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Terms of Use

Please read these Terms of Use (“Terms”) carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the PenStack Platform, you agree to comply with and be bound by these Terms.

Last Updated: 30 September 2019

Thank you for using PenStack!

These Terms constitute a legally binding agreement ("Agreement") between you and PenStack (as defined below) governing your access to and use of the PenStack website, including any subdomains thereof, and any other websites through which PenStack makes its services available (collectively, "Site"), our mobile, tablet and other smart device applications, and application program interfaces (collectively, "Application") and all associated services (collectively, "PenStack Services"). The Site, Application and PenStack Services together are hereinafter collectively referred to as the “PenStack Platform”. Our Privacy and Cookie Policy, Payment Terms and Terms of Supply applicable to your use of the PenStack Platform are incorporated by reference into this Agreement.

When these Terms mention “PenStack,” “we,” “us,” or “our,” it refers to PenStack Solutions (P) Ltd., a private limited company that you are entering into an agreement with.

Our collection and use of personal information in connection with your access to and use of the PenStack Platform is described in our Privacy and Cookie Policy.

Any and all payment processing services through or in connection with your use of the PenStack Platform ("Payment Services") are provided to you by PenStack as set out in the Payment Terms ("Payment Terms").

 

1. Scope of PenStack Services

1.1 The PenStack Platform is an online e-commerce website that catalogues ("Listing") various goods ("Products") for sale to registered users (“Members”).

1.2 As the provider of the PenStack Platform, PenStack does not create or manufacture any of the Products that are Listed on the PenStack Platform.

1.3 While we may help facilitate sale of the Products, PenStack has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Listings or (ii) The truth or accuracy of any Listing descriptions, Ratings, Reviews, or any Member content. Manufactures of the Products alone are responsible for the Products and their performance and quality. PenStack does not endorse any Product, Listing or Payment Services. Product Images are intended only to indicate a photographic representation of a Listing at the time the photograph was taken, and are therefore not an endorsement by PenStack of any Product or Listing.

1.4 As an online platform that may allow Reviews and Ratings of Products by Members, PenStack has no control over and does not endorse (i) the views expressed by Members or (ii) the behaviour, actions or conduct of any Member. Any references to a Member being "approved" (or similar language) only indicate that the Member has completed a relevant registration or identification process and nothing else. If you choose to use the PenStack Platform as a Member you acknowledge and agree that you have complete discretion on whether to (i) purchase Products (ii) Review Products or (iii) otherwise engage in other business activities with PenStack or not.

1.5 To promote the PenStack Platform and to increase the exposure of Listings to potential buyers, Listings and other Member Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements. To assist Members who speak different languages, Listings and other Member Content may be translated, in whole or in part, into other languages. PenStack cannot guarantee the accuracy or quality of such translations and Members are responsible for reviewing and verifying the accuracy of such translations.

1.6 Due to the nature of the Internet, PenStack cannot guarantee the continuous and uninterrupted availability and accessibility of the PenStack Platform. PenStack may restrict the availability of the PenStack Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the PenStack Platform. PenStack may improve, enhance and modify the PenStack Platform and introduce new PenStack Services from time to time.

 

2. Eligibility, Using the PenStack Platform and Member Approval

2.1 In order to access and use the PenStack Platform or register a PenStack Account you must be an individual at least 18 years old or a duly organized, validly existing business, organization or other legal entity in good standing under the laws of the country and able to enter into legally binding contracts.

2.2 PenStack may make access to and use of the PenStack Platform, or certain areas or features of the PenStack Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting Ratings or Reviews thresholds, or a Member’s order history.

2.3 User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any Member’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Members to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Members, (ii) screen Members against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a Member, obtain reports from public records of criminal convictions or an equivalent version of background checks in your local jurisdiction (if available).

2.4 Some areas of the PenStack Platform implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.

 

3. Modification of these Terms

PenStack reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the PenStack Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the PenStack Platform will constitute acceptance of the revised Terms.

