Phoenix

This User Agreement (“agreement”) is entered between Clean Energy Access Network (“Host”), a society registered under the Societies Registration Act, 1860 having its registered office at New Delhi and such person/entity (“User”) accessing and utilizing the services on the India Renewable Energy Appliances Portal (“Portal”) of the Host.

This agreement comes into force on the 25th day of November 2020. (Effective Date) Whereas this agreement is being entered into to lay down the terms, conditions and obligations of the User accessing and utilizing the services on the India Renewable Energy Appliances Portal (“Portal”) of the Host.

Whereas the parties to the agreement agree to the below mentioned definitions and conditions and obligations arising hereof.

DEFINITIONS

• The term “ Portal” shall refer to the India Renewable Energy Appliances Portal of the host and accessible at https://www.thecleannetwork.org/off-grid-portal.php.
• The term “ User/Customer” means and includes all the Companies, Firms, Businesses, Persons that purchase or end-user of the products and services that are sold, leased or offered by the “Vendor” on the Portal in exchange for a consideration.
• The term “ Vendor ” shall refer to any person or any other registered entity (such as shop, company, society, firm, business), who agrees to the terms of this Agreement for listings their products, or services on the Portal and selling their products, or services through the Portal.
• The term “End Users/Users” means any person who acquires the product and services to be used as per his requirements. This includes all the customers that use the Portal for purchasing or procuring any kind of services. It also includes the “Customer” as defined in the Definition clause 2.
• The term “ products” may include any kind of existing or potential renewable energy related appliances, goods, materials, supplies, articles that are manufactured, imported or otherwise procured by the vendor and are listed by the Portal. The products may also include accessories and any other kind of ancillaries packaged with the main product.
• The term “services” include but are not limited to ancillaries to the supply of goods like transportation, installation or any other such incidental services, which the vendor may provide in exchange of a consideration.
• The term “ Person ” include any person resident/non-resident of India who is above the age of 18 years who is legally qualified and competent to enter into a contractual agreement as per the Indian Contract Act, 1872.
• The term “ Company ” means and includes but not limited to any domestic company including but not limited to a Private Limited Company, Public Limited Company, Joint Venture Company, One Person Company registered under the Companies Act, 2013 or a Foreign company or a Subsidiary of a Foreign Company registered in any foreign jurisdiction under the applicable foreign law. The definition of company is not exhaustive and will also include companies which may be unregistered but show the traits of the company. It would be at the discretion of “The Portal” to determine the nature of a Customer, where the company is unregistered.
• The term “ Partnership ” includes any partnership registered under the Indian Partnership Act 1932 or under Limited Liability Partnership Act of 2008. A partnership may also include any partnership or partnership firm that is registered in a foreign jurisdiction under the relevant law of the concerned jurisdiction.
• The term “ Business ” includes any kind of business that does not come under the ambit of a company or a partnership. This can include but is not limited to a shop, unregistered business, MSME supplier, independent contractors etc. The discretion of treating someone as business would solely lie with the Host.
• The term “ Trusts ” means any trust recognized, registered and governed under the Indian Trusts Act, 1882. The term Trusts may also include any trust that is based out of India in a foreign country but is registered and governed by the concerned foreign law.
• The term “Societies” means any society registered under the The Indian Societies Registration Act of 1860. The Societies may include any society based out of India in a foreign country and is governed by the concerned foreign law.
• The term “ Registered Office ” for a “Company” would be such a place where the company is incorporated. For a “Partnership”, it would mean the place where the partnership is registered and in case of absence of registration, a place where the main operations are carried out from. For a “ Person ” it would be a place which he chooses to register with the portal. For a person a residential address can also qualify as a registered office.
• The term “ Jurisdiction” means any place whose laws would apply and where the case may be litigated in case of a dispute. In the present agreement unless stated otherwise, the “Jurisdiction” would mean Indian Jurisdiction.
• The term “Confidential Information” includes but are not limited to any kind of Personal Information, Business information, Financial Reports, Technical Reports, Usage Reports, IP Addresses, Customer information, User information, Passwords, Payment terms, Bills, Quotations and Agreements, Product Information and any other materials that have sensitive nature.
• The term “ Legal Personality” means any person, thing or entity that can do things that can undertake legal actions including but not limited to entering into contracts, own property, sue, capable of being sued etc.

