These Terms of Use (“Terms”) describe the terms under which Zivo Internet Private Limited (“Lively” “Us”, “We”, “Our”) provides a subscriber (“You”, “Your”, “Yourself”) access to and use of Our Services.
By accessing and/or using Our Service
a. You agree to be bound by these Terms and acknowledge having read the Privacy Policy located here.
b. You warrant to Us that You are aged 18 years or above and are competent to enter into this agreement.
c. That, in the event You are entering into these Terms on behalf of any entity/company or its group, You possess the requisite authority to bind such entities, company, or its groups to these Terms. You and Lively shall be hereinafter collectively referred to as “Parties” and individually as “Party”. 1. Definitions
a. Account: Any accounts or instances created by You or on Your behalf for access and use of the Services.
b. API: The application programming interfaces developed, enabled by, or licensed to Lively that permit certain functionalities provided by the Services.
c. Customer Data: All electronic data, text, messages, personal data, or other materials, including without limitation Personal Data of Users and End Users, submitted to the Services by You through Your Account in connection with Your use of the Services.
d. Confidential Information: All information disclosed by one Party to the other Party which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include any information which
(a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party;
(b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party;
(c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure;
(d) is obtained by the receiving party from a third-party without a breach of such third-party’s obligations of confidentiality;
(e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or
(f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief. e. Documentation: Any written or electronic documentation, images, video, text, or sounds specifying the functionalities of the Services provided or made available by Lively to You or Your Users through the Services or otherwise. f. End User: Any person or entity other than You or Your Users with whom You interact using the Service(s).
h. Order Form: Any service order form specifying the Services provided, particular features, and functionalities in the Services that You wish to avail.
g. Personal Data: Any information relating to an identified or identifiable natural person that is submitted by You to the Services as part of Customer Data.
h. Process: Any operation or set of operations that is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. i. Sensitive Personal Information: Information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offenses or convictions, as well as any other information deemed sensitive under applicable data protection laws. j. Services: The shoppable video platform of Lively and any new services that Lively may introduce as a Service to which You may subscribe, and any updates, modifications, or improvements thereto, including individually and collectively, the API, Software and any Documentation. k. Software: Any software provided by Lively (either by download or access through the internet) that allows You to use any functionality in connection with the Service(s). l. Subscription Charges: All charges associated with Your Account and use of the Services.m. Subscription Plan: The pricing plan and any limitations for the Services that You have subscribed to. n. Subscription Term: The period during which You have agreed to subscribe to the Services as specified in the relevant Order Form or as mentioned in a relevant Subscription Plan. o. Third-Party Services: Mean third-party application(s) or service(s) integrating with the Services through APIs or otherwise enabled through the Services. p. User: Means a designated user within the Services, including an Account administrator, employee, shareholder, auditor, lawyer, founder, and other designated users. q. Website(s): The websites owned and operated by Lively including lively.li/ 2. Payment of Fee:
a. One-time Setup: The Customer shall pay the setup fees (If applicable) to Lively towards account setup as defined in the Order Form. The setup fees shall be paid on/before the Effective Date (If applicable). The Customer shall be liable to pay applicable taxes on the setup fees as per the applicable law.
b. On-going Charges: The Customer shall pay the ongoing charges as described under the Order Form.
c. Subscription Term: During the Subscription Term, Customer will receive a non-exclusive, non-assignable, royalty free, limited, worldwide right to access and use the SaaS Services solely for their internal business operations subject to the terms of this Agreement.
d. GST & TDS: The compensation payable is exclusive of Goods and Service Tax under applicable laws which may change from time to time.
e. Issuance of Invoice: Lively shall issue an invoice to the Customer at the beginning of each calendar month for the delivery services that have been rendered during the previous month. The Customer shall make the payment within 30 (Thirty) days from the date of receipt of the undisputed invoice.
e. In case of Dispute: In the event of any dispute on the number of orders placed, the Customer and Lively shall reconcile their respective accounts. It is clarified that the fee or any other charges payable towards a disputed invoice shall be payable only after resolution of the dispute.
e. Mode of Payment: The Customer shall pay the applicable Fee only through electronic medium.