 

4. Account Registration

4.1 You must register an account ("PenStack Account") to access and use certain features of the PenStack Platform, such as buying a Product, Reviewing a Product, using Store Credit for payment. Since you are registering a PenStack Account for a business, organisation or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.

4.2 You can register a PenStack Account using an email address and creating a password.

4.3 You must provide accurate, current and complete information during the registration process and keep your PenStack Account information up-to-date at all times.

4.4 In order to serve Members effectively, PenStack sends alerts, updates and important information regarding the order processing process like shipment updates, etc. By registering with us, you agree and authorise PenStack to use your account information to send such alerts, updates and information through SMSs, Emails, phone calls or other available means.

4.5 You may not register more than one (1) PenStack Account unless PenStack authorises you to do so. You may not assign or otherwise transfer your PenStack Account to another party.

4.6 You may not, directly or indirectly, attempt to gain unauthorised access to the PenStack Platform, other Members’ account(s), computer systems and/or networks connected to the PenStack Platform through hacking, phishing, password mining and/or any other means (whether now known or hereafter developed or invented) or obtain any material or information through any means not intentionally made available to Users.

4.7 You are responsible for maintaining the confidentiality and security of your PenStack Account credentials and may not disclose your credentials to any third party. You must immediately notify PenStack if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorised use of your PenStack Account. You are liable for any and all activities conducted through your PenStack Account, unless such activities are not authorised by you and you are not otherwise negligent (such as failing to report the unauthorised use or loss of your credentials).

4.8 The PenStack Platform has no feature that requires you to share your credentials with any other person. No third party is authorised by PenStack to ask for your credentials, and you shall not request the credentials of another Member.

 

5. Content

5.1 PenStack may, at its sole discretion, enable Members to (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the PenStack Platform ("Member Content"); and (ii) access and view Member Content and any content that PenStack itself makes available on or through the PenStack Platform, including proprietary PenStack content and any content licensed or authorised for use by or through PenStack from a third party ("PenStack Content" and together with Member Content, "Collective Content").

5.2 The PenStack Platform, PenStack Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the country. You acknowledge and agree that the PenStack Platform and PenStack Content, including all associated intellectual property rights, are the exclusive property of PenStack and/or its up-channel vendors or authorising third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the PenStack Platform, PenStack Content or Member Content. All trademarks, service marks, logos, trade names, and any other source identifiers of PenStack used on or in connection with the PenStack Platform and PenStack Content are trademarks or registered trademarks of PenStack in India. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the PenStack Platform, PenStack Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.

5.3 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the PenStack Platform or Collective Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by PenStack or its vendors, except for the licenses and rights expressly granted in these Terms.

5.4 Subject to your compliance with these Terms, PenStack grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and view any Collective Content made available on or through the PenStack Platform and accessible to you, solely for your personal and non-commercial use.

5.5 By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Member Content on or through the PenStack Platform, you grant to PenStack a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Member Content to provide and/or promote the PenStack Platform, in any media or platform. Insofar as Member Content (including Images) includes personal information, such Member Content will only be used for these purposes if such use complies with applicable data protection laws in accordance with our Privacy and Cookie Policy. Unless you provide specific consent, PenStack does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your Member Content.

5.6 You are solely responsible for all Member Content that you make available on or through the PenStack Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available on or through the PenStack Platform or you have all rights, licenses, consents and releases that are necessary to grant to PenStack the rights in and to such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or PenStack's use of the Member Content (or any portion thereof) as contemplated under these Terms will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

5.7 You will not post, upload, publish, submit or transmit any Member Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, seditious, libellous, invasive of another's privacy, hateful, or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; or (v) promotes illegal or harmful activities or substances; or (vi) harms minors in any way; or (vii) is in the nature of political campaigning, unsolicited or unauthorised advertising, promotional and/or commercial solicitation, chain letters, pyramid schemes, mass mailings and/or any form of 'spam' or solicitation; or (viii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource. PenStack may, without prior notice, remove or disable access to any Member Content that PenStack finds to be in violation of applicable law, these Terms or otherwise may be harmful or objectionable to PenStack, its Members, third parties, or property.

