This Agreement (referred to as "Agreement") is the definitive agreement between Shrishti Info Solutions Private Limited, a company incorporated under the Companies Act, 1956 and having its registered office at 'Kochi', Door No 32/2309 B1, Nelliparambil Lane, Palarivattom, Kochi, Ernakulam Kerala, India-682025 ("QikPay"); and the "Agent" subscribing electronically to this service with his/its details captured separately.
(QikPay and the Agent are hereinafter individually called "Party" and collectively, "the Parties") The use of the Website by the Agent shall confirm the Agent's acceptance of this Agreement and signifies that the Agent agrees to be legally bound by the terms and conditions of this Agreement.
1. QikPay is the owner of the Website www.qikpay.in (hereinafter referred to as "the Website"), and engaged in the business of providing ticketing, hotel bookings, travel insurance, car rentals, tours, packages and other travel and hospitality goods and services to travel agents; and
2. The Agent is engaged in the business of providing travel services to its customers including ticketing, hotel bookings, travel insurance, car rentals, tours, packages and other like services and intends to avail the various facilities offered by QikPay through the Website for carrying out its business operations.
NOW, THEREFORE, in consideration of the payments and other covenants, obligations and representations contained herein, the sufficiency whereof is hereby acknowledged, the Parties agree as follows:
In this Agreement, unless otherwise provided or if the subject or context otherwise requires:
(a) Words denoting the singular include the plural and vice versa, and words denoting the whole include a reference to any part thereof.
(b) Clause and Paragraph headings are inserted for ease of reference only and shall not affect the interpretation of this Agreement.
(c) References to this Agreement or any document or agreement include references to such document or agreement as amended, novated, supplemented, varied or replaced from time to time.
(d) The words "including", "include" and "in particular" shall be construed as being by way of illustration only and shall not be construed as limiting the generality of any preceding words.
2. Obligations of the Parties
2.1 Obligations of the Agent:
2.1.1 QikPay grants to the Agent a limited, non-transferable right to use the Website in accordance with the terms and conditions of this Agreement. The Agent shall use the Website to make legitimate reservations or purchases and shall not use the Website for any other purposes, including without limitation, to make any speculative, false or fraudulent reservation or any reservation in anticipation of demand. Agent hereby undertakes to use the Website only for lawful purpose and shall fully indemnify QikPay against any and all losses which QikPay may suffer on account Agent's usage of the Website and/or any services/products of QikPay.
2.1.2 The Agent agrees that the Website and the content provided on the Website, including the text, graphics, button icons, audio and video clips, digital downloads, data compilations and software, may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed without the prior written permission of QikPay, and/or its third party providers and distributors.
The Agent shall be solely responsible for maintaining the confidentiality of its password and account information. The Agent may not authorize any third parties to use the services on its behalf, and shall be responsible for all actual or purported use by the Agent and those allowed by the Agent to use the services. The Agent may not divulge, sublicense, transfer, sell or assign its password and account information under any circumstances. Any attempt to do so shall be null and void and shall be considered a material breach of this Agreement.
The Agent shall be solely responsible for all usage or activity on its account including, but not limited to, use of the account by any person who uses its password and account information, with or without authorization by the Agent. If the Agent has reason to believe that its account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of its password and account information), it must promptly change the affected password and account information and notify QikPay of the problem by e- mailing it. It is however clarified that the Agent shall be fully liable for all use of its account, including any unauthorized use of its account by any third-party. All bookings made by utilizing the Website through the login and password shall be as per the terms and conditions prescribed by QikPay from time to time.
2.1.5 The Agent shall not use the services provided by QikPay through the Website for any purpose that is unlawful or prohibited.
2.1.6 The Agent shall inform QikPay immediately by telephone and additionally confirm in writing any matters coming to the its knowledge which indicate a suspected problem (including incorrect pricing) with or misuse of the QikPay electronic booking system by any person.
2.1.7 The contents of the Website (including information, communications, images and sounds contained on or available through qikpay.in) are provided by QikPay, its affiliates, independent content providers and third parties. The contents of the Website are copyright Ãƒâ€šÂ© QikPay, its affiliates, independent content providers or third parties and cannot be reproduced, modified, transferred, distributed, republished, downloaded, posted or transmitted in any form or by any means including but not limited to electronic, mechanical photocopying or recording without the prior written permission of QikPay.
