This Agreement is being entered into between you as the user(s) of the Site (referred to as “you”, “your” or “User” hereinafter) and Empyrean Forests Pvt. Ltd., a company incorporated under the Companies Act, 2013, having its offices at Hakimpara, 53, Balai Das Chatterjee Road, Siliguri, Darjeeling, West Bengal - 734001. (referred to as “We”, “Us” or “Empyrean Forests”). Third party user(s) of the Site shall be referred to as “Users”. This Agreement shall be effective from the date of your first use of the website or first access of any of the webpages of the website and shall remain applicable each time you use or access the website or any of its webpages.
1.1. Your use and access of the Site and its services, software and products are governed by all terms and conditions under this Agreement as well as any other rules and policies of the Site that We may publish from time to time. This Agreement and such other rules and policies of the Site are collectively referred to herein as the “Terms” and the Services provided by Empyrean shall be referred to as “Services”.
1.2. With regard to your purchases and transactions on the Site, the Seller Agreement, and related terms and conditions between you as a buyer, certifier, regulator, or seller and Empyrean will be binding upon you.
1.4. You acknowledge and agree that, We may amend any Terms at any time. We will notify you of any amendments to this Agreement and once notified, your further access or use of the website or any of its webpages will be subject to such amended Terms as may be notified. By continuing to use the Services or the Site after such amendment, you agree that the amended Terms apply to you.
2. Role performed by Empyrean
2.1. You agree, understand and acknowledge that the Site is an online platform/ marketplace that enables You to trade Medicinal and Aromatic Plants (MAPs) listed on the Site at the price indicated therein at any time from any location. The Site further enables certifiers/ regulators to offer services and also permits users to disseminate information via a knowledge sharing blog.
2.2. You further agree and acknowledge that Empyrean is only a facilitator and is not and cannot be a party to or control in any manner any transactions on the Site, unless Empyrean explicitly chooses otherwise. Although Empyrean may monitor the regular operation of the Site, Empyrean does not review and check each item of posted content or information and listing to search for infringement or illegal activity.
2.3. The contract of sale of MAPs on the Site shall be a strictly bipartite contract between the Buyer and the Seller or between the certifier and/ or regulator and the recipient of the service on the website, unless Empyrean explicitly chooses otherwise.
2.4. You agree and acknowledge that no agency relationship will be created between Empyrean and any seller/ Seller or buyer concerning the listing and transaction, whether or not such transactions are entered into via the Site.
2.5. You hereby acknowledge that although Empyrean tries its best to provide You with accurate information and listings posted by Sellers, and may conduct general verifications of the identity of Sellers, there are still risks associated with purchasing from parties online. Therefore, we encourage You to use relevant tools available, reasonable judgment and common sense when purchasing through the Site.
3. Use and Access of the Site
3.3. All materials, including images, text, illustrations, designs, icons, photographs that are part of this Site (collectively, the “Contents”) may not reproduced, published, transmitted, distributed, displayed, modified, adapted, or exploited in any way, in whole or in part by you, except to the extent that such Contents have been posted by you.
3.4. All software used on this website and the website layout and content from Empyrean is the property of Empyrean or its content suppliers and protected by the Copyright Act, 1957, Indian copyright law and international copyright laws. Any other use, including the reproduction (except as noted above), modification, distribution, transmission, republication, display, or performance, of the Contents on the Site, without prior written permission from Empyrean, is strictly prohibited.
3.5. Empyrean grants you a limited licence to access and make personal use of the Site, but not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Empyrean. This licence does not include any resale or commercial use of this Site or its contents, any collection and use of any product listings, descriptions, or prices except for the sole and limited purchase of viewing listings and making a purchase on the Site, any copying of any information or materials posted on the Site, any derivative use of this Site or its Contents, any downloading or copying of account information for the benefit of another Seller, or any use of data mining, robots, or similar data gathering and extraction tools.
3.6. This website or any portion of this website (including but not limited to any copyrighted material, trademarks, or other proprietary information) may not be reproduced, duplicated, copied, sold, resold, visited, distributed or otherwise exploited for any purpose without express written consent of Empyrean.