5.8 PenStack respects copyright law and expects its Members to do the same. If you believe that any content on the PenStack Platform infringes copyrights you own, please notify us.

 

6. Service Fees

6.1 PenStack may charge fees to Members ("Service Fees") in consideration for the use of the PenStack Platform and / or PenStack Services.

6.2 Any applicable Service Fees (including any applicable Taxes) will be displayed to a Member prior to purchasing a Product. PenStack reserves the right to change the Service Fees at any time. Such fee changes will not affect any bookings made prior to the effective date of the fee change.

6.3 You are responsible for paying any Service Fees that you owe to PenStack. The applicable Service Fees (including any applicable Taxes) are collected by PenStack Payments. Except as otherwise provided on the PenStack Platform, Service Fees are non-refundable.

 

7. Terms of purchase from PenStack

7.1 Subject to meeting any requirements (such as completing any verification processes) set by PenStack, you can purchase a Product available on the PenStack Platform by following the purchase process. You should carefully review the description of any Product you may wish to purchase prior to placing the order on the PenStack Platform; especially taking note of the units, weights, volumes, numbers, pack sizes, and any other metrics that signify quantity of purchase. All applicable costs, including any Service Fees, Security Deposit (if applicable), and any applicable Taxes (collectively, “Total Outstanding”) will be presented to you prior to ordering a Product. You agree to pay the Total Outstanding for any order placed in connection with your PenStack Account.

Penstack.com may not be in a position to accept certain orders for reasons including limitations on quantities available for purchase, or other problems identified by our internal department, in which case, we reserve the right, at our sole discretion, to refuse or cancel such order or any portion thereof.

7.2 PenStack reserves the right, at our sole discretion, to limit the quantity of Products purchased per Member or per order. These restrictions may be applicable to orders placed by the same Member or the same payment instrument, or also to orders that use the same billing and/or shipping address. We will provide a notification to the Member should such limits be applied.

7.3 Upon receipt of an order confirmation from PenStack, a legally binding agreement is formed between you and PenStack, including in particular the applicable cancellation policy and any rules and restrictions specified in the Listing. PenStack Payments will collect the Total Outstanding at the time of the order placement or become due upon the completion of the credit period (if applicable) pursuant to the Payments Terms.

7.4 If you delay payment for orders placed on PenStack past the agreed upon Payment Terms, you agree to pay, an additional fee of up to two (2) times the Total Outstanding to cover the inconvenience suffered by PenStack, plus all applicable Fees, Taxes, and any legal expenses incurred by PenStack to make you pay (collectively, "Delay Penalty Fees"). You authorise PenStack (via PenStack Payments) to charge you to collect Delay Penalty Fees. Your Security Deposit (if applicable), may be applied to any Delay Penalty Fees due.

 

8. Order Modifications, Cancellations and Refunds

8.1 Members are responsible for any modifications to an order that they make via the PenStack Platform or direct PenStack customer service to make ("Order Modifications"), and agree to pay any additional Costs, Fees and/or Taxes associated with such Order Modifications. Members can cancel a confirmed order as long the products have not been invoiced and/or dispatched from PenStack.

8.2 In certain circumstances, PenStack may decide, in its sole discretion, that it is necessary to cancel a pending or confirmed booking and initiate corresponding refunds and payouts. This may be if (i) PenStack believes in good faith, while taking the legitimate interests of both parties into account, this is necessary to avoid significant harm to PenStack, other Members, third parties or property, or (ii) PenStack believes that there has been clerical, typographical, or technical errors of any nature at any time before the dispatch of the Products, or (ii) for any of the reasons set out in these Terms. In the event that a Product is listed at an incorrect price or with incorrect information in the Product Listing, PenStack retains the right to cancel any orders placed for that Product in part or full.

8.3 In the event of an Order Modification or Cancellation initiated by either party, PenStack will provide notification to the Member and will process any refund of the Total Outstanding due to the Member. Refunds will be remitted as a credit to the Member's online ledger account ("Store Credit") on the PenStack Platform that is accessible only through the Member's login. The Member will be notified of the credit and it may be used by the Member against future purchase on the PenStack Platform. Store Credit on the PenStack Platform is meant as an indicator that PenStack holds a net credit in the Members account, and is expected to be used as soon as possible by the Member. It is understood that Store Credit is not meant to be a deposit account, and Members should not expect it to accrue any interest.