g. Payment Gateway: Information relating to electronic transactions entered via the website shall be protected by encryption technology. Lively has partnered with secure payment gateways i.e., Razorpay, Cashfree, CCAvenue, PAYTM, Amazon Pay, Google Pay, PhonePe Etc. The website cannot interfere and does not interfere with the payment gateway mechanism/tools/application. The website has no access to the information that you may enter for making the payment through the payment gateway. The transaction and banking details or other information as required for internet banking or other payment instruments are held by the payment gateway partner. By creating a link to a payment gateway, Lively does not endorse the payment gateway, nor is it liable for any failure of products or services offered by such a payment gateway. Such a payment gateway may have a privacy policy different from that of Lively’s. All failures/errors/omissions of the payment gateway shall be solely on the payment gateway. The Customer hereby consents that it shall not sue Lively for any disputes that it may have with the payment gateway for any wrongdoing of the payment gateway.3. Your rights
Subject to Your compliance with these Terms and solely during the Subscription Term, You have the limited, non-exclusive, revocable right to access and use the Services for your internal business purposes in accordance with the Subscription Plan set forth in an Order Form. 4. Your Obligations
a. Your Account: Your access and use of the Service(s) is restricted to your own website or the mobile app as mentioned in the relevant Order Form executed between Yourself and Lively. b. Acceptable Use
You agree not to (i). license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than Users in furtherance of your internal business purposes as expressly permitted by these Terms;(ii). modify, adapt, or hack the Services or otherwise attempt to gain or gain unauthorized access to the Services or related systems or networks; (iii). use the Services to Process any Personal Data; (iv). violate any law or regulation, including, without limitation, any applicable export control laws, privacy laws, or any other purpose not reasonably intended by Lively; (e). use the Services to store or process any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; or (f). “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (through the use of manual or automated means); c. Services
a. Any enhancements, new features, or updates (“Updates”) to the Services are also subject to these Terms, and Lively reserves the right to deploy Updates at any time.
b. The Services may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case Lively shall use commercially reasonable endeavors to notify You in advance.c. Notwithstanding anything to the contrary contained elsewhere, Lively shall not be liable for unavailability of the Services caused by circumstances beyond Lively’s reasonable control, such as but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Lively’s reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third-parties, including without limitation, distributed denial of service attacks.
5. Intellectual Property Rights
a. Except for the rights granted to You under clause 2, all rights, title, and interest in and to all intellectual property and/or proprietary rights, title, and interest in or related to the Services, including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how shall belong to and remain exclusively with Lively.
b. You own the rights to the Customer Data that You provide to Lively. Lively does not claim ownership over such Customer Data. Lively shall have a right and license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations, or other feedback it receives from You. c. Lively reserves its rights to re-use any and all techniques and know-how gathered by Lively while providing the Services to You.d. All rights not expressly provided to You herein are reserved.
6. Third-party services
You acknowledge and agree that Your use of Third-Party Services will be subject to the terms and conditions and privacy policies of such third-party and that Lively shall not be liable for Your enablement, access, or use of such Third-Party Services, including for the processing of Customer Data by such third-party. You should contact that Third-Party Service provider for any issues arising in connection with the use of such Third-Party Service. 7. Charges and Payments
a. Subscription Charges: Unless otherwise mentioned in an Order Form, the Subscription Charges are due in full and payable Within 15 days of receiving the invoice, in accordance with clause 7.2, when You subscribe to the Services. The Subscription Charges shall be specified on Our Website(s) or in an Order Form. b. Payment: You hereby authorize Lively or Lively’s authorized agents, as applicable, to bill You upon Your subscription to the Services (and any renewal thereof). Unless otherwise stated in an Order Form, Your payment is due within fifteen(15) days of Lively’s invoice date. c. Refunds: Unless otherwise specified in these Terms, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Services by You. d. Late Payments/Non-payment of Subscription Charges: Lively will notify You if Lively does not receive payment towards the Subscription Charges within the due date for Your Account. Lively must receive payments within a maximum of seven 7 days from the date of Lively’s notice. If Lively does not receive a payment within the foregoing time period, in addition to its right to other remedies available under law, Lively may
(i) charge interest for late payment @ 1.5% per month and/or;
(ii) suspend Your access to and use of the Services until Lively receives Your payment towards the Subscription Charges as specified herein and/or;
(iii) terminate Your Account.e. Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, or withholding taxes assessable by any local, state, provincial, or foreign jurisdiction (collectively “Taxes”). 8. Terms, Termination, Suspension
a. The Subscription Term shall be as set forth in the relevant Order Form.
