eKartBuilder - Merchant Agreement
This Merchant User Agreement ("Agreement") is between you, the user, together with any company or other business entity you are representing, if any (collectively, "Licensee"), and Gravity Software Solutions Private Ltd. a company registered under the Companies Act,1956 and having registered office at <company-address> and its product eKartBuilder.
The terms we, us or our shall refer to EKB, The terms you, your shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
This Agreement comes in to effect when you register for using eKartBuilder services or signing an application for utilizing services of eKartBuilder. By Registering or signing with eKartBuilder, you signify your absolute and unconditional consent to all the provisions of this agreement in their entirety.
This agreement constitutes a legally binding agreement between Licensee and EKB. You are advised to 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 EKB .
Notwithstanding anything contained in the foregoing, this Agreement will not bind eKartBuilder unless you meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.
Licensee's store & content control
Fees, taxes & audit rights
Disclaimer of warranties
Limitation of liability
Suspension and termination
Terms and Conditions
Cancellation and Termination
The Following Terms Shall Have The Meanings Defined Below When Used In Capital Letters Herein:
eKartBuilder or eKartBuilder application or Software means the software Platform ("Software") provided by EKB.
Services or Service means the merchants services provided by EKB, 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 eKartBuilder on SAAS (software as service) model.
Content means the content present on your online store which includes the data present in your database as well as the related files.
Accounts refers to the customer accounts that are registered on your store.
eKartBuilder License or eKartBuilder Application License has its meaning described in Section 2 of this agreement.
eKartBuilder site or eKartBuilder website refers to the eKartBuilder product website www.ekartbuilder.com
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 directors or owning the largest or controlling percentage of the voting securities of such person/entity or by virtue of any contractual arrangements or otherwise.
Intellectual Property Rights means all patents (whether registered or not), trademarks( whether registered or not), copyrights (whether registered or not), design rights, trade secrets, marks or any other intellectual property rights in Software licensed, granted or assigned by EKB to, or otherwise vested in, Licensee pursuant to the Agreement.
1. Eligibility Criteria
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 in to an agreement and the authority to bind the entity to this Agreement. EKB uses many techniques to verify the accuracy of the information you provide when you register on the eKartBuilder Site. If for any reason, EKB, 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.
2. eKartBuilder (software), trademark ownership and eKartBuilder license
2.1 The Software provided by EKB, and all intellectual property rights therein, are the exclusive property of EKB.
2.2 Subject to the terms and conditions of this Agreement, EKB grants to Licensee a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for EKB ("EKB Servers") through the eKartBuilder Application solely for the purpose of building and maintaining an interactive store hosted by the EKB 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 EKB. 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 ADDITIONAL SOFTWARE AND SERVICES: Certain additional features that EKB 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, EKB 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.
3.1 Upon activation of Licensee's account and subject to the payment of applicable fees, EKB 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 eKartBuilder Site. Licensee's Store shall be hosted on a EKB Server on which several merchants may share the resources and network capacity of that EKB Server.
3.2 Store Design And Customization: At Licensee's request, and subject to EKB's acceptance of Licensee's request and Licensee's payment of applicable fees, EKB will provide or instruct one of its affiliates to provide, design and customization Services for Licensee's in accordance with EKB's then current customization terms and conditions.
3.3 Domain Name Registration: At Licensee's request and subject to your agreement to applicable terms and conditions and the payment of applicable fees, EKB's Additional Services may include acquisition and registration of a second-level domain name ("Domain Name") for Your Store on Your behalf. You hereby appoint EKB and third parties who provide domain name registration services to EKB as Your agent in the acquisition, registration and ongoing administration of Domain Names on Your behalf and You authorize EKB and third parties who provide domain name registration services to EKB to select and issue binding instructions to domain name registrars and registries used to acquire, register and administer Domain Names on Your behalf. EKB 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 EKB 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, EKB reserves the right, in EKB's 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.
3.4 Changes In Services: EKB reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to licensee . Licensee agree to receive administrative communications from EKB in regards to the Software, Services, Licensee's account, policy changes and system updates.