8.4 If a Member claims and provides photographic evidence that Products received were damaged, the Member can seek repayment through a Sales Return. The said Products must be returned to PenStack, failing which the Member grants access to PenStack to enter the Member's premises and undertake an examination. PenStack reserves its right to verify the same to PenStack's reasonable satisfaction. Repayment, if any, will be remitted to the Member's Store Credit.

8.5 Members agree to cooperate with and assist PenStack in good faith, and to provide PenStack with such information and take such actions as may be reasonably requested by PenStack, in connection with any Sales Return or other complaints or claims made by Members. A Member shall, upon PenStack's reasonable request and at no cost to the Member, participate in mediation or a similar resolution process with another Member, which process will be conducted by PenStack or a third party selected by PenStack or its insurer, with respect to losses for which a Member is requesting payment from PenStack.

8.6 If you are a Member, you understand and agree that PenStack may make a claim under your building owner's, renter's or other insurance policy related to any damage or loss that may have been caused to Products purchased from PenStack but pending payment from Member. You agree to cooperate with and assist PenStack in good faith, and to provide PenStack with such information as may be reasonably requested by PenStack, to make a claim under your building owner's, renter's or other insurance policy, including, but not limited to, executing documents and taking such further acts as PenStack may reasonably request to assist PenStack in accomplishing the foregoing.

 

9. Ratings and Reviews

9.1 Members can leave a public review ("Review") and submit a star rating (“Rating”) about Products Listed on the PenStack Platform. Ratings or Reviews reflect the opinions of individual Members and do not reflect the opinion of PenStack. Ratings and Reviews are not verified by PenStack for accuracy and may be incorrect or misleading.

9.2 Ratings and Reviews by Members must be accurate and may not contain any offensive or defamatory language.

9.3 Members are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review.

9.4 Ratings and Reviews are part of a Member’s public profile and may also be surfaced elsewhere on the PenStack Platform (such as the Listing page) together with other relevant information.

 

10. Rounding off

PenStack generally supports payment amounts that are payable from Members to the smallest unit supported by the currency. Where PenStack’s third-party payment services provider does not support payments in the smaller unit supported by a given currency, PenStack may, in its sole discretion, round up or round down the displayed amounts that are payable from the Member to the nearest whole functional base unit in which the currency is denominated (i.e. to the nearest Rupee); for example, PenStack may round up an amount of Rs. 2001.50 to Rs. 2002.00, and round down an amount of Rs. 2001.49 to Rs. 2001.00.

 

11. Taxes

11.1 As a Member you are solely responsible for determining your obligations to report, collect or remit any applicable GST or other direct/indirect taxes, or income taxes ("Taxes").

11.2 Tax regulations may require us to collect appropriate Tax information from Members, or to withhold Taxes from Sales Returns (if any) to Members, or both. If a Member fails to provide us with the required documentation under applicable law (e.g., a tax number) that we determine to be sufficient to alleviate our obligation (if any) to withhold Taxes from payouts to you, we reserve the right to withhold payouts up to the tax-relevant amount as required by law, until resolution.

11.3 You understand that any appropriate governmental agency, department and/or authority ("Tax Authority") where you are located may require Taxes to be collected from Members and to be remitted to the respective Tax Authority. You hereby instruct and authorise PenStack (via PenStack Payments) to collect and to remit such Taxes to the Tax Authority. PenStack does not assume any liability for the failure of a participating Member to comply with any applicable tax reporting or remittance obligations. The amount of Taxes, if any, collected and remitted by PenStack will be visible to and separately stated to Members on transaction documents in prescribed formats.

