1. NATURE AND APPLICABILITY OF TERMS
For designers: Listing of designers and their profiles and contact details, to be made available to the other Users and visitors to the Website; ii. For other Users: Facility to
(i) create and maintain ‘User Account’,
(ii) Search for Designers by name, specialty, and geographical area, or any other criteria that may be developed and made available by Zivogue,
(iii) To make customize order with designers. The Services may change from time to time, at the sole discretion of Zivogue, and the Agreement will apply to your visit to and your use of the Website to avail the Service, as well as to all information provided by you on the Website at any given point in time. This Agreement defines the terms and conditions under which you are allowed to use the Website and describes the manner in which we shall treat your account while you are registered as a member with us. If you have any questions about any part of the Agreement, feel free to contact us at queries@Zivogue.com. By downloading or accessing the Website to use the Services, you irrevocably accept all the conditions stipulated in this Agreement and agree to abide by them. This Agreement supersedes all previous oral and written terms and conditions (if any) communicated to you. By availing any Service, you signify your agreement to this Agreement. We reserve the right to modify or terminate any portion of the Agreement for any reason and at any time, and such modifications shall be informed to you in writing you should read the Agreement at regular intervals. Your use of the Website following any such modification constitutes your agreement to follow and be bound by the Agreement so modified. Any additional terms and conditions, disclaimers, privacy policies and other policies applicable in general and/ or to specific areas of this Website or to particular Service are also considered as part of the Agreement. You acknowledge that you will be bound by this Agreement for availing any of the Services offered by us. If you do not agree with any part of the Agreement, please do not use the Website or avail any Services.3 Your access to use of the Website and the Services will be solely at the discretion of Zivogue. The Agreement is published in compliance of, and is governed by the provisions of Indian law, including but not limited to: I. The Indian Contract Act, 1872,
ii. The (Indian) Information Technology Act, 2000,
iii. the rules, regulations, guidelines and clarifications framed there under, including the (Indian) Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 (the “SPI Rules”), and the (Indian) Information Technology (Intermediaries Guidelines) Rules, 2011 (the “IG Rules”).
2.CONDITIONS OF USE:
You must be 18 years of age or older to register, use the Services, or visit or use the Website in any manner. By registering, visiting and using the Website or accepting this Agreement, you represent and warrant to Zivogue that you are 18 years of age or older, and that you have the right, authority and capacity to use the Website and the Services available through the Website, and agree to and abide by this Agreement.
3.1 END-USER ACCOUNT AND DATA PRIVACY
3.1.2 Zivogue may by its Services, collect information relating to the devices through which you access the Website, and anonymous data of your usage. The collected information will be used only for improving the quality of Zivogue’s services and to build new services.
3.1.3 The Website allows Zivogue to have access to registered Users’ personal email or phone number, for communication purpose so as to provide you a better way of providing services and for obtaining feedback in relation to the Designers and their practice.
i. The type of information collected from Users, including sensitive personal data or information; ii. The purpose, means and modes of usage of such information; iii. How and to whom Zivogue will disclose such information; and, iv. Other information mandated by the SPI Rules.
3.1.6 Zivogue shall not be responsible in any manner for the authenticity of the personal information or sensitive personal data or information supplied by the User to Zivogue or to any other person acting on behalf of Zivogue.
3.1.7 The User is responsible for maintaining the confidentiality of the User’s account access information and password, if the User is registered on the Website. The User shall be responsible for all usage of the User’s account and password, whether or not authorized by the User. The User shall immediately notify Zivogue of any actual or suspected unauthorized use of the User’s account or password. Although Zivogue will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Zivogue or others due to such unauthorized use.
3.1.8 If a User provides any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or Zivogue has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Zivogue has the right to discontinue the Services to the User at its sole discretion.
3.1.9 Zivogue may use such information collected from the Users from time to time for the purposes of debugging customer support related issues.
RANKING ALGORITHM Zivogue’s ranking algorithm for the Designers is a fully automated system that lists the Designers, their profile and information regarding their Usage on its Website. These listings of Designers do not represent any fixed objective ranking or endorsement by Zivogue. Zivogue will not be liable for any change in the ranking of the Designers, which may take place from time to time. The listing of Designers will be based on automated computation of the various factors including inputs made by the Users including their comments and feedback. Such factors may change from time to time, in order to improve the listing algorithm. Zivogue in no event will be held responsible for the accuracy and the relevancy of the listing order of the Designers on the Website.