3.7. While accessing the Site, or using its services or uploading or listing any content on the Site, you should not:
a. Post or transmit false, inaccurate, illegal, misleading, defamatory, or libelous content;
b. Violate any laws, regulations, third party rights or our policies, such as third party’s intellectual property rights or any laws relating to sale or purchase of goods and services;
c. Fail to deliver payment for the products and items purchased by you;
d. Manipulate the billing process of Empyrean, or fail to deliver the payment or fee owned to Empyrean;
e. Undermine the feedback or ratings systems;
f. Distribute spam, bulk electronic communications, chain letters, or pyramid schemes on the Site;
g. Distribute viruses or any other technologies that may harm Empyrean and the Site, or the interests or property of other users;
h. Collect information of other Users, including, but not limited to, their email addresses and User IDs, without their advance consent, in order to reap profits; or
i. Otherwise, incur any liability to the Site or Empyrean.
3.8. In our sole discretion, We reserve the right to remove from the Site any material or listing which we reasonably believe is unlawful, violates this Agreement, could result in any liability to Empyrean, or is otherwise inappropriate.
3.9. We reserve the right to limit, terminate and deny the right to use or access the Site and Service(s) of any User, including, but not limited to, for reasons such as infringing any third party’s intellectual property right, breaching this Agreement, and incurring any liability to Empyrean. Each User hereby also agrees that in no event shall Empyrean be liable to any User or any third party for any User’s inability to use or access the Site and/or Services. 3.10. Empyrean may launch, change, upgrade, impose conditions to, suspend, or stop any Services (or any feature within the Services) without prior notice.
3.11. To the extent that the contents of this website and portal are posted by Empyrean, these contents are original expression and works of Empyrean and have been authored by Empyrean based on facts, which are in the public domain, opinions and personal experiences. The facts made available of this website and portal have been referenced from various sources, which include but are not limited to:
c. http://ayush.gov.in/; and
4. Transacting and posting and accessing information/ content on the Site
4.1. You must be registered on the Site (a “Registered User”) in order to make purchases on the Site and/or access some Services. Empyrean may reject application for registration submitted by You or may remove a Registered User’s account for any breach of these Terms or for any other reasonable cause. Upon registration on the Site, Empyrean shall assign an account (the “Empyrean Account”) and issue a User identification (“User ID”) and password (the “Password”) to each Registered User.
4.2. You will be required to provide information or material about your entity, business or products/services as part of the registration process on the Site or your use of any Service or the Empyrean account. You represent, warrant and agree that (a) such information and material, whether submitted during the registration process or thereafter throughout the continuation of the use of the Site or Service, is true, accurate, current and complete, and (b) you will maintain and promptly amend all information and material to keep it true, accurate, current and complete.
4.3. A set of User ID and Password is unique to a single account. You shall be solely responsible for maintaining the confidentiality and security of your User ID and Password and for all activities that occur under your Empyrean Account. You shall not share, assign, or permit the use of your Empyrean Account, User ID or Password by another person outside of your business entity. You agree to notify Empyrean immediately if you become aware of any unauthorized use of your password or your account or any other breach of security of your Empyrean Account.
4.4. You agree that all activities that occur through or under or from your Empyrean Account (including, without limitation, posting any company or product information, making purchases, clicking to accept any additional agreements or rules, subscribing to or making any payment for any services) will be deemed to have been authorized by you.
4.5. By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s) purchased. You realize that any delay in the process of delivery payment may constitute a contract breach, and you shall be solely responsible for such breach.
4.6. Each User understands and accepts that the price listed for the product on the Site and/or the price paid for the product may include a payment to Empyrean for the Services provided by Empyrean.
4.7. You understand that by using and accessing the Site or any Services provided on the Site, you may encounter content that may be deemed by some to be inappropriate, offensive, indecent, or objectionable, which content may or may not be identified as such. You agree to use the Site and any Service at your sole risk, and that Empyrean shall have no liability to you for Content that may be deemed to be inappropriate, offensive, indecent, or objectionable.
4.8. You agree that the product and content listing or displaying on the Site may relate to and/or contain copyrights, trademarks, trade secrets, patents and other personal or proprietary rights of a third party. Further, You agree that the User who uploads or lists that content and information on the Site shall be solely responsible for any violation of third party rights.
4.9. The Site and Empyrean shall not be liable for any infringement or violation of such third party intellectual property and/or other personal or proprietary rights, which may occur owing to uploading/ listing.
4.10. When required by law, the government, law enforcement body, or obligee whose legitimate right has been injured, Empyrean may disclose the User’s identity and contact information. User agrees not to bring any action or claim against Empyrean for such disclosure.
