General Terms and Conditionsof the agreement
The Company agrees to provide to the User the use and access of the Services as detailed in this Agreement and in the Order Form, subject to the following general terms and conditions:
Definitions and interpretations
- For the purposes of this Agreement, unless repugnant to the meaning or context thereof:
- Additional Terms shall have the same meaning ascribed to in Clause 21.2 of this Agreement.
- The agreement shall mean this Agreement including annexes and instruments supplemental to or amending, modifying or confirming this Agreement and the Order Form.
- Billing Frequency Period shall have the same meaning ascribed to in Clause 3.3 of this Agreement.
- Company means StreetGooser Technologies Private Limited, a company registered under the provisions of the Companies Act, 2013, bearing corporate identity number [U72900KA2019PTC126972] and having its ‘#1230, 2nd Floor, 26th Main, 9th Block Jayanagar, Bengaluru 560069, Karnataka, India and includes its successors and permitted assigns.
- Commencement Date shall have the same meaning ascribed to in Clause 3.2 of this Agreement.
- Confidential Information shall have the same meaning ascribed to in Clause 10.1 of this Agreement.
- Fees mean the amount payable by the User to the Company, in addition to the Taxes, for use and access of the Services, as agreed and specified in the Order Form.
- Intellectual Property Rights shall have the same meaning ascribed to in Clause 5 of this Agreement.
- Order Form means the Services order form that is entered into between the Company and the User specifying the commercial terms and conditions applicable for use of the Services by the User from time to time, and Rate Plan including any addenda and supplements thereto.
- Other Services means third party products, applications, services, software, products, networks, systems, directories, websites, databases, and information which a Service links to, or which the User may connect to or enable in conjunction with a Service, including, without limitation, Other Services which may be integrated directly by or on the direction of the User.
- Personal Data means any information that relates to a natural person, which either directly or indirectly, in combination with other information available is capable of identifying such person.
- Platform means a cloud-based property management system software developed by the Company which is made available by the Company to the User through its website [●] [https://www.streetgooser.com] subject to the terms and conditions of this Agreement.
- Rate Plan means the rates as detailed in the Order Form and to which the User has subscribed.
- Renewal Term shall have the same meaning ascribed to in Clause 14.1 of this Agreement.
- Security Deposit shall have the same meaning ascribed to in Clause 4.1 of this Agreement.
- Services mean the services made available by the Company to the User through its Platform as detailed in Annex 1 in this Agreement and any modification thereof, or addition thereto as may, from time to time be provided by the Company.
- Service Data means electronic data, text, messages, communications, or other materials processed by, submitted to, or stored within a Service by the User in connection with its use of such Service, which may include, without limitation, Personal Data and Sensitive Personal Data.
- Sensitive Personal Data means passwords, financial information such as bank account, credit card, debit card, or other payment instrument details, physical, physiological, and mental health condition, sexual orientation, medical records and history, and biometric information.
- User means the company, entity or individual specified in the Order Form and includes its successors and permitted assigns.
- The term means the duration of Services subscribed by the User and includes any renewals thereto.
- Tax (including with correlative meaning, Taxes) shall mean (i) any and all taxes, duties, levies, premiums, impositions, transfer charges, cess, surcharge, charges in the nature of tax and any fine, cost, penalty or interest connected therewith, including, without limitation, withholding taxes, goods and services tax and all other statutory taxes and levies if any applicable now or hereafter imposed, increased or modified or other tax of whatever kind imposed by Government authority (s); (ii) any interest, fines, penalties or additions resulting from, attributable to, or incurred in connection with any items described in this paragraph. Website means [●] [https://www.streetgooser.com].
- that enactment as amended, extended or applied by or under any other enactment before or after the date of this Agreement;
- any enactment which that enactment re-enacts (with or without modification); and
- all subordinate legislation (including regulations) made (before or after the date of this Agreement) under that enactment, as re-enacted, amended, extended or applied as described in Clause (a) above, or under any enactment referred to in Clause (b), except to the extent that any of the matters referred to in Clause 1.2 (a) to (b) above occurring after the date of this Agreement increases or alters the liability of any Party to this Agreement.