3.3 LISTING CONTENT AND DISSEMINATING INFORMATION
3.3.1 Zivogue collects, directly or indirectly, and displays on the Website, relevant information regarding the profile and work of the Designers listed on the Website, such as their specialisation, qualification, fees, location, visiting hours, and similar details. Zivogue takes reasonable efforts to ensure that such information is updated at frequent intervals. Although Zivogue screens and vets the information and photos submitted by the Designers, it cannot be held liable for any inaccuracies or incompleteness represented from it, despite such reasonable efforts.
3.3.2 The Services provided by Zivogue or any of its licensors or service providers are provided on an "as is" and “as available’ basis, and without any warranties or conditions (express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, title and non-infringement, arising by statute or otherwise in law or from a course of dealing or usage or trade). Zivogue does not provide or make any representation, warranty or guarantee, express or implied about the Website or the Services. Zivogue does not guarantee the accuracy or completeness of any content or information provided by Users on the 8 Website. To the fullest extent permitted by law, Zivogue disclaims all liability arising out of the User’s use or reliance upon the Website, the Services, representations and warranties made by other Users, the content or information provided by the Users on the Website, or any opinion or suggestion given or expressed by Zivogue or any User in relation to any User or services provided by such User.
3.3.3 The Website may be linked to the website of third parties, affiliates and business partners. Zivogue has no control over, and not liable or responsible for content, accuracy, validity, reliability, quality of such websites or made available by/through our Website. Inclusion of any link on the Website does not imply that Zivogue endorses the linked site. User may use the links and these services at User’s own risk.
3.3.4 Zivogue assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect User’s equipment on account of User’s access to, use of, or browsing the Website or the downloading of any material, data, text, images, video content, or audio content from the Website. If a User is dissatisfied with the Website, User’s sole remedy is to discontinue using the Website.
3.3.5 If Zivogue determines that you have provided fraudulent, inaccurate, or incomplete information, including through feedback, Zivogue reserves the right to immediately suspend your access to the Website or any of your accounts with Zivogue and makes such declaration on the website alongside your name/your brand name as determined by Zivogue for the protection of its business and in the interests of Users. You shall be liable to indemnify Zivogue for any losses incurred as a result of your misrepresentations or fraudulent feedback that has adversely affected Zivogue or its Users.
3.4 INTERACTION WITH DESIGNERSAND BUYING THEIR PRODUCT
3.4.1. While Zivogue will try to ensure a confirmed products for a End-User who placed a order on Website, Zivogue does not guarantee that a Buyer will get a confirmed Order. Further, Zivogue has no liability if such Order is confirmed but later cancelled by Designers, or the Designers are not available as per the given Order time.
3.4.2 You understand and agree that any interactions and associated issues with other Users including but not limited to your User issues and your experiences is strictly between you and the other Users. You shall not hold Zivogue responsible for any such interactions and associated issues. For avoidance of doubt, Zivogue is not involved in providing any User or fashion advice or diagnosis and hence is not responsible for any outcome between you and the Designer you interact with, pursuant to any interactions on the Website. If you decide to engage with a Designer to provide designers services to you, you do so at your own risk. The results of any search you perform on the Website for Designers should not be construed as an endorsement by Zivogue of any such particular Designer. Zivogue shall not be responsible for any breach of service or service deficiency by any Designer. We cannot assure nor guarantee the ability or intent of the Designer(s) to fulfill their obligations towards you. We advise you to perform your own investigation prior to selecting a Designer.
3.4.3 without prejudice to the generality of the above, Zivogue will not be liable for: i. any wrong designs or product quality being given by the Designer(s), or any design misunderstanding on part of the Designer(s); ii. any type of inconvenience suffered by the User due to a failure on the part of the Designer to provide agreed services or to make himself/herself available at the appointed time, no show by the Designer, inappropriate treatment, or similar difficulties; iii. any misconduct or inappropriate behavior by the Designer or the Designer’s staff;10 iv. cancellation or rescheduling of booked Order or any variance in the fees charged; v. any medical eventualities that might occur subsequent to using the services of a Designer, whom the User has selected on the basis of the information available on the Website or with whom the User has booked an Order through the Website.