b. Termination by You: You may terminate your Account and subscription to the Services at any time, but will remain liable for all Subscription Charges for the Subscription Term. Unless Your Account and subscription to the Services are terminated, Your subscription to the Services will renew for a Subscription Term equivalent in length to the then-expiring Subscription Term at Lively’s then-prevailing Subscription Charges.
c. Termination and Suspension by Lively: In addition to suspension for late payment or non-payment of Subscription Charges, Lively may at its discretion, suspend or terminate Your access to and use of the Your Account or the Services if You are in violation of the terms of these Terms. Lively will notify You of activities that violate these Terms and provide You with a period of thirty (30) days to cure or cease such activities (“Cure Period”). If You do not cure or cease such activities within the said Cure Period or if Lively believes that Your breach of these Terms cannot be cured, Your Account shall be terminated immediately.
d. Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms with notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies) which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
e. Effect of Terminating Your Account: Following the termination of Your Account either by You or Lively, You may request us to reinstate your Account within thirty (30) days of the effective termination of Your Account (“Data Retention Period”). Beyond the Data Retention Period, Lively reserves the right to delete all the Customer Data in its possession. 9. Confidentialitya. Confidentiality obligations: Each of the Parties will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted under these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse such Confidential Information. The provisions of this sub-section shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms that would purport to address the confidentiality of any Confidential Information and such agreement shall have no further force or effect with respect to the Confidential Information. 10. Data protection and privacy
a. You understand and acknowledge that, in connection with the use of the Services, Lively may Process any Personal Data in accordance with these Terms and Lively’s Privacy Policy. Additionally, any Personal Data that originates from the EEA, United Kingdom, and/or Switzerland shall be processed in accordance with the terms of the DPA.
b. We shall ensure that any person We authorize to Process Customer Data shall protect the Customer Data in accordance with Our confidentiality obligations under these Terms.
c. You acknowledge and agree that We may access or disclose information about You, Your Account, and Users, including Customer Data in order to
(i) comply with the law or respond to lawful requests or legal processes; or
(ii) prevent any infringement of group companies’ or Our customers’ proprietary rights. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.
d. We shall use appropriate technical and organizational measures to protect the Customer Data as specified in applicable laws. The measures used are designed to provide a level of security appropriate to the risk of Processing Customer Data.
e. We shall, without undue delay, notify You of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Customer Data processed by Us. We shall reasonably assist You, at Your expense, in meeting Your obligations under applicable data protection laws. 11. Disclaimer of Warranties
a. THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.