- The headings in this Agreement do not affect its interpretation.
- Reference to an Annex means an annex to this Agreement and references to this Agreement shall include its Annexes.
- The expression ‘this Clause’ shall, unless followed by reference to a specific provision, be deemed to refer to the whole Clause (not merely the subclause, paragraph or other provision) in which the expression occurs.
- Each of the representations and warranties provided in this Agreement are independent of other representations and warranties unless the contrary is expressly stated.
- The words ‘include’, ‘including’ and ‘in particular’ shall be construed as being by way of illustration or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding words.
- References to the words ‘herein’, ‘hereto’, ‘hereof’ and other similar words refer to this Agreement as a whole and not to any particular provision of this Agreement.
- The words ‘in writing’ include any communication sent by registered letter, courier, facsimile transmission or electronic mail.
- The current amounts are stated in [Indian Rupees] unless otherwise specified.
- Capitalised terms included but not defined in this Agreement shall have the same meaning ascribed to them in the Order Form.
Scope and nature of the agreement
- The User agrees to use the Services in accordance with terms and conditions contained herein and the Order Form. This Agreement shall be displayed on the Website and the Company reserves the right to update/modify these terms and conditions at any time by providing notice of such modification to the User by an email. The User acknowledges that its continued use of the Services after such notice shall constitute User’s acceptance of such modifications.
- During the Term and subject to compliance by the User with this Agreement, the User shall have a non-transferable, non-exclusive and limited right to access and use the Services, in accordance with this Agreement, for the User’s internal business purposes. Any other use is prohibited without the prior written consent of the Company.
- Subject only to limited rights to access and use the Services as expressly stated herein, all rights, title and interest in and to the Services and all hardware, software and other components of or used to provide the Services, including all related intellectual property rights, will remain with the Company and belong exclusively to the Company.
- The User agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than in furtherance of its internal business purposes as expressly permitted by this Agreement; (b) use the Services to process data on behalf of any third party other than its customers; (c) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (d) use the Services to send any forms of spam or junk mail; (e) use the Services to store or transmit any content that infringes on any third party’s intellectual property rights; (f) attempt to reverse engineer or otherwise discover the source code of the Platform or its component software; (g) use the Services to publish any objectionable content including content that is unlawful, hateful, libelous, obscene or discriminatory; (h) use the Services to disseminate any malicious software; (i) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (j) attempts to use, or use the Services in violation of this Agreement.
- This Agreement shall not be deemed to create a fiduciary or agency relationship, partnership or joint venture between the Company and the User. Each Party is an independent contracting party, and nothing in this Agreement shall be construed to be inconsistent with this relationship or status.
- For and during the Term of the Agreement, the User shall pay to the Company the Fees for use and access of the Services. The Fees is subject to change at any time upon notice to the User.
- The Term shall commence on the date of the User receiving the “Welcome to StreetGooser Omnichannel” email in the subject line from Company’s support desk (“Commencement Date”). If the Commencement Date is other than the 1st day of the relevant calendar moth, the User will be required to pay the Fees on a pro rata basis.
- The billing cycle will be set on a monthly basis (“Billing Frequency Period”) unless a different Billing Frequency Period is mentioned in the Order Form.
- The Company will send all invoices electronically. Notification of the invoices shall constitute a demand for payment. All invoices shall be payable within five days from the date of the invoice failing which, in addition to other remedies available to the Company under applicable law of in equity, the Company may suspend or terminate the User’s access to and use of the Services.
- The billing is done only for the Company bundled package and the first invoice shall be raised and the billing for the Services shall commence on the date of delivery of the StreetGooser Omnichannel which shall be the date on which the “Welcome to StreetGooser Omnichannel” email has been delivered to the User regardless of the activation/availability of any other features/ products like Website, booking engine, content up-dation on Website, Website hosting, payment gateway activation for booking engine etc on the first invoice date.