OPERATIVE CLAUSES

SCOPE OF THE AGREEMENT:
The Customer agrees to the competency and capability of The Portal. Therefore as a consequence also agrees to the utilization of the services of the portal. The Customer also undertakes that they acknowledge that “The Portal” is an information utility that is being used by customers for connecting with the vendor for purchasing or procuring goods and services. The Customer is expected to follow the legal principle of “Buyer’s Beware” while utilizing the platform. The Portal would charge fees for providing their services on the platform. The fees and payment will be governed by this contract and other related agreements for the same purpose. The Customer also undertakes that they would carry out their obligations as per the contract.

USER AGREEMENT

• The user agrees to the conditions of this user agreement. They would be deemed to be in agreement with the clauses of this agreement as soon as they register to the portal. The User by registering themselves on the Portal also agrees to that they are solely responsible for any activity that is carried out of their user account.
• The user understands that the Host shall not be responsible for any product listed/sold on the portal by any vendor. The User shall be responsible for any and every kind of purchases made through the Portal, and shall be expected to carry out reasonable due diligence before purchasing any kind of product or vendor services.
• The User acknowledges that it has requisite competency to enter into agreements with the Host and the Vendors through the Portal, and that it is not barred by The Indian Contract Act, 1872 or any other law of India from entering into such contacts. If any user found to be incompetent to enter into a contract with the Host or any Vendor on the portal, then such contract would be void and the user would be liable to damages and other liabilities that may arise thereof.
• The user acknowledges that the Host acts as a mere facilitator between the User and the Vendor and therefore cannot be in control, or be held as a party, or be held responsible for any transaction between the User and the Vendor. Accordingly, the Agreement between the User and the Vendor would be a bipartite agreement between the concerned parties which shall be independent of this agreement.
• It is the duty of the user to keep all the details like passwords, security questions or any other sensitive information relating to the account as confidential, at all the times. In case there is a breach, or the user believes that their information has been compromised in any manner whatsoever, it is the duty of the user to take all the necessary steps to get their accounts secured. This includes taking necessary steps to contact the Host within reasonable time informing them of such breach. This is to ensure that the Host can take necessary steps to secure the user’s account on the Portal.
• The user acknowledges that it shall be specifically bound by Clause 5 of this agreement. Therefore, the Host shall not be held responsible for any deficiency in service or any other kind of issues that may arise in case incorrect information is provided by the User. The user shall be solely responsible for complying with Clause 5 of this agreement.
• While the Host shall aim to provide error free and continuous access to the portal, however, this is not a guarantee. Due to the nature of services and internet, there may be situations where the portal of the Host may be suspended or the server may be down to allow for maintenance, repair, introduction of new features etc. to be carried out. The User acknowledges and agrees that such situations may arise during their usage and would regard the same as an ordinary course of usage. The Host will ensure as much as possible, to keep such interruptions to the minimum.
• Subject to all other conditions of this agreement including registration and payments, the User agrees that the Host is providing a limited license to access/use the services of the Portal. The User is not allowed to modify any pages, cache, edit, reverse engineer, make temporary or permanent changes, or use their account as a commercial service. In case a user is found to be indulging in any such activities, the Host may terminate the agreement with immediate effect. Further, if the activities were found to be impacting any legal right of the Host, the Host may pursue any/all the Civil or Criminal remedies to them under the Law.
• The Portal may use some material which may be copyrighted/ patented/ protected under the relevant Intellectual Property laws of India. The Portal may also use Intellectual property of a Third party with their permission. The User undertakes that during their usage of the Portal, they would not copy, recreate, and/or reproduce any copyrighted/protected material. If a User engages in any such activity, they would be solely responsible for any liability that may arise due to such activity. The User also undertakes that they would indemnify the Host in case any liability arises on the Portal due to the misconduct of the User.
• User shall ensure not to upload any description/image/text/graphic that is unlawful, illegal, objectionable, obscene, vulgar, opposed to public policy, prohibited or is in violation of intellectual property rights including but not limited to Trademark and Copyright of any third party.
• In case a facility is provided for reviews, comments or any other kind of similar activity, the user is expected to conduct themselves in good faith. They may give an honest review of any product(s) or service(s). However, they shall not put any review or comment that is fraudulent or deceiving. Further, the User shall not put any obscene, pornographic, or any other content mentioned in above clause in such reviews, comments etc. In case a User is found to be engaging in any such behavior, their account may be suspended. Further, the conditions of Clause 9 “Liability” may apply. Pursuant to this the portal also reserves the right to block the IP addresses of such users, which can lead to complete denial of their access to the Portal.
• The user acknowledges that they would only use the Host’s portal for the purpose it is meant for. They would not use the portal for any political campaigns, mass mailing, solicitations, or any other kind of spam activities. Any user account found indulging in such activities will face immediate suspension and restriction of the services provided by the portal.
• The user is expected to keep itself updated with the privacy policy of the portal, as updated from time to time. It shall be the user’s responsibility to learn about the privacy policy. The Host may make changes to such policy from time to time as per the governing law, updates in technology, and changing business requirements.
• Users/Customers will have an option to send enquiries to the Vendor using enquiry forms in product and company pages. A copy of such email will be marked to the Host. This data will not be shared with anyone else and will be used only to gather market intelligence and to gather information about the connections the Host has facilitated.
• The Portal is an information portal developed by the Host with the support of GIZ India and is not a wholesaler or supplier and does not provide or own any logistics services or products.
• The Host does not, nor does any other party who provides Content to this Portal make any warranty as to the accuracy, completeness or currency of the Content. As a user of this Portal, you are required to make your own enquiries before entering into any transaction on the basis of or in reliance upon the Content. The Host and its employees waive off all liability for any loss or damage (including without limitation, indirect, special or consequential loss or damage) arising from the use of, or reliance upon the Content whether or not this is caused by a negligent act or omission.
• No part of the Portal and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including ‘mirroring’) to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without the Host’s express prior written consent.
• The Host assures the user that it would keep General Data Protection Regulations (GDPR) and guidelines (as applicable) as guiding principles while dealing with any kind of user data including anonymization of any personally identifiable data of the user, usage of data for the purposes specified etc.
• The prices of products on the Portal are variable and can change with the requirement of time and need.

