This Merchant User Agreement ("Agreement") is between you, the user, together with any company
or other business entity you are representing, if any (collectively, "Licensee"), and Misiki
Technologies LLP. a company registered under the Companies Act,1956 and having registered
office at C/12, Kuarmunda, Sundergarh, Odisha, India 770039
The terms “we”, “us” or “our” shall refer to Misiki Innovations, The terms “you”, “your” shall
refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall
be deemed to confer any third-party rights or benefits.
This Agreement comes in to effect when you register for using StoreMisiki™ services or signing
an application for utilizing services of StoreMisiki™. By Registering or signing with
StoreMisiki™, you signify your absolute and unconditional consent to all the provisions of
this agreement in their entirety.
This agreement constitutes a legally binding agreement between Licensee and Misiki
Innovations. You are advised to read this Agreement carefully. If you are not agreeable to any
terms and conditions, you should not use this Service and notify the same to Misiki
Notwithstanding anything contained in the foregoing, this Agreement will not bind StoreMisiki™
unless you meet the eligibility criteria for entering into this Agreement as set forth in
Section 1 of this Agreement.
The Following Terms Shall Have The Meanings Defined Below When Used In Capital Letters Herein:
- “Agreement” means the terms and conditions as detailed herein including all schedules,
amended, notated, supplemented, varied or replaced from time to time.
- “StoreMisiki™” or “StoreMisiki™ application” or “Software” means the software Platform
("Software") provided by Misiki Innovations.
- “Services” or “Service” means the merchants services provided by Misiki Innovations,
including hosting of the online store, site design, email services, marketing services,
domain name registration, and other related services as may be offered from time to time.
Software and/or Services provided by StoreMisiki™ on SAAS (software as service) model.
- “Content” means the content present on your online store which includes the data present in
your database as well as the related files.
- “Accounts” refers to the customer accounts that are registered on your store.
- “StoreMisiki™ License” or “StoreMisiki™ Application License” has its meaning described in
Section 2 of this agreement. “StoreMisiki™ site” or “StoreMisiki™ website” refers to the
StoreMisiki™ product website – www.storeMisiki.com
- “Affiliate” means, with respect to each Party, any person or entity directly or indirectly
Controlling, Controlled by, or under direct or indirect common Control with a Party. For the
purpose of this definition, the expression “Control”, “Controlled” or “Controlling” shall
mean, with respect to any person or entity, any circumstance in which such person or entity
is controlled by another person or entity by virtue of the latter person or entity
controlling the composition of the board of directors or owning the largest or controlling
percentage of the voting securities of such person/entity or by virtue of any contractual
arrangements or otherwise.
- “Intellectual Property Rights” means all patents (whether registered or not), trademarks(
whether registered or not), copyrights (whether registered or not), design rights, trade
secrets, marks or any other intellectual property rights in Software licensed, granted or
assigned by Misiki Innovations to, or otherwise vested in, Licensee pursuant to the
1. Eligibility Criteria
The Software license and Services are available only to, and may only be used by individuals
who can form legally binding contracts under applicable law. Without limiting the foregoing,
the Software and Services are not available to children (persons under the age of 18). If
You are registering as a business entity, You represent that You have the eligibility to
enter in to an agreement and the authority to bind the entity to this Agreement. Misiki
Innovations uses many techniques to verify the accuracy of the information you provide when
you register on the StoreMisiki™ Site. If for any reason, Misiki Innovations, in its sole
discretion, believes such information to be incorrect, it reserves the right, to revoke any
and all licenses under this Agreement or to refuse to provide the Software license and
Services under this Agreement to you.
2. StoreMisiki™ (software), trademark ownership and StoreMisiki™ license
- 2.1 The Software provided by Misiki Innovations, and all intellectual property rights
therein, are the exclusive property of Misiki Innovations.
- 2.2 Subject to the terms and conditions of this Agreement, Misiki Innovations grants
to Licensee a non-exclusive, non-transferable, revocable, limited license to remotely access
and use the Software on servers operated by or for Misiki Innovations ("Misiki Innovations
Servers") through the StoreMisiki™ Application solely for the purpose of building and maintaining
an interactive store hosted by the Misiki Innovations Servers on which Licensee offer Licensee's
or a third party's products or services ("Licensee's Store").