4.11. The Site may allow Users to access content, products or services offered by third parties through hyperlinks (in the form of word links, banners, channels or otherwise), API or otherwise. You are cautioned to read such web sites’ terms and conditions and/or privacy policies before using such sites. You acknowledge that Empyrean has no control over such third parties’ web sites, does not monitor such web sites, and Empyrean shall not be responsible or liable to anyone for such web sites, or any content, products or services made available on such web sites.
4.12. You agree that You will not conduct any transaction with another User, whether a buyer or a Seller, other than through the Site or with the express permission of Empyrean provided that the first transaction between you and the said User was conducted over the Site.
5. Limitation of Liability
5.1. Empyrean makes no representations or warranties of any kind, express or implied, as to the operation of the site or the information, content, materials, or products included on this site. Empyrean hereby expressly disclaims any and all warranties, express or implied, including, but not limited to, any warranties of legality, condition, quality, durability, performance, accuracy, reliability, non-infringement, merchantability, vendibility or fitness for a particular purpose. without limiting the foregoing, empyrean disclaims any and all warranties, express or implied, for any merchandise offered or Contents posted on this site. All such warranties, representations, conditions and undertakings are hereby excluded. You acknowledge, by your use or access of the site, that your use or access of the site is at your sole risk. This disclaimer does not apply to any product warranty offered by the manufacturer or grower of the item and such product warranty is the sole responsibility of the seller of the product. Empyrean will not be responsible or liable in any way for any defect in the product or any deficiency in service by the seller and/ or certifier/ regulator and you expressly hereby waive all and any claims against empyrean for any defect in the product or any deficiency in service by the seller. You further expressly waive all or any claims against Empyrean, including claims under the Consumer Protection Act, 1986, for any act of the seller or the buyer, as the case may be. This disclaimer constitutes an essential part of this agreement.
5.2. Under no circumstances, shall Empyrean or any of its affiliates, employees, directors, officers, agents, vendors or suppliers be liable to you or to any other person for any indirect, special, incidental or consequential losses or damages of any nature arising out of or in connection with the use of or inability to use the Site, including, without limitation, damages for lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or computer failure or malfunction, even if an authorized representative of Empyrean has been advised of or should have known of the possibility of such damages.
5.3. In addition, in no event shall Empyrean be bear any monetary liability or be liable for damages stemming from any one of the following, no matter it is special, direct, indirect, punitive, incidental or consequential damages, or related to contract, negligence, tort or otherwise:
a. Any disputes related to goods, services purchased, or information posted or obtained from a Seller or a certifier or regulator or any User via the Site, including, but not limited to, disputes about quality, safety, warranty, lawfulness or availability of such goods, services or accuracy and/ or correctness of the information;
b. Any violation of third party rights on the Site;
c. Unauthorized access to data or private information of any User on the Site; or
d. Statements or conducts of any User of the Site.
e. Notwithstanding any of the foregoing provisions, if Empyrean, its employees, agents, affiliates, representatives or anyone acting on its behalf is found to be liable, its liability will not exceed the payment received by Empyrean in connection with the relevant transaction(s).
5.4. Empyrean shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages or any monetary liability whatsoever (including, but not limited to, damages for loss of profits or savings, business interruption or loss of information), whether in contract, negligence, tort, equity or otherwise or any other damages resulting from any of the following: (1) the use or the inability to use the Site or Services, (2) any defect, in goods, samples, data, information or services purchased or obtained from a User or any other third party through the site, (3) any inaccurate, false, defamatory, libelous content posted by a User on the site (3) any violation of third party rights or claims or demands that User’s manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Site may violate or may be alleged to violate third party rights or claims by any part that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by third party rights claimants, (4) unauthorized access by third parties to data or private information of any User, (5) statements or conduct of any User of the Site, or (6) any matters relating to Services, however arising, including through negligence.
5.5. The limitations and exclusions of liability to you under the Terms shall apply to the maximum extent permitted by law and shall apply whether or not Empyrean is aware of, has been advised of or should have been aware of the possibility of any such losses arising.
6.1. You agree to defend, indemnify and hold Empyrean and its directors, officers and employees harmless from and against any and all losses, claims, liabilities, damages, costs and expenses, including attorneys’ fees, arising from or related to (1) your use of the Site, (2) your breach of any representations and/or warranties made by you to Empyrean and (3) claims asserted by third party rights claimants or other third parties relating to products offered or displayed by You on the Site or any materials posted by you on the Site.
