1. GENERAL

1.1 These General Terms and Conditions of Sale (“Conditions”) govern the offering, sale and delivery of keys and/or services through the use of photo selection software or web platform under the brand name PhotoSelect or otherwise (hereinafter jointly referred to as the “Product(s)”) from TECHNOVA IMAGING SYSTEMS (P) LIMITED, Plot No. E 1/2/3, M.I.D.C., Taloja, Maharashtra 410 208, India (“TECHNOVA”), to customer, dealer, photographer and end-user (“Customer”) and apply to all transactions between TECHNOVA and Customer. 

1.2 (a)  Customer includes Dealer, Photographer, and End-User.

(b)  Dealer means TECHNOVA’s authorised dealer who buys Keys in bulk directly from 

       TECHNOVA. 

(c)  Photographer means a person who buys Keys directly from TECHNOVA or Dealer and 

       provides photo selection services to his client.

(d)  End-User includes a Photographer’s client who receives photo selection services through a 

        Photographer.

1.3 By contracting on the basis of the Conditions, Customer agrees to the applicability thereof in respect of all future dealings, even if this is not explicitly stated.

1.4 TECHNOVA explicitly rejects the applicability of any general terms and conditions of Customer. Furthermore, the Conditions supersede any and all terms of prior oral and written quotations, communications, agreements and understandings of the parties in respect of the sale and delivery of the Products and shall apply in preference to and supersede any and all terms and conditions of any order placed by Customer and any other terms and conditions submitted by Customer. Failure by TECHNOVA to object to the terms and conditions set by Customer shall in no event be construed as an acceptance of any of the terms and conditions of Customer. Neither TECHNOVA’s commencement of performance nor TECHNOVA’s delivery shall be deemed as acceptance of any of Customer’s terms and conditions. If the Conditions differ from any of the terms and conditions of Customer, the Conditions and any subsequent communication or conduct by or on behalf of TECHNOVA, including, without limitation, confirmation of an order and delivery of Products, constitute a counteroffer and not acceptance of such terms and conditions submitted by Customer. Any communication or conduct of Customer which confirms an agreement for the delivery of Products by TECHNOVA, as well as acceptance by Customer of any delivery of Products from TECHNOVA shall constitute an unqualified acceptance by Customer of the Conditions.

1.5 Any electronic communication between TECHNOVA and Customer shall be effective as originals and shall be considered to be a “writing” between the parties. The electronic communication system used by TECHNOVA will serve as sole proof for the content and the time of delivery and receipt of such electronic communications.

  1. 2. QUOTATIONS, ORDERS AND CONFIRMATION

2.1 Unless stated otherwise by TECHNOVA, quotations made by TECHNOVA in whatever form are not binding to TECHNOVA and merely constitute an invitation to Customer to place an order. All quotations issued by TECHNOVA are revocable and subject to change without notice. Orders are not binding until accepted by TECHNOVA in writing (“the Confirmed Order”). TECHNOVA shall be entitled to refuse an order without indicating the reasons.

2.2 Price quotations based on estimated or projected quantities are subject to increase in the event that actual quantities purchased during the specified period are less than the estimated or projected quantities.

2.3 Each delivery shall stand as a separate transaction and any failure to deliver shall have no consequences for other deliveries.

  1. PRICES

3.1 Prices and currencies of TECHNOVA’s Products are as set out in the Confirmed Order. The amount of any Taxes levied in connection with the sale of Products to Customer shall be for Customer’s account and shall either be added to each invoice or separately invoiced by TECHNOVA to Customer. If TECHNOVA grants a discount, this discount only relates to the delivery specifically mentioned in the Confirmed Order.

3.2 Unless the prices have been indicated as firm by TECHNOVA in the Confirmed Order, TECHNOVA is entitled to increase the price of the Products still to be delivered if the cost price determining factors have been subject to an increase. TECHNOVA shall notify Customer of such increase which shall not exceed the increase in the determining cost factors.

  1. PAYMENT AND CUSTOMER’S CREDIT

4.1 Unless stated otherwise in the Confirmed Order, payment shall be made on the basis of net cash, to be received in advance. All payments shall be made without any deduction on account of any Taxes and free of set-off or other counterclaims.

