TERMS OF USAGE AND PRIVACY POLICY (“POLICY”)
BY AND BETWEEN
SRK E-Ventures, a partnership firm registered under the Indian Partnership Act, 1932, having its registered office at Plot 68, Ambedkar Rd, near Lion Metal, Kandivali, Charkop, Charkop Industrial Estate, Kandivali West, Mumbai, Maharashtra- 400067 (hereinafter referred to as “SRK”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include, jointly and severally, each of its partners, both in their personal capacity and as partners of SRK, and their respective heirs, legal representatives, executors, administrators and permitted assigns, successors of SRK, its affiliates, legal heirs, executors, administrators, legal representatives and permitted assigns);
AND
USER, an individual accessing the Platforms (defined below), either in the User’s personal capacity or as the legal guardian of an end-user who is legally incompetent to provide consent under the applicable laws, and on whose behalf the User agrees to ensure compliance with, and be bound by, this Policy (hereinafter referred to as “User”, which expression shall include his/her legal heirs, representatives, executors, administrators and permitted assigns. It is clarified that the term “User” shall be deemed to include any “End-User(s)”(defined below), as applicable, unless repugnant to the context or meaning).
(In case the User of the Platform is a partner supplier of SRK who lists their services/products on the Platform, the term “User”, shall be deemed to mean and include, [as the case may be] in case of a limited liability partnership or a limited company- its affiliates, successors in interest and permitted assigns; or, in the case of a proprietorship, his/her legal heirs, representatives, executors, administrators and permitted assigns; or, in the case of a Hindu undivided family, his/her karta, its co-parceners, both present and future; or, in the case of a partnership firm, jointly and severally, each of its partners, both in their personal capacity and as partners of the User, and their respective heirs, legal representatives, executors, administrators and permitted assigns, successors of the User, its affiliates, legal heirs, executors, administrators, legal representatives and permitted assigns.)
SRK and User shall, hereinafter, be referred to as such or, collectively as the “Parties”, and individually as a “Party”.
WHEREAS,
A. SRK is in the business of, inter alia, selling and servicing various parts of electric vehicles of various makes and descriptions, operating as the authorised dealer and service provider for major brands manufacturing and selling electric vehicles of various makes and descriptions, providing on rent, to individuals, electric vehicles of various makes and descriptions, on a subscription based model, providing fleet management services in respect of electric vehicles of various makes and descriptions, and other allied services. (“Business”).
B. In the course of conducting the Business, SRK offers access to certain web based platforms to the Users, and such other platforms that SRK offers directly over cellular phones, tablets, etc., and other internet based platforms, through dedicated applications, howsoever described (collectively, the “Platforms”). The User can access each of the aforementioned Platform on suitable devices supporting the access and usage to such respective Platforms, and SRK does not make any representation in respect of the quality of such access and usage, on any devices used by the User for this purpose.
C. The User is visiting the Platforms of SRK, for the exploring the possibility of availing the services of any or all of the Business of SRK, by entering into subsequent specific agreement(s) for such purpose (“Substantive Agreement(s)”). Except to the extent as specified hereinafter, this Policy does not impact the Substantive Agreement(s) in any manner whatsoever, and in case of any conflict between the terms of this Policy and the Substantive Agreement(s), the terms of the Substantive Agreement(s) shall prevail.
D. This Policy is an “electronic record” in terms of Section 2(s) of the Information Technology Act, 2000 (as amended from time to time) (“IT Act”), and is a legally enforceable document in terms of Section 4 of the IT Act.
E. By accessing and using the Platforms, the User may be required to grant SRK access to certain data constituting “Digital Personal Data”, in terms of the Digital Personal Data Protection Act, 2023 (“DPDA”), limited by the terms provided in Clause 1.6 of this Policy below.
F. This Policy constitutes the terms to which the User agrees to in respect of- i) accessing and using the Platform, including the risks involved thereof, and b) the manner in which SRK may collect and use the Digital Personal Data (as defined in the DPDA) of such User.
G. This Policy applies to all users of the Platform, including individuals accessing it for personal use, legal guardians acting on behalf of minors or legally incompetent individuals, third-party partner suppliers offering services or products on the Platform, and employees of SRK using the Platform for employment-related purposes.
