Welcome to Zencommerce
Congratulations on your decision to use the services provided by Zencommerce.nl. Zencommerce shall assist you to set up an online store in minutes with its hosted shopping cart solution in an easy way without any hassles. We request you to please read this Agreement before availing the Services of Zencommerce.
This Customer Agreement (“Agreement”) is between you, the user, together with any company or other business entity you are representing, if any (collectively, “Licensee”), and Zencomerce- An entity of Dreamcommerce S.A a company having registered office at – C-9, Ground Floor, Neighbourhood Shopping Complex, Near SBI Bank, Sector-4, Nerul(W), Navi Mumbai 400706 and its products Zencommerce. This Agreement comes in to effect when you register for using Zencommerce services or signing an application for utilizing services of Zencommerce. By Registering or signing with Zencommerce, 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 Zencommerce. 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 Zencommerce.
Notwithstanding anything contained in the foregoing, this Agreement will not bind Zencommerce 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:
2) “Zencommerce” or “Zencommerce application” or “Software” means the software Platform (“Software”) provided by Zencommerce.
3) Services means the merchants services provided by Zencommerce, including hosting of the online store, site design, email services, marketing services, domain name registration, payment collection and other related services as may be offered from time to time. Software and/or Services provided by Zencommerce on SAAS (software as service) model.
4) “Zencommerce License” or “Zencommerce Application License” has its meaning described in Section 2 of this agreement.
5) “Zencommerce site” or “Zencommerce website” refers to the Zencommerce product website – www.Zencommerce.nl
6) “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.
7) “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 Zencommerce to, or otherwise vested in, Licensee pursuant to the Agreement.
A. 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. Zencommerce uses many techniques to verify the accuracy of the information you provide when you register on the Zencommerce Site. If for any reason, Zencommerce, 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.
Zencommerce (SOFTWARE), TRADEMARK OWNERSHIP AND Zencommerce LICENSE
1) The Software provided by Zencommerce, and all intellectual property rights therein, are the exclusive property of Zencommerce.
2) Subject to the terms and conditions of this Agreement, Zencommerce grants to Licensee a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for Zencommerce (“Zencommerce Servers”) through the Zencommerce Application solely for the purpose of building and maintaining an interactive store hosted by the Zencommerce Servers on which Licensee offer Licensee’s or a third party’s products or services (“Licensee’s Store”).
3) The Software and its structure, organization, and source code constitute valuable trade secrets of Zencommerce. 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.
4) ADDITIONAL SOFTWARE AND SERVICES: Certain additional features that Zencommerce 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, Zencommerce 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.
1) Upon activation of Licensee’s account and subject to the payment of applicable fees, Zencommerce 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 Zencommerce Site. Licensee’s Store shall be hosted on a Zencommerce Server on which several merchants may share the resources and network capacity of that Zencommerce Server.
2) BILLING PERIOD: Start date of Billing period would be considered as the Date of Payment except in cases as below
a) Payment Gateway Activation: Start date of Billing period would be either Payment Gateway Activation date or 30 days from the Date of payment whichever is earlier.
3) STORE DESIGN AND CUSTOMIZATION: At Licensee’s request, and subject to Zencommerce’s acceptance of Licensee’s request and Licensee’s payment of applicable fees, Zencommerce will provide or instruct one of its “affiliates” to provide, design and customization Services for Licensee’s in accordance with Zencommerce’s then current customization terms and conditions.
4) DOMAIN NAME REGISTRATION: At Licensee’s request and subject to Your agreement to applicable terms and conditions and the payment of applicable fees, Zencommerce’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 Zencommerce and third parties who provide domain name registration services to Zencommerce as Your agent in the acquisition, registration and ongoing administration of Domain Names on Your behalf and You authorize Zencommerce and third parties who provide domain name registration services to Zencommerce to select and issue binding instructions to domain name registrars and registries used to acquire, register and administer Domain Names on Your behalf. Zencommerce 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 Zencommerce 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, Zencommerce reserves the right, in Zencommerce’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.
