For the purposes of these Service Terms and Conditions (“These Terms”):
1. ‘MyGate’, ‘Company’, ‘Us’ or ‘W e’ refers to Vivish Technologies Private Limited.
2. ‘You’ or ‘Customer’ refers to you or Your Representatives.
3. ‘Services’ shall mean the Services selected by You under the Subscription and Payment Detail Section of the Order Form as further detailed under Clause 1 (Services) below.
4. ‘Subscription Plan’ shall be the Billing Plan opted by You under the Subscription and Payment Detail Section of the Order Form basis which the Fee has been agreed between the Parties.
5. ‘Subscription Term’ / ‘Term’ / ‘Subscription Period’ shall mean the time-period for which the Subscription Plan has been availed by You.
These Terms govern the provisioning of the Services to You.
1. SERVICE TO BE PROVIDED BY MYGATE
- The Company offers You a technology platform which facilitates safety and security of apartment complexes/gated enclaves by deploying its proprietary software under the brand-name “MyGate” as specified in the Subscription and Payment Detail Section of the Order Form (“Service”).
- Subject to this Agreement and in consideration of the payment as more fully set forth in Subscription and Payment Detail Section of the Order Form, the Company grants and the Customer accepts a limited, non-exclusive, non-transferable and revocable license to use the Services developed by the Company for the Term. The Customer agrees that this license does not permit the Customer to sub-license, or otherwise transfer, assign, or rent the Services to any other third party.
- The Company may provide You with mobile devices integrated with the Service as per the Subscription and Payment Detail Section of the Order Form, along with the Sim Card in the name of the Company, to operate each mobile devices and battery of the mobile devices with the charger (collectively the “Devices”).
- The Devices shall be solely utilized to avail the Services and no other purpose whatsoever.
- Customer is responsible and liable for the upkeep and maintenance of the Devices handed over by Us for the Term. You agree and undertake that once the Device has been handed over to the Customer, the Customer shall be liable for the Device and shall be responsible for the safe custody of the same, shall not damage or lose the Device. In the event that the Device is not working properly, lost or stolen or misappropriated by any of Your Representative, You shall inform the Company at the earliest.
- During the term of the Agreement, if there is any manufacturing defect in the Device, the Company shall be responsible for replacement of such Device without any additional cost to the Customer. In the event of any loss, damage or theft of the Device for any other reason part from a manufacturing defect of the Device, the cost of replacement of the Device equal to INR. 8,000/- (Indian Rupee Eight Thousand Only) is shall be payable by the Customer forthwith.
- We may also facilitate the provision of SIM Cards for the Devices. The Customer shall be responsible and liable for the custody and usage of the same. In the event that the Company provides any such sim cards, the Company will pay for the monthly billing associated with the SIM card. You agree that the Customer and/or any person who is using the Device / Sim Card on behalf of the Customer shall only use the SIM Card / Device for the purposes of the Services and the Company will not be liable for the usage of the SIM card for any other purpose except as per designated use in the Device. The Company shall have no liability in case of any unlawful act / use of the SIM card or the mobile number or the Device while in Your possession and You agree to indemnify Us against any losses, damages and claims arising from the misuse / misappropriation / theft / loss / damage / illegal use. In the event of any unlawful use of the SIM card, should You conduct an investigation, We will provide commercially reasonable information and details to assist You in all such investigation.
- We may also facilitate the provision of internet broadband/Wi-fi connectivity at the entry point of Your premises for smooth operation of the Devices for the purposes of the Service. In the event that the Company provides any such broadband / Wi-Fi connectivity, We or You may have to pay for monthly billing based on mutual agreed basis. You agree that the Company will not be liable for the usage of the internet / Wi-Fi connectivity for any other purpose except as per designated use in the Device/s / for Services.
- You must be aware that the SIM cards, Devices, internet broadband or Wi-fi connectivity or any other third-party services are facilitated by third party service providers. All of such services will be subject to terms and conditions of such third-party service providers, and We do not make any representations, warranties or guarantees with respect to the serviceability / functionality / merchantability or any other purpose with respect to the same.
