We are herewith publishing this document in compliance of the provisions of Rule 3(1) of the Information Technology (Intermediaries Guidelines) Rules, 2011 that require publishing the rules and regulations and terms of subscription for access of the Services. (may be moved to the end)
Ciferon offers a cloud based point of sales software (POS Software) for restaurants together with integrated services such as mobile / card payments (Online Payments), deals and discounts, ordering and delivery apps, table booking app, supplier’s market place, analytics app, etc. (“Paid Services”) using a Programmable API Architecture. Currently, through its POS it provides end to end integration of various services for restaurants.
- “SOFTWARE” means any and all software applications designed by the Service Provider including the core POS application as well as any other ancillary / subsequent versions that might be installed after the initial installation of the core POS application.
- “DOCUMENTATION” means all printed or electronic material relating to the Software provided by the Service Provider.
- “PERMITTED USE”, with respect to any Software, means use only for internal business purposes, only on the Designated or the Approved System(s) by the Service Provider, and only as specified in the Documentation, unless otherwise authorized in writing by the Service Provider.
- “SERVICES” means services provided to you by the Service Provider or its Affiliates, such as installation, implementation, project management, consulting, training or maintenance and support.
- “USER DATA” means any data or information supplied by you to the Service Provider or to or through the Software, and any reports, data queries, responses to data queries, or other output generated by the Software or based on such data or information.
- Scope of Services:
The scope of services shall include all the services as selected by the Customer/Restaurant amongst those mentioned in the signing up form also detailed herein as Annexure-I (Details Required). The scope of services may be expanded at any time during the term of this Agreement by selecting additional services and making the necessary payment. However, reduction in scope of work will not make the customer entitled for refund of the subscription fee.
- Consideration / Fee:
- Ciferon provides a free trial of the app for a period of seven days. At the end of the free trial period, the customer shall either make the payment for subscribing to the services of Ciferon or uninstall the app altogether.
- The Restaurant shall pay the subscription fee of Rs. … /- per annum to the Service Provider in accordance with this Agreement, at the time of signing up.
- All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, exclusive of any applicable taxes, which will be added to those amounts and payable by the Restaurant to the Service Provider.
- The Service Provider may elect to vary Charges by giving to the Customer not less than 30 days’ written notice of the variation.
- This Agreement shall come into force upon successful payment of subscription fee.
- This Agreement shall be valid for a term of one (1) year subject to termination in accordance with termination clause or any other provision of this Agreement.
- It shall be automatically renewed for further period of one year on the then prevailing terms and conditions, unless either party choses to terminate the agreement or not to renew the agreement.
- Terms of Services:
- The Parties hereby agree and acknowledge that the responsibility of the Service Provider in relation to the Payment Services hereunder shall be limited to only such instances where a customer of the Restaurant (“Customer”) decides to use the facility of paying by Debit Card/ Credit Card/ Payment Wallet and Service Provider shall only facilitate the payment mechanism between the Customer and the Restaurant. The right to accept or cancel a transaction after the Customer has used the Services shall vest with the Restaurant.
- Notwithstanding anything to the contrary contained in this Agreement or its annexures, the Service Provider shall have a right to restrict or prohibit a transaction of the Customer at its sole discretion and shall not be liable to the Restaurant on account of any Customer or the Restaurant being unable to access the Payment Services. In the event a transaction is cancelled, the Restaurant shall be under an obligation to refund the amount of such transaction to the Customer.
- The Service Provider shall not be responsible to render the Payment Services or process the payments/refunds on such days which are declared as holidays by Reserve Bank of India and available online at [www.rbi.org.in].
- The Parties acknowledge that the specifications of the Services may have to be changed from time to time to comply with changes in law, requirements of the Service Provider or change in technology.
- The Customer/Restaurant understands and agrees to provide full access to the Service Provider for utilization of the data entered into its POS Software either for providing services or assisting its partners to provide Services to the Restaurant.