5) SLA: THIS SERVICE LEVEL AGREEMENT (“Agreement” or “SLA”) shall apply to all Hosted Services provided by Zencommerce for each customer/client/consumer/end user/user (“USER”). Zencommerce is committed to providing a highly available and secure network to support its USERs. Providing the USER with consistent access to Hosted Services is a high priority for Zencommerce and is the basis for its commitment in the form of a SLA. The SLA provides certain rights and remedies in the event that the USER experiences service interruption as a result of failure of Zencommerce infrastructure. The overall service availability metric is 99%, measured on a monthly basis. Failing to this, we’ll refund the amount for that month subscription, in which SLA is not kept up to the standard.
For the purpose of this Service Level Agreement, the terms in bold are defined as follows:
Available or Availability
When the USER who’s account is active and enabled has reasonable access to the Hosted Service provided by Zencommerce, subject to the exclusions defined in Downtime Minutes below.
Total Monthly Minutes
The number of days in the month multiplied by 1,440 minutes per day.
The time period during which the Hosted Service may not be Available each month so that Zencommerce can perform routine maintenance to enhance the software on regular basis by new features release, performance improvements & bug fixes, is on an as needed basis. Maintenance activity is undertaken only during very odd business hours i.e 4 AM IST to 8:30 AM IST. On a average, we take 50 to 100 minutes of maintenance activity every week. So, SLA excluding Maintenance Time would be 99.5%.
The total number of minutes that the USER cannot access the Hosted Service. The calculation of Downtime Minutes excludes time that the USER is unable to access the Hosted Services due to any of the following:
(a) Maintenance Time
(b) USER’s own Internet service provider
(c) Force Majeure event
(d) Any systemic Internet failures
(e) Enhanced Services
(f) Any failure in the USER’s own hardware, software or Network connection
(g) USER’s bandwidth restrictions
(h) USER’s acts or omissions
(i) Anything outside of the direct control of Zencommerce
CHANGES IN SERVICES: Zencommerce 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 Zencommerce in regards to the Software, Services, Licensee’s account, policy changes and system updates.
LICENSEE’S STORE & CONTENT CONTROL
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 Zencommerce will have a backup of the data uploaded on the store in event of data corruption/ lapses which would be carried out once a day.
2) Licensee acknowledge that, by only providing Licensee with the ability to publish and distribute Licensee’s own or third party products, services or content, Zencommerce and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the Store. Zencommerce 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 Zencommerce believes in its sole discretion (as applicable) that Licensee’s Store or any products, services, content or other materials in the Store or on Zencommerce Servers may create liability, Zencommerce may take any actions with respect to the content or materials.
3) Licensee hereby grant Zencommerce 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 Zencommerce 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 Zencommerce. Zencommerce 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.
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 Zencommerce 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 Zencommerce Server infrastructure as determined in Zencommerce’s sole discretion, including without limitation overloading the Zencommerce technical infrastructure.
xi) Create liability for Zencommerce and its subcontractors or expose them to undue risk or otherwise engage in activities that Zencommerce, in its sole discretion, determines to be harmful to Zencommerce’ 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 Zencommerce’ Prohibited and Restricted Items clauses that are incorporated herein by reference and may be amended from time to time. 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 Zencommerce’ Prohibited and Restricted Items list provided on the website.
3) 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.
FULLFILLMENT OF SPECIFIES TAXES
1) For avoidance of doubt and notwithstanding anything to the contrary herein, You will indemnify, reimburse and hold Zencommerce harmless from, for and against any sales, use, gross receipts, excise, franchise, business or other taxes or fees (including penalties, fines or interest thereon) imposed by any government or other taxing authority (collectively, “Fulfillment Specific Taxes”) to the extent such taxes or fees are: (a) assessed on Zencommerce as a result of inventory, packaging, gift wrap and other materials (i) owned by You and/or (ii) sold to customers as contemplated \hereunder; and (b) Your primary legal obligation.