4. Licensee's store & content control
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 fulfilling 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 agrees that EKB has no obligation to back-up any data related to Licensees Store's operations other than product data, order data and Customer Data stored in the eKartBuilder system and Licensee should independently take appropriate steps to maintain such data in accordance with Licensees 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 EKB 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 to Licensee's Store. As a conduit, EKB will give Licensee complete discretion over Licensee's content provided it is compatible and interoperable with the Software and Services provided by EKB under this Agreement. Licensee retain all rights, title and interest in and to all intellectual property rights embodied in Licensee's content, exclusive of any content provided by EKB. Notwithstanding anything contained in the foregoing, if Licensee breach any of the covenants in Section 5.1 of this Agreement, EKB 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 Section 12 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, EKB and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the Store. EKB has no obligation to Licensee or any third party, and undertakes no responsibility, to review Licensee's Store, the products or services listed therein 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. Notwithstanding anything to the contrary herein, if EKB believes in its sole discretion (as applicable) that Licensee's Store or any products, services, content or other materials in the Store or on EKB Servers may create liability, EKB may take any actions with respect to the content or materials.
4.4 Licensee hereby grant EKB and its affiliates an irrevocable, royalty-free, worldwide license to reproduce, distribute, create derivative 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 EKB 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 pages or e-stores hosted with EKB. EKB 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.
5.1 COVENANTS BY LICENSEE: Licensee covenant that any products, services, or content published and distributed on Licensee's Store and Licensee's related activities shall not violate the EKB 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) Infringe 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, antidiscrimination 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, easter eggs 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 email (known as "spamming") and Licensee shall not use Licensee's account or Licensee's Store as a return address for unsolicited commercial mail originating elsewhere 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 a record for a period of three (3) years after any termination of this Agreement.
x) be harmful or potentially harmful to the EKB Server infrastructure as determined in EKB's sole discretion, including without limitation overloading the EKB technical infrastructure.
xi) create liability for EKB and its subcontractors or expose them to undue risk or otherwise engage in activities that EKB, in its sole discretion, determines to be harmful to EKB' 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 EKB' 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 EKB' Prohibited and Restricted Items list provided on the website.
5.4 BREACH OF COVENANT: Licensee's failure to comply with the covenants set forth in Section 5.1 of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination under Section 12 of this Agreement.
6. Fees, taxes & audit rights
6.1 Licensee agrees to pay to EKB the Fees in the amount, manner and at the times set out in ANNEXURE A; Licensee are responsible for payment for its own license of eKartBuilder application as well as for the licenses sub-licensed to its merchants.
6.2 Payment Terms: EKB will invoice Licensee and Licensee agree 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 EKB 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.
6.3 Taxes: All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, state or foreign, and Licensee will be responsible for payment of all such taxes (other than taxes based on EKB' income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement.
7. Disclaimer of warranties
EKB, its suppliers and service providers, provide the software, additional software, and services, on an "as is" basis and expressly disclaim any and all express, implied or statutory warranties, including the warranties of merchantability, fitness for a particular purpose, quiet enjoyment, title, non-infringement; and warranties arising from a course of dealing, usage or trade practice are excluded. EKB, its suppliers and service providers, do not warrant that the software, additional software, or services will be error-free or uninterrupted and make no representations regarding uptime, use, data security, accuracy and reliability of their services. Licensee acknowledges and agrees that this section 7 is reasonable and an essential element of this agreement and that in its absence, the economic terms of this agreement would be substantially different. eKartBuilder does not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
8. Limitation of liability
8.1 In no event shall EKB, its suppliers, or service providers, or their officers, directors, employees, contractors or agents be liable for lost profits 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). EKB', 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 EKB for that particular service or month. There is no warranty in respect of the eKartBuilder, Software or Services.
8.2 EKB 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 EKB reserves the right to terminate Licensee's rights to use the service immediately, notwithstanding penal provisions under the laws enacted by the government of India or any other statutory, legislative or regulatory authority authorized in this regard from time to time.
8.3 In no event shall EKB shall be liable for any direct, indirect, punitive, incidental, special or consequential damages or for any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the EKB software/services for interrupted communications, delay, lost data or lost profits arising out of or in connection with this agreement, or otherwise arising out of the use of the eKartBuilder software/services, whether based on contract, tort, negligence, strict liability or otherwise, even if EKB or any of its suppliers has been advised of the possibility of damages. EKB does not endorse in anyway any advertisers/ contents of advertisers on there web-pages. The clause shall survive the termination or expiry of this agreement.
8.4 The material and information provided by Licensee (content) under this agreement belongs to Licensee who agrees to grant the rights to share, redistribute or otherwise use the content to EKB as described in Section 4 of this agreement. Licensee being the owner of the content provided shall be responsible for any acts of violation of rights of another or intellectual property infringement by way of the content provided. EKB makes no representations or warranties of any kind express or implied about the completeness, accuracy, reliability, of the content provided in the content or the information on products, services (information) made available Licensee. EKB and their business partners would not be liable for any intellectual property infringement or violation of rights of another by use of such contents.