2.1.8 The Agent acknowledges that QikPay has not reviewed and does not endorse the content of all sites linked to from the Website and is not responsible for the content or actions of any other sites linked to from the Website. The Agent's linking to any service or site shall be at its sole risk.
2.1.9 Agent shall be responsible for dispatch of the tickets, vouchers, etc. (wherever applicable) directly to its customers accompanied with the required delivery challans and all other relevant documents as required under the applicable statutory and governmental regulations. Any improper travel documentation, the issuing agent will be responsible to bear the deputation charges.
2.1.11 Agent and/or its Partner shall have no authority to bind QikPay to any third party commitments of any nature and Agent shall not hold out as an authorized representative of QikPay in any manner whatsoever to any third party.
3. Bookings, Cancellations, Charges, Commission and Refunds.
3.1 All charges, fees, commissions, refunds etc. shall be as per the policy of QikPay which shall be communicated to the Agent from time to time. 3.2 All bookings, cancellation, refunds, charges etc. of the services purchased through the Website shall be governed by the terms and conditions of the airlines/hotels/bus operator/IRCTC/supplier.
3.4 For Agents availing credit from QikPay, non-payment/delayed payment will be considered as a breach of the obligations of the Agent, and shall further attract a late payment interest at the rate of 24% per annum. Provided that, QikPay's receipt of the late interest amount shall not be deemed to be any waiver of the primary breach and QikPay shall have the right to initiate legal action against such Agent.
4. Taxes QikPay shall be entitled to deduct all applicable taxes from all commissions/ incentives payable to the Agent and applicable TDS certificate(s) will be issued in accordance with applicable legal provisions.
5. Representations and Warranties
5.1 QikPay does not warrant nor makes any representations regarding the accuracy or completeness of any data or information contained on the Website. QikPay disclaims any liability, responsibility or any other claim, whatsoever, in respect of any loss, whether direct or consequential, to any person, arising out of or from the use of the information contained in the Website.
5.2 Although QikPay makes every effort to ensure that the description and content on each page of the Website is correct, it does not, however, take responsibility for any changes occurred due to human, data entry errors or for any loss or damages suffered by any person due to any information contained herein. QikPay does not own or operate airlines and other suppliers and cannot therefore control or prevent changes in the published descriptions.
5.3 The Agent represents and warrants that:
5.3.1 it has full power and authority to enter into this Agreement.
5.3.2 it is not aware of any charges, actions, suits, proceedings etc, actual or threatened, which would restrict or prohibit it from performing any of its obligations under this Agreement.
5.3.3 there are no current, pending or threatened actions or proceedings before any court, arbitrator, administrative tribunal or government authority which might materially and adversely affect its business, assets or conditions (financial or otherwise) or operations or the ability to perform obligations under this Agreement.
6.1 The Agent agrees and undertakes to protect, defend, indemnify and hold harmless QikPay, its employees, officers, directors, agents or representatives, affiliates, partner websites and their respective lawful successors and assigns ("Indemnified Persons") from and against any and all liabilities, damages, fines, penalties and costs (including reasonable legal fees and disbursements in connection therewith and interest chargeable thereon) arising from or relating to:
6.1.1 any breach by the Agent, its employees, offices, directors, agents or representatives, of any statute, regulation, direction, orders or standards from any governmental body, agency, or regulator;
6.1.2 any breach by the Agent, its employees, offices, directors, agents or representatives, of the terms and conditions in this Agreement by the Agent or its employees, officers, directors, agents or representatives;
6.1.3 any claim of any infringement of any intellectual property right or any other right of any third party or of law.
6.1.4 any claim made by any third party/user arising out of the use of the services and/or arising in connections with services offered by the Agent under this Agreement.
6.2 The Agent also agrees to indemnify, defend and hold harmless the Indemnified Persons from and against any and all losses, liabilities, claims, damages, costs and expenses asserted against or incurred by the Indemnified Persons that arise out of, result from, or may be payable by virtue of, any breach or non- performance of any representation, warranty, covenant or agreement made or obligation to be performed by the Agent pursuant to this Agreement.