- 2.3 The Software and its structure, organization, and source code constitute valuable
trade secrets of Misiki Innovations. Accordingly, except as expressly allowed Licensee will
not, either directly or through a third party, (a) modify, adapt, alter, translate, or create
derivative works from the Software; (b) distribute, sublicense, lease, rent, loan, or otherwise
transfer the Software to any third party.
- 2.4 ADDITIONAL SOFTWARE AND SERVICES: Certain additional features that Misiki Innovations
may make available to Licensee may require access to and/or installation of additional software
(including third party software) that is subject to supplemental or independent terms and conditions
("Additional Software"). Similarly, Misiki Innovations may make available additional services
(including third party services) that are subject to supplemental or independent terms and
conditions ("Additional Services"). Such software and services are subject to additional payments
as required and are subject to Licensee's consent to such terms and conditions associated with
the use of additional software and services.
- 3.1 Upon activation of Licensee's account and subject to the payment of applicable fees,
Misiki Innovations will provide certain hosting, support and other miscellaneous Services for
the Software licensed by Licensee under this Agreement and Licensee's Store during the term
of this Agreement as published on the StoreMisiki™ Site. Licensee's Store shall be hosted on
a Misiki Innovations Server on which several merchants may share the resources and network
capacity of that Misiki Innovations Server.
- 3.2 Store Design And Customization: At Licensee's request, and subject to Misiki Innovations's
acceptance of Licensee's request and Licensee's payment of applicable fees, Misiki Innovations
will provide or instruct one of its “affiliates” to provide, design and customization Services
for Licensee's in accordance with Misiki Innovations's then current customization terms and
- 3.3 Domain Name Registration: At Licensee's request and subject to your agreement to
applicable terms and conditions and the payment of applicable fees, Misiki Innovations's Additional
Services may include acquisition and registration of a second-level domain name ("Domain Name")
for Your Store on Your behalf. You hereby appoint Misiki Innovations and third parties who
provide domain name registration services to Misiki Innovations as Your agent in the acquisition,
registration and ongoing administration of Domain Names on Your behalf and You authorize Misiki
Innovations and third parties who provide domain name registration services to Misiki Innovations
to select and issue binding instructions to domain name registrars and registries used to acquire,
register and administer Domain Names on Your behalf. Misiki Innovations provides this Service
as a convenience to You only and You hereby waive any and all claims that You may have, or
which may later arise, against Misiki Innovations for any and all damages, losses, claims or
expenses arising out of or related to the acquisition, registration and/or use of such Domain
Name. In addition, Misiki Innovations reserves the right, in Misiki Innovations's sole discretion,
to refuse to acquire or register any domain name requested by You, and to discontinue the use
of any domain name requested by you.
- 3.4 Changes In Services: Misiki Innovations reserves the right to change, amend and/or
otherwise alter the Services provided with equivalent or otherwise equal Services without prior
notice to licensee . Licensee agree to receive administrative communications from Misiki Innovations
in regards to the Software, Services, Licensee's account, policy changes and system updates.
4. Licensee's store & content control
- 4.1 Licensee will be solely responsible for the development, operation and maintenance
of Licensee's Store, including the operation of Licensee's Store, accepting, processing and
fulfilling customer orders generated through Licensee's Store, and handling any customer inquiries,
complaints, or disputes arising from orders or sales generated through Licensee's Store. Licensee
agrees that Misiki Innovations has no obligation to back-up any data related to Licensee’s
Store's operations other than product data, order data and Customer Data stored in the StoreMisiki™
system and Licensee should independently take appropriate steps to maintain such data in accordance
with Licensee’s needs and requirements.