H. The User agrees that in construing the provisions contained in this Policy, reference to the doctrine of contra proferentem shall not be made, and the User acknowledges that the terms contained in this Policy are fair and reasonable.
I. These recitals shall form an integral part of this Policy, and the Parties agree that reference to these recitals shall be construed as such.
NOW, THEREFORE, the Parties are hereby agreeing to the following, that the access and use of the Platform by the User shall be governed by the following, to which the User agrees to unequivocally and irrevocably:
SCOPE
1.1 Acceptance of Policy
- 1.1.1 User’s access to or use of any Platform, regardless of whether the User avails of or purchases any services or products listed on the Platform, constitutes his/her acceptance of this Policy and his/her agreement to be legally bound by its terms.
- 1.1.2 In cases where the end-user is a minor (i.e., under the age of 18, or such other age of majority as is prescribed under the applicable laws) or is otherwise legally incompetent to provide consent to this Policy, under the applicable laws (“End-User”), then the Policy is accepted on behalf of such End-User by his/her legal guardian or parent, and such End-User shall access and make use of the Platform under the constant supervision of such consenting legal guardian or parent. SRK shall not be responsible for verifying the satisfaction of the aforementioned requirement in any cases involving the End-User, and shall not be liable for any liability arising out of any use by End-User(s) taking place without the consent of his/her legal guardian or parent.
1.2 Platform as intermediary
- 1.2.1 SRK is only acting as an intermediary, and the User is accessing the Platform only as a medium of gaining access and information about the services and products that the User is able to avail/purchase through the Platform. The User shall be required to enter into separate Substantive Agreement(s), whether online or offline, for actually availing the services and/or purchasing and/or renting any products featured on the Platform, and this Policy does not substitute, complement or alter, in any way, the terms or conditions of such written agreement the User may be required to enter into, pursuant to accessing the Platform, for any of the aforementioned. In case of any conflict or inconsistency between this Policy and the terms and conditions of such additional written agreements, the terms of the written agreements shall prevail to the extent of such conflict or inconsistency. However, the User’s indemnity obligation towards SRK and the limitation of SRK’s liability shall continue to be governed by the terms of this Policy.
- 1.2.2 Without prejudice to the generality of the foregoing, SRK expressly disclaims any warranties or representations (express or implied) in respect of the quality, suitability, accuracy, reliability, completeness, timeliness, performance, safety, merchantability, fitness for a particular purpose, or legality of the services and/or products listed or displayed or transacted upon, including the content posted in respect thereof (including product or pricing information and/or specifications) of the service and/or products, on any Platform.
- 1.2.3 SRK does not implicitly or explicitly support or endorse the sale or purchase of any services and/or products on the Platforms; and at no time shall any right, title or interest in the services and/or products offered and availed/sold (as the case may be), displayed on, and availed/purchased through the Platform, vest with SRK; nor shall SRK have any obligations or liabilities in respect of any transactions undertaken by the User on the Platform.
1.3 Policy Updates and Continuing Consent
- SRK shall undertake to keep, on a best endeavour basis, the User informed and notified of any amendment/updates to this Policy. Provided however, the User’s continuing use of the Platform shall be deemed to constitute his/her continuing consent to any updated/amended terms and conditions contained in the Policy (or any updated Policy), and SRK shall not be liable for testing or verifying the nature of his/her continuing consent, in any manner whatsoever. It is hereby clarified that upon being posted on the Platform, the updated/amended (as the case may be) Policy shall be considered effective immediately, and the User and SRK shall be considered to be bound by the same.