GOVERNING LAW

The Customer acknowledges that the present agreement is governed by the Indian Contract Act, 1872 and other relevant laws of India. Any and all the procedures, legality, liability that may arise will comply with the above-mentioned laws.

REGISTRATION BY THE CUSTOMER:

The Customer hereby agrees to follow and fulfill all the criteria that may be set by the Portal before getting access to their services. This may include providing necessary documents, fulfilling paperwork including KYC documentation, payment of registration fees as prescribed or any other method that may be specified by the portal. Failure to follow the registration process may make the Customer ineligible to access the services of the Portal.

CORRECT INFORMATION

The Customer acknowledges and undertakes that when asked for any information, they would provide correct information in good faith. Failure to provide correct information or deliberately providing incorrect information can lead to termination of the contract. Not conforming with this clause may amount to a breach under this agreement.

NON-EXCLUSIVE NATURE OF THE CONTRACT

The Customer hereby acknowledges that the agreement is a revocable non-exclusive license. The Customer may be one of the customers that may utilize the services of “The Portal” to sell their products and services. At no point the Customer shall claim exclusivity rights pertaining to the usage of the services of the Portal.

FEE AND PAYMENT PROCEDURE

The Host may, at its discretion, prescribe a user fees and payment procedure for using the services of the portal. The fee shall be communicated by the Host to the User/Customer in writing. The payment agreement may be a different agreement from this agreement and may have separate clauses and conditions. However, if any such payment agreement exists, the user is bound to accept the terms of both this agreement and the payment agreement to avail the services of the portal. This agreement will be considered invalid till the time user agrees and fulfill all their obligations of the payment agreement.

TAXES

The Customer agrees to pay their tax dues as and when they arise. These include any kind of Direct, Indirect, Custom, Duty or any other kind of charge that may be levied by the concerned authorities as per the Indian Taxation Laws.

LIABILITY

The Customer hereby commits that they would not engage in any Criminal, Tortious or Civil wrong conduct while using The Portal. The Customer also acknowledges and undertakes that “The Host” shall not be held responsible for any civil or criminal liability that may arise due to the Customer’s conduct in carrying out their business. This may include but are not limited to Cheating, Fraudulent conduct, Non-payment of dues, etc. Further, the Customer also agrees that in case such liability arises, the Customer would indemnify the Host for the same as per the conditions of Indemnity Clause.

NON-DISCLOSURE REQUIREMENTS

A Customer /User undertakes that they would not, under any circumstances except those prescribed by the law, disclose any of the Confidential information mentioned under the Definitions clause. The Customer /User has a responsibility to keep the contractual details which includes rates and payment details of this contract and other “Confidential Information” that they may have access to, confidential. Any breach of this contract may give rise to damages and other liabilities that include termination of the contract. The obligations under this clause shall survive and the User/Customer shall be bound by the obligations under this clause even after the termination of this Agreement or severance of any other clause hereunder.