b. YOU ACKNOWLEDGE THAT LIVELY DOES NOT WARRANT THAT THE ACCESS TO THE SERVICE, WHICH IS PROVIDED OVER THE INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND LIVELY’S CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE. 12. Limitation of liabilities
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EXCEPT PAYMENT OBLIGATIONS OF YOU EVEN IF EITHER PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LIVELY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICES, WILL BE LIMITED TO AN AMOUNT EQUAL TO TWO MONTHS OF THE SUBSCRIPTION CHARGES PAID FOR THE SERVICES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. 13. Indemnification
a. Indemnification by You: You will indemnify and hold Lively harmless against any claim brought by a third party against Lively, and its respective employees, officers, directors, and agents arising from Your acts or omissions in connection with clause 3 of these Terms provided that
(i) Lively promptly notifies You of the threat or notice of such a claim,
(ii) You have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and
(iii) Lively fully cooperates with You in connection therewith. You will have no obligation or liability with respect to any such claim arising out of the gross negligence or wilful misconduct of Lively. b. Indemnification by Lively: Subject to the Customer’s compliance with this Agreement, Lively will indemnify and hold the Customer harmless, from and against any claim brought against the Customer by a third-party alleging that the Services subscribed to infringes or misappropriates such third-party’s valid patent, copyright, or trademark (an “IP Claim”). Lively shall, at its expense, defend such IP Claim and pay damages finally awarded against the Customer in connection therewith, including the reasonable fees and expenses of the attorneys, provided that
(i) the Customer promptly notifies Lively of the threat or notice of such IP Claim;
(ii) Lively has or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and
(iii) Customer fully cooperates with Lively in connection therewith. Lively will have no liability or obligation with respect to any IP Claim if such claim is caused by
(i) compliance with designs, data, instructions, or specifications provided by the Customer;
(ii) modification of the Services by anyone other than Lively; or
(iii) the combination, operation or use of the Services with other hardware or software where the Services would not by themselves be infringing. If the use of the Services by the Customer has become, or in Lively’s opinion is likely to become, the subject of any IP Claim, Lively may at its own option and expense
(a) procure for the Customer the right to continue using the Services as set forth hereunder;
(b) replace or modify the Services to make it non-infringing; or
(c) if options (a) or (b) are not commercially and reasonably practicable as determined by Lively, terminate the Customer’s subscription to the Services and repay the Customer, on a pro-rated basis, any Subscription Charges the Customer has previously paid Lively for the corresponding unused portion. This clause states Lively’s sole, exclusive and entire liability to the Customer and constitutes the Customer’s sole remedy with respect to an IP Claim brought by reason of access to or use of the Services. 14. Miscellaneous
a. Assignment: Any rights or obligations hereunder may be assigned by Lively without the prior written consent of the other Party. However, You shall not assign any rights or obligations hereunder without the prior written consent of Lively. These Terms bind, and insure to the benefit of, the Parties and their respective successors and permitted assigns.
b. Entire Agreement: These Terms together with any supplementary terms, constitute the entire agreement, and supersede any and all prior agreements between You and Lively with regard to the subject matter hereof. These Terms shall prevail over the terms or conditions in any purchase order or other order documentation You or any entity that You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. In case of a conflict between these Terms and an Order Form, these Terms shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail.
c. Amendment: We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of any material revisions not less than ten (10) days prior to the effective date of any amendments to these Terms and Your continued use of the Services following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. You can review the most current version of the Terms at any time by visiting this page.
d. Severability; No Waiver: If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Lively’s non-exercise of any right under any provision of these Terms does not constitute a waiver of that right or provision of these Terms.
e. Relationship of the Parties: The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship among the Parties.
f. Survival: All clauses which, by their nature are intended to survive, including without limitation clauses 1 (Definitions), 5 (Intellectual Property Rights), 7 (Charges and Payment), 9 (Confidentiality), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnification), 14 (Miscellaneous) shall survive any termination of Rocketlane’s agreement with respect to use of the Services by You. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms. g. Notices and Consent to Electronic Communications: All notices to be provided by Lively to You under these Terms may be delivered in writing (i) by a nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by You on any Order Form while subscribing to the Services; or (ii) electronic mail to the e-mail address provided for Your Account. Lively’s address for a notice to Lively in writing by Courier is A024, 3rd Floor, Krishvi Gavakshi, Kadubeesanahalli, Bengaluru, Karnataka-560103 India with a CC to himanshu@Lively.io for electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
h. Publicity Rights: You hereby grant Lively the right to identify Yourself as Lively’s customer on Lively’s websites and/or marketing collateral and to include Your use of the Services in case studies.
15. Governing Law and Dispute Resolution: This Agreement shall be governed by the laws of the State of Haryana, India without regard to its conflict of laws provisions, and the civil courts of Gurugram, India have exclusive jurisdiction over any and all disputes that may arise from this Agreement. Any disputes or differences arising under, relating to, or connected with these Terms shall be resolved by mediation first, failing which they shall be resolved by final and binding arbitration administered by the American Indian Association, in accordance with its commercial arbitration rules for the time being in force. The arbitration shall be presided over by a sole arbitrator appointed mutually by the Parties.