1.4 Scope of Usage of the Platforms
- 1.4.1 Accessing the Platform
Accessing the Platform implies continuing consent to this Policy. In the case of End-Users, by using the Platform, SRK shall presume that the terms and conditions of this Policy are consented to by the End-User’s parent or legal guardian (as the case may be), and the End-User’s access to the Platform shall be under the constant supervision of their respective consenting parent or legal guardian (as the case may be). - 1.4.2 Intermediary Role
The User agrees, understands, and acknowledges that the Platform is an intermediary providing the User with access and information to various services and products, which can be availed/purchased by the User, on the basis of such terms and conditions which shall be separate from the terms contained in this Policy, and SRK shall not be construed (in any manner whatsoever) as a party to or with any control over any transactions taking place subsequent to accessing any information on any of the Platform. - 1.4.3 Account Security
SRK may, in order to facilitate the manner in which the User access and utilize the Platform, offer the service for the User to make an account which is password protected. Provided however, SRK shall not be responsible for maintaining the confidentiality of the User’s account and password, integrity of the contents therein, and shall not be liable for any unauthorized access, disclosure, or use of such information associated with such account. SRK shall not be responsible for putting in place any measures, in addition to such reasonable measures that SRK may implement, at its sole discretion. - 1.4.4 Platform Availability
SRK does not make any representation and/or warranty for ensuring the availability or access to the Platform; and any unavailability (regardless of its period) of the Platform, which may be required to be suspended or restricted to allow for repairs, maintenance, introduction of any new features/facilities or services, or as a result of any government order to this effect, all of which may be implemented by SRK without any responsibility of giving any prior written notice. SRK hereby disclaims any and all liability suffered by any User, arising out of the unavailability of the Platform for any such (extended) period of time. - 1.4.5 Content Reproduction
The User agrees that he/she shall not attempt to copy and/or reproduce any content, feature, factoid, information, etc., from any of the Platforms, for any purpose whatsoever. - 1.4.6 Publicity Rights and Data Protection
Subject to the particulars specified in respect of the usage of Digital Personal Data in Clause 1.5 below, the User, hereby, grants SRK, its affiliates and permitted assigns, a non-exclusive, worldwide, royalty-free, perpetual, irrevocable right to exercise all rights of publicity over any materials contributed by any User on the Platform. The User further confirms and warrants that he/she, hereby, grants all such rights, power and authority to SRK, as SRK may require to exercise the above specified rights. Further, to the extent required for performing the aforementioned, the User waives all of his/her rights to enforce any intellectual property right connected with any content produced by SRK under this Clause 1.4.6. Without prejudice to the contents in Clause 1.5 below, it is clarified that any information that is protected under the DPDA, and/or any other applicable law, shall only be used and kept in compliance with such laws. - 1.4.7 Access Restrictions
SRK reserves the right, without prior notice, to restrict access to or use of the Platform (or any features within the Platforms) to any Users, regardless of whether such User has paid for the specific features in question. Further, SRK shall be entitled to impose any other conditions, at its discretion, under which the access to the Platforms shall be granted, and User shall be deemed to have agreed to such conditions, as part of his/her continuing consent to this Policy. - 1.4.8 No Warranty
No warranty or representation is given in respect of any feature, function, content, information, listings made by any partner suppliers, etc., and thereafter availed of/purchased by the User through the Platform; and any access by the User of any of the aforementioned is at his/her sole risk, without any recourse to SRK. - 1.4.9 Feature Changes
SRK may, at its discretion, launch, change, upgrade, impose conditions to, suspend, or stop any features/content on the Platform, without requiring to furnish any prior notice, including but not limited to any promotional features which are offered free of cost to the User for an undefined time period. - 1.4.10 Third Party Links
The Platform may contain hyperlinks (in the form of word link, banners, channels or otherwise), whereby the User shall be informed, and given the opportunity to access the content, products or services offered by third parties. It is clarified that this Policy does not apply to these third-party sites, and SRK has no control over the information that the User chooses to submit to those third parties. SRK shall disclaim any and all liability for any damages suffered by the User due to accessing and using such third party links, and disclaims any control or liability for any content, products or services availed by the User through such third party portals. - 1.4.11 Orders for Services/Products
Any orders for any services and/or products, which are placed through the Platform, shall be governed by the respective terms and conditions agreed to between the provider/seller of such services/products (as the case may be), and SRK disclaims any role or liability, in any dispute arising therefrom. Notwithstanding the generality of the foregoing, it is clarified that SRK shall not be responsible for the correctness of any taxes and other charges borne by the User in availing or purchasing any goods and services through the Platform. This provision also applies to transactions between the User and third-party partner suppliers on the Platform. - 1.4.12 Vendor Obligations
Third-party partner suppliers using the Platform to offer services or products must comply with all applicable laws, regulations, and industry standards, and shall be solely responsible for the quality, safety, and legality of their offerings.