Licensee agree to indemnify and hold EKB, 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.
10.4 Licensee understand that your Content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Without limiting other remedies, EKB may limit Licensee's activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Licensee's account or Licensee's Store, in whole or in part, and refuse to provide some or all of the Software functionality or Services to Licensee on failure of payment, breach of this agreement or any term incorporated by reference or failure to verify or authenticate any information provided by Licensee or if EKB believes that Licensee's actions may cause financial loss or legal liability for Licensee, Licensee's Store customers, or EKB.
12. Suspension and termination
12.1 Suspension: At the discretion of EKB and for any reason set forth in this section (Section 12) of this Agreement, EKB may suspend Licensee's account by deactivating any access by Licensee or by Licensee's customers to any information contained on the EKB Servers related to Licensee's account while maintaining the information and data related to Licensee's account upon the EKB 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 12.2 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.
12.2 Termination: This Agreement and all of its terms shall remain in full force and effect until it is terminated in accordance with the terms of this Agreement. This Agreement may be terminated either by EKB (a) as provided in this Agreement, (b) after a period of suspension as set forth in Section 12.1 of this Agreement, or (c) upon thirty (30) days written notice. Licensee may terminate this Agreement upon twenty-four hours notice by telephoning EKB' designated customer support center. Licensee's termination request may be recorded by EKB and will require Licensee's user name and password and verification code.
In the event of expiration or termination for any reason, the licenses granted under Section 2 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 as set 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 EKB 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.
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 EKB's products/sites/services. Use of the eKartBuilder software 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 to indemnify and hold EKB, 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 EKB's products/sites/services. Licensee agree that EKB 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 eKartBuilder website 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 Licensee and EKB are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
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 a labor 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 EKB Private Limited, B4-309, Spaze iTech Park, Sector-49, Sohna Road, Gurgaon - 122001 or EKB 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 EKB 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 EKB. The place of arbitration shall be New Delhi, India. 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 herein 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. EKB' failure to act with respect to a breach by Licensee or others does not waive EKB' right to act with respect to subsequent or 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 Permission to Use. You may use the eKartBuilder for your business requirements only in accordance with the terms and conditions of this Agreement.
13.11 eKartBuilder Clients (You).
i) Account Data. You hereby pledge that you will not in any way either enable nor allow any party to access or use any data obtained through scrapping or any other methodology apart from those explicitly provided through the standard interfaces provided by eKartBuilder . You must neither enable nor allow either, knowingly or unknowingly, any party to access or use the account, passwords, private data, customer data, or any other account information of a party other than yourself (as has been permitted and authenticated).
ii) Co-Mingling Of eKartBuilder Data.
a) You must not use any mechanism to view or show any fields (or other data entities) for collecting or transmitting eKartBuilder Data to Third Parties without explicit written permission from EKB.
b) You must not use any mechanism to view or show any fields (or other data entities) for collecting or transmitting eKartBuilder Data to Third Parties without explicit written permission from EKB.
iii) No Distribution. You are now allowed to distribute or sell data obtained from eKartBuilder other than your own customer data (as described in the Customer data section of this agreement)
iv) Security: You must have adequate protections in order to keep secure and prevent any spurious or malicious usage or access of eKartBuilder or eKartBuilder infrastructure.
v) Data Collection: You must not enable EKB/eKartBuilder Scraping or other non-standard ways of obtaining data from eKartBuilder other than through the standard interfaces provided by eKartBuilder or accept data from EKB/eKartBuilder Scraping.
vi) Personally Identifiable Information. You must not collect personally identifiable information of any party unless you first inform the user about the types of information being collected and how that information may be used and then obtain the user's express permission for those uses.
vii) Compliance With Law. You must comply with all applicable government laws, rules and regulations and any Third Party's rights and must not operate in a manner that is, or that a user of your online store would reasonably consider, deceptive, unethical, false or misleading.
viii) Duty Not To Interfere. You must not interfere or attempt to interfere in any manner with the proper working of eKartBuilder.
ix) EKB Monitoring. You must not, and must not attempt to, interfere with EKB monitoring of eKartBuilder activity or otherwise obscure from eKartBuilder activity. EKB/eKartBuilder may use any technical means to overcome such interference, including without limitation suspending or terminating access of eKartBuilder.
x) Automated Use. You may not provide a Third Party the ability to, via automated means, use eKartBuilder all Third Party use must be by a human user your online store.
13.12 This Agreement sets forth the entire understanding and agreement between Licensee and EKB with respect to the subject matter here of.