- You acknowledge and agree that for the Company to provide its Services, you may share the information of all the residents of Your apartment complex/gated enclave/ resident welfare association (“Residents”) subject to requisite consents from the Residents as per applicable laws.
2. YOUR RESPONSIBILITY AND OBLIGATIONS
- Neither You nor any representative, agent or contractor or security guards, staff, personnel appointed / designated assigned by You (“Your Representatives”) shall use Our Service or any part thereof to commit, aid, support, facilitate or conceal any fraudulent, criminal, illegal, prohibited or objectionable activity whatsoever.
- If any on-field training services and support services are provided to Your Representative, You shall ensure that You and/or Your Representatives do not misbehave with or ill-treat the training and support staff deputed by the Company at Your premises.
- You shall in all circumstances accept full responsibility for the use of Your online account with the Company, whether or not processed with Your knowledge or authority, expressed or implied.
- You will have access to sensitive information and shall be liable for any consequences of intentional or inadvertent sharing of personal or sensitive information. Any unlawful or any unauthorised use of the said data of the Resident’s and/or Visitor and/or any third party by You shall be Your responsibility and liability. The Company shall have no liability in this regard and You shall indemnify the Company against any claims, damages, direct or consequential, arising from the breach of this obligation to protect the data of the visitor’s / residents as per applicable laws.
- You further understand and agree that as part of the Services to be provided by the Company, the Residents will also share certain data and information directly on the MyGate mobile application. The Company shall share such Resident’s data with You, upon request, via the Administrative Dashboard provided to You. Once the Resident’s data has been shared with You, You shall be solely responsible for the storage, safety and use of the said data and shall indemnify the Company against any liability, claims, damages or liability arising from any misuse / unauthorized disclosure / access.
- You agree that the Device, sim card, Broad Band/Wi-Fi service, or any other accessories, services, and/or ancillaries provided by the Company, will only be used to avail the Service of the Company.
- You shall be liable to the Company for any damage or liability including cost of lawyers arising from the breach of these terms and conditions by You or Your Representative to the extent solely attribute to Your acts and /or omissions including fraud, misrepresentation, cheating, misuse or misconduct.
3. FEE AND PAYMENT TERMS
- For provisioning of the Services, You shall pay such fee as agreed in the Subscription and Payment Detail Section of the Order Form (“Fee”).
- The Company shall raise an invoice and the Customer shall be liable to pay such amounts as specified in the invoice within 7 (Seven) days from the date of receipt of the invoice. If not dispute or discrepancy is raised within 5 (five) days of receipt of the invoice, the same shall be deemed accepted and payable. If the invoice has not been paid within the aforesaid time period, then the Customer shall be liable to pay 18% annualized interest on any due and payable amounts by the Customer calculated up to the date of the payment.
- You understand that the said Fee is offered to You as per the Subscription Plan availed by You. In case of early termination by You for any reason except material breach by the Company or for termination for cause by the Company prior to the expiry of the Subscription Plan, You shall be liable to pay the full fee for the serviced months without any deductions and discounts, including the one-time implementation fee, if waived by the Company, as applicable.
- In case of termination by You for material cause or termination by the Company for convenience, the Fee, including any advances paid by You, shall be refunded to You by the Company on a pro-rata basis for the un-serviced months.
- The Customer shall deduct tax at source at applicable rates (“TDS”) on all payments made to the Company, as applicable. If TDS Return is not filed or the TDS credit is not reflected in 26AS by the Customer at the end of each quarter of the financial year, such amount deduced by the Customer towards TDS shall be recoverable by the Company from Customer along with interest forthwith.
- Company will have the right to suspend the Services and/or terminate at any time for non-payment of Fee for a continuous period of 30 (thirty) days by You.
- Amendment to the Fees can be done in following scenarios (1) Customer agrees in writing to increase or decrease the number of Devices at rate mutually agreed by the Parties (2) On completion of 1 (One) year from Subscription Date, the Company shall have the right to revise the Fee on such terms as may be mutually acceptable to the Parties.