- The User agrees that it shall be responsible for all chargebacks incurred with regard to the payment related issues in accordance with the chargeback rules and guidelines issued by various Banks and card associations. An additional 5% charge shall be payable by the User on using payment gateway which is mandatory.
- In the event of refunds initiated by Banks and card associations or in the event additional amount is transferred in the account of the User in relation to payment made by its customer(s), the User agrees to cooperate with the Company to comply with its obligations and refund such amount within 5 (five) days of such request made by the Company. If the User fails or delays to pay such amount to the Company, the Company has a right to settle such amounts through future payments or suspend or terminate the Services until such time the payment is made by the User or deduct it from the Security Deposit, if any.
- The User agrees and undertakes to be solely responsible for the payment of all the relevant Taxes due upon the payments made by its customer(s) facilitated through PayU or any other partner payment gateway.
- Nominal fee of 10% of transaction amount (plus applicable taxes) will be applicable wherein chargeback has been successfully defended in favour of the User. It is expressly clarified that this fee will be charged on the full amount in addition to the payment gateway commission.
- The User shall be liable to bear and pay all present and future Taxes on the Fees and other charges at applicable rates in relation to the use and access of the Services. It is expressly clarified that all amounts mentioned in this Agreement as payable to the Company are exclusive of Taxes.
- Except as provided in this Agreement, there are no refunds of Fees paid by the User to the Company.
- The Company may require the User to pay an interest free refundable security deposit based on the Rate Plan subscribed by the User (“Security Deposit”) refundable by the Company  days subsequent to the expiry or termination of this Agreement and after reconciliation of any unpaid Fees and charges due and payable to the Company.
- The Security Deposit is to secure the due performance of the obligations of the User under this Agreement and not intended to be a reserve from which the Fees may be paid. If the User owes Fees payable under this Agreement, the same will not be deducted from the Security Deposit, but must be paid by the User separately. The Security Deposit shall remain with the Company for duration of this Agreement.
Intellecutal Property Rights
Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to the User to use the Services under this Agreement do not convey any additional rights in the Services, the Platform, any documentation, the Website or in any intellectual property rights associated with the foregoing. Subject only to limited rights to access and use the Services as expressly stated herein, all rights, title and interest in and to the Services and all hardware, software and other components of or used to provide the Services, including the Platform, any documentation, the Website and all related intellectual property rights, will remain with the Company and belong exclusively to the Company. The Company shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from the User.
Security and Privacy
- The Company will maintain reasonable administrative, physical and technical safeguards for protection of the security, confidentiality or integrity of Service Data. The Company will access and use Service Data (a) for providing the Services or to prevent or address service, support or technical problems; (b) as compelled by law; or (c) as expressly permitted in writing by the User
- To the extent Service Data constitutes Personal Data and/or Sensitive Personal Data, it is expressly agreed that the User shall be deemed to be the data controller and the Company shall be deemed to be the data processor. The User shall at all times remain in compliance with the applicable data protection rules.
- The User hereby grants to the Company a limited, non-transferable, royalty-free, worldwide license to use the User’s name, trademarks, service marks and logos in connection with the Services, materials related to it as well as the advertisement and promotion thereof.
Representation, Disclaimer and Warranties
- Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
- The provision of, access to, and use of, the Platform and Services is on an “as is, where is” basis. The User expressly acknowledges and agrees that the Company has not made any representation or warrants as to the level, quality and availability of any of the Services which may be modified by the Company at any time and at is sole discretion. The Company will use commercially reasonable efforts to provide the Services delineated in the Agreement. No refunds are available or will be provided in the event any Service is or becomes unavailable.
- The Company does not warrant that the use of the Platform will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Platform, including public telephone services, computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Platform. The Company is not in any way responsible for any such interference or prevention of User’s access or use of the Platform.
- It is User’s sole responsibility to determine that the Platform or the Services meet the needs of its business.