- The other terms under which the Services shall be provided by the Service Provider to the Restaurant are listed at Annexure I to hereto.
- Representations and Warranties:
- The Service Provider represents and warrants to the Restaurant that:
- It has all necessary rights and authority to execute and deliver this Agreement;
- Its obligations under this Agreement constitute legal, valid and binding obligations enforceable in accordance with the terms of this Agreement ;
- It has all the necessary rights to perform its obligations hereunder.
- The Restaurant represents and warrants to the Service Provider that:
- It has all necessary rights and authority to execute and deliver this Agreement;
- Entering into this Agreement and the transactions referred to in this Agreement and taking any steps in respect thereof, do not and will not involve a breach of any contractual, statutory, regulatory, legal or other provision or obligation to which the Restaurant is subject to and that they have not taken and will not take any action and know of any matter as a result of which they would be in violation;
- It does not carry or intend to undertake any activity which is banned, illegal or immoral under the extant laws of India;
- It shall be solely responsible for compliance of legal and regulatory requirements applicable to its business, and in no event shall the Service Provider be held liable for any non-compliance and/or breach of applicable law by the Restaurant;
- It has the necessary computer hardware and/or operating system to achieve compatibility with the current POS Software;
- It shall make necessary provisions to provide internet access during the working hours of the Restaurant to the POS Software or any other hardware provided by the Service Provider;
- It shall make available its records relevant to transactions connected to the Services for the purpose of periodic compliance requirements as may be specified by the Reserve Bank of India from time to time, in respect of audits or verification by rating agencies or any other agencies whether of the government or otherwise, as may be notified by the Service provider to the Restaurant from time to time;
- It shall use the Services of the Service Provider in consonance and conformity with, all Applicable Law and all necessary regulatory and other approvals required for consummation of the transactions contemplated herein have been obtained;
- It shall not, directly or indirectly, use the Services in any manner or in furtherance of any activity, which constitutes a violation of any law or regulation or which may cause the Service provider, to be subject to investigation, prosecution or legal action.
- The Restaurant agrees to comply with applicable law, including the amendments from time to time, pertaining to Know Your Customer (KYC), Anti-Money Laundering (AML) and Combating of Financing of Terrorism (CFT).
- It has read, fully understood, accepted and will continue to abide in good faith with the License Agreement accepted by the Restaurant at the time of installation of the POS Software and terms and conditions of the Services available online at www.Ciferon.com, which may be changed by the Service Provider from time to time after due e-mail intimation to the Restaurant (“Online Terms and Conditions”).
- SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. EXCEPT AS PROVIDED ABOVE, THE SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. The Service Provider does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items that are a part of the POS Software or the Services. In no event does the Service Provider warrant that the POS Software or the Services are error free or that the Restaurant will be able to operate using the POS Software or the Services without problems or interruptions.
- Both the parties hereto warrant to the other Party that the representations made above shall continue to be true during the term of this Agreement.
- Limitations and exclusions of liability
- The Service Provider will not be liable to you in respect of any business losses, including (without limitation) loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill.
- The Service Provider shall not be liable for any loss of revenue, profit or data or from direct or indirect, special, incidental, consequential or punitive damages of any type arising out of or in connection with this agreement, the POS Software and/or the Services.
- The Service Provider shall have no liability for any damages resulting from alteration, destruction or loss of any data or information input, generated or obtained from access and/or use of the POS Software or Services, including any reports or numeric results.
- Service Provider will not be liable to the Restaurant in respect of any losses arising out of any event or events beyond our reasonable control.
- In no event shall the Service Provider’s liability to the Restaurant exceed Rs. 1000 / subscription Fee.
- The Service Provider shall not be responsible for the quality, quantity, merchantability, delivery, non-delivery, delayed delivery of and/or any form of risks or dissatisfaction associated with the products or services (“Excepted Factors”) sold to the Customer by the Restaurant using the Services or the POS Software of the Service Provider. Any and all disputes of whatsoever nature whether in relation to deficient, improper or incomplete product/service provided by the Restaurant, including any dispute regarding Excepted Factors or otherwise any other dispute will be dealt with directly by and between the Restaurant and the Customer directly and the Service Provider shall not be a party to such disputes.