- The Company is a technology platform and only provides a limited, non-exclusive, non-transferable and revocable license to You to use its proprietary solution to facilitate safety and security in gated communities, and to manage various operations therefrom. You shall only use Our Services for the purposes specified herein and for no other purpose.
- All Services provided by the Company herein and all the material related thereto are provided on an “AS IS” and on “AS AVAILABLE” basis without any representation or warranties, express or implied, under law or otherwise.
- The Company may at its sole discretion deploy any mechanism on its platforms (website and mobile application) that it deems fit to detect, prevent, deter, mitigate and expose fraudulent behaviour or any suspicious activity.
- The Company will undertake security practices, where applicable, as per the industry standards and applicable laws.
- The Company shall not be liable for any unanticipated or unscheduled down time of all or a portion of the Services provided to the Customer, or for any interruptions in the Service beyond the control of the Company. The Company shall endeavor to rectify the same as soon as commercially reasonable and provide intimation to the Customer as commercially reasonable.
- The Company shall not be responsible for actions of information sharing by the Customer or its Residents / Visitors / Your Representative. The Customer shall be solely responsible and liable for obtaining the requisite permissions from its Residents / Visitors / third parties / individuals, as applicable, before sharing their respective information and data with the Company, if any.
- You acknowledge, understand and agree that the Company is merely a technology platform and shall not be responsible or liable for theft, security breach, or any other activity whether unusual or illegal or not that occurs in the premises of the apartment complex /gated complex / RWA,.
- You acknowledge and agree that the Company is not responsible for the behaviour or action of any personnel, Visitors, Your Representatives / agents / sub-contractors / security agencies / security service provider / Residents, delivery agents / their contractors and guests in the premises of the Customer whatsoever.
- The Customer shall contact the respective law enforcement agencies directly for any such unusual or illegal activity. Should the assistance of the Company be required in any investigation, the Company will provide all cooperation to the extent reasonably possible subject to the restrictions under applicable law.
5. PRIVACY AND CONFIDENTIAL INFORMATION
- You undertake that neither You nor Your authorised personnel or representative shall, during the period of the Subscription or at any time thereafter, use or disclose to anyone, any information relating to the business or affairs or intellectual rights of the Company or the Services or the Device which You may be exposed to or may receive during the course of any Services provided under these Terms.
6. INTELLECTUAL PROPERTY RIGHTS
- The Customer acknowledges that ownership of all title in and to all intellectual property rights, including patent, trademark, service mark, copyright, and trade secret rights, in the software including but not limited to the source code that is used for the operation of the software, technology and Services and all intellectual property right therein (“Company’s Intellectual Property”) shall be the sole and exclusive property of the Company. All rights and titles to Company’s Intellectual Property shall continue to vest and remain with the Company at all times The Customer acquires only the limited right to use the Company’s Intellectual Property under the terms and conditions of this Agreement and does not acquire any ownership rights or title in the Company’s Intellectual Property, either express or implied. The Customer will not in any way contest the Company’s Intellectual Property, nor apply for any registration of any copyright, patent or trademark or other designation, or take any action that would affect the Company’s ownership of its intellectual property or aid or abet anyone else in doing so.
- In the event that any claim is made against the Company as a result of the misuse/unauthorized use/infringement of Company’s Software/Company’s Intellectual Property by the Customer, the Customer shall indemnify and hold harmless the Company in this regard.
- The Customer shall not remove, or tamper with or alter any logo, any proprietary, copyright, trademark or service mark, identification mark of the Company from the software / portal / Company’s Intellectual Property.
- The Customer shall not copy, translate, reverse engineer, decompile or disassemble, or transfer the Company’s Intellectual Property or any part or attempt to transfer or assign for any reason whatsoever or attempt to modify, or create a derivative work of any part of the software / Company’s Intellectual Property / any part thereof.
- During the term of this Agreement, each Party shall have the right to use the other Party’s trademarks, trade names, or logos as provided by the other Party “As is” solely in connection with this Agreement.
7. TERM AND TERMINATION
- These Terms shall stand commence from the Subscription Start Date and shall continue for the Subscription Plan at the minimum and renew for simultaneous subscription terms unless otherwise terminated as per the terms of this Clause subject to payment of Subscription Fee as detailed herein.