- The Company make no warranty regarding the Platform or the Service. Without limiting the foregoing, the Company does not warrant that the Platform or the Services will meet User’s requirements, increase User’s bookings or revenues, deliver optimal, superior or favourable pricing for User’s inventory of rooms or that it will be suitable for User’s purposes. To avoid doubt, all implied conditions or warranties regarding the Platform or Services are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement. The User acknowledges that the Company does not warrant that the Services will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software.
- The User will indemnify and hold the Company harmless against any claim brought by a third party against the Company arising from or related to use of any Services by the User in breach of this Agreement or matters for which the User has expressly agreed to be responsible for pursuant to this Agreement. Provided that the Company shall promptly notify the User of the threat or notice of any such claim.
- The User will have the sole and exclusive control and authority to select the defense attorneys and defend or settle any such claim, however, the Subscriber shall not settle or compromise any claim that results in liability or admissions of any liability by the User without the prior written consent of the Company.
The Company reserves the right, without any limitation to (i) investigate any suspected breaches of security of the Platform or other systems or networks; (ii) investigate any suspected breach of this Agreement; (iii) involve and cooperate with the law enforcement authorities to investigate any of the above matters; (iv) discontinue the Services in whole or in part; or (v) suspend or terminate access to the Services in whole or in part, at any time, without notice, for any reason without any obligation to the User. Any suspension or termination in accordance with this Clause will not affect the User’s obligation to the Company under this Agreement.
- All the information disclosed to the User in connection with the use and access of the Platform and the Services or in connection with the Agreement remains the sole and exclusive property of the Company and will be treated as confidential (“Confidential Information”). The User undertakes not to use the Confidential Information in any way detrimental to the Company. The restrictions shall not apply to the disclosure of Confidential Information if and to the extent:
- required by applicable laws;
- required by any Government authority;
- that such information is in the public domain other than through breach of this Clause;
- was known to and in the lawful possession of the User prior to disclosure by the Company without obligation of confidentiality; or
- is independently developed by or on behalf of the User through person (s) who have not had, either directly or indirectly, access to or knowledge of the Confidential Information.
- The Parties agree that, at the end of the Agreement or early termination, the User shall return promptly to the Company all the Confidential Information disclosed under this Agreement.
Compliance with laws
- The Parties agree at all times and at their own expense to (a) strictly comply with all applicable laws, rules, regulations, Governmental orders and applicable codes of practice, now or hereafter in effect, relating to its performance of this Agreement, (b) pay all fees and other charges required by such laws, rules and regulations, codes and orders and (c) maintain in full force and effect all licenses, permits, authorisation, registration and qualifications necessary to perform their obligations under this Agreement. The Parties agree to protect and fully defend and indemnify the other Party against breach of any such laws, by-laws, regulations and guidelines.
- The User is solely responsible for compliance with the provisions of this Agreement and for any and all activities that occur under the account of the User as well as for all Service Data and Sensitive Personal Data. Without limiting the foregoing, the User is solely responsible for ensuring that use of the Services to store and/or transmit Service Data and Sensitive Personal Data is compliant with applicable laws and regulations as well as any and all privacy policies, agreements or other obligations that the User may maintain or enter into with its customer (s).
Limitation of liability
- Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either Party to this Agreement, or their affiliates, officers, directors, employees, agents, service providers, suppliers or licensors be liable to the other Party or any third party for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other loss or damages incurred by such Party or third party in connection with this Agreement, the Services or any consulting services, regardless of whether such Party has been advised of the possibility of or could have foreseen such damages.
- Notwithstanding anything to the contrary in this Agreement, Company’s aggregate liability to the User or any third party arising out of this Agreement or otherwise in connection with any use or employment of the Services, shall in no event exceed the Fees for such Services paid by the User in respect of any one incident, or series of connected incidents to the Fees paid by the User in the one month preceding such incident(s).
- If the User enables, accesses or uses Other Services, the access and use of such Other Services shall solely be governed by the terms and conditions of such Other Services and the Company does not endorse and shall not be responsible or liable for such Other Services.