DATA PROTECTION

Both the parties acknowledge that they may have access to certain data as defined under the definition clause.

Both the parties undertake that if any data is accessed or is made available to any of their employees, agents or contractors and any other related party, they would not store, copy, imitate, record, analyze, photograph or video graph or use any other technique that may be used to manipulate this data.

They would also strictly comply with all the data protection laws of India as notified by the Government of India. They would also not transfer this data outside the borders of India except when done in ordinary course of business. However, such ordinary course of business would still have to be in consonance with pertaining Data protection laws.

DATA PROTECTION MEASURES

• Both the parties undertake that they will undertake all the measures necessary to protect data from various attacks which include but are not limited to Phishing, Hacking, Cyber attacks etc. This may include using encryption, data protection software, firewalls etc. to protect sensitive Data. A Data breach due to the negligence in following these practices would not hold the Host responsible for the same. The Host would not be liable for any losses incurred, harm caused etc to the Customer /User due to their failure to take adequate measures to protect themselves from Cyber Attacks.
• The Host undertakes that the portal may use certain analytical tools to measure digital footfall, gain market intelligence to improve their portal. Such tools would be used to analyze how a user interacts with the portal.
• The Host ensures that such tools would only collect data “anonymously” and comply with all Data protection measures to ensure safety of such data. The Host also ensures that no Personal Identifiable Information would be stored by such analytics tools. Such collected data may, however, be accessible by employees of the Host. The user entering into this agreement agrees to the usage of such analytical tools and the user data by the Host in the manner prescribed above.

LIABILITY FOR FAILURE TO TAKE DATA PROTECTION MEASURES

Both the parties agree that in case of a Data breach or a Data breach arising out of when any of the parties fail to take adequate protection measures prescribed in Clause 12 would be liable for such breach. The liability may include but may not be limited to various penalties under the relevant laws, damages arising out of such breach and termination of contract.

INDEMNITY CLAUSE

The Customer hereby agrees to indemnify, defend, or save harmless the Host in case of any liability, claim, actions, legal suits, petitions, damages or losses, expenses or liabilities that may arise as a result of any direct or indirect action undertaken by any party due to the actions of the user or the Customer. These actions may include but are not limited to any kind of Civil wrong, Criminal offense, Tax liability, Breach of duty towards vendors, Breach of any party’s intellectual property rights, Fraudulent conduct, Cheating, Failure to return of money after non acceptance of goods, breach of contractual obligations etc. If any such action leads to a liability to the Host then the Customer by entering into this agreement agrees to refund and/or make good any loss that may be incurred by the Host. Indemnity would also include legal fees that would be undertaken by the Host to defend such claims arising against it.

MODIFICATION

There can be a modification to this contract, if both the parties mutually decide in writing to modify any part of this contract. Any party can raise a request for a meeting, discussion or an online discussion or any other method of communicating that is acceptable to both the parties, to modify the contract. It is stipulated that a notice for such a meeting must be given to the other party 30 days prior to the date of said meeting. This time requirement can be relaxed if there is consent of both parties.

TERMINATION

This contract may be terminated at the will of any party without assigning any reason. The Customer however, agrees that in the case of Termination at will, they shall forfeit the right to any registration fees that they may have paid to the Host for accessing the services of the portal. Termination at will shall require a written notice in the form of a letter or electronic mail, 30 days prior to the date of the desired termination. Both the parties undertake that in case of termination they will clear all the legal dues that may have arisen or that may be pending during the working of agreement.

DISPUTE RESOLUTION CLAUSE

In case of any dispute that may arise between the parties during the pendency of this agreement, they may choose to resolve their disputes as per this clause. The Vendor agrees that the first method of Dispute resolution for this contract would be mediation. Failure of the process of mediation would give rights to both the parties to initiate Arbitration proceedings as per The Arbitration and Conciliation Act, 1996.

ARBITRATION PROCEDURE

The Seat and the Venue of Arbitration shall be India. The Arbitration would follow the governing Law and procedures as prescribed in Clause 16.

ELECTRONIC EXECUTION

These Terms and Conditions are being executed electronically and each Party recognize that the same validity is executed under the Information Technology Act, 2000 and shall form a binding agreement between the Parties and no Party shall claim invalidity of these terms and Conditions merely on the grounds that these Terms and Conditions are being executed electronically. For the aforementioned purposes, the Parties hereby agree that these Terms and Conditions are being concluded and executed.