3.4.4 Further, Zivogue shall not be liable, under any event, for any comments or feedback given by any of the Users in relation to the services provided by another User. All such feedback should be made in accordance with applicable law. The option of Users to give feedback remains at Zivogue’s sole discretion and may be modified or withdrawn at its sole discretion. Zivogue may moderate such feedback at any time. Zivogue shall not be obliged to act in any manner to give effect to the content of Users’ feedback, such as suggestions for delisting of a particular Designer from the Website.
3.5 NO DESIGNER – BUYER RELATIONSHIP; NOT FOR EMERGENCY USE
3.5.1 Please note that some of the content, text, data, graphics, images, information, suggestions, guidance, and other material (collectively, “Information”) that may be available on the Website (including information provided in direct response to your questions or postings) may be provided by individuals in the design profession. The provision of such Information does not create a licensed designer professional/Buyer relationship, between Zivogue and you and does not constitute an opinion, fashion advice, or customize design of any particular ocassion, but is only provided to assist you with locating appropriate fashion sense from a qualified Designer.
3.5.2 It is hereby expressly clarified that, the Information that you obtain or receive from Zivogue, and its employees, contractors, partners, sponsors, advertisers, licensors or otherwise on the Website is for informational purposes only. We make no guarantees, representations or warranties, whether expressed or implied, with respect to professional qualifications, quality of work, expertise or other information provided on the Website. In no event shall we be liable to you or anyone else for any decision made or action taken by you in reliance on such information.
3.6 CONTENT OWNERSHIP AND COPYRIGHT; CONDITIONS OF ACCESS
3.6.1 The contents listed on the Website are (i) User generated content, or (ii) belong to Zivogue. The information that is collected by Zivogue directly or indirectly from the End-Users and the Designers shall belong to Zivogue. Copying of the copyrighted content published by Zivogue on the Website for any commercial purpose or for the purpose of earning profit will be a violation of copyright and Zivogue reserves its rights under applicable law accordingly.
3.6.2 Zivogue authorizes the User to view and access the content available on or from the Website solely for ordering, receiving, delivering and communicating only as per this Agreement. The contents of the Website, information, text, graphics, images, logos, button icons, software code, design, and the collection, arrangement and assembly of content on the Website (collectively, "Zivogue Content"), are the property of Zivogue and are protected under copyright, trademark and other laws. User shall not modify the Zivogue Content or reproduce, display, publicly perform, distribute, or otherwise use the Zivogue Content in any way for any public or commercial purpose or for personal gain.
3.6.3 User shall not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
REVIEWS AND FEEDBACK
The terms in this paragraph 4 are applicable only to Designers.
4.1 LISTING POLICY
4.1.1 Zivogue, directly and indirectly, collects information regarding the Designers’ profiles, contact details, and practice. Zivogue reserves the right to take down any Designer’s profile as well as the right to display the profile of the Designers, with or without notice to the concerned Designer. This information is collected for the purpose of facilitating interaction with the End-Users and other Users. If any information displayed on the Website in connection with you and your profile is found to be incorrect, you are required to inform Zivogue immediately to enable Zivogue to make the necessary amendments.
4.1.2 Zivogue shall not be liable and responsible for the ranking of the Designers on external websites and search engines.
4.1.4 Zivogue reserves the right to moderate the suggestions made by the Designers through feedback and the right to remove any abusive or inappropriate or promotional content added on the Website. However, 13 Zivogue shall not be liable if any inactive, inaccurate, fraudulent, or nonexistent profiles of Designers are added to the Website.
4.1.5 Zivogue reserves the right to publish the User information to a third party, subject to prior explicit informed consent from the User.
4.1.6 You as a Designer hereby represent and warrant that you will use the Services in accordance with applicable law. Any contravention of applicable law as a result of your use of these Services is your sole responsibility, and Zivogue accepts no liability for the same.
4.2 PROFILE OWNERSHIP AND EDITING RIGHTS
Zivogue ensures easy access to the Designers by providing a tool to update your profile information. Zivogue reserves the right of ownership of all the Designer’s profile and photographs and to moderate the changes or updates requested by Designers. However, Zivogue takes the independent decision whether to publish or reject the requests submitted for the respective changes or updates. You hereby represent and warrant that you are fully entitled under law to upload all content uploaded by you as part of your profile or otherwise while using Zivogue’s services, and that no such content breaches any third party rights, including intellectual property rights. Upon becoming aware of a breach of the foregoing representation, Zivogue may modify or delete parts of your profile information at its sole discretion [with / without] notice to you.