- The User irrevocably waives any claim against the Company with respect to the Other Services. The Company shall not be liable for any damage or loss caused or alleged to be caused by or in connection with the access and use of such Other Services by the User.
Term and Termination
- This Agreement shall, unless otherwise terminated as provided in this Agreement, be effective from the Commencement Date and continue for a period of 1 (one) month from the Commencement Date. It shall thereafter be automatically renewed for successive periods of 1 (one) month (each period a “Renewal Term”), unless terminated earlier or User notifies the Company of its intention not to renew in writing whereupon this Agreement shall terminate on the expiry of (a) thirty (30) days from the date of the notice; or (b) the then current Renewal Term, whichever is later.
- The Company may terminate this Agreement without assigning any reason for its convenience at any time by providing thirty (30) days prior notice thereof to the User.
- If the User has not paid any invoice within five (5) days after the date on which any invoice becomes due and payable, then without prejudice to any other rights and remedies that the Company may have under law the Company may:
- disable the User's password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;
- forfeit any amount paid as advance Fees or Security Deposit and terminate this Agreement.
- The Company shall have the right to terminate the Agreement forthwith, if the User commits a breach of any of the terms and conditions of this Agreement.
- On termination of this Agreement for any reason:
- the use and access of the Services granted under this Agreement shall immediately terminate and Security Deposit, if any, shall be returned subject to deduction of any amounts owed by the User to the Company; and
- the Company may destroy or otherwise dispose of any of the Service Data and Sensitive Personal Data in its possession. The User has the responsibility of extracting all past data from the system using the ‘export to excel feature’ before the end of the Agreement.
- Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
All notices required or authorised under this Agreement shall be given in writing and shall refer to the Agreement. All notices shall be effective upon delivery, if delivered in person or by e-mail as well as by a registered post acknowledgment due delivered to the address stated in the Order Form or at such other address that either Party provides by advance written notice to the other Party.
Governing lawand juridiction
- This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of India.
- Each Party irrevocably agrees that the courts of Bengaluru shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Thrid Party rights and assignment
- This Agreement is not intended to, and does not, give any person who is not a Party to it any right to enforce any of its provisions.
- The User agrees not assign or transfer or part with its rights or obligations under this Agreement without the written consent of the Company.
- The Company shall have the right to assign the Agreement to any organisation resulting from the merger or consolidation of the Company with any other person/entity.
- Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.
Each of the provisions of this Agreement is severable. If any provision of this Agreement (or part of a provision) is found by any court of competent jurisdiction or Government authority to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted or modified, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
Neither Party shall be considered in breach of this Agreement or in default of its obligations hereunder if it fails to perform or observe any or all of the terms of this Agreement resulting directly or indirectly from causes beyond the reasonable control of such Party, such as but not limited to, acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, explosions, fires, earthquakes, floods, strikes, labour disputes, transportation embargoes, epidemics, acts of Government, its agencies or officers, internet service provider failure or delay or any other legitimate cause beyond the reasonable control of the Parties. In such case, the Party whose performance is affected or is likely to be affected thereby, shall notify the other Party of the occurrence of such cause. If, as a consequence of such cause, performance by a party under this Agreement shall be prevented for a period longer than one (1) month, then the other Party shall have the right to terminate this Agreement.
Entire agreement and amendment
- This Agreement constitutes the entire agreement between the Parties as it related to the subject matter and supersedes all prior and contemporaneous agreements, proposals, or representations, written oral, concerning or relating to the same. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the terms of such Order Form shall prevail.
- Notwithstanding the foregoing, additional terms may apply to certain features, functionality or services that the Company may offer as part of or distinct from the Services (“Additional Terms”). In such cases, the Company will notify the User of such Additional Terms prior to activation of these features, functionality or services and activation of these features, functionality or services will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when the User activates these features, functionality or services. Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms shall prevail.
- The Company may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. The Company will notify the User not less that  days prior to the effective date of any such amendment and the User’s continued use of the Services following the effective date of any such amendment may be considered by the Company as the User’s consent to any such amendment.