7.1 The Agent acknowledges that QikPay acts only as a website provider and therefore it has no liability whatsoever for any aspect of the arrangements between the Agent and the customer. In no circumstances shall QikPay be liable for any activities/ services provided by the Agent.
7.2 The Website may contain links to other websites ("Linked Sites"). The Linked Sites are not under the control of QikPay and it is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. QikPay is not responsible for any form of transmission, whatsoever, received from any Linked Site. QikPay is providing these links to the Agent only as a convenience, and the inclusion of any link does not imply endorsement by QikPay of the site or any association with its operators or owners including the legal heirs or assigns thereof.
7.3 QikPay does not accept responsibility for any defects that may exist or for any costs, loss of profits, loss of data or consequential losses arising from the Agent's use of, or inability to use or access, or a failure, suspension or withdrawal of all or part of the service at any time. The Agent acknowledges that QikPay has no control over, and QikPay excludes all liability for, any material on the World Wide Web, which can be accessed by using the Website.
7.4 qikpay.in shall not be liable to the Agent or any other party claiming for the Agent by virtue of termination of this Agreement for any reason whatsoever for any claim for loss or profit or on account for any expenditure, investment, leases, capital improvements or any other commitments made by the Agent or any other party in connection with their business made in reliance upon or by virtue of this Agreement.
8. Term and Termination of Contract
8.1 This Agreement shall enter into effect on and from date of the Agent first using the Website shall continue to be in operation unless otherwise terminated by either Party in accordance with the provisions of this Agreement.
8.2 Either Party may terminate this Agreement with immediate effect by giving a notice to the other Party.
8.3 QikPay may also terminate this Agreement and/or discontinue provision of any of the services at any time for any reason, including any improper use of the Website or the Agent's failure to comply with the terms and conditions of this Agreement. Such termination shall not affect any right to relief to which QikPay and its third party providers and distributors may be entitled, at law or in equity. Upon termination of this Agreement and these terms and conditions, all rights granted to the Agent will terminate and revert to QikPay and its third party providers or distributors, as applicable.
8.4 The Agent agrees and understands that in case of breach of clause 3: Term of Payment, QikPay reserves a rights to cancel all the unutilized bookings for the future dates wherein the Agent will fully indemnify and hold harmless QikPay against any claims of its customer in relation to such bookings.
8.5 With immediate effect from the date of termination, the Agent shall cease to use the Website and the services offered by QikPay and shall immediately deliver up to QikPay in accordance with the directions of QikPay all documents and other property (including without limitation financial and statutory records) belonging to QikPay (insofar as such property and information was obtained in pursuance of the performance of services under this Agreement).
9.1 The Agent acknowledges that all documents and any other material containing or referring to confidential information which at any time are or become within or under its control, power or possession are, shall become and shall at all times remain the property of QikPay, to which the confidential information relates.
9.2 The Agent undertakes (both during the term and after the termination date): The Agent agrees that in case of non-payment on due dates QikPay reserves the right to block further issuance and reissuance of tickets till the old payment is made in full.
on request made at any time by QikPay, to deliver all the confidential information (including copies thereof) or delete the confidential information from any re-usable material in accordance with the directions of QikPay;
not to use or disclose any confidential information except as is necessary to perform its obligations under this Agreement or except as required by law or any regulatory body, provided that this clause shall not apply to confidential information which comes into the public domain other than through the default of any member of the Agent;
not to copy or reproduce any confidential information in any form or on any media or device except as is necessary to perform its obligations under this Agreement;
to ensure that the password and account information provided to it by the QikPay for accessing the Website is secured by all means.
10. Intellectual Property Rights
10.1 The contents of the Website (including information, communications, images and sounds contained) are provided by QikPay, its affiliates, independent content providers and third parties. The contents of this site are copyright © of QikPay, its affiliates, independent content providers or third parties and cannot be reproduced, modified, transferred, distributed, republished, downloaded, posted or transmitted in any form or by any means including but not limited to electronic, mechanical photocopying or recording without the prior written permission of QikPay
10.2 QikPay has and shall retain all ownership rights in the Website, including all patent rights, copyrights, trade secrets, trademarks, service marks, related goodwill and confidential and proprietary information. The Agent will have no rights in the Website except as explicitly stated in this Agreement.