1.5 Scope of Digital Personal Data Collection
- 1.5.1 Data Collection Consent
This Clause 1.5 of the Policy sets out how SRK collects, processes and discloses information of the User, made available by the User to SRK in connection with his/her usage of the Platform, and to the extent required by SRK in operating the Platform. By accessing the Platform, the User agrees that SRK shall be entitled to capture certain information which may constitute to be “Digital Personal Data” under the DPDA, and the User confirms his/her acceptance to the same as being reasonable. - 1.5.2 Data Use and Sharing
The User agrees that SRK may, without limitation, use the Digital Personal Data collected from the User for improving the quality and scope of the Platform, and may share the information collected with other users of the Platform, affiliates of SRK, third party business partners and service providers, marketing and advertising platforms, etc. It is clarified that this Policy shall not deal with the manner in which such parties, with whom the information is shared, opts to process it. To the extent possible, SRK shall provide anonymized data to third parties, in such manner that the information shared does not personally identify the User. - 1.5.3 End-User’s Data
Digital Personal Data required to be collected by SRK, which pertains to an End-User, is being collected with prior consent and approval of the legal guardian and/or parent of the End-user in question, which shall be deemed to have been obtained as part of the general consent obtained to this Policy, without being required to be specifically consented to. - 1.5.4 User Rights
The User shall have relevant rights in respect of his/her Digital Personal Data, as provided under the DPDA and the various rules and regulations promulgated thereunder, including, but not limited to, under Section 11 of the DPDA.
2 Representations and Warranties
- 2.1 Each Party hereby represents and warrants to the other Party that:
- 2.1.1 It/he/she is legally capable to execute and perform its obligations under this Policy, and to carry out the covenants, representations, warranties, rights and obligations contemplated hereby;
- 2.1.2 It/he/she has the financial standing and capacity to undertake the financial obligations arising hereof;
- 2.1.3 This Policy constitutes its/his/her legal, valid and binding obligation, enforceable against it/him/her in accordance with the terms hereof, and its/his/her obligations under this Policy shall be legally valid, binding and enforceable obligations against it/him/her in accordance with the terms hereof;
- 2.1.4 The execution, delivery, and performance of this Policy does not violate any other agreement, court order, or legal obligation to which any respective Party is bound;
- 2.1.5 There is no legal proceeding, arbitration, or legal, administrative or other proceeding or governmental investigation pending against it/he/she with respect to the subject matter of this Policy that would affect in any way its/his/her ability to enter into or perform its/his/her obligations under this Policy;
- 2.1.6 Each of the aforesaid shall be treated as a separate and independent representation and/or warranty of the Parties, and shall not be limited or restricted by reference to or inference from the term of any other representation or warranty or any other term of this Policy, or be qualified by any actual or constructive knowledge of any Party.
- 2.1.7 If a third-party partner supplier, it has the necessary licenses, permits, and authorizations to offer its services or products on the Platform.
- 2.1.8 If an employee of SRK, its access and use of the Platform is solely for authorized employment-related purposes
2.2 In addition to the representations and warranties contained above, the user further represents and warrants:
- 2.2.1 In case of End-User, his/her guardian or parent makes the representations and warranties, specified in Clause 2.1 above, on behalf of the End-User, along with a warranty that any and all use by the minor end user shall be made under the constant supervision of the consenting guardian or parent, in accordance with this Clause 2 (Representations and warranties);
- 2.2.2 User acknowledges that use of any content or materials on the Platform, for any purpose not expressly permitted in the Policy, is prohibited; and
- 2.2.3 Any and all information provided by the User, in respect of accessing and using the Platform, or in respect of operating his/her account on the Platform, shall be true, accurate, current and complete, and the User shall maintain and promptly amend any and all information to continue the validity of this representation and warranty.
2.3 Covenants, obligations, undertaking, statements, etc., in the nature of representations and warranties, specified elsewhere within this Policy, shall be construed as representations and warranties furnished by the respective Party, agreeing to such, under this Clause 2 (Representations and Warranties).
3 Covenants
- 3.1 The User agrees that he/she will comply with all applicable laws and regulations when accessing or using the Platform.
