VENDOR
AGREEMENT
This document is an electronic record in terms of
Information Technology Act, 2000 and rules made thereunder as applicable. This
electronic record is generated by a computer system and does not require any
physical or digital signatures.
This document – the “Vendor Agreement” is an
agreement between You (“Vendor” or
“Seller”), being either a manufacturer or retailer of furnitures and Greenshoots
Retail Pvt. Ltd. (“Company” or “NIKSHOO”). NIKSHOO is in the business of developing
and operating e-commerce platform (“Platform”)
for independent third party retailers & manufacturers to list & selling
their products through the platform. The Vendor has approached NIKSHOO to avail
the platform services for the purpose of making sale of Vendor’s products and NIKSHOO
has agreed to allow vendor to use its platform. By accessing the Platform and by registering
with us, You signify that you have read and agree to the covenants contained in
this Agreement, including that you have read and give unconditional consent to
the Terms & Conditions and Privacy Policy which can be found at Terms&Condition and Privacy Policy which is incorporated
herein as a part of the covenant, and that you undertake to be governed by the
laws of India. This is a “Click Wrap Contract”.
NIKSHOO has set up and operates a technology-based
platform that facilitates sale of products and hosting services to its
registered users and persons browsing/visiting the Platform. The purchase of
products and services shall be governed by this agreement alongwith the Terms &
Conditions. NIKSHOO is a company engaged in providing services of providing an
E-catalogue with features of listing by vendors, placing of orders with vendors
by customers and other sale facilitation services. Vendor and NIKSHOO shall
hereinafter be collectively referred to as “Parties”.
DEFINITION AND INTERPRETATION:
1.1 Definitions
In this Agreement, unless the context otherwise requires, the following
words and expressions shall have the meanings ascribed to them below:
1.1.1
“Applicable
Law” shall mean any statute, law, regulation,
ordinance, rule, judgment, rule of law, order, decree, clearance, approval,
directive, guideline, policy, requirement, or other governmental restriction or
any similar form of decision, or determination by, or any interpretation or
administration of any of the foregoing by, any statutory or regulatory
authority whether in effect as of the date of this Agreement or thereafter and
in each case as amended.
1.1.2
“Consumer
Protection Act” means the Consumer Protection Act, 2019 and the
rules and regulations made thereunder, which will include all modifications and
amendments thereto
1.1.3
“Platform”
shall mean the website with a second level domain name / uniform resource
locator (URL) bearing the Brand Name with any top level domain name whether
presently available for registration or made available for registration at any future date.
1.1.4
“Platform Services” shall mean internet based electronic platform in the
form of an intermediary to facilitate sale and purchase of goods and services
through the Platform.
1.1.5
“Product(s)” shall mean any and all goods and related services
of