensee's use of the Software, the Services, and Licensee's listing and sale of products and services on Licensee's Store.
13.3. Unless the parties expressly agree otherwise, the Supplier shall be entitled to use the name of the Customer and Services provided as it may deem appropriate including in media releases, public announcements and other promotional or marketing material.
13.4.Except for the payment of any fees due and payable under this Agreement, neither party's delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by alabor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party in the breach.
13.5. Except as explicitly stated otherwise, any notices Licensee shall be given by postal mail to Superior IT Services, Basement No. 15, Shivaji Enclave, Main Road New Delhi 110027 Or Superior IT Services may issue the notice to the email address Licensee provide to us during the registration process (in Licensee's case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give Licensee notice by certified mail, postage prepaid and return receipt requested, to the address provided to us during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
13.6. If any dispute arises between Licensee and Superior IT Services during Licensee's use of the software/services or thereafter, in connection with the validity, interpretation, implementation or alleged breach of any provision of the User Agreement, the dispute shall be referred to a sole Arbitrator appointed by Superior IT Services. The place of arbitration shall be New Delhi. The Arbitration & Conciliation Act, 1996, shall govern the arbitration proceedings. The arbitration proceedings shall be in the English language. All expenses with respect to Arbitrator fee and his expenses shall be borne by the Parties equally. All other expenses of Lawyers fees and other expenses shall be borne by the respective parties.
13.7.Licensee acknowledge and agree that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained here in or contemplated hereby.
13.8.If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Superior IT Services failure to act with respect to a breach by Licensee or others does not waive Superior IT Services right to act with respect to sub sequentor similar breaches.
13.9.Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term "including" means "including without limitation, "unless expressly stated to the contrary.
13.10.This Agreement sets forth the entire understanding and agreement between Licensee and Superior IT Services with respect to the subject matter hereof.