4.2 With regard to payment for the Products, time is of the essence. TECHNOVA may, without prejudice to any other rights of TECHNOVA, charge interest on any overdue payment at 24% (twenty-four percent) per annum from the due date computed on a daily basis until all outstanding amounts are paid in full. All costs and expenses incurred by TECHNOVA with respect to the collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for Customer’s account.

4.3 Any complaint with respect to the invoice must be notified to TECHNOVA in writing within 24 (twenty-four) hours after the date of invoice. Thereafter, Customer shall be deemed to have approved the invoice.

  1. DELIVERY AND ACCEPTANCE

5.1 A Key shall be delivered to Customer in electronic form or digital form on receiving corresponding payment in full for the Product.

  1. CANCELLATION

6.1 Customer’s wrongful non-acceptance or rejection of Products or cancellation of the Confirmed Order shall entitle TECHNOVA to recover from Customer, in addition to any other damages caused by such action, the price of such Products as quoted in the Confirmed Order.

  1. EXAMINATION AND CONFORMITY TO SPECIFICATIONS

7.1 Complaints about the Products shall be made in writing and must reach TECHNOVA not later than 24 (twenty-four)  hours from the date of delivery in respect of any defect or default which would be apparent from a reasonable inspection on delivery.

7.2 A determination of whether or not delivered Products conform to the Specifications shall be done solely by TECHNOVA. 

7.3 Applicable warranties, if any, shall always be conditional upon Product being handled, and operated in commercially reasonable and prudent manner.

  1. OWNERSHIP AND LIMITED LICENSE 

8.1 The title and ownership to the PhotoSelect software as referred above exclusively belong and owned by TECHNOVA and Customer shall have no right with regard to the same except to make use of the PhotoSelect platform for limited purpose of selection of photos and images corresponding to the value of Key delivered to Customer..

  1. LIMITED WARRANTY

9.1 TECHNOVA solely warrants that the software shall facilitate uploading photographs for selection purpose only and makes no other warranties. 

9.2 In no event will TECHNOVA assume any responsibility for any damages that result from Customer’s access to, use of, or inability to use, this site/software/platform, or from downloading of any materials from the site, even if TECHNOVA or its authorised representative has been advised of the possibility of such damages. 

9.3 The foregoing warranty is exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including, without limitation, any warranty of merchantability, suitability or fitness for any purpose, or absence of infringement of any claim in any intellectual property right covering the Products.

  1. PROHIBITED ACTS

10.1 Customer shall never use this website/platform or software for any pornography, obscenity, fraudulent, unlawful purpose or any act prohibited under any law. In the event of breach of this clause, besides termination, Customer shall be liable for criminal consequences besides indemnification to TECHNOVA.

 

  1. LIMITED LIABILITY

11.1 TECHNOVA shall under no circumstances be liable to Customer or any other person for any kind of special, incidental, indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profit, delay in delivery, work stoppage, production failure, impairment of other goods or based on any other cause, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise. 

11.2 TECHNOVA shall under no circumstances be liable for any contract between Dealer, Photographer and End-User or between Photographer and End-User. Such contract shall be regarded as independent contract between such parties. 

  1. FORCE MAJEURE

12.1 Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws and regulations, administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labour disturbances, difficulty in obtaining necessary labour or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods supplied by suppliers or subcontractors (“Force Majeure”).

12.2 Upon the occurrence of any event of Force Majeure, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under the Confirmed Order. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than 60 (sixty) days after the agreed delivery date, either Party is entitled to cancel the affected part of the Confirmed Order without any liability to the other Party.

  1. MODIFICATIONS AND INFORMATION; INDEMNITY

13.1 Unless the Specifications have been agreed to be firm for a certain period of time or quantity of Products, TECHNOVA reserves the right to change or modify the Specifications from time to time without notice. Customer acknowledges that data in TECHNOVA’s catalogues, product data sheets and other descriptive publications distributed or published on its websites may accordingly be varied from time to time without notice.