- 4.2 Licensee will be solely responsible for creating, managing, editing, reviewing,
deleting and otherwise controlling the content on Licensee's Store, regardless of whether Misiki
Innovations provides any design or customization Services to Licensee under this Agreement,
including all descriptions of the products and services Licensee offer to customers of Licensee's
Store and user-generated content on and related to Licensee's Store. As a conduit, Misiki Innovations
will give Licensee complete discretion over Licensee's content provided it is compatible and
interoperable with the Software and Services provided by Misiki Innovations under this Agreement.
Licensee retain all rights, title and interest in and to all intellectual property rights embodied
in Licensee's content, exclusive of any content provided by Misiki Innovations. Notwithstanding
anything contained in the foregoing, if Licensee breach any of the covenants in Section 5.1
of this Agreement, Misiki Innovations is entitled to suspend or terminate Licensee's Store
and/or any access to information or data related to Licensee's account and the Software in
accordance with Section 12 of this Agreement.
- 4.3Licensee acknowledge that, by only providing Licensee with the ability to
publish and distribute Licensee's own or third party products, services or content, Misiki
Innovations and its Software are acting only as passive conduits for the distribution and/
or publishing of such products, services or content on the Store. Misiki Innovations has
no obligation to Licensee or any third party, and undertakes no responsibility, to review
Licensee's Store, the products or services listed therein or any other content, including
but not limited to user-generated content, published and/or distributed on Licensee's
Store to determine whether any such product, service or content may incur liability to
third parties. Notwithstanding anything to the contrary herein, if Misiki Innovations
believes in its sole discretion (as applicable) that Licensee's Store or any products,
services, content or other materials in the Store or on Misiki Innovations Servers may
create liability, Misiki Innovations may take any actions with respect to the content or
- 4.4 Licensee hereby grant Misiki Innovations and its affiliates an irrevocable, royalty-free,
worldwide license to reproduce, distribute, create derivative works of, transmit, publicly
perform, publicly display and digitally perform Licensee's content solely for the purposes
provided in this Agreement. Licensee further agrees that Misiki Innovations has the exclusive
right, in its sole discretion, to share or distribute the content provided by Licensee and
to either allow or to disallow, any or all web crawlers to index sites or pages or e-stores
hosted with Misiki Innovations. Misiki Innovations shall not be held responsible in the event
Licensee violates any intellectual property rights of the other Parties and Licensee shall
alone responsible for such violations
5.1 COVENANTS BY LICENSEE: Licensee covenant that any products, services, or content
published and distributed on Licensee's Store and Licensee's related activities shall not
violate the Misiki Innovations Acceptable Use Policy that is incorporated herein by reference
and as it may be amended from time to time, nor shall they:
- i) Be false, inaccurate or misleading.
- ii) Be fraudulent or involve the sale of counterfeit or stolen items
- iii) Infringe or misappropriates any third party's copyright, patent, trademark,
trade secret or other proprietary rights or rights of publicity or privacy.
- iv) Violate any law, statute, ordinance or regulation (including, but not limited
to, those governing privacy, publicity, export control, consumer protection, unfair competition,
antidiscrimination or false advertising).
- v) Be defamatory or libelous or unlawfully threatening or harassing, or advocating
or promoting or providing assistance for acts involving violence that may cause significant
risk of death or injury, or other unlawful activities.
- vi) Be obscene or contain pornography.
- vii) Contain any viruses, Trojan horses, worms, time bombs, cancel bots, easter
eggs or other computer programming routines that may damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal information.
- viii) Involve the transmission of any unsolicited commercial or bulk email (known
as "spamming") and Licensee shall not use Licensee's account or Licensee's Store as a return
address for unsolicited commercial mail originating elsewhere or participate in any activities.
- ix) Involve the collection or attempt to collect personally identifiable information
of any person or entity, except with the express consent of that person or entity and of
which consent Licensee shall maintain a record for a period of three (3) years after any
termination of this Agreement.
- x) Be harmful or potentially harmful to the Misiki Innovations Server infrastructure
as determined in Misiki Innovations's sole discretion, including without limitation overloading
the Misiki Innovations technical infrastructure.
- xi) Create liability for Misiki Innovations and its subcontractors or expose them
to undue risk or otherwise engage in activities that Misiki Innovations, in its sole discretion,
determines to be harmful to Misiki Innovations' affiliates, operations, reputation or goodwill.
- xii) Link directly or indirectly to or include descriptions of goods or services
that violate any applicable law, statute, ordinance or regulation, or that violate Misiki
Innovations' Prohibited and Restricted Items clauses that are incorporated herein by reference
and may be amended from time to time.
- 5.2 Licensee shall not, directly or indirectly, offer, attempt to offer, trade or attempt
to trade in any item, the dealing of which is prohibited or restricted in any manner under
the provisions of any applicable law, rule, regulation or guideline for the time being in force
or any item mentioned in Misiki Innovations' Prohibited and Restricted Items list provided
on the website.
conduct with Licensee's Store's customers.
- 5.4 BREACH OF COVENANT: Licensee's failure to comply with the covenants set forth in
Section 5.1 of this Agreement will amount to a breach of this Agreement and is cause for immediate
suspension and/or termination under Section 12 of this Agreement.
6. Fees, taxes & audit rights
7. Disclaimer of warranties
Misiki Innovations, its suppliers and service providers, provide the software, additional
software, and services, on an "as is" basis and expressly disclaim any and all express,
implied or statutory warranties, including the warranties of merchantability, fitness for a
particular purpose, quiet enjoyment, title, non-infringement; and warranties arising from a
course of dealing, usage or trade practice are excluded. Misiki Innovations, its suppliers
and service providers, do not warrant that the software, additional software, or services
will be error-free or uninterrupted and make no representations regarding uptime, use, data
security, accuracy and reliability of their services. Licensee acknowledges and agrees that
this section 7 is reasonable and an essential element of this agreement and that in its
absence, the economic terms of this agreement would be substantially different. StoreMisiki™
does not warrant that the quality of any products, services, information, or other material
purchased or obtained by you through the Service will meet your expectations, or that any
errors in the Service will be corrected.
8. Limitation of liability
- 8.1 In no event shall Misiki Innovations, its suppliers, or service providers, or their
officers, directors, employees, contractors or agents be liable for lost profits or any special,
incidental or consequential damages arising out of or in connection with the software, the
additional software, the services or this agreement (however arising, including negligence).
Misiki Innovations', its suppliers', and service providers', cumulative liability, and the
liability of their officers, directors, employees, contractors and agents to Licensee or any
third parties in any circumstances shall be limited to payment received by Misiki Innovations
for that particular service or month. There is no warranty in respect of the StoreMisiki™,
Software or Services.
- 8.2 Misiki Innovations has made this software /service available to use as a matter
of convenience. User agrees and acknowledges that user shall be solely responsible for their
conduct and that Misiki Innovations reserves the right to terminate Licensee's rights to use
the service immediately, notwithstanding penal provisions under the laws enacted by the government
of India or any other statutory, legislative or regulatory authority authorized in this regard
from time to time.
- 8.3 In no event shall Misiki Innovations shall be liable for any direct, indirect, punitive,
incidental, special or consequential damages or for any damages whatsoever including, without
limitation, damages for loss of use, data or profits, arising out of or in any way connected
with the use or performance of the Misiki Innovations software/services for interrupted communications,
delay, lost data or lost profits arising out of or in connection with this agreement, or otherwise
arising out of the use of the StoreMisiki™ software/services, whether based on contract, tort,
negligence, strict liability or otherwise, even if Misiki Innovations or any of its suppliers
has been advised of the possibility of damages. Misiki Innovations does not endorse in anyway
any advertisers/ contents of advertisers on there web-pages. The clause shall survive the termination
or expiry of this agreement.
- 8.4 The material and information provided by Licensee (“content”) under this agreement
belongs to Licensee who agrees to grant the rights to share, redistribute or otherwise use
the content to Misiki Innovations as described in Section 4 of this agreement. Licensee being
the owner of the content provided shall be responsible for any acts of violation of rights
of another or intellectual property infringement by way of the content provided. Misiki Innovations
makes no representations or warranties of any kind express or implied about the completeness,
accuracy, reliability, of the content provided in the content or the information on products,
services (information) made available Licensee. Misiki Innovations and their business partners
would not be liable for any intellectual property infringement or violation of rights of another
by use of such contents.
Licensee agree to indemnify and hold Misiki Innovations, its suppliers, and service
providers, and their officers, directors, agents, and employees, harmless from any and all
losses, costs, liabilities or expenses and harmless from any claim or demand, including
reasonable attorneys' fees, made by any third party due to or arising out of Licensee's
breach of the User Agreement or the documents it incorporates by reference, or Licensee's
violation of any law or the rights of a third party.
- 10.1 As between Misiki Innovations and Licensee, it is agreed that Licensee shall own
all data disclosed by or collected about (a) an individual or entity that accesses Licensee's
Store to browse or shop ("Customer Data"), and (b) Licensee ("Licensee's Data"). Misiki Innovations
does not share Licensee's Data to third parties for marketing purposes without Licensee's explicit
consent and Misiki Innovations only uses and disclose Licensee's Data as described in the Misiki
from time to time.
- 10.2 Misiki Innovations shall collect, store and process Customer Data and Licensee's
Data on computers located in the any location, in any country, chosen by Misiki Innovations
at its discretion that are protected by physical as well as technological security devices
- 10.3 Licensee shall use, maintain, collect all Customer Data disclosed to Licensee in
trust and confidence and use and disclose such information solely in accordance with the Privacy
Policy of Misiki Innovations.
- 10.4 Licensee understand that your Content (not including credit card information),
may be transferred unencrypted and involve (a) transmissions over various networks; and (b)
changes to conform and adapt to technical requirements of connecting networks or devices.
Without limiting other remedies, Misiki Innovations may limit Licensee's activity, issue a
warning, temporarily suspend, indefinitely suspend or terminate Licensee's account or
Licensee's Store, in whole or in part, and refuse to provide some or all of the Software
functionality or Services to Licensee on failure of payment, breach of this agreement or any
term incorporated by reference or failure to verify or authenticate any information provided
by Licensee or if Misiki Innovations believes that Licensee's actions may cause financial
loss or legal liability for Licensee, Licensee's Store customers, or Misiki Innovations
12. Suspension and termination
- 12.1 Suspension: At the discretion of Misiki Innovations and for any reason set forth
in this section (Section 12) of this Agreement, Misiki Innovations may suspend Licensee's account
by deactivating any access by Licensee or by Licensee's customers to any information contained
on the Misiki Innovations Servers related to Licensee's account while maintaining the information
and data related to Licensee's account upon the Misiki Innovations Servers. Suspension shall
specifically include the disabling of Licensee's Store and/or any access to information or
data related to Licensee's account. In the event of any such suspension Licensee will be notified
and given an opportunity to correct such breach. In the event that such breach is not corrected
within ten (10) days of the receipt of such notice the account may be terminated under Section
12.2 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts
as if they were not suspended. Licensee will remain responsible for the payment of any such
fees during any such period of suspension.
- 12.2 Termination: This Agreement and all of its terms shall remain in full force and
effect until it is terminated in accordance with the terms of this Agreement. This Agreement
may be terminated either by Misiki Innovations (a) as provided in this Agreement, (b) after
a period of suspension as set forth in Section 12.1 of this Agreement, or (c) upon thirty (30)
days written notice. Licensee may terminate this Agreement upon twenty-four hours notice by
telephoning Misiki Innovations' designated customer support center. Licensee's termination
request may be recorded by Misiki Innovations and will require Licensee's user name and password
and verification code. In the event of expiration or termination for any reason, the licenses
granted under Section 2 of this Agreement shall automatically and immediately cease and Licensee
shall destroy all copies of the Software in Licensee's possession, if any. Upon termination,
there will be no refund provided to Licensee except as set forth in the Price Policy and all
outstanding fees owed by Licensee shall become immediately due and payable. Termination shall
not affect the rights of Misiki Innovations to recover from Licensee losses, damages, indemnity,
defense costs, expert costs, collection costs and/or attorney's fees or expert witnesses' cost
or other costs of any kind under this Agreement.
- 13.1 This agreement is governed and construed in accordance with the Laws of Union
of India. Licensee hereby irrevocably consents to the exclusive jurisdiction and venue of courts
in New Rourkela, India, in all disputes arising out of or relating to the use of the Misiki
Innovations's products/sites/services. Use of the StoreMisiki™ software services is unauthorized
in any jurisdiction that does not give effect to all provisions of these terms and conditions,
including without limitation this paragraph. Licensee agree to indemnify and hold Misiki Innovations,
subsidiaries, affiliates, officers and employees, harmless from any claim, demand, or damage,
including reasonable attorneys' fees, asserted by any third party due to or arising out of
Licensee's use of or conduct on the Misiki Innovations's products/sites/services. Licensee
agree that Misiki Innovations has absolute authority to modify or change the terms and conditions
of the agreement without Licensee's consent and the modified terms and conditions can be kept
in StoreMisiki™ website and no separate notice is required to be issued to Licensee.
- 13.2 Licensee shall comply with all applicable domestic and international laws, statutes,
ordinances and regulations regarding Licensee's use of the Software, the Services, and Licensee's
listing and sale of products and services on Licensee's Store.
- 13.3 Licensee and Misiki Innovations are independent contractors, and no agency, partnership,
joint venture, employee-employer or franchiser-franchisee relationship is intended or created
by this Agreement.
- 13.4 Except for the payment of any fees due and payable under this Agreement, neither
party's delay in the performance of any duties or obligations under this Agreement will be
considered a breach of this Agreement if such delay is caused by a labor dispute, shortage
of materials, fire, earthquake, flood, failures in electric power or telecommunications services,
or any other event beyond the control of the party in the breach.
- 13.5 Except as explicitly stated otherwise, any notices Licensee shall be given by
postal mail to Misiki Innovations Private Limited, B4-309, Spaze iTech Park, Sector-49, Sohna
Road, Gurgaon - 122001 or Misiki Innovations may issue the notice to the email address Licensee
provide to us during the registration process (in Licensee's case). Notice shall be deemed
given 24 hours after email is sent, unless the sending party is notified that the email address
is invalid. Alternatively, we may give Licensee notice by certified mail, postage prepaid and
return receipt requested, to the address provided to us during the registration process. In
such case, notice shall be deemed given 3 days after the date of mailing.
- 13.6 If any dispute arises between Licensee and Misiki Innovations during Licensee's
use of the software/services or thereafter, in connection with the validity, interpretation,
implementation or alleged breach of any provision of the User Agreement, the dispute shall
be referred to a sole Arbitrator appointed by Misiki Innovations. The place of arbitration
shall be Rourkela, India. The Arbitration & Conciliation Act, 1996, shall govern the arbitration
proceedings. The arbitration proceedings shall be in the English language. All expenses with
respect to Arbitrator fee and his expenses shall be borne by the Parties equally. All other
expenses of Lawyers fees and other expenses shall be borne by the respective parties.
- 13.7 Licensee acknowledge and agree that nothing herein, express or implied, is intended
to nor shall be construed to confer upon or give to any person, other than the parties, any
interests, rights, remedies or other benefits with respect to or in connection with any agreement
or provision contained herein or contemplated hereby
- 13.8 If any provision of this Agreement is held to be invalid or unenforceable, such
provision shall be struck and the remaining provisions shall be enforced. Misiki Innovations'
failure to act with respect to a breach by Licensee or others does not waive Misiki Innovations'
right to act with respect to subsequent or similar breaches.
- 13.9 Headings are for reference purposes only and in no way define, limit, construe
or describe the scope or extent of such section. When used in this Agreement, the term "including"
means "including without limitation," unless expressly stated to the contrary.
- 13.10 Permission to Use. You may use the StoreMisiki™ for your business requirements
only in accordance with the terms and conditions of this Agreement.
- 13.11 StoreMisiki™ Clients (You).
- 13.12 This Agreement sets forth the entire understanding and agreement between Licensee
and Misiki Innovations with respect to the subject matter here of.