- The Restaurant hereby agrees to indemnify, hold harmless and defend the Service Provider, its affiliates and each of their respective officers, directors, employees and agents from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) arising from or related to any demand, claim, action, legal proceeding or allegation that arises or results, either directly or indirectly, from Restaurant’s use and the use by Restaurant’s employees and agents of the POS Software or Services or act, omission or negligence which is solely attributable to the Restaurant, its employees or agents or any breach by the Restaurant or its employees and agents of the terms of this Agreement.
- The indemnification rights of the Service Provider under this Agreement are independent of, and in addition to, such other rights and remedies as the Service Provider may have at law or in equity or otherwise, including the right to seek specific performance, rescission, restitution or other injunctive relief to the extent required to prevent further loss, none of which rights or remedies shall be affected or diminished thereby.
- Either party shall be free to terminate this Agreement with 30 days prior written notice.
- If the Service Provider fails to provide the Services within the agreed timeline, the Restaurant shall have the right to reduce the scope of services or terminate this Agreement.
- If the Restaurant fails to make the payment of Consideration within the agreed timeline, the Service Provider shall have the right to terminate the agreement with immediate effect.
- The Service Provider shall be entitled to terminate the Payment Wallet Services as mentioned in Annexure II hereto, with immediate effect, and without the need to take any further action if the Payment Wallet discontinues its services to the Service Provider. Any termination pursuant to this clause will be without any liability or obligation of the terminating party, other than with respect to any breach of the Agreement prior to termination, and the Parties will immediately cease representing to the public any affiliation between them in connection with the subject matter of this Agreement. (Please explain)
- Upon termination of this Agreement, each Party shall forthwith deliver up to the other Party or otherwise dispose as per the direction of the other party, all Confidential Information and any other materials, documents and papers whatsoever relating to the business of the other Party which the First Party may have in its possession or under its control except to the extent that it is necessary for the First Party to retain the same for the purpose of its existing business.
- Any termination shall not affect any liabilities incurred prior to the termination nor any provision expressed to survive or to be effective on termination.
- Suspension of Services
The Service Provider hereby reserves its right to suspend or terminate the services pertaining to the website/app, at any point of time, with or without notice, and the Service Provider shall not be held liable for the same in that event. The manner in which the suspension or termination has been effected shall have no effect on the Service Provider.
Both the parties hereto shall be independent contractors. This Agreement does not create and shall not be deemed to create any employer-employee or a principal-agent relationship between the Service Provider and the Restaurant.
- Force Majeure
Neither Party shall be liable or responsible for any failure to perform or delay in performance of their respective obligations hereunder if such failure or delay is due or attributable to or arises out of any Force Majeure event, provided written notice of occurrence of any Force Majeure event is given by the affected Party to the other Party within a period of 15 (fifteen) days of such occurrence and such notice includes reasonably satisfactory evidence of the Force Majeure event. Should the event of Force Majeure continue for an uninterrupted period of 90 (ninety) days or more, then the Parties shall mutually assess the circumstances and shall have the right to mutually terminate this Agreement if the Force Majeure event subsists. “Force Majeure” means an event that is not within the reasonable control of the Party whose performance under this Agreement is affected thereby and shall include any of the following events: civil disturbance, breach of peace, declared or undeclared war, act of interference or action by civil or military authorities, terrorist acts, sabotage, damage by the elements, air accident, riot or disorder.
- The role of the Service Provider shall be limited to such functions as expressly laid out in these terms of service. No implied duties or obligations shall be read into this Agreement against the Service Provider. The Service Provider shall further not be bound by the provisions of any other agreement.