FULFILLMENT OF THE ORDER
1) FULFILLMENT: During the Term, You will source, pick, pack and dispatch to the applicable addresses, Your Products sold in connection with a Transaction Charge through Your website.
2) PRODUCT FULFILLMENT: You will be solely responsible for the fulfillment of all the products that are uploaded and displayed on Your website. Further, Zencommerce will not be liable for any transaction entered or performed on Your website.
3) REVERSE LOGISTICS: You will be solely responsible for accepting and processing returns of Your Products and will communicate to customers all necessary information for the return of Your Products which are sold through Your website.
1) COLLECTION OF PAYMENT: Zencommerce will collect the payment through its designated payment gateway and shall remain the sole property of Zencommerce only. On all the Payment Gateway aspects, the identity of Zencommerce shall be mentioned.
2) Zencommerce shall be responsible for all customer complaints in regards to payment gateway issues and system related errors. All costs and liabilities arising due to the same shall be solely borne by You. Zencommerce shall not be held liable at any point in time during the subsistence of this Agreement.
3) CREDIT CARD FRAUD AND CHRGE-BACKS: Zencommerce will put in the best efforts to minimize credit card fraud and charge-backs and Zencommerce will be liable for any credit card fraud and charge back.
4) REFUND: Zencommerce may refund the money to customers if You request to Zencommerce or Zencommerce deem fit for such refund to the customer. In case customer’s claims damages or non deliveries product by You, Zencommerce will inform You about such claims that are received by Zencommerce in pertinent to Your product and services. If You delay in resolving the customer claims, then Zencommerce may at its sole discretion to decide and remit the customer upon receipt of such request. Zencommerce does not take any responsibility to ascertain the truth of such a claim. Though in such cases Zencommerce would use reasonable efforts.
CANCELLATION & REFUND POLICY (FEES & TAXES)
1) Licensee agrees to pay to Zencommerce the Fees in the amount, manner and at the times as agreed upon; Licensee are responsible for payment for its own license of Zencommerce application as well as for the licenses sub-licensed to its merchants.
2) PAYMENT TERMS: Zencommerce will invoice Licensee and Licensee agree to pay for
a. Licensee agrees to pay all subscription fees, consulting fees and other fees applicable to their use of Services and Licensee shall not circumvent the fee structure. The fee is dependent on the User Plan that Licensee purchase and not on actual usage of the services.
b. The subscription fee is refundable based upon below policy.
If cancellation of Zencommerce Subscription is presented
i) Within 30 days of date of payment, 33% would be deducted and rest would be returned.
ii) After 45 days of date of payment, 50% would be deducted and rest would be returned.
iii) After 60 days of payment, no refund requests would be entertained.
Please note: the refund case approval is on case-to-case basis, mainly on the basis of if there is a problem that cannot be solved
c. 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 Zencommerce in the following month
d. Each User / Member is solely responsible for payment of all taxes, legal compliances, statutory registrations and reporting. Zencommerce is in no way responsible for any of the taxes except for its own income tax.
e. Method of payment:
i) Online : The Fees could be paid online through the facility made on the Website. Third parties support and services are required to process online fee payment. We are not responsible for any loss or damage caused to Licensee during this process as these third parties are beyond the control of Zencommerce.
ii) Offline : The Fees could be either collected personally from Licensee or required to be mailed to Us at the following address :C-9, Neighborhood Shopping Complex, Sector-4, Nerul-West, Navi Mumbai – 400706
f. We consider the payment process to be complete only on receipt of the amount to Zencommerce’s designated bank account.
g. All Fees are exclusive of taxes. Service Tax of 12.36% is levied on every purchase.
h. Fees not received within the specified due dates attract late charges of 18% per annum from the due-date of payment, which may levied at Zencommerce’s discretion.
i. Zencommerce reserves the right to modify the fee structure by providing a 30 day prior notice, either by notice on the Website or through email to the Authorized User, which shall be considered as valid and agreed communication.