11.4 You agree that any claim or cause of action relating to PenStack's Collection and Remittance of Taxes shall not extend to any supplier or vendor that may be used by PenStack in connection with Collection and Remittance, if any. Members agree that we may seek additional amounts from you in the event that the Taxes collected and/or remitted are insufficient to fully discharge obligations to the Tax Authority.

 

12. Term and Termination, Suspension and other Measures

12.1 This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or PenStack terminate the Agreement in accordance with this provision.

12.2 You may terminate this Agreement at any time by sending us an email. Any termination of the Agreement will not cancel, extinguish or limit in any manner, your obligation to pay for any Product already ordered from the PenStack Platform or affect any liability that may have arisen under the Terms, prior to the date of such termination. Upon any termination of the Agreement you must promptly destroy all materials downloaded or otherwise obtained from this Website (including copies), whether made under the Terms or otherwise.

12.3 Without limiting our rights specified below, PenStack may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.

12.4 PenStack may immediately, without notice, terminate this Agreement and/or stop providing access to the PenStack Platform if (i) you have materially breached your obligations under these Terms, Payment Terms or our other Policies (ii) you have violated applicable laws, regulations or third party rights, or (iii) PenStack believes in good faith that such action is reasonably necessary to protect the personal safety or property of PenStack, its other Members, or third parties (for example in the case of fraudulent behaviour of a Member).

12.5 In addition, PenStack may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, the Payment Terms, our other Policies, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the PenStack Account registration process or thereafter, (iv) you have repeatedly cancelled confirmed orders, (v) PenStack believes in good faith that such action is reasonably necessary to protect the personal safety or property of PenStack, its Members, or third parties, or to prevent fraud or other illegal activity:

  • refuse to surface any Ratings, Reviews, or other Member Content;
  • cancel any pending or confirmed bookings;
  • limit your access to or use of the PenStack Platform;
  • temporarily or in case of severe or repeated offences permanently suspend your PenStack Account and stop providing access to the PenStack Platform.

In case of non-material breaches and where appropriate, you will be given notice of any intended measure by PenStack and an opportunity to resolve the issue to PenStack's reasonable satisfaction.

12.6 If we take any of the measures described above any confirmed order(s) will continue to stand valid, and payables (if any) towards the same will be continue to be due from you to PenStack.

12.7 When this Agreement has been terminated, you are not entitled to a restoration of your PenStack Account or any of your Member Content. If your access to or use of the PenStack Platform has been limited or your PenStack Account has been suspended or this Agreement has been terminated by us, you may not register a new PenStack Account or access and use the PenStack Platform through an PenStack Account of another Member.

12.8 Sections 5 and 13 to 19 of these Terms shall survive any termination or expiration of this Agreement.

 

13. Disclaimers

If you choose to use the PenStack Platform or Collective Content, you do so voluntarily and at your sole risk. The PenStack Platform and Collective Content is provided “as is”, without warranty of any kind, either express or implied.

You agree that you have had whatever opportunity you deem necessary to investigate the PenStack Services, laws, rules, or regulations that may be applicable to you as a purchaser / user and that you are not relying upon any statement of law or fact made by PenStack relating to a Product.

You agree that usage of some Listed Products may carry inherent risk, and by purchasing such products, you choose to assume those risks voluntarily. For example, usage of some Products may carry risk of allergy, reactions, or even illness, bodily injury, disability, or death from long term use, and you freely and wilfully assume those risks by purchasing such products.

If we choose to conduct identity verification or background checks on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.

The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.

 

14. Liability

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 PenStack Platform and Collective Content, your purchase and subsequent use of Listed Products or any other interaction you have with other Members whether in person or online remains with you. Neither PenStack nor any other party involved in creating, producing, or delivering the PenStack Platform or Collective Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the PenStack Platform or Collective Content, or (iii) from any communications, interactions or meetings with other Members or other persons with whom you communicate, interact or meet with as a result of your use of the PenStack Platform, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not PenStack has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. In no event will PenStack’s aggregate liability arising out of or in connection with these Terms and your use of the PenStack Platform including, but not limited to, from your purchase or use of Listed Products or the use of or inability to use the PenStack Platform or Collective Content, or interactions with any other Members, exceed the invoice values (full or part) paid to us for the purchases made in the twelve (12) month period prior to the event giving rise to the liability. The limitations of damages set forth above are fundamental elements of the basis of the bargain between PenStack 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.