- The Service Provider shall not be liable or responsible for obtaining any regulatory or governmental or other approval in connection with or in relation to the transactions contemplated herein and shall not be in any manner obliged to inquire or consider whether any regulatory or governmental approvals have been obtained by the restaurant.
- The Service Provider shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties under this Agreement.
- The Service Provider may, in good faith, accept and rely on any notice, instruction or other document received by it under this Agreement as conclusive evidence of the facts and of the validity of the instructions stated in it and as having been duly authorized, executed and delivered and need not make any further enquiry in relation to it.
- The Service Provider may act in conclusive reliance upon any instrument or signature believed by it, acting reasonably, to be genuine and may assume, acting reasonably, that any person purporting to give receipt, instruction or advice, make any statement, or execute any document in connection with the provisions of this Agreement has been duly authorized to do so. The Service Provider shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
- The Service Provider shall not be liable to any person for any losses or damages arising out of or in connection with the performance or non-performance of its obligations under this Agreement, except to the extent directly resulting from the fraud, willful default or gross negligence of the Service Provider or any of its directors, officers, agents and employees.
- No instructions shall be given to the Service Provider which is not contemplated by or which is contrary to or inconsistent with this Agreement; and, in the event of any such instructions being given, the same shall be null and void and the Service Provider shall not be obliged to act upon, and shall be entitled to ignore, such instructions and continue to comply with the provisions of this Agreement. The Service Provider shall not incur any liability and shall not be liable for any loss or damage to the any person whomsoever consequent to the Service Provider not acting upon, and ignoring, any such instruction which is not contemplated by or which is contrary to or inconsistent with this Agreement.
- The Restaurant shall pay or reimburse the Service Provider upon its request for any payments including penalties, fines and/or any statutory or regulatory charges and duties at any time in relation to this Agreement and any other related documents, whether at the time of execution or thereafter.
- The Service Provider shall not be obliged to supervise, control or perform any acts or responsibilities of the Parties or any other third party.
- Any act to be done by the Service Provider shall be done only on a Business Day, during business hours and in the event that any day on which the Service Provider is required to do an act, under the terms of the Agreement, is a day on which business is not, or cannot for any reason be conducted, then the Service Provider shall do those acts on the next succeeding Business Day.
- Without prejudice to the other provisions of this Agreement, the Service Provider shall not be obliged to make any payment or otherwise to act on any request or instruction notified to it under this Agreement for the Payment Services, through Card Readers or Payment Wallets, if:
- any facsimile or any other instructions (in original or otherwise) are illegible, unclear, incomplete, garbled or self-contradictory; or
- It is unable to verify any signature on the communication against the specimen signature provided for the relevant authorized signatory by Restaurant.
- In the event that the Service Provider receives an instruction from Restaurant and is thereafter unable to act on such instructions due to the causes above, the Service Provider shall seek clarification from the Restaurant and shall act upon such instructions only when all ambiguities have been successfully removed to its satisfaction
- Registration Data and Account Security:
When the Restaurant registers for an account on Service provider’s website/application services, the Restaurant is aware of and agrees to
(a) provide and maintain accurate, current and complete information as may be prompted by any registration forms on Service Provider’s Services (“Registration Data”);
(b) maintain the security of Restaurant password(s);
(c) maintain and promptly update the Registration Data, and any other information Restaurant provides to Service provider, and keep it accurate, current and complete; and
(d) accept all risks of unauthorized access to the Registration Data and any other information or data Restaurant provides to Service Provider directly or through Service Provider’s Services.
The Restaurant shall be responsible for all the activity on Restaurant’s Service Provider account, and for charges incurred by and through Restaurant’s Service Provider account.
The Restaurant hereby acknowledge and understand that it is solely responsible and liable for all marketing, selling, pricing, packaging, and provision of any products or services offered to the Guests/Customers through the Services in compliance with all Applicable Law and Rules. The Service Provider makes no representation or warranty regarding whether a Restaurant holds any applicable permit, license, registration, or other credential for its business; whether representations by a Restaurant are true and accurate; or whether a Restaurant complies with Applicable Law and Rules, and the Service Provider is not responsible for the quality of the products or services provided by the Restaurants.