- 3.2 User agrees that he/she shall not, directly or indirectly, copy, reproduce, download, re-publish, sell, distribute or resell any content or any information, text, images, graphics, video clips, sound, directories, files, databases or listings, etc., available on or through the Platform, for any use outside of the Platform, and shall ensure that he/she shall not cause any other person or entity to do the same.
- 3.3 User acknowledges that the Platform and the processes, the selection and arrangement, including but not limited to, all text, videos, graphics, user interfaces, images, photos, visual interfaces, sounds and music (if any), artwork and computer code, as accessible to him/her on the Platform, constitutes the intellectual property of SRK, whether registered or not, and/or whether perfected or not; and the User undertakes to not to any act which may result in the infringement of the aforementioned intellectual property under any applicable copyright, patent and trademark laws, or under any other intellectual property rights law.
- 3.4 User shall not breach the intellectual property rights of SRK, in any manner whatsoever, whether directly or indirectly.
- 3.5 User agrees not to undertake any action which may result, as a direct or indirect consequence, in undermining the integrity of the network systems of SRK, nor shall he/she make any efforts to access any such data not expressly provided to such User, as part of his/her access permission, and under the terms of this Policy.
- 3.6 User agrees not to share his/her account details with any person, or allow multiple users to access the content of the Platform by using the User’s login credentials.
- 3.7 User acknowledges and agrees that the Platform may not be reproduced, duplicated, copied, sold, resold, visited, distributed or otherwise exploited for any commercial purpose without express written consent of SRK.
- 3.8 User agrees to not use the Platform in any way that causes, or is likely to cause, the Platform, or access to it to be interrupted, damaged or impaired in any way.
- 3.9 User shall be responsible for any and all electronic communications and content sent from his/her computer, involving the Platform, and undertakes to access and use the Platform for lawful purposes only.
- 3.10 User acknowledges and undertakes that any services availed or products purchased through the Platform, are transactions separate from the relation between the User and SRK formed under this Policy, and that the User shall undertake such transactions at his/her own risk and use his/her best and prudent judgment before entering into such transactions through the Platform. It is clarified that SRK shall neither be liable nor responsible for any actions or inactions of its partner suppliers, nor for any breach of conditions, representations or warranties by the partner suppliers or manufacturers of the products, and hereby expressly disclaims all responsibility and liability in this regard. SRK shall not be responsible for, or shall not be called upon to, mediate or resolve any dispute or disagreement between the User and any partner suppliers or manufacturers.
- 3.11 Limitation of Liability
- 3.11.1 SRK shall not be liable for any indirect, incidental, special, consequential, or punitive damages arising out of or in connection with the User accessing and using the Platform, including but not limited to loss of profits, data, use, goodwill, or other intangible losses.
- 3.11.2 SRK shall not be responsible for any actions or omissions of third parties or any unauthorized access, use, or alteration of the User’s transmissions or content.
- 3.11.3 In no event shall SRK’s total liability to the User, for any and all damages, losses, and causes of action (whether in contract, tort, or otherwise), exceed the amount paid by the User, if any, to access or use the Platform.
- 3.12 Third-party partner suppliers shall not engage in any misleading, deceptive, or fraudulent practices in connection with their use of the Platform.
- 3.13 Employees of SRK shall not use the Platform to access, disclose, or misuse any confidential or proprietary information of SRK or its customers. Any and all use of the Platform by the employees shall be limited to legitimate use by such employees in pursuance of the Business, and SRK disclaims any liability arising out of any use by its employees which breaches the aforementioned.
- 3.14 SRK will only consider Cancellations if the request is made immediately after placing the order. However, the cancellation request may not be entertained if the orders have been communicated to the vendors/merchants and they have initiated the process of shipping them.
4. Miscellaneous
4.1 Indemnity
The User shall protect, defend, indemnify and hold harmless SRK, its respective partners, employees, affiliates, officers, franchisees, managers, agents from and against all lawsuits, claims, demands, actions, liabilities, proceedings, costs (including reasonable attorney fees), losses whatsoever suffered or incurred, arising out of, or in connection with, his/her breach of the terms of this Policy, including any representations, warranties, undertakings and/ or obligations contained in this Policy, and under applicable laws. Further, the User agrees to hold the above mentioned persons, harmless against any claims made by any third party (including partner suppliers of SRK) due to, or arising out of, or in connection with, the User’s use of the Platform, or the content thereunder, any misrepresentation with respect to the data or information provided by the User, the User’s violation of this Policy, or the User’s violation of any rights of another person, including any intellectual property rights of such person. Provided further, in case of employees of SRK, employees shall indemnify SRK for any misuse of the Platform or breach of confidentiality (as provided under their respective agreement of employment with SRK).