13.2 Customer shall indemnify and keep TECHNOVA fully indemnified and harmless from any damage, loss, cost or liability including without limitation attorneys’ fees and the cost of enforcing this indemnity arising out of or resulting from any unauthorized use of this platform or software or any claim made by third party including law enforcing agencies or statutory bodies and against all claims arising out of or in connection with the Products and Customer’s Use thereof.

  1. COMPLIANCE WITH LAWS AND STANDARDS

14.1 Customer acknowledges that the Use of the Products may be subject to requirements or limitations under any law, statute ordinance, regulation, code or standard (“Laws and Standards”). Customer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with its intended Use of the Products; (ii) obtaining all necessary approvals, permits or clearances for such Use; and (iii) obtaining all necessary consent of End-User.

  1. INDEPENDENT CONTRACTORS

15.1 TECHNOVA and Customer are independent contractors, and the relationship created hereby shall not be deemed to be that of principal and agent.

  1. NON-ASSIGNMENT AND CHANGE OF CONTROL

16.1 Neither party may assign any of the rights or obligations under the Confirmed Order without the prior written consent of the other party, except that either party may assign such rights and obligations to any of its affiliates or to a third party acquiring all or a substantial part of its assets or business relating to the Products.

  1. SUSPENSION AND TERMINATION

17.1 If Customer is in default or breach of performance of its obligations towards TECHNOVA, then TECHNOVA may by notice in writing forthwith, without prejudice to any of its other rights: (i) demand return and take repossession of any delivered Products which have not been paid for and all costs relating to the recovery of the Products shall be for the account of Customer; and/or (ii) suspend its performance or terminate the Confirmed Order for pending delivery of Products.

  1. WAIVER

18.1 Failure by TECHNOVA to enforce at any time any provision of the Conditions shall not be construed as a waiver of TECHNOVA’s right to act or to enforce any such term or condition and TECHNOVA’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by TECHNOVA of any breach of Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.

  1. SEVERABILITY AND CONVERSION

19.1 In the event that any provision of the Conditions shall be held to be invalid or unenforceable, the same shall not affect in any respect whatsoever, the validity and enforceability of the remaining provisions between the parties and shall be severed therefrom. The pertaining provisions held to be invalid or unenforceable shall be reformed to meet the legal and economic intent of the original provisions to the maximum extent permitted by law.

  1. GOVERNING LAW AND ARBITRATION

20.1 The parties’ rights and obligations arising out of or in connection with the Confirmed Order and/or the Conditions shall be governed, construed, interpreted and enforced according to the laws of India, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) shall not apply.

20.2 Any dispute in connection with or arising out of the Confirmed Order that the parties fail to amicably resolve shall be referred to arbitration of a sole arbitrator to be appointed by TECHNOVA in accordance with the Indian Arbitration and Conciliation Act, 1996 or statutory modification or enactment thereof. The award of the arbitrator shall be final and binding on the Parties. The place of arbitration shall be Mumbai, India, and the language of arbitration proceedings shall be English. Each party shall bear its own costs. Each party irrevocably and unconditionally submits to the jurisdiction of the Courts in Mumbai, India, alone to determine any question that may arise other than a matter as provided for hereinabove.

  1. SURVIVAL OF RIGHTS

21.1 The parties’ rights and obligations shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the parties’ rights and obligations, for whatever reason, shall not affect those provisions of the Conditions which are intended to remain in effect after such termination.

  1. HEADINGS

22.1 The headings contained in the Conditions are included for mere convenience of reference and shall not affect the latter’s construction or interpretation.

  1. INTELLECTUAL PROPERTY

23.1 All intellectual property rights arising out of or in connection with the Products shall be the exclusive property of TECHNOVA.

23.2 TECHNOVA has not verified the possible existence of third party intellectual property rights which might be infringed as a consequence of the sale and/or delivery of the Products and TECHNOVA shall not be held liable for any loss or damage in that respect.

23.3 The sale of Products shall not, by implication or otherwise, convey any license under any intellectual property right relating to the compositions and/or applications of the Products, and Customer explicitly assumes all risks of any intellectual property infringement by reason of the Use of the Products, whether singly or in combination with other materials or in any processing operation.