7. Force Majeure
7.1. Under no circumstances shall Empyrean be held liable for any delay or failure or disruption of the content or services delivered through the Site resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including, without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance by third parties.
8. Copyrights, Trademarks and Other Intellectual Property Rights
8.1. Unless otherwise noted, all contents on the Site originating from or posted by Empyrean are copyrights, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by Empyrean or one of its affiliates and are protected by the relevant laws prevailing in India and international copyright, patent, trademark and other intellectual property laws. The compilation (meaning the collection, arrangement, and assembly) of all Contents on this site is the exclusive property of Empyrean and is also protected by international copyright, patent, trademark and other intellectual property laws.
8.2. Empyrean expressly reserve all intellectual property rights in all text, programs, products, processes, technology, content and other materials which appear on the Site. Access to the Site does not confer and shall not be considered as conferring upon anyone any license under any of Empyrean’s or any third party’s intellectual property rights, except to the extent stated hereinabove.
8.3. Empyrean’s names and logos and all related product and service names, design marks and slogans are the trademarks of Empyrean. All other marks are the property of their respective companies. No license to a trademark, service mark or logo is granted in connection with the materials contained on this Site. Access to this Site does not authorize anyone to use any name, logo or mark in any manner. The unauthorized use of these names, logos or marks is strictly prohibited.
8.4. References on this Site to any names, marks, products or services of third parties or hypertext links to third party Site or information are provided solely as a convenience to you and do not in any way constitute or imply Empyrean’s endorsement, sponsorship or recommendation of the third party, information, product or service. Empyrean is not responsible for the content of any third party site and does not make any representations regarding the content or accuracy of material on any such site. If you decide to link to any such third party web sites, you do so entirely at your own risk.
10.1. Except as explicitly stated otherwise, all notice or demand to or upon Empyrean shall be in writing and delivered to Empyrean by mail to the following address: Empyrean Forests Pvt. Ltd., 53, Balai Das Chatterjee Road, Hakimpara, Siliguri, Darjeeling, West Bengal – 734001, shall be deemed effective when received by Empyrean in any of the above-mentioned manner.
10.2. All notices or demands to or upon a User shall be effective if delivered personally, by e-mail to the e-mail address provided to Empyrean during the registration process (as updated from time to time, if applicable), or by posting such notice or demand on an area of the Site that is publicly accessible without a charge. Notice to a User shall be deemed to be received by such User if and when: (1) Empyrean is able to demonstrate that communication, whether in physical or electronic form, has been sent to such User, or (2) immediately upon Empyrean posting such notice on an area of the Site that is publicly accessible without charge.
10.3. You agree that all agreements, notices, demands, disclosures and other communications that Empyrean sends to you electronically satisfy the legal requirement that such communication should be in writing.
11.1. This Agreement represents the complete agreement between the parties with respect to your use of the Site and Services and supersedes all prior written or oral agreements and representations between the users and Empyrean related to the same subject matter.
11.3. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be deleted or reformed to the extent necessary to make it enforceable and the other terms of this Agreement shall remain in full force and effect.
11.4. The failure of Empyrean to act with respect to a breach of this Agreement by you or others does not constitute a waiver and shall not limit Empyrean’s rights with respect to such breach or any subsequent breaches.
11.5. Empyrean and you are independent contractors, and no agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by the Terms.
11.6. Empyrean may transfer this contract and all or part of its rights, obligations and interests to any party or entity in its sole discretion; however, the Users may not assign its rights, obligations and interests under this contract to any party or entity.
11.7. In case a dispute of any kind whatsoever arises out of this Agreement, the parties shall make all attempts to resolve such dispute amicably. In the event that such attempts fail in resolving the dispute, a party to the agreement may refer the dispute to arbitration by a person to be mutually decided by the parties to adjudicate upon the aforesaid disputes that have arisen between the parties.
The arbitration proceedings shall be conducted in accordance with the Arbitration and Conciliation Act, 1996, as amended up till the Effective Date. The venue of the arbitration shall be Delhi and any proceedings arising out of this Agreement shall be subject to the jurisdiction of the Delhi High Court This Agreement shall be governed by and construed in accordance with the Laws of Union of India without regard to conflict of law provisions.