4.3 REVIEWS AND FEEDBACK DISPLAY RIGHTS OF ZIVOGUE
4.3.1 All feedbacks, ratings and reviews (“Critical Content”) is content created by the Users of www.Zivogue.com (“Website”) and the clients of Zivogue customers including the End-Users. As a platform, Zivogue does not take responsibility for Critical Content. The modus operandi of collecting this feedback is explained under Zivogue Feedback Collection and Fraud Detection Policy, annexed as the Schedule hereto.
4.3.2 Zivogue reserves the right to collect feedback and Critical Content for all the Designers, Organizations listed on the Website.
4.3.3 Zivogue reserves the right but shall have no obligation to pre-screen, review, flag, filter, modify, refuse or remove any or all Critical Content from any Service.
4.3.4 Zivogue reserves the right to moderate, publish, re-publish and use all user generated contributions and comments (including but not limited to reviews) posted on the Website as it deems appropriate (whether in whole or in part) for its product (s), whether owned or affiliated. Zivogue shall not be liable to pay any considerations to any User for re-publishing any content across any of its platforms.
4.3.5 You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you may use the Service at your own risk.
4.3.6 Zivogue will take down information under standards consistent with applicable law, and shall in no circumstances be liable or responsible for Critical Content, which has been created by the Users. The principles set out in relation to third party content in the terms of Service for the Website shall be applicable mutatis mutandis in relation to Critical Content posted on the Website.
4.3.7 If Zivogue determines that you have provided inaccurate information or enables fraudulent feedback, Zivogue reserves the right to immediately suspend any of your accounts with Zivogue and makes such declaration on the website alongside your name/your established brand name as determined by Zivogue for the protection of its business and in the interests of Users. You shall be liable to indemnify Zivogue for any losses incurred as a result of 15 your misrepresentations or fraudulent feedback that has adversely affected Zivogue or its Users.
RANKING ALGORITHM Zivogue has designed the ranking algorithm in the best interest of the EndUser and may adjust the ranking from time to time to improve the quality of the results given to the Buyers. It is a pure merit driven, proprietary ranking algorithm which cannot be altered for specific Designers. Zivogue shall not be liable for any effect on the Designer’s business interests due to the rank of the doctor in the Ranking Algorithm.
INDEPENDENT SERVICES Your use of each Service confers upon you only the rights and obligations relating to such Service, and not to any other service that may be provided by Zivogue.
5. ZIVOGUE REACH RIGHTS
Zivogue reserves the rights to display sponsored ads on the Website. These ads would be marked as “Sponsored Listings”. Without prejudice to the status of other content, Zivogue will not be liable for the accuracy of information or the claims made in the Sponsored Listings. Zivogue does not encourage the Users to visit the Sponsored Listings page or to avail any services from them. Zivogue will not be liable for the services of the providers of the Sponsored Listings. You represent and warrant that you will use these Services in accordance with applicable law. Any contravention of applicable law as a result of your use of these Services is your sole responsibility, and Zivogue accepts no liability for the same.
6. RIGHTS AND OBLIGATIONS RELATING TO CONTENT
6.1 As mandated by Regulation 3(2) of the IG Rules, Zivogue hereby informs the User that the User is not permitted to host, display, upload, modify, publish, transmit, update or share any information that: i. belongs to another person and to which the User does not have any right to;16 ii. Is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; iii. Harm minors in any way; iv. Infringes any patent, trademark, copyright or other proprietary rights; v. violates any law for the time being in force; vi. Deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; vii. Impersonate another person; viii. contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; ix. Threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
6.2 The User is also prohibited from: i. violating or attempting to violate the integrity or security of the Website or any Zivogue Content; ii. Transmitting any information (including job posts, messages and hyperlinks) on or through the Website that is disruptive or competitive to the provision of Services by Zivogue; iii. Intentionally submitting on the Website any incomplete, false or inaccurate information; iv. Making any unsolicited communications to other Users; 17 v. using any engine, software, tool, agent or other device or mechanism (such as spiders, robots, avatars or intelligent agents) to navigate or search the Website; vi. Attempting to decipher, decompile, disassemble or reverse engineer any part of the Website; vii. Copying or duplicating in any manner any of the Zivogue Content or other information available from the Website; viii. Framing or hot linking or deep linking any Zivogue Content.
6.3 Zivogue, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned above, shall be entitled to disable such information that is in contravention of this Paragraph 6. Zivogue shall also be entitled to preserve such information and associated records for at least 90 (ninety) days for production to governmental authorities for investigation purposes.