 

15. Indemnification

To the maximum extent permitted by applicable law, you agree to release, defend (at PenStack’s option), indemnify, and hold PenStack and its affiliates and subsidiaries, including but not limited to, PenStack Payments, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our other Policies, (ii) your improper use of the PenStack Platform or any PenStack Services, (iii) your interaction with any Member, purchase/use of Listed Products, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, purchase/use, (iv) PenStack’s Collection and Remittance of Taxes, or (v) your breach of any laws, regulations or third party rights.

 

16. Dispute Resolution and Arbitration Agreement

16.1 This Dispute Resolution and Arbitration Agreement shall apply if your (i) country of residence or establishment is in India; or (ii) your country of residence or establishment is not in India, but bring any claim against PenStack in India (to the extent not in conflict with Section 18).

16.2 Overview of Dispute Resolution Process: PenStack is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 16.1 applies: (1) an informal negotiation directly with PenStack’s customer service team, and (2) a binding arbitration administered by a mutually decided upon, neutral, unbiased arbitrator with no interest in the result of the arbitration, or relationship with any party. The arbitration shall be in accordance with the Arbitration and Conciliation Act, 1996, as amended from time to time. The seat of arbitration shall be Mysore, Karnataka, India.

16.3 Pre-Arbitration Dispute Resolution and Notification: Prior to initiating an arbitration, you and PenStack each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact PenStack’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration.

16.4 Agreement to Arbitrate: You and PenStack mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of the PenStack Platform, or the Collective Content (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and PenStack agree that the arbitrator will decide that issue.

16.5 Exceptions to Arbitration Agreement: You and PenStack each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).

16.6 Arbitration Hearing/Location: In order to make the arbitration proceed as quickly as possible, you agree that any required arbitration hearing may be conducted (a) in Mysore District, Karnataka, India; (b) via phone or video conference; or (c) for any claim or counterclaim under Rs. 25,000, by solely the submission of documents to the arbitrator.

16.7 Attorney’s Fees and Costs: Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, PenStack agrees it will not seek, and hereby waives all rights it may have to recover attorneys’ fees and expenses if it prevails in arbitration.

16.8 Arbitrator’s Decision: The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction in Mysore District, Karnataka, India. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

16.9 No Class Actions or Representative Proceedings: You and PenStack acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit (PIL), class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and PenStack both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 16.9 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 16.9 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and you and PenStack agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.

16.10 Severability: Except as provided in Section 16.9, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

16.11 Survival: Except as provided in Section 16.10 and subject to Section 12.8, this Section 16 will survive any termination of these Terms and will continue to apply even if you stop using the PenStack Platform or terminate your PenStack Account.

 

17. Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the PenStack Platform (“Feedback“). You may submit Feedback by emailing us, through the “Contact” section of the PenStack Platform, or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.

 

18. Applicable Law and Jurisdiction

These Terms of Use will be interpreted in accordance with the laws of India and the State of Karnataka, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 16 must be brought in courts at Mysore, Karnataka, India, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Mysore, Karnataka, India.

 

19. General Provisions

19.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement betweenPenStack and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements betweenPenStack and you in relation to the access to and use of thePenStack Platform.

19.2 No joint venture, partnership, employment, or agency relationship exists between you andPenStack as a result of this Agreement or your use of the PenStack Platform.

19.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.

19.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.

19.5 PenStack’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.

19.6 PenStack will not be liable for any failure and/or delay on our part in performing any obligation under the Terms and/or for any loss, damage, costs, charges and expenses incurred and/or suffered by you if such failure and/or delay shall be result of or arising out of a Force Majeure Event.

19.7 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without PenStack's prior written consent.PenStack may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.

19.8 Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be provided electronically and given by PenStack via email, PenStack Platform notification, or messaging service (including SMS).

19.9 If you have any questions about these Terms please email us.