3) 14 Days Free Trial – Licensee gets a free 14 day trial on their account when they register. They can upgrade to a Basic, Starter, Pro or Unlimited account anytime during the 14 day trial period. If the account is not upgraded by the end of the trial period, your trial account would be suspended. On suspension, you still have 30 days after suspension to upgrade the account. If that is not done, the account and all the data on Zencommerce would be deleted 3 days after suspension.
4) No charges if you delete your Zencommerce account – Once a licensee deletes the account, they would not be charged again, but the licensee is responsible for whatever charges have already been incurred for the current billing period. For example, if the billing cycle is on the 10th of every month, and they cancel on the 24th, they’ll still have to pay for the current month, but they won’t be charged again after that. We cannot make any exceptions to this.
DISCLAIMER OF WARRANTIES
Zencommerce, 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, noninfringement; and warranties arising from a course of dealing, usage or trade practice are excluded. Zencommerce, 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.
Licensee agree to indemnify and hold Zencommerce, 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.
LIMITATION OF LIABILITY
1) In no event shall Zencommerce, 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). Zencommerce’, 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 Zencommerce for that particular service or month. There is no warranty in respect of the Zencommerce, Software or Services.
2) Zencommerce 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 Zencommerce 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.
3) In no event shall Zencommerce 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 Zencommerce 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 Zencommerce software/services, whether based on contract, tort, negligence, strict liability or otherwise, even if Zencommerce or any of its suppliers has been advised of the possibility of damages. Zencommerce does not endorse in anyway any advertisers/ contents of advertisers on their web-pages. The clause shall survive the termination or expiry of this agreement.
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 Zencommerce 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. Zencommerce 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. Zencommerce and their business partners would not be liable for any intellectual property infringement or violation of rights of another by use of such contents.
Without limiting other remedies, Zencommerce 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 Zencommerce believes that Licensee’s actions may cause financial loss or legal liability for Licensee, Licensee’s Store customers, or Zencommerce.
SUSPENSION AND TERMINATION
1) SUSPENSION: At the discretion of Zencommerce and for any reason set forth in this section (Section 12) of this Agreement, Zencommerce may suspend Licensee’s account by deactivating any access by Licensee or by Licensee’s customers to any information contained on the Zencommerce Servers related to Licensee’s account while maintaining the information and data related to Licensee’s account upon the Zencommerce 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.
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 Zencommerce (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 Zencommerce’ designated customer support center. Licensee’s termination request may be recorded by Zencommerce and will require Licensee’s user name and password and verification code.
3) 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 Zencommerce 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.
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 Mumbai, Maharashtra, India, in all disputes arising out of or relating to the use of the Zencommerce’s products/sites/services. Use of the Zencommerce 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 Zencommerce, 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 Zencommerce’s products/sites/services. Licensee agree that Zencommerce 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 Zencommerce website and no separate notice is required to be issued to Licensee.
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.
3) Licensee and Zencommerce are independent contractors, and no agency, partnership, joint venture, employeeemployer or franchiser-franchisee relationship is intended or created by this Agreement.
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.
5) Except as explicitly stated otherwise, any notices Licensee shall be given by postal mail to Zencommerce – C-9, Neighborhood Shopping Complex, Sector-4, Nerul-West, Navi Mumbai – 400706 or Zencommerce 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.
6) If any dispute arises between Licensee and Zencommerce 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 Zencommerce. The place of arbitration shall be Mumbai. 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.
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.
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. Zencommerce’ failure to act with respect to a breach by Licensee or others does not waive Zencommerce’s right to act with respect to subsequent or similar breaches.
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.
This Agreement sets forth the entire understanding and agreement between Licensee and Zencommerce with respect to the subject matter hereof.