Terms and Conditions - Zenmer
By registering, you agree to these terms and conditions of service agreement (this “Agreement) that forms a legal binding agreement between you (including, if applicable, any legal entity which you represent or act for) (“Client”, or “you”) and Zenmer Technologies Pvt Ltd. (“Zenmer”, “we”, “us”, or “our”, all of which includes our group and Affiliated entities, and together with the Client, the “Parties”, and each sometimes, a “Party”) and sets forth the terms and conditions governing Client’s access to and use of the Zenmer Services (as defined below).
By accepting the Terms & Conditions in the Signup Form, or by using any of the Zenmer Properties (including the webapp, mobile app and any related subdomains at *.zenmer.com), Client agrees to be bound by this Agreement.
If you are entering into this Agreement on behalf of a company, corporation or other legal entity as an Administrator (defined below), you represent that you have the authority to bind such entity and its affiliates to this Agreement. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Subscription Services.
- DEFINITIONS; INTERPRETATION
1.1. Definitions. In addition to capitalized terms being defined elsewhere in this Agreement, the following terms will have the following meanings:
(a) “Affiliate” of an entity is an entity that controls, is controlled by or shares common control with such first entity, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
(c ) “Client Representative” means those employees, agents, advisors, or agents of Client, or any other individual authorized by Client, to access and use the Subscription Services pursuant to Client’s rights under this Agreement, and who have been assigned/supplied unique username-password combinations to access and use the Subscription Services by Client (or by Zenmer on Client’s behalf), and who downloaded, registered and created an Account (defined below) through the Zenmer Mobile App or the Zenmer Web App to access and use the Subscription Services.
(d) “Client Data” means any data and/or information provided by Client Representatives and/or Client during the use of the Subscription Services, including Travel Service Information (defined below). Client Data is Confidential Information of Client.
(e) “Corporate Travel Program” means data that defines the Corporate’s travel program including travel policies, approval workflows, invoice profiles, global billing entities and locations, user information, payment information, etc as provided to Zenmer, or as established and finalized by the Client Representative (or Corporate User) and Zenmer, when Zenmer is providing the Implementation Services. Clients (including TMCs if authorized by the Corporate Users) can update the Corporate Travel Program from time to time during the Term.
(f) “Implementation Services” means the services performed by Zenmer to configure and launch the Subscription Services to Client and Client Representatives.
(g) “Order Form” means the document through which Client orders and purchases Subscription Services under this Agreement. Order Forms are incorporated by reference upon execution (i.e. signature) of both Parties. In the event of any conflict between the terms and conditions of this Agreement and those of any Order Form, the terms and conditions of the Order Form shall control. No pre-printed or boilerplate terms of any purchase order issued by Client to Zenmer shall have any binding effect against Zenmer.
(h) “Zenmer Mobile App” means the mobile application owned and/or licensed by Zenmer through which an Client Representative (as defined below), may access the Subscription Services (as defined below).
(i) “Zenmer Properties” collectively refers to the Zenmer Apps, the Zenmer Software, any other proprietary technology or platform made available through the Subscription Services, and the information and content available on the Zenmer Apps and the Subscription Services.
(j) “Zenmer Services” collectively refers to the Implementation Services and the Subscription Services.
(k) “Zenmer Web App” means the Zenmer website located at www.Zenmer.com, or such other address(es) specified by Zenmer, that are applicable to the Subscription Services.
(l) “Zenmer Apps” collectively refers to the Zenmer Mobile App and the Zenmer Web App.
(m) “Zenmer Software” means any Zenmer or third-party software used by Zenmer to provide the Services.
(n) “Subscription Services” means the online and hosted services provided by Zenmer through the Zenmer Apps which includes, the functionality for Client Representatives to search for and book travel (including through Zenmer employees and agents), submit travel expenses, and access 24/7/365 traveler support; as well as administrative functionality including real-time reporting, traveler tracking, spend reconciliation, corporate customer support and any other service provided by Zenmer.
(o) “Trip” means one full set of travel bookings, including but not limited to tickets and rentals for air transport and other modes of transportation, reservations for hotels and other accommodation, and other ancillary services, in any combination and that are purchased to enable at least one (1) personal or business trip.
1.2. Interpretation. In this Agreement, Section headings do not form part of or affect the interpretation of this Agreement; (b) where the context requires, words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (c ) references to Parties include references to their respective successors in title and permitted assigns; and (d) whenever any provision of this Agreement uses the term “including” (or “includes”), such term shall be deemed to mean “including without limitation” and “including but not limited to” (or “includes without limitations” and “includes but is not limited to”) regardless of whether the words “without limitation” or “but not limited to” actually follow the term “including” (or “includes”).
- REGISTRATION; USER ACCOUNTS
2.1. Corporate Accounts; Corporate Travel Program.
(a) In order to create an Account on behalf of a company or other legal entity, rather than an individual (a “Corporate User”), you must register to create an Account as an administrator or policy holder for the Corporate User (an “Administrator”). When registering on behalf of a Corporate User, you agree to: (a) provide true, accurate, current and complete Registration Data about yourself and the Corporate User, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate the Corporate User’s Account and associated Client Representative Accounts and refuse any and all current or future use of the Subscription Service (or any portion thereof) by Corporate User and related Client Representatives.
(b) A Corporate User’s Account may host and administer one or more Corporate Travel Program that individual Client Representatives can connect with to facilitate transactions on the Subscription Services. The Corporate User acknowledges that individual Client Representatives retain ultimate administrative control over their individual Accounts and their Client Data, except to the extent that the Corporate User has domain control over their individual Accounts.
(c ) You may not allow any third party (other than Client Representatives and other authorized agents of the Corporate User) to access or use the Subscription Services. The Corporate User is responsible for (i) all Client Data including of its Client Representatives, and any and all content posted by any of its Client Representatives and any other activity that occurs under its Account and any of its Client Representative’s Accounts; (ii) maintaining the security of its Account login credentials; and (iii) promptly notifying us upon becoming aware of any unauthorized use of, or access to, the Subscription Services through its Account.
2.2. Individual User Accounts.
(a) In order to access the Subscription Services, you must register to create an account (“Account”) and become an Client Representative. When registering with Zenmer as an individual you agree to: (a) provide true, accurate, current and complete registration information as prompted by the Subscription Services (such information, the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your Account and refuse any and all current or future use of the Subscription Services (or any portion thereof).
(c ) You are responsible for maintaining the confidentiality of your user ID and password and are fully responsible for all activities that occur under your Account or your user ID or password. You agree to immediately notify Zenmer of any unauthorized use of your user ID or password, or any other breach of security. Zenmer cannot and will not be liable for any loss or damage arising from any unauthorized use of your Account.
- TERM; TERMINATION
3.1. Term. This Agreement shall commence on date Client commences using the Subscription Services, and shall continue until such time as the Corporate User cancels the Corporate User Account, unless earlier terminated. Except as otherwise specified in the applicable Order Form, the Initial Term shall automatically renew for additional period(s) (each a “Renewal Term”, and together with the Initial Term, the “Term”) equal to the expiring Initial Term or Renewal Term, as applicable, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the expiring Term.
(a) By Client Representative. If you want to terminate this Agreement or the Subscription Services provided by Zenmer to you, you may do so by notifying Zenmer at any time and by closing your Account for all the Subscription Services that you use, unless your Corporate User has assumed control of your Account, in which case you should consult with your Administrator if you wish to close your Account.
(b) By Zenmer. Zenmer may: (a) terminate this Agreement and providing any or all of the Subscription Services at any time and for any reason and with or without notice to you; and (b) terminate your access to any or all of the Zenmer Properties at any time and for any reason and with or without notice to you.
3.3. Consequences of Termination. Upon termination or expiration of this Agreement or the Services provided hereunder:
(a) Client’s and its Client Representatives’ right to access and use the Subscription Services shall immediately terminate, (ii) Client and its Client Representatives shall immediately cease all use of the Subscription Services, (iii) Zenmer shall cease use of the Client Marks within a reasonable time, and (iv) each party shall delete or return, and make no further use of, any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party;
(b) Unless otherwise specified in the applicable Order Form, Client shall not be entitled to a refund of any prepaid Zenmer Fees as a result of Client’s termination. Notwithstanding anything to the contrary contained herein, in no event shall any termination relieve the Client of its obligation to pay any undisputed Fees payable to Zenmer for the period prior to the effective date of termination or cancellation.
(c ) Upon termination, any provision which, by its nature or express terms should survive, will survive, including, specifically, Sections 8(Ownership), 10(Indemnification), 11(Limitation of Liability), 12 (Confidential Information), 13(Disputes) and 15 (General).
3.4. Suspension of Subscription Services for Cause. In addition to its other rights and remedies as set forth in this Agreement and under law, Zenmer reserves the right, without any liability to Client, to immediately suspend any and all access to the Subscription Services if Client commits a material breach of this Agreement or any relevant Order Form until such material breach is cured. If such material breach is (i) unable to be cured, or (ii) is not cured within seven (7) business days from the suspension, then Zenmer may immediately terminate the Agreement and/or the affected Order Form.
4.1. Implementation Services. To the extent set out in the applicable Order Form, Zenmer will provide any applicable Implementation Services to enable Client to use the Subscription Services, subject to Client’s cooperation and assistance as set out in Section 4.5 of this Agreement.
4.2. Subscription Services. During the Term, Zenmer will provide the Subscription Services in accordance with this
Agreement, and Zenmer hereby grants to the Client a non-exclusive, non-transferable right to use, and to permit Client Representatives to use the Subscription Services during the Term, in accordance with the terms and subject to the conditions of this Agreement, and solely for Client’s internal business operations. Such use is expressly limited to the Client Representatives of Client. Client acknowledges and agrees that any act or omission of its Client Representatives in connection with use of, or access to the, Subscription Services, which act or omission would constitute a breach of this Agreement if undertaken by Customer, shall be considered a material breach by Customer hereunder.
(a) Service Levels. Solely if contracted in an applicable Order Form, Zenmer will provide the Subscription Services in accordance with the service level agreement as set out in such Order Form.
(b) Data Security. Zenmer will use reasonable efforts to establish and maintain safeguards to protect the security and integrity of the Subscription Services and to protect against the accidental or unauthorized access, alteration or disclosure of Client Data.
4.3. Supplier Services; Travel Services.
(a) Through the Subscription Services, Zenmer may provide Client and its Client Representatives with access to services and products (collectively, the “Supplier Services”) from various third-party providers (the “End Suppliers”). Such Supplier Services include travel and related services from providers such as airlines, hotel operators, travel inventory aggregators, car rental agencies (such services, the (“Travel Services”) and the providers of such Travel Services, the “TMC(s)”). While Client will be ultimately responsible for all purchases of Supplier Services from the applicable End Suppliers, in order to facilitate the purchase of Travel Services by an Client Representative from the applicable TMC, Client authorizes Zenmer to submit certain information, including the name and other personal information of the Client Representative and the applicable payment information (collectively, the “Travel Service Information”), to the TMC to the extent required by the TMC and/or the End Supplier. As an example, and by way of illustration only: to facilitate an Client Representative’s booking of an airline ticket reservation, Zenmer may provide the Client Representative’s name, other identifying information, and payment information to the TMC airline.
(b) Zenmer is not responsible for the provision of Supplier Services (including Travel Services) and does not guarantee the correctness of any material, information or results made available to Client by or from End Suppliers (including TMCs), and the presentation of inventory (including without limitation, travel inventory) through the Subscription Services does not constitute a binding contract offer by Zenmer or the respective End Supplier. Client acknowledges and agrees that (i) the purchase of Travel Services may be subject to the terms and conditions, agreements (such as contract of carriage), and privacy and security policies of the specific TMC selected by the Client Representative, and (ii) the use of Travel Services will be subject to Client’s and Client Representatives’ compliance with applicable law. Client and Client Representatives shall be solely responsible for, and assume all risk arising from, the selection, use and receipt of any Travel Service. Client shall be responsible for the accuracy of all Travel Service Information it provides to Zenmer.
(c ) Zenmer shall not be liable for the performance of any Travel Service (including without limitation, any Travel Service), any loss or injury to any Client Representative resulting from a Travel Service (including without limitation, any Travel Service), or any unauthorized use, disclosure, or misuse of any Travel Service Information by a TMC.
(d) Zenmer Travel Addendum, The Zenmer Travel Addendum attached to this Agreement sets out additional terms and conditions governing Travel Services.
4.4. Data Maintenance and Backup Procedures. The Services are not intended to be a failsafe data warehouse or data back-up solution. In the event of any loss or corruption of Client Data, Zenmer shall use its commercially reasonable efforts to restore the lost or corrupted Client Data from the latest backup of such Client Data maintained by Zenmer. Client acknowledges that full restoration of Client Data may not be possible under all circumstances.
4.5. Hosting. Client acknowledges and agrees that Zenmer has entered into arrangements with one or more third parties for the hosting of certain aspects of the Subscription Services (our “Third-Party Hosting Provider”). Client acknowledges and agrees that the Third-Party Hosting Provider’s service levels, use policies and terms of service will apply to Client and that Client is bound by such terms of service and use policies (the “Third-Party Hosting Terms of Service”).
- CLIENT OBLIGATIONS
5.1. General Restrictions. Client agrees that it will not: (a) rent, lease, copy or resell any element of the Subscription Services or the Implementation Services (collectively, the “Services”) to a third party; (b) use any element of the Services to provide, or incorporate any element of the Services into any product or service provided to, a third party; (c ) use the Services for activities where use or failure of the Services could lead to physical damage, death or personal injury; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to any element of the Subscription Services or Zenmer Properties, except to the extent expressly permitted by applicable law (and then only upon advance notice to Zenmer); (e) modify any element of the Subscription Services or any documentation provided by Zenmer in connection with the Subscription Services, or create any derivative works for the foregoing; (f) remove or obscure any proprietary or other notices contained in the Zenmer Properties; or (g) publicly disseminate information regarding the performance of the Subscription Services without the prior approval of Zenmer.
5.2. Acceptable Use. Client shall not use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Client Data, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c ) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Zenmer under this Agreement, Zenmer reserves the right, but has no obligation, to take remedial action if any material violates the restrictions in the foregoing sentence (the “Acceptable Use Policy”), including the removal or disablement of access to such material. Zenmer shall have no liability to Client in the event that Zenmer takes such action. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Client Data. Client agrees to defend and indemnify Zenmer against any claim arising out of a violation of Client’s obligations under this Section 5.2.
Client shall be responsible for the compliance of its Client Representatives with its Corporate Travel Program, including to in-policy selection of travel options by its Client Representatives or Client Users, proper use of Corporate User’ corporate credit card by its Client Representatives, and proper submission and substantiation of travel expenses by its Client Representatives for reimbursement by such Client. Client acknowledges that the Services are not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance or where failure could lead to death, personal injury or environmental damage, and Client shall not use the Subscription Services for such purposes or under such circumstances. Zenmer will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Zenmer may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement, including the Acceptable Use Policy. You acknowledge that Zenmer has no obligation to monitor your access to or use of the Services, or to review or edit any Client Data, but it has the right to do so for the purpose of operating the Subscription Services, to ensure your compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
5.3. Illegal Use of Services. Zenmer may immediately suspend or terminate Client’s access to the Services, by written notice to Client, in the event that (i) Zenmer determines on the basis of reasonable evidence that the Services are being used by the Client or any applicable Client Representative for fraudulent or criminal activities, or in violation of any applicable law or regulation, or (ii) in the event that a governmental, legal or other law enforcement authority so requires, or instructs Zenmer to terminate or suspend services to Client. In the event Zenmer suspects or anticipates such termination, Zenmer will, to the extent practical under the circumstances, use commercially reasonable efforts to provide Client with prior written notice of the same and an opportunity to cure the same prior to (and in avoidance of) suspension or termination. Client acknowledges that under certain circumstances such prior notice and/or cure period may not be possible or practical.
5.4. Cooperation and Assistance. Client shall at all times: (a) provide Zenmer with good faith cooperation and access to such information and if applicable, personnel assistance as may be reasonably required by Zenmer in order to provide the Subscription Services; and (b) carry out in a timely manner all other Client responsibilities set forth in this Agreement.
5.5. Marketing Support. Client grants to Zenmer a non-exclusive, revocable, limited right to use the Client name, trademarks, and logos (collectively, the “Client Marks”) in accordance with any Client trademark and logo use guidelines that Client provides in writing to Zenmer. Any public use by Zenmer of the Client Marks shall be subject to Client’s prior consent, except that Zenmer may use the Client Marks to identify Client as a customer of Zenmer, including on the Zenmer website(s). All goodwill developed from such use shall be solely for the benefit of the Client.
5.6. Client Representatives. Client/Corporate User is responsible for identifying and authenticating all its Client Representatives, for approving access by such Client Representatives to the Subscription Services, for controlling against unauthorized access by such Client Representatives, for maintaining the confidentiality of usernames, passwords and account information, and for ensuring that such Client Representatives comply with this Agreement. Client/Corporate User is responsible for the confidentiality and timely and proper termination of all of its Client Representatives’ records in Client/Corporate User’s local (intranet) identity infrastructure or on Client/Corporate User’ local computers. Zenmer is not responsible for any harm caused by Client Representatives, including individuals who were not authorized to have access to the Subscription Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in the applicable Client/Corporate User’s local identity management infrastructure or Client/Corporate User’s local computers. Client is responsible for all activities that occur under Client’s and Client Representative’s usernames, passwords or accounts or as a result of Client’s or Client Representatives’ access to the Subscription Services, and agree to notify Zenmer immediately of any unauthorized use. Client/Corporate User agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
5.7. Telecommunications and Internet Services. Client acknowledges and agrees that Client’s and its Client Representatives’ use of the Subscription Services is dependent upon access to telecommunications and Internet services. Client shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Zenmer shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
5.8. License to Client Data. Client Data includes data derived from Client Data, but does not include non-identifiable data or metadata associated solely with the behaviors or actions of Client and Client Representatives with the Subscription Services, including any Aggregated Data. Client shall retain all right, title, and interest in and to Client’s intellectual property rights in Client Data. By accessing or using any part of the Subscription Services, Client grants to Zenmer the right and license to modify, distribute, reproduce and adapt, Client’s Data solely for the purpose of providing the Subscription Services to Client, including the right to disclose Client Data to Zenmer’ subcontractors as necessary to provide the Subscription Services to Client as well as to End Suppliers when necessary to facilitate the purchase or provision of Supplier Services by an Client Representative. Zenmer may use, display, store, disclose or transfer Client Data as may be required by law or legal process and Zenmer shall provide reasonable notice to Client of any such disclosure. Notwithstanding anything to the contrary contained herein, Client hereby grants to Zenmer a worldwide, royalty-free, non-exclusive license to use (i) data generated as a result of Client’s use of the Subscription Services solely for purposes of (1) maintaining and improving the Subscription Services and (2) providing Client with access to and information about customized features, new functionality, partner integrations, special product offers and promotions, and (ii) Aggregated Data compiled by Zenmer solely for marketing purposes, research purposes, or data analysis. Notwithstanding the foregoing, if you connect with a Corporate Travel Program of a Corporate User, that Corporate User also has right and title to your Client Data necessary for their internal bookkeeping purposes, subject to the license to Zenmer set forth above.
5.9. Representations and Warranties with Respect to Client Data. With respect to any Client Data that Client imports, stores, or processes through the Subscription Services, Client represents, and warrants that:
(a) It is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use and to authorize Zenmer (and, where applicable, Client Representatives) to use and distribute Client Data as necessary to exercise the licenses granted by Client in this Agreement.
(b) Client Data, and the use thereof as contemplated herein, does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
6.1. Zenmer Fees. Client shall pay the Zenmer Fees as set forth in the applicable Order Form and in accordance with the terms and conditions set out therein. “Zenmer Fees” means any fees paid by Client for the Implementation Services and the Subscription Services (including the Subscription Services accessed and used by its Client Representatives), including any Implementation Fees, Trip Fees, Integration Fees, Custom Development Fees and Member Fees, as defined and set forth in the applicable Order Form. For the abundance of caution it is hereby clarified that the Zenmer Fees do not include any TMC Fees or End Supplier Fees to be paid or payable by Client in connection with the purchase by Client of Travel Services. The Zenmer Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Client shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any Zenmer Fees, other than any taxes based on Zenmer’ net income.
6.2. TMC Fees. Fees payable to any TMC for the purchase of Travel Services by Client Representatives (the “TMC Fees”, and together with the Zenmer Fees, sometimes, the “Fees”), will be paid by Client to the applicable TMC. With respect to any Taxes charged on or applicable to the purchase or sale of Travel Services, Zenmer shall reflect such Taxes in invoices related to such TMC Fees and/or in the reporting available to Client, and Client shall be responsible for the payment of all such Taxes.
6.3. Invoice and Payment
(a) Travel Fees. Trip Fees due to Zenmer if any (as may set out in the applicable Order Form) as well as TMC Fees due to any TMC (collectively, the “Travel Fees”) shall be paid at the time Travel Services are booked and shall be paid by the Client’s credit card, unless otherwise agreed to by Zenmer. For the abundance of caution it is hereby clarified that Travel Fees will be payable by Client/Client Representative on all Trips booked by a Client/Client Representative, whether the booking has been done on Zenmer’s online platform or through the services of employees or agents of Zenmer. Client hereby authorizes Travel Agent to charge all such amounts to the card(s) provided by the Client or as provided in the profiles of the Client and/or the Client Representatives. Client is responsible for maintaining complete and accurate billing and contact information and notifying Zenmer of any changes to such information. All other charges (including any Trip Fees or TMC Fees that are not paid by Client’s credit card) will be invoiced by Zenmer to Client and are payable in the next 30 days. Unless otherwise agreed to by Zenmer, invoices will be sent by email only, to the Accounts Payable email address provided in the Order Form.
(b) Payment by Bank Wire Transfer. If the Client is given the opportunity to select a Bank Wire Transfer as its authorized payment method. Client understands that there may be a service charge for any funds transfer request and it’s the responsibility of the Client to bear this charge.
(c ) Notwithstanding anything to the contrary contained in this Agreement, Client shall be solely responsible for, and pay, all charges billed to Zenmer relating to the provision of Travel Services to Client or its Client Representatives, including, without limitation, amounts not paid by credit card at the time Travel Services are booked, amounts for dishonored charges, cancellation and “no show” fees, and “debit memos” issued by a TMC.
(d) If Zenmer is unable to charge the Fees to the payment information on file or if the Fees are otherwise overdue, Zenmer shall have the right to (i) apply interest on past due amounts at the rate of one and one half percent (1.8%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Zenmer, and (ii) suspend Client’s and all Client Representatives’ access to the Subscription Services if Fees remain overdue after reasonable notice is provided to Client. Zenmer shall not pursue its rights in the foregoing sentence with respect to Fees that are under a reasonable good faith dispute which Client is cooperating diligently to resolve. If undisputed Fees remain overdue for ninety (90) days or more, Client shall be obligated to reimburse Zenmer for the reasonable costs of collection, including reasonable fees and expenses of attorneys. All Zenmer Fees are non-refundable.
The Subscription Services, the Zenmer Properties, including the Zenmer Apps and Zenmer Software (and all copies of the Zenmer Software), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Zenmer (except for any licensed content and software components included therein). The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Subscription Services, the Zenmer Apps and Zenmer Software provided by Zenmer (the “Materials”) are protected by all relevant intellectual property and proprietary rights and applicable laws. Except for the Client Data, all Materials are the property of Zenmer or its third-party licensors. Except as expressly authorized by Zenmer, Client may not make use of the Materials. Zenmer reserves all rights to the Materials not expressly granted in this Agreement. As used in this Agreement, the term “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
- WARRANTY AND DISCLAIMER
8.1. Warranty. Zenmer warrants that:
(a) In connection with the performance of the Zenmer Services, and without limiting any other representations or warranties given hereunder or under applicable law, Zenmer shall employ a standard of care, skill, and diligence consistent with the prevailing professional standards practiced in the industry; and
(b) In performance of the Subscription Services hereunder Zenmer will (i) comply with all laws, ordinances, rules and regulations, whether federal, state or local applicable to a provider of services similar to the Subscription Services; (ii) procure and maintain, at its own expense, all necessary permits and licenses; and (iii) comply, and cause its employees and agents to comply, with all reasonable policies and procedures promulgated by Client as to Client premises.
8.2. Client Use and Data. Zenmer shall have no liability for any claims, losses, or damage caused by errors or omissions in any information, including Client Data, provided to Zenmer by Client or by any Client Representative in connection with the Subscription Services. Except as otherwise set forth herein, Zenmer expressly disclaims any and all liability in connection with Client Data. Zenmer is under no obligation to edit or control Client Data that Client imports to or through the Subscription Services. Zenmer may, at any time without prior notice, remove any Client Data that violates this Agreement or applicable law, or which violates the rights of a third party, or Zenmer. Zenmer shall have no liability for any acts taken by Client or an Client Representative in violation of the Acceptable Use Policies described in Section 5.2, including but not limited to an Client Representative’s misuse of Client’s corporate credit card or violation of Client’s travel and expense policies.
8.3. General Disclaimer. Except as expressly provided in Section 8.1, Zenmer makes no representations or warranties of any kind whatsoever, express or implied, in connection with this Agreement or the Zenmer Services. Without limiting the foregoing, except as expressly provided in Section 8.1, Zenmer disclaims any warranty that the Zenmer Services will be error free or uninterrupted or that all errors will be corrected. Zenmer further disclaims any and all warranties with respect to the Zenmer Services as to merchantability, accuracy of any information provided, or fitness for a particular purpose, or non-infringement. Zenmer further disclaims any and all warranties arising from the course of dealing or usage of trade. No advice or information, including but not limited to tax advice and reporting responsibilities, whether oral or written, obtained from Zenmer or elsewhere shall create any warranty not expressly stated in this Agreement. In jurisdictions that by law do not allow the exclusion of certain warranties in certain circumstances, the disclaimers in this Section 8.3 and elsewhere in this Agreement shall be construed to comply with such applicable law.
- DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE.
9.1. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the Subscription Services, please notify Zenmer’s copyright agent, as set forth in the The Copyright Act, 1957. For your complaint to be valid under the The Copyright Act, 1957, you must provide the following information in writing: (a) an electronic or physical signature of a person authorized to act on behalf of the copyright owner; (b) identification of the copyrighted work that you claim is being infringed; (c ) identification of the material that is claimed to be infringing and where it is located on the Subscription Services; (d) information reasonably sufficient to permit Zenmer to contact you, such as your address, telephone number, and email address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and (f) a statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
9.2. Zenmer’s Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Attention: Copyright Agent
Zenmer Technologies Pvt Ltd
Raj nagar, Nagpur, MH 440013
For clarity, only The Copyright Act, 1957 notices should go to the Zenmer Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Zenmer via email to firstname.lastname@example.org.
10.1. Indemnification by Zenmer. Zenmer agrees to indemnify and hold harmless Corporate User, its directors, officers, employees, agents, and affiliates against any claims, damages, losses, liabilities, settlements and expenses (including without limitation reasonable costs and attorneys’ fees) (collectively, “Losses”) in connection with any third party claim or action that arises from an alleged infringement or misappropriation by the Subscription Services of any Indian patent or any copyright or misappropriation of any trade secret. The obligations in this Section 10.1 do not apply with respect to portions or components of the Subscription Service to the extent: (i) not supplied by Zenmer; (ii) that are modified after delivery by Zenmer where the alleged infringement relates to such modification; or (iii) combined with other products, processes or materials where the alleged infringement relates to such combination; or (iv) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Client’s use of the Subscription Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Subscription Services are held by a court of competent jurisdiction to be or are believed by Zenmer to be infringing, Zenmer may, at its option and expense: (a) replace or modify the Subscription Service to be non-infringing, or (b) obtain for Client a license to continue using the Subscription Service, or (c ) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any unused Zenmer Fees for the Service. Zenmer’ obligations under this Section 10.1 are contingent upon: (a) Client providing Zenmer with prompt written notice of such claim; (b) Client providing reasonable cooperation to Zenmer, at Zenmer’ expense, in the defense and settlement of such claim; and (c ) Zenmer having sole authority to defend or settle such claim.
10.2. Indemnification by Client. Client agrees to indemnify and hold harmless Zenmer, its officers, directors, officers, employees, agents and Affiliates from and against any Losses, arising out of or in any way connected with Client’s, and in the instance of a Corporate User, any of its’ Client Representatives’ access to or use of, the Subscription Services, or Client’s and in the instance of a Corporate User, any of its Client Representatives’ violation of this Agreement, including without limitation any breach of any representations or warranties herein, any infringement of Zenmer’s Intellectual Property Rights, and any claim by a third party that the Client Data infringes such third party’s intellectual property rights.
- LIMITATION OF LIABILITY
11.1. Acknowledgment. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES AND THE Zenmer APPS’ CONTENT REMAINS WITH YOU.
11.2. Exclusion of Certain Damages. EXCEPT AS PROVIDED IN SECTION 11.4 BELOW, IN NO EVENT WILL EITHER Zenmer OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE Zenmer SERVICES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES THAT MAY CONSIST OF LOST PROFITS OR LOST BUSINESS OPPORTUNITY OR LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SUBSCRIPTION SERVICE), OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE USE OR INABILITY TO USE THE Zenmer SERVICES, THE Zenmer APPS’ CONTENT OR THE TRAVEL SERVICES), REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE.
11.3. Liability Cap. EXCEPT AS PROVIDED IN SECTION 11.4 BELOW, IN NO EVENT SHALL Zenmer’S AGGREGATE LIABILITY TO THE CLIENT IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL Zenmer FEES PAID BY CLIENT IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. THE LIMITATIONS OF DAMAGES SET FORTH IN SECTIONS 11.2 AND 11.3 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Zenmer AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE EXCLUSION OF DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 SHALL (A) APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE, OR ANY OTHER LEGAL THEORY, AND (B) BE INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY WARRANTY OR LIMITED REMEDY STATED HEREIN.
11.4. Certain Exclusions. THE DAMAGES EXCLUSIONS AND CAP IN SECTION 11.2 AND SECTION 11.3 ABOVE SHALL NOT APPLY SOLELY TO THE INDEMNIFICATION OBLIGATIONS OF Zenmer AS SET OUT IN SECTION 10.1.
- CONFIDENTIAL INFORMATION. “Confidential Information” means any technical and business information disclosed by a Party to the other Party (the “Receiving Party”) in discussions and activities related to this Agreement, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Client’s Confidential Information includes the Client Data. Zenmer’s Confidential Information includes the Zenmer Properties, the Subscription Services and Aggregated Data, the terms and conditions of and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Zenmer. Any performance information relating to the Services, and the terms and conditions of this Agreement will be deemed Confidential Information of Zenmer. During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither Party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Neither Party shall disclose Confidential Information except to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information. The Receiving Party’s obligations under this Section will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
PLEASE READ THIS SECTION CAREFULLY: IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND Zenmer CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND Zenmer TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
13.1. Informal Resolution. Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other party through reasonable means and providing notice of the dispute. Both Parties will use good faith efforts to attempt to reach a resolution. If a dispute is not resolved within thirty (30) days of notice, either party may bring a formal proceeding.
13.2. Agreement to Arbitrate. Zenmer and Client agree that any dispute, claim or controversy arising out of or relating to this Agreement, the Zenmer Properties, or Client’s use of the Subscription Services including the determination of the scope or applicability of this agreement to arbitration (collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. THIS MEANS THAT YOU AND Zenmer BOTH AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY. Any Dispute shall be resolved exclusively by binding arbitration pursuant to the Arbitration and Conciliation Act 1996, but the parties do not necessarily intend for the ACA to administer the arbitration. The arbitration will take place in Nagpur, Maharashtra, or any other location mutually agreeable to the Parties, and the internal laws of the State of Maharashtra (other than conflicts of laws rules) and of India shall apply. Part or all of the arbitration may be conducted by telephone or based on written submissions, and will not require the personal appearance of the parties or any witnesses unless otherwise agreed by the parties. The allocation of costs and fees for such arbitration shall be determined in accordance with the ACA Rules. If such costs are finally determined to be excessive in a consumer dispute, Zenmer will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitration shall be conducted by a single, neutral arbitrator engaged in the practice of law who is mutually agreed upon by the Parties or failing such agreement within 14 days from the delivery of the original arbitration demand, each Party shall select one arbitrator and the two selected arbitrators shall mutually agree upon the selection of a third arbitrator within 30 days from the delivery of the original arbitration demand. The arbitrator’s decision and award shall be final and binding and may be entered in any court with jurisdiction. Nothing in this User Agreement will prevent a party from seeking injunctive or other equitable relief with respect to the infringement, misappropriation or other violation of such party’s intellectual property or other proprietary rights in any court of competent jurisdiction. In the event the foregoing agreement to arbitrate is deemed unlawful, void, or for any reason unenforceable with respect to any claim, dispute or controversy, then you agree that any such claim, dispute or controversy shall be filed and adjudicated only in the state and relevant courts located in Nagpur, Maharashtra and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this User Agreement.
13.3. Exceptions. Either party may bring a lawsuit in the state or relevant courts located in Nagpur, Maharashtra (i) to enforce the arbitration provisions of this Agreement, or (ii) for equitable relief. Zenmer and Client hereby consent to exclusive jurisdiction in such courts.
13.4. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CLIENT OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANOTHER CLIENT OR USER.
15.1. Modification. Zenmer reserves the right, at its sole discretion, to enhance, modify, discontinue or terminate all or any portion of the Subscription Services or to modify this Agreement, at any time and without prior notice. If we modify this Agreement, we will post the modification on the Zenmer Site or provide you with notice of the modification sent via email to the Client Representative. If you do not agree to any change(s) after such notice of such change(s) is provided or posted, you shall stop using the Subscription Services and the Zenmer Properties. Otherwise, your continued use of the Subscription Services or any Zenmer Property, constitutes your acceptance of such change(s).
15.2. Accessing and Downloading the Zenmer Mobile App from Mobile App Provider. You acknowledge and agree that the availability of the Zenmer Mobile App and certain Subscription Services is dependent on the third party application store or distribution platform through whom you accessed or downloaded the Zenmer Mobile App (each a “Mobile App Provider”). You acknowledge and agree that:
(a) This Agreement is concluded between you and Zenmer only, and not the Mobile App Provider. Zenmer, not the Mobile App Provider, is solely responsible for the Zenmer Mobile App and content thereof.
(b) The Mobile App Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Zenmer Mobile App.
(c ) In the event of any failure of the Zenmer Mobile App to conform to any applicable warranty, you may notify the Mobile App Provider, and the Mobile App Provider will refund the purchase price for the Zenmer Mobile App to you and to the maximum extent permitted by applicable law, the Mobile App Provider will have no other warranty obligation whatsoever with respect to the Zenmer Mobile App. As between Zenmer and the Mobile App Provider, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Zenmer.
(d) As between Zenmer and the Mobile App Provider, the Mobile App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Zenmer Mobile App or your possession and use of the Zenmer Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the Zenmer Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) In the event of any third party claim that the Zenmer Mobile App or your possession and use of that Zenmer Mobile App infringes that third party’s intellectual property rights, as between Zenmer and the Mobile App Provider, Zenmer, not the Mobile App Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(f) The Mobile App Provider, and the Mobile App Provider’s subsidiaries, are third party beneficiaries of this Agreement as related to your license of the Zenmer Mobile App, and that, upon your acceptance of the terms and conditions of this Agreement, the Mobile App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Zenmer Mobile App against you as a third party beneficiary thereof.
(g) Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the Zenmer Mobile App.
15.3. Assignment. The Client may not assign or transfer this Agreement, by operation or law or otherwise, without Zenmer’s prior written consent. Any attempt by the Client to assign or transfer this Agreement without such consent, will be null and void. Zenmer may assign or transfer this Agreement, at its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
15.4. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
15.5. Governing Law; Jurisdiction and Venue. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Maharashtra, without regard to its conflict of law provisions, and without regard to the United Nations Convention on the International Sale of Goods or any relevant body or organization.
15.6. Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to Client may also be sent to the applicable account email address, and are deemed given when sent. Notices to Zenmer must be sent to:
Zenmer Technologies Pvt. Ltd.,
Raj nagar, Nagpur,
Maharashtra, India - 440013
15.7. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each Party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement.
15.8. Entire Agreement. This Agreement (including all exhibits, addendums and Zenmer policies referred to in this Agreement and any Order Forms) constitutes the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
15.9. Force Majeure. Zenmer shall not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder, including any or all of the Subscription Services, during any period in which such performance is prevented or delayed due to Force Majeure. “Force Majeure” refers to any event beyond Zenmer’s reasonable control, including but not limited to acts of God, severe weather, fire, flood, mudslides, hurricanes, tornadoes, earthquakes, war, labor disputes, strikes, political unrest, natural or nuclear disaster, national security risks, pandemics, epidemics, World Health Organization’s advisories and/or alerts, Center for Disease Control’s advisories and/or alerts, Government of India’s advisories and/or alerts, any order of any local, provincial or Indian government authority, interruption of power services, terrorism or any other causes beyond the control of Zenmer or deemed by Zenmer to constitute a danger to the safety and well-being of Client Representatives.
15.10. Communications with Zenmer
(a) You confirm that any contact information provided to Zenmer, including your email address, mobile phone number and mailing address (if required) is true and accurate. By providing us with your email address, you agree to receive notices electronically, to that email address. Zenmer will use this email address to send you operational communications concerning your Account, updates concerning new and existing features on the Subscription Services, notifications about product updates and improvements, company news and events, and updates from our community. You further verify that you are the telephone subscriber and/or that you own any telephone numbers that you provide to Zenmer. You acknowledge that by voluntarily providing your telephone numbers to Zenmer, you expressly agree to be contacted at the telephone numbers you provide. You consent to receive emails, pre-recorded voice messages and/or autodialed calls (including text messages) by or on behalf of Zenmer relating to this Agreement, any transaction with Zenmer, matters related to your Account, and promotions from Zenmer. These communications may be made by or on behalf of Zenmer, even if your phone number is registered on any state or federal Do Not Call list. You acknowledge that you may incur a charge for these texts or calls by your telephone carrier and that Zenmer will not be responsible for these charges.
(b) Recording of Telephone Calls. You understand and agree that Zenmer may, in its sole discretion, itself or using a third-party service, monitor any telephone calls between you and its employees, contractors or agents for purposes of quality control and for Zenmer’s own protection. If you do not consent to the recording of telephone calls by Zenmer, your only remedy is not to engage with Zenmer by means of a telephone call.
(c ) Feedback. If Client or its Client Representatives submit suggestions, ideas, comments, or questions containing product feedback about or posted through the Subscription Services(“Feedback”), Client and such Client Representative grants Zenmer and its Affiliates a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display such Feedback in any form. Client shall have no intellectual property right in the Subscription Services as a result of Zenmer’ incorporation of Feedback into the Subscription Services.
15.11. Subcontractors. Zenmer may use the services of subcontractors for performance of services under this Agreement, provided that Zenmer remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Service as required under this Agreement.
15.12. Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
15.13. No Third-Party Beneficiaries. Except as otherwise expressly provided herein, there are no third-party beneficiaries to this Agreement.
15.14. Consent to do Business Electronically. The Parties agree that any Order Form may be electronically signed. The Parties agree that the electronic signatures appearing on any Order Form are the same as handwritten signatures for the purposes of validity, enforceability and admissibility. The Parties agree that they will not, at any time in the future, repudiate the meaning of their electronic signature or claim that their electronic signature is not legally binding.
15.15. Export Control. You may not use, export, import, or transfer Zenmer Properties except as authorized by the laws of India, the laws of the jurisdiction in which you obtained Zenmer Properties, and any other applicable laws. In particular, but without limitation, Zenmer Properties may not be exported or re-exported (a) into any India embargoed countries, or (b) to anyone in the Ministry of Commerce Denied Persons List or Entity List. By using Zenmer Properties, you represent and warrant that (i) you are not located in a country that is subject to a Indian Government embargo, or that has been designated by the Indian Government as a “terrorist supporting” country and (ii) you are not listed on any Indian Government list of prohibited or restricted parties. You also will not use Zenmer Properties for any purpose prohibited by the laws of India, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Zenmer are subject to the export control laws and regulations of India. You shall comply with these laws and regulations and shall not, without prior Indian government authorization, export, re-export, or transfer Zenmer products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15.16. Consumer Complaints. You may report complaints to the Department of Consumer Affairs at Exchange Building, Ground Floor, Sir S.R. Marg, JN Heredia Rd, Ballard Estate, Fort, Mumbai, Maharashtra 400001.
15.17. International Users. The Zenmer Apps can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Zenmer intends to announce such services or content in your country. Zenmer Properties are controlled and offered by Zenmer from its facilities in India. Zenmer makes no representations that Zenmer Properties are appropriate or available for use in other locations. Those who access or use Zenmer Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Zenmer Travel Addendum
This Zenmer Travel Addendum governs the reservation, purchase and use of all Travel Services, and is incorporated into the Zenmer Terms and Conditions of Service Agreement (the “Agreement”). All terms used in this Travel Addendum but not defined herein shall have the same meaning as assigned to them under the Agreement.
- Use of the Travel Services. Client and each Client Representative acknowledges and agrees that:
(a) Zenmer acts only as a booking platform for the TMCs and is not responsible for the acts or omissions of TMCs, including, without limitation, their failure to provide services, adhere to their own schedules, provide services or refunds, financial default, failure to honor future trip credits, or otherwise honor their contracts. We have no special knowledge regarding the financial conditions of any TMC and accordingly will have no liability for recommending a trip credit in lieu of a refund. In our role as a booking platform and provider of Subscription Services, we act as an intermediary and independent third party between you and the TMCs; no joint venture, partnership, employment, agency, representative, fiduciary or similar relationship exists between you and us, or any TMC, as a result of your use of our Subscription Services. We assist you in finding TMCs and making certain arrangements for travel. We consider various factors in identifying TMCs and recommending specific itineraries.
(b) Additional terms, conditions , policies, rules, or restrictions dictated by the applicable TMC (the “TMC Terms”) shall apply to your reservation and/or purchase of applicable Travel Services. By purchasing any Travel Services through the Subscription Services, you agree to abide by all the TMC Terms, and to be bound by the limitations therein, including, payment of all amounts when due and compliance with the applicable TMC Terms. If the TMC Terms are ever in conflict with the Agreement, the Agreement including this Zenmer Travel Addendum, will control all issues relating to the liabilities and responsibilities of Zenmer. You understand that any violation of any such TMC Terms, including timely payment, may result in: (i) you forfeiting any monies paid for such reservation or purchase, (ii) cancellation of your reservation or purchase, (iii) you being denied access to any flights, hotels, or any other products or services, and (iv) us debiting your account for any costs we incur as a result of such violation. You acknowledge and agree that: (i) TMCs may change their prices without notice prior to reservation or purchase by you, and (ii) you shall be responsible for all charges, fees, duties, taxes, and assessments arising out of your use of Travel Services, including, without limitation, all reservations and purchases you make through the Travel Services. You acknowledge that some TMCs may require you to sign a liability waiver or other forms prior to using their services, and you understand that your unwillingness to do so may result in a cancellation of your reservation(s), being denied access to the TMC’s services, and forfeiting any monies paid for such reservation(s), in accordance with applicable TMC Terms. Through the Travel Services you may make a reservation for a combination of two one-way air tickets instead of a roundtrip air ticket. Unlike roundtrip air tickets, each one-way ticket is subject to its own rules, restrictions, and fees. If one of these flights is affected by an airline change (e.g., cancellation or rescheduling) that causes a you to make changes to the other flight, you acknowledge that you shall be responsible for any fees incurred for making changes to the unaffected flight, including any difference in fare and change/cancellation penalties.
(c ) At the time of reservation/purchase, your credit/charge card may be charged the total cost of the TMC products and services that you selected, including taxes and fees (but excluding any mandatory hotel-imposed charges that may be applicable upon check out from the hotel). You may see separate charges on your credit/charge card statement (from Zenmer and/or from the TMCs you selected). If applicable, certain mandatory hotel-imposed charges are payable to the property upon check-out (e.g., mandatory resort fees); any incidental charges that you make during your stay will be charged to you by the property upon check-out, including but not limited to parking, phone calls, internet access and room service. Some properties have age requirements; please check with the property for more information. Your reservation/purchase includes the products/services that you selected; therefore, if baggage, seat-selection, or similar ancillary items were not included in those products/services, additional TMC fees may apply. If you purchased a flight, your flight is not confirmed until ticketed.
(d) You are solely responsible for reviewing and complying with TMCs’ restrictions and requirements, including with respect to luggage allowances and restrictions, as well as bag-check and check-in timing requirements, and COVID-19 specific rules and requirements; and all purchases of Travel Services are subject to fare rules and any other terms and conditions presented at the time such booking is made, including without limitation, rules regarding refunds and/or cancellations
(e) You may only use the Travel Services to make legitimate reservations or purchases for you or other persons for whom you are authorized to act, and you shall not use any Travel Services for any other purposes, including, without limitation, making any speculative, false, fictitious or fraudulent reservation. You shall not use, nor shall you permit any use of, any Subscription Services in conjunction with any of your activities or by anyone that resides, stays, or is accessing a Travel Service from a country prohibited under India export and/or Foreign Exchange Management Act (FEMA) regulations, including, without limitation, regulations based upon sanctions, country programs against, or embargoes. You shall become unauthorized to use any Subscription Services in the event of a breach of these obligations, and you shall indemnify and hold harmless us and TMCs for any breach of this section.
(f) You represent and warrant that: (i) you are of sufficient legal age to use the Travel Services and to create binding legal obligations for any liability you may incur as a result of the use of the Travel Services, (ii) you shall supervise all use of Travel Services by minors using your name or account, and (iii) all information supplied by you, or using your name or account, in using Travel Services is true, complete, and correct. You acknowledge and agree that: (i) you are financially responsible for all uses of Travel Services by you and those using your name and/or account, (ii) some TMCs have age requirements and restrictions for use of their products and services, and you and those traveling with you shall be subject to such requirements and restrictions, and (iii) should you make a reservation and/or purchase for other people, you shall inform those people of all terms, conditions, policies, rules, and restrictions that apply.
- Travel Services Disclaimer. Zenmer does not guarantee the description of the Travel Services and the accuracy of the information displayed on the Subscription Services (including, without limitation, the summary of the Travel Service (including a summary of the fare rules), the photographs, list of hotel amenities, pricing, general product descriptions, etc.). Zenmer disclaims any and all liability for any inaccuracies or other errors relating to the Travel Services except to the extent such errors are introduced or caused by a willful act of Zenmer. Zenmer expressly reserves the right to correct any pricing errors on the Subscription Services and/or pending reservations made under an inaccurate and/or incorrect price.
- Travel Risk. By offering reservations for Travel Services via the Subscription Services, in particular for international destinations, Zenmer does not represent or warrant that travel to such areas is advisable or without risk, and is not liable for damages or losses that may result from travel to such destinations. The TMCs are independent contractors and not agents, subcontractors, or employees of Zenmer. Zenmer disclaims all liability relating to the actions or inactions of TMCs or to any Travel Services, including any actions or inactions that result in any personal injuries, death, property damage, or other damages to Client or an Client Representative. Zenmer has no liability to Client or any Client Representative and will make no refund in the event of any delay, cancellation, overbooking, strike, force majeure or other causes beyond Zenmer’ control.
(a) Health and Other Hazards: You agree that it is your personal decision to travel, and you are doing so with full knowledge of current travel recommendations and travel restrictions with regards to the risks of COVID-19. We assume no responsibility for and shall not be liable for unsafe conditions or health hazards including pandemics or other illnesses. We have no special knowledge of dangers during travel or at destinations.
(b) Rules of TMCs and Governments: We have no responsibility for COVID-19-related requirements that travel suppliers and governments may impose from time to time, such as health affidavit forms, health screenings prior to departure or upon arrival, face coverings, or quarantines. For the latest COVID-19 government travel regulations, we recommend going to IATA’s website at https://www.iatatravelcentre.com/international-travel-document-news/1580226297.htm. For the latest TMC requirements, check the TMC’s home page.
- TMC Disclaimer. TMCS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OR AGENTS OF Zenmer. WE ACT SOLELY AS A BOOKING PLATFORM FOR TMCS AND ARE NOT LIABLE FOR, INCLUDING, WITHOUT LIMITATION, THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, OR NEGLIGENCE OF ANY SUCH TMC OR FOR ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE, LOSS, ACCIDENT, DELAY, IRREGULARITY, OR ANY OTHER DAMAGES OR EXPENSES RESULTING THEREFROM, WHETHER DIRECTLY OR INDIRECTLY. WE SHALL HAVE NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OVERBOOKING, SCHEDULE CHANGE, CESSATION OF OPERATIONS, LABOR DISPUTE, STRIKE, ACTS OF GOVERNMENT, ACTS OF WAR, TERRORISM, DISEASE, QUARANTINE, WEATHER OR OTHER FORCE MAJEURE EVENT OR OTHER CAUSE BEYOND OUR DIRECT CONTROL (EXCEPT WHERE REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW). WE HAVE NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, OR RE-ROUTING CAUSED BY ANY ACTS OR OMISSIONS OF ANY TMC OR GOVERNMENTAL AUTHORITY. THE FACT THAT WE INCLUDE OR OFFER ANY PRODUCT OR SERVICE ON/THROUGH THE TRAVEL SERVICES DOES NOT MEAN WE ARE ENDORSING OR RECOMMENDING SUCH PRODUCT OR SERVICE. ANY AND ALL CLAIMS REGARDING ANY PRODUCTS AND SERVICES OFFERED THROUGH THE TRAVEL SERVICES ARE LIMITED TO CLAIMS AGAINST THE TMC OF SUCH PRODUCTS AND SERVICE. WE HEREBY DISCLAIMS ANY LIABILITY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION LIABILITY FOR ANY DIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, IN CONNECTION WITH PRODUCTS OR SERVICES PROVIDED BY ANY TMC THROUGH THE TRAVEL SERVICES, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR ANY ACT, ERROR, OMISSION, INJURY, DEATH, PROPERTY DAMAGE, LOSS, ACCIDENT, DELAY, IRREGULARITY OR ANY OTHER DAMAGES OR EXPENSES WHICH MAY BE INCURRED THROUGH THE FAULT, NEGLIGENCE, OR OTHERWISE, OF SUCH TMC AND YOU HEREBY EXONERATE US FROM ANY LIABILITY WITH RESPECT TO THE SAME.
- Prices and Surcharges.
(a) Only items and fees explicitly advertised as included in the price of a Travel Service will be included as part of Travel Service’s advertised price. Zenmer will use commercially reasonable endeavors to publish and maintain accurate prices and information for Travel Services through the Subscription Services and through our agents. TMCs provide us with the price, availability and other information related to the Travel Services. In the event, however, that a Travel Service is listed or provided to us at an incorrect price or with incorrect information due to typographical error or other error in pricing or service information received from a TMC, we retain the right to refuse or cancel any purchase for such Travel Service, whether or not the order has been confirmed and/or your credit card charged.
(b) Travel Services involving airline and cruise components are subject to TMCs’ supplemental price increases that may be imposed by the TMC and/or government, even after you have completed your purchase. You hereby consent to any such price increases and authorize your credit or debit card to be used for them.
(c ) We expressly reserve the right to correct any pricing errors for Travel Services and/or on pending reservations made under an incorrect price. In such an event, if available, we will offer you the opportunity to keep your pending reservation at the correct price or we will cancel your reservation without penalty if available and possible from Zenmer’s end without causing any penalty to Zenmer.
(d) Our prices are contractual tariffs. No claim relating to the price of a Trip will be considered once the reservation is effective. All prices are quoted in Indian Rupee (INR) or US dollars (USD) unless otherwise denoted. Rates for Travel Services are based on tariffs and exchange rates in effect at the time of posting and are subject to change prior to departure. Substantial changes in tariffs, exchange rates, the price of fuel, services and labor sometimes increase the cost of Travel Service arrangements significantly and Zenmer won’t be held responsible for any claims arising out of these.
- Cancellation Substitution, Alteration Policies; Insurance
(a) Cancellations or Modifications attributable to Client Representative: Once ticketed, the name on the ticket cannot be changed and tickets are non-transferable. Cancellations, substitutions, no-shows, and/or alteration of terms of any Travel Services purchased vary by TMC. Your reservation/purchase may be non-refundable and non-cancellable. It is your responsibility to familiarize yourself with the applicable TMC Terms prior to purchase, so we urge you to read them carefully. You will be responsible for any and all charges and fees levied by the TMC in connection with any such cancellation, substitution, no-show, or other alteration (each, a “Change”). In case of any such Change, Zenmer will refund to the Client Representative the corresponding booking amounts less any costs applied by the TMC for such Change (provided that said TMC expressly allows and previously reimburses such amount to Zenmer). In this regard, Zenmer may, at its sole discretion, refund the corresponding amount, if applicable, by wire transfer to the Client/Client Representative’s bank account or by means of discounting such amount from the next invoice to be issued to the Client/Client Representative. Upon such receipt, you are responsible for promptly reviewing your reservation/purchase confirmation/itinerary for accuracy and immediately notifying us of any errors. If your reservation/purchase is with multiple TMCs, and if cancellation is permitted by one TMC and not the other, you will not be refunded for the portion of your trip for which cancellations are not permitted and you will be required to cancel your entire trip.
(b) Cancellations and/or Alterations not attributable to Client Representative: Due to Force Majeure or TMC requests, changes and/or cancellations may need to be made to confirmed purchases. While we always endeavor to avoid changes and cancellations, we must reserve the right to do so and to substitute alternative arrangements of comparable monetary value. Zenmer reserves the right to adjust the Travel Service or change the modes of ground and air travel, change the quality of accommodations or otherwise change the Travel Service without prior notice. We accept no liability for loss of enjoyment as a result of these changes. Any additional charges incurred arising from the postponement, delay or extension of a Trip or adjustment to the itinerary due to Force Majeure will be the Client Representative’s responsibility. Zenmer will attempt to provide Client Representatives’ with advanced notice of any changes to a Trip or Travel Services to the extent commercially possible.
(c ) Insurance: For your protection, we strongly recommend that you purchase trip cancellation and travel accident insurance. Please note that, unless you buy a cancel-for-any-reason policy, most policies have a specific clause stating they do not cover epidemics and pandemics, especially when travel warnings are in place. No representation or description of the insurance made by our staff constitutes a binding assurance or promise about the insurance. You agree to hold us harmless for your election not to purchase travel insurance or for any denial of claim by travel insurer as it relates to COVID-19 or any other claim under the policy.
- Issuing Travel Documents. Travel documents will only be sent to the purchasing Client Representative who places the order and personally agrees to this Agreement (including, without limitation, this Zenmer Travel Addendum). Should you change your email address, phone number, or address before your departure date, you are required to advise us of the change. If an Authorized Traveler provides incorrect information to Zenmer, we do not assume any liability if the purchase is adversely affected or made impossible by the non-receipt of travel documents.
- Passports, Visas, Reciprocity Fees, and Travel Health Requirements. You assume full and complete responsibility for checking and verifying any and all passport, visa, vaccination, or other entry requirements of your destination and your connecting points, and all conditions regarding health, safety, security, political stability, and labor or civil unrest at such destination. Many countries require your passport to be valid for six months or more after your date of entry. Some countries will not admit persons convicted of a crime. Some countries require both parents’ consent for minors to travel.
- Credit Card Merchant. We also strongly recommend that you use a credit card for your purchase of Travel Services, so that you can exercise your rights if you do not receive the Travel Services you purchased. However, if we are the credit card merchant, our role is to facilitate the sale, collect funds on your behalf, and remit those funds to the applicable TMCs. If the TMCs do not provide the Travel Services, your only recourse would be against the applicable TMC, and you agree not to initiate a chargeback against us.
- Algorithms. The Subscription Services make use of certain proprietary algorithms (collectively, the “Zenmer Algorithm”) that take into account factors such as Corporate Travel Program, Client Representative profiles and behavior, current market conditions, and other relevant factors to determine dynamic travel policy limits, market price, sorting of Travel Services results, availability of special products and discounts, or other features. The Zenmer Algorithm does not determine or affect the price of any Travel Services. Client acknowledges that the Zenmer Algorithm is a dynamic feature of the Subscription Services and may display different results in connection with different Client Representatives, travel dates, locations and other profile and search elements.
- Modification. Zenmer reserves the right, at its sole discretion, to enhance, modify, discontinue or terminate all or any portion of this Zenmer Travel Addendum, at any time and without prior notice. If we modify this Zenmer Travel Addendum, we will post the modification on the Zenmer Site or provide you with notice of the modification. If you do not agree to any change(s) after such notice of such change(s) is provided or posted, you shall stop using the Zenmer Services to purchase the Travel Services. Otherwise, your continued use of the Zenmer Services to purchase Travel Services, constitutes your acceptance of such change(s).
- Claims Deadline. YOU AGREE TO PRESENT ANY CLAIMS AGAINST US RELATING TO TRAVEL SERVICES WITHIN 30 DAYS AFTER YOUR TRIP ENDS AND TO FILE SUIT WITHIN ONE MONTH OF THE INCIDENT, AND YOU ACKNOWLEDGE THAT THIS EXPRESSLY LIMITS THE APPLICABLE STATUTE OF LIMITATIONS TO ONE MONTH.