11. Governing Law and Jurisdiction: This Agreement shall be governed by, and construed in accordance with the Laws of India. The exclusive forum for all disputes arising from this Agreement shall be the courts at Bangalore, subject to the provisions on Arbitration, below.
12.1 Any and all disputes or controversies arising out of or in connection with the interpretation, performance or non-performance, or termination of this Agreement, shall, to the extent possible, be settled in the first instance by prompt and good faith negotiations between the Parties.
12.2 If the dispute cannot be settled within seven (7) days by mutual discussions, the dispute shall finally be settled by arbitration under the Arbitration and Conciliation Act, 1996 by a sole arbitrator to be appointed by QikPay. The venue of arbitration shall be Bangalore and the arbitration proceedings shall be conducted in English language.
12.3 Each Party shall bear its own costs (including legal costs) for participating in the arbitration proceedings. The arbitrator's fees and expenses and other incidental expenses shall be paid by the Parties as determined by the arbitral tribunal.
13. Assignment The Agent shall not assign or transfer all or any of its rights or obligations under this Agreement without the prior written consent of QikPay.
14. Force Majeure Neither Party to this Agreement shall be liable for failure to perform any of its obligations hereunder during any period in which such performance is delayed by a force majeure event including but not limited to fire, flood, war, riot, embargo, organized labour stoppage, earthquake, hurricane, acts of civil or military authorities, acts of terrorism, acts of god etc. beyond the reasonable control of the Parties, provided that the Party whose performance is affected by the event of Force Majeure gives notice in writing to the other Party of such event and provided further that the Party whose performance is so affected did not act in a reckless manner or did not willfully misconduct itself.
15. Severability The various provisions of the Agreement are severable and if any provision is found by the Parties hereto or is held to be invalid or unenforceable by any court of competent jurisdiction such invalidity or unenforceability shall not affect the validity or enforceability of any of its other provisions unless it goes to the root of the Agreement or radically affects it.
16. Entire Agreement and Amendments This Agreement sets forth the entire agreement and understanding between the Parties as to the subject matter hereof and merges all prior discussions and negotiations between them. No modification to or amendment of this Agreement shall be valid or binding unless made in writing by means of a side-letter and signed on behalf of the Parties by their duly authorised officers or representatives.
17 General Provisions
17.1 Binding Effect; Benefit. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assignees. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto and the QikPay persons, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
17.3 Notices. Any notice or other communication required or which may be given hereunder shall be in writing (including by e-mail) and shall, in the case of physical notices, be delivered by registered post to the parties at the address registered at the time of commencement of this Agreement.. In the case of physical notices, such notices shall be deemed to be received within 48 hours of the dispatch, and in the case of email, on (i) such email being sent, with a 'read receipt' being received, or (ii) on such email being sent, provided that a physical notice is also dispatched (by registered post) within one day of such email being sent.
18. Disclaimer Notice to Public against FRAUDULANT CONSULTANTS/AGENTS.
?The general public is hereby informed and cautioned that certain unscrupulous persons/companies who neither belong to nor have any connection with M/s Shrishti Info Solutions Private Limited(qikpay.in) are misleading the innocent public/prospective agents by giving false promises to lure them to part with money on the pretext of assisting them for assured affiliation with qikpay.in. The public at large is hereby further cautioned that M/s Shrishti Info Solutions Private Limited (qikpay.in) appoints all its agents on its own. It is also made clear that M/s Shrishti Info Solutions Private Limited (qikpay.in) has not given any authority to any third party/company/person to appoint any agent on its behalf. Any person entertaining any such person/consultant/agency in the name of Shrishti Info Solutions Private Limited (qikpay.in) shall be responsible, for his/her own acts and for any loss, cost or expenses occurred to him/her and M/s Shrishti Info Solutions Private Limited (qikpay.in) will not be responsible/ liable in any manner for any such dealings. This notice is being put on the website by M/s Shrishti Info Solutions Private Limited (qikpay.in) to caution the public at large to beware of any fraudulent transaction(s) and to disclaim any liability or responsibility in this regard.