- Intellectual Property Rights:
- The Website/App and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Service Provider. The Service Provider owns all right, title and interest in and to the POS Software and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing embodied therein (“Intellectual Property Rights”).
- No rights or licenses are granted by the Service Provider to the Restaurant, expressly or by implication, with respect to any Intellectual Property Rights owned or controlled by the Service Provider.
- You will not sell, redistribute, or reproduce the Website and Software, nor decompile, reverse engineer, disassemble, or otherwise convert the Website and the Software to a human perceivable form.
- You must not, without our prior written consent: (may be deleted)
- Modify copies of any materials from our website/app.
- Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark or other proprietary rights notices form copies of materials from this site.
- You must not access or use for any commercial purposes any part of the Website or any services or material available through the Website/app.
- Prohibited Uses:
- Additionally, you agree not to: (may be deleted)
- Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
- Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
- Use any device, software or routine that interferes with the proper working of the Website.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.
- Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Website.
The Restaurant agrees to hold the Software in confidence, and to protect the confidential nature thereof, and shall not disclose any trade secrets contained, embodied or utilized therein, to anyone other than its authorized users having a need for such disclosure, and then only to allow Use of the Software as authorized herein. The Restaurant shall take all necessary steps to ensure that the provisions of this Section are not violated by any of its employees, agents, consultants, contractors, or any other person under its control or in its service. Under no circumstances shall the Restaurant permit any competitors of the Service Provider in the restaurant software market to access or Use the Software.
- Third Party advertisements
The Service Provider shall not be responsible for the advertisements contained within the Website or App. In the event if the Restaurant or its customer opts for purchase of goods and/or services from any third party who advertises in the App/website, you do so at your own risk. Only the advertiser shall be liable and responsible for such goods and/or services. In case of any queries or complaints in relation to them, the restaurant or customer shall have to take action against the advertiser only.
- All notices given pursuant to this Agreement, shall be in writing and shall be deemed to be served as follows:
- in the case of any notice delivered by hand, when so delivered;
- in the case of any notice sent by facsimile, upon the receipt of a confirmation copy at the sender’s facsimile machine; and
- If sent by e-mail, 24 (twenty-four) hours after the e-mail is sent.
- Any change in the address of either Party shall be notified to the other Party in the same manner mentioned hereinabove.
- All notices given pursuant to this Agreement, shall be in writing and shall be deemed to be served as follows:
The failure of either Party to require the performance by the other Party of any of the terms of this Agreement shall not affect that Party’s right to enforce such term or terms at some later time, and the waiver by either Party of any breach of any provision of this Agreement shall be in writing and shall not be deemed to be a waiver of any subsequent breach of such provision.
- Amendments, Modifications and Alterations to this Agreement
- Exclusion of third party rights
- Governing Law
- Dispute Resolution
- Any dispute, controversy or claim arising out of or relating to this Agreement or any related agreement or other document or the validity, interpretation, breach or termination thereof (“Dispute”), including claims seeking redress or asserting rights under applicable law, shall, unless settled amicably between the Parties hereto, be resolved and finally settled in accordance with the provisions of the Arbitration and Conciliation Act, 1996 as may be amended from time to time or its re-enactment,. The arbitral tribunal shall be composed of one arbitrator to be appointed jointly by both the parties and such Arbitration shall take place in Nagpur, Maharashtra.
- The Parties agree that the award passed by the arbitration panel shall be final and binding upon the Parties, and that the Parties shall not be entitled to commence or maintain any action in any court of law in respect of any matter in dispute arising from or in relation to the Agreement, except for the enforcement of an arbitral award passed by an arbitration panel pursuant to this clause.
The Clauses 7, 8, 18, 19, 27 and 28 shall survive the termination of this Agreement.
- Entire agreement