4.2 Principal-to-principal basis
This Policy has been entered into on a principal-to-principal basis, and nothing contained in this Policy shall be deemed to constitute a joint venture, partnership, or agency relationship between the Parties. The Parties hereto shall not represent as an agent of the other under any circumstances and at any place and at any point of time and shall fulfill their obligations strictly in terms of this Policy as between two independent principals in commercial transactions and none of the terms and conditions of this Policy, or their context shall be read or meant to be otherwise.
4.3 Assignment
SRK shall be free to transfer or otherwise assign this Policy, or any of its rights or obligations hereunder without being required to furnish any prior intimation to the User, in any manner whatsoever.
4.4 Governing law
This policy shall be construed with the laws of India, and any disputes arising thereof, subject to Clause 4.5 (Dispute resolution) below, shall be adjudicated by the courts of Mumbai, Maharashtra, exclusively.
4.5 Dispute resolution
Subject to Clause 4.4 (Governing law) above, in case of any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the arbitration rules of the SIAC (“SIAC Rules”), for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The tribunal shall consist of 3 (three) arbitrator(s), and the language of the arbitration shall be English.
4.6 Waiver of provisions
The provisions, terms, covenants, representations, warranties and conditions of this Policy may be waived only by a written instrument executed by the Parties. The failure of any Party to require performance of any obligation of the other Party, set forth in this Policy, shall in no manner affect the right of such Party at a later date to enforce the same. No waiver by any Party hereto of any condition or the breach of any provision, term, covenant, representation or warranty contained in this Policy, whether by conduct or otherwise, in any one or more instances shall be deemed to be a continuing waiver of any such condition or subsequent breach under this Policy.
4.7 Severability
If any term or provision of this Policy is held, by a competent court of law or a governmental authority, to be illegal or unenforceable, in whole or in part, under the applicable laws, such term or provision or part thereof shall, to that extent, be deemed not to form part of this Policy, but the enforceability of the remainder of this Policy shall not be affected.
4.8 Disclaimers
The User hereby acknowledges and agrees that their use of any of SRK Services, vehicles of SRK, or related equipment is at User’s sole risk. The User does hereby acknowledge and agree that, except as may otherwise be limited by law, SRK and all other released persons are not responsible or liable for any claim, including those that arise out of or relate to (a) any risk, danger, or hazard described in this agreement, (b) the User’s use of, or inability to use, any of the SRK services, vehicles, or related information, (c) The User’s breach of this agreement or the User’s violation of any law, (d) any negligence, misconduct, or other action or inaction by the User’s, (e) the User’s failure to wear a helmet while using a vehicle, or (f) any negligence, misconduct, or other action or inaction of any third party.
4.9 Amendments
No modification, amendment or waiver of any provision of this Policy shall be effective against any Party unless such modification, amendment or waiver is consented to, in writing, by both Parties.
4.10 Further assurance
Each Party shall (at its own expense) perform and execute all such acts, deeds and other documents (or procure the execution or performance thereof) to perform its obligations under this Policy and for the purpose of implementing, consummating and giving full effect to the transactions contemplated under this Policy.
4.11 Notice
The User may contact SRK using the information below:
- Merchant Legal entity name: SRK E-VENTURES
- Registered Address: Plot 68, Ambedkar Rd, near Lion Metal, Kandivali, Charkop, Charkop Industrial Estate, Kandivali West, Mumbai, Maharashtra, PIN: 400067
- Operational Address: Plot 68, Ambedkar Rd, near Lion Metal, Kandivali, Charkop, Charkop Industrial Estate, Kandivali West, Mumbai, Maharashtra, PIN: 400067
- Telephone No: 8286488606
- E-Mail ID: ganesh@flexifleets.io