- Either Party may terminate this engagement with prior notice of 30 (thirty) days provided however the Company shall be entitled to payment of Subscription Fee until the effective date of termination.
- Either Party shall have the power to terminate this Agreement with immediate effect in the event of a breach of any of the provisions of this Agreement by the other Party or by any person acting on behalf of. the other Party, provided that such breach is not cured within 10 (Ten) business days from date of notice from the non-breaching Party.
- Each Party may terminate this Agreement for material breach forthwith by way of a written notice to the other Party in the event of breach of any applicable laws and/or an insolvency / bankruptcy event.
8. CONSEQUENCES OF TERMINATION
- In case of termination for material case by You during the Subscription Term or termination for convenience by Company, any advance / security deposit paid by You shall be refunded to You for the un-serviced portion after setting off any amounts as may be due from You for any Service availed by You herein
- In case of termination for convenience by You or termination for cause by Us during the term of the Subscription Plan, any advance subscription fee paid by You shall be refunded to You on a pro-rata basis for the un-serviced period after setting-off the full subscription price for the serviced months. In the event no advance / deposit is available with the Company, the Company shall raise an invoice for the difference of price charged to the Customer basis the Subscription Plan opted by the Customer and the full price payable for the serviced months as on the date of the subscription. The said amount shall be due and payable upon receipt of the invoice. Additionally, the Company shall have the right to recover the full price for the implementation fee, if waived off by the Company, and any other amounts due from You for any service availed by You from/ through the Company.
- The Customer shall immediately cease use of the Company’s Intellectual Property and shall irretrievably delete and/or remove any connected software and/or any and all parts thereof from all servers, computer terminals, workstations, data files and sites. Return of monies by the Company to the Customer, if any, shall be subject to payment return of all Company’s Intellectual Property and Confidential Information.
- It is however clarified that any information reports downloaded by the Customer via the platform provided by the Company, during the term of the Agreement, need not be returned to the Company at the time of termination or expiry of this Agreement.
- Upon receipt of a formal written request from the Customer within a period of 30 (thirty) days from the date of termination / expiry of the Agreement, all individually identifiable data of the Residents / Visitor in possession of Company shall with the Customer in a CSV format and deleted from the servers of the Company. If the request is not raised within such 30 (thirty) days from the date of termination / expiry of the Agreement, the same shall be expunged by the Company and the Company shall have no obligation to provide any data to the Customer. For sake of clarity, the data of the Visitor shall only be provided from the period commencing from the date of the last data deletion done as per the Subscription and Payment Detail Section of the Order Form up to the effective date of termination / expiry.
9. APPLICABLE ONLY FOR THE COMMUNITIES USING PAYMENTS FACILITIES ON MYGATE
- MyGate shall have the right to choose the payment gateway service provider/banks/aggregators to receive the online payments from End-Users / Residents / Third-party (“Users”) for the Customer (“Client”). There shall be charges for each payment transaction or convenience charges payable by the Users / Residents / Customer which varies with service providers, which is subject to government rules and is liable to change, with or without intimation / notice. MyGate assumes no responsibility for any failed transaction or delay in payments or deficiency is service as the said services are provided by payment gateway service provider/banks/aggregators. However, MyGate will provide necessary support to Customer to track the payments upon request, on behalf of the Customer and/or Resident.
- Payment Gateway service provider will authenticate, authorize, and process the payment instructions given by the Users upon fulfillment of valid criteria as set forth by the issuing Banks and the Card Associations from time to time and accordingly transfer such approved transaction amount from the User’s payment instrument to the nodal/escrow account as may be applicable. Client understands that Payment Gateway service provider and/or Card Association may reject authorization of a transaction placed by the User for any reason including but not limited to risk management, suspicion of fraudulent, illegal or doubtful transactions, use of compromised cards, use of blacklisted/banned cards or in accordance with the RBI, facility providers and/or Card Association rules, guidelines, regulations, etc. and any other laws, rules, regulations, guidelines in force in India, etc.
- The Client further acknowledges that as a risk management tool, Payment Gateway service provider reserves the right to limit or restrict transaction size, amount and/or monthly volume at any time. For the purpose of clarity such limitations or restrictions may be imposed for the following reasons including but not limited to limits/restrictions on the number of purchases which may be charged on an individual valid card or Net Banking Facilities/account during any time period, rejection of payments from Users with a prior history of questionable charges, unusual monetary value of transaction, etc. Further, as a security measure, Payment Gateway service provider / aggregator / banks, may at its sole discretion block any card number, account numbers, group of cards or transactions from any specific blocked or blacklisted customer cards, accounts, specific, group of IP addresses, devices, geographic locations and/or any such risk mitigation measures it wishes to undertake.
- Any chargeback based on a complaint will be done as per the policies of the payment aggregators / payment service provides / issuing banks / banks and applicable laws, rules and regulations. You understand that under no circumstances the liability of any chargeback / refund shall be borne by MyGate. Any chargebacks / refunds / penalties / fee and levies from the use of the payment services shall solely be the responsibility of the Client. The Client further authorizes the Company to recover / deduct / set-off all amounts, costs and expenses in relation to the provision of services under this Agreement including costs of any chargebacks and refunds. In case the Company is not able to recover such amounts from the monies of the Customer available with it, the same shall be payable by the Customer on actuals. The decision of the payment aggregators / payment service providers / banks / Company, as the case may be, shall be final and binding in this regard.
10. GRIEVANCE REDRESSAL
- The Company shall provide and be responsible for the customer service with respect to the Services provided by the Company only. The Customer further agrees that the Customer will contact the Company directly if the Customer has any queries or clarifications regarding the Services.
- The Customer may call the appointed Account Manager at any time, or the Customer may write to us at [email protected], for any grievance that the Customer may have with respect to the Service provided by the Company.
- If for any reason there is disruption of Services due to Devices or Sim Card not being operational without any fault of the Customer, the Company shall endeavor to provide an immediate resolution of the matter on being informed by the Customer on e-mail specified above. The Company shall endeavor to keep the Customer reasonably informed on the redressal process, and/or reasons for delay, if possible.
- In the event the Company fails to rectify the critical breaches in the Services within 4 (Four) hours from the time of acknowledgement, the Company shall notify the Customer, and if such failure persists beyond reasonable period of two (2) business days, the Customer can invoke the Termination Provision for Cause as per Clause 7.3 of this Agreement.
- The Customer acknowledges that each Party shall be bound by applicable law during the term of this arrangement. In the event that there is any change in the existing law which may affect the Terms/Service, the Company may revise to such extent the Terms/Service/Fee. The Customer further agrees that if the Company believes that the Customer / Your Representative is / are in contravention of any applicable law, the Company may immediately terminate this Arrangement and stop providing its Services forthwith.
- The Company reserves the right at any time to modify, edit, delete, suspend or discontinue, temporarily or permanently the Terms and/or Service with notice to the Customer for cause including but not limited to any suspected unlawful use of the Services or any part thereof including but not limited to the Devices, wi-fi, portals, data, as applicable.
- Any material amendment/changes to the Services shall be intimated to You. In the event that the amendment/suspension is not acceptable to the Customer, the Customer can invoke the termination for convenience as per Clause 7.3 of this Agreement.
- This Agreement, i.e. The Order Form including the Customer Detail and Subscription and Payment Details Section; and the Standard Terms and Conditions along with its Annexures shall constitute the entire agreement between the Customer and the Company, superseding any prior agreements, whether written or oral, between the Customer and the Company.
- The Parties agree that the Company shall not be held liable for any loss, delay or damage caused reasons beyond the reasonable control of the Company including but not limited to the acts of god, calamities, pandemics, epidemics, whether man-made or natural, uncontrollable technical glitches, strikes, acts of terrorism, burglary, hijacking, robbery, riots, political disturbances, invasion, fire, floods, tsunami, road accidents and for any other reasons beyond the control of Company nor shall it be liable for any special or consequential or indirect damages arising therefrom.
- This Agreement will be governed by the laws of India. The Parties agrees to submit to the exclusive jurisdiction of the courts at Bangalore, India.