7.1 Zivogue reserves the right to suspend or terminate a User’s access to the Website and the Services with or without notice and to exercise any other remedy available under law, in cases where, i. Such User breaches any terms and conditions of the Agreement; ii. A third party reports violation of any of its right as a result of your use of the Services iii. Zivogue is unable to verify or authenticate any information provide to Zivogue by a User; 18 iv. Zivogue has reasonable grounds for suspecting any illegal, fraudulent or abusive activity on part of such User; or v. Zivogue believes in its sole discretion that User’s actions may cause legal liability for such User, other Users or for Zivogue or are contrary to the interests of the Website.
7.2 Once temporarily suspended, indefinitely suspended or terminated, the User may not continue to use the Website under the same account, a different account or re-register under a new account. On termination of an account due to the reasons mentioned herein, such User shall no longer have access to data, messages, files and other material kept on the Website by such User. The User shall ensure that he/she/it has continuous backup of any design services the User has rendered in order to comply with the User’s record keeping process and practices.
8. LIMITATION OF LIABILITY
In no event, including but not limited to negligence, shall Zivogue, or any of its directors, officers, employees, agents or content or service providers (collectively, the “Protected Entities”) be liable for any direct, indirect, special, incidental, consequential, exemplary or punitive damages arising from, or directly or indirectly related to, the use of, or the inability to use, the Website or the content, materials and functions related thereto, the Services, User’s provision of information via the Website, lost business or lost End-Users, even if such Protected Entity has been advised of the possibility of such damages. In no event shall the Protected Entities be liable for: i. provision of or failure to provide all or any service by Designers to End-Users contacted or managed through the Website; ii. any content posted, transmitted, exchanged or received by or on behalf of any User or other person on or through the Website; iii. any unauthorized access to or alteration of your transmissions or data; or iv. any other matter relating to the Website or the Service.19 In no event shall the total aggregate liability of the Protected Entities to a User for all damages, losses, and causes of action (whether in contract or tort, including, but not limited to, negligence or otherwise) arising from this Agreement or a User’s use of the Website or the Services exceed, in the aggregate Rs. 1000/- (Rupees One Thousand Only).
User agrees to indemnify and hold harmless Zivogue, its affiliates, officers, directors, employees, consultants, licensors, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from User’s access to or use of Service, violation of this Agreement, or infringement, or infringement by any other User of his/her/its account, of any intellectual property or other right of any person or entity. Zivogue will notify you promptly of any such claim, loss, liability, or demand, and in addition to your foregoing obligations, you agree to provide us with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
10. APPLICABLE LAW AND DISPUTE SETTLEMENT
10.1 You agree that this Agreement and any contractual obligation between Zivogue and User will be governed by the laws of India.
10.2 Any dispute, claim or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, or your use of the Website or the Services or information to which it gives access, shall be determined by arbitration in India, before a sole arbitrator appointed by Zivogue. Arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996. The seat of such arbitration shall be Bangalore. All proceedings of such arbitration, including, without limitation, any awards, shall be in the English language. The award shall be final and binding on the parties to the dispute.
10.3 Subject to the above Paragraph 10.2, the courts at Bengaluru shall have exclusive jurisdiction over any disputes arising out of or in relation to this 20 Agreement, your use of the Website or the Services or the information to which it gives access.
11. CONTACT INFORMATION; GRIEVANCE OFFICER
11.1 If a User has any questions concerning Zivogue, the Website, this Agreement, the Services, or anything related to any of the foregoing, Zivogue customer support can be reached at the following email address queries@Zivogue.com or via the contact information available from the following hyperlink: www.Zivogue.com/contact.
11.2 In accordance with the Information Technology Act, 2000, and the rules made there under, if you have any grievance with respect to the Website or the service, including any discrepancies and grievances with respect to processing of information, you can contact our Grievance Officer at: Name: Designation: Head –(Ask to be connected to the Grievance Officer) In the event you suffer as a result of access or usage of our Website by any person in violation of Rule 3 of the IG Rules, please address your grievance to the above person.
If any provision of the Agreement is held by a court of competent jurisdiction or arbitral tribunal to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided however that, in such event, the Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted 21 by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction or arbitral tribunal.
No provision of this Agreement shall be deemed to be waived and no breach excused, unless such waiver or consent shall be in writing and signed by Zivogue. Any consent by Zivogue to, or a waiver by Zivogue of any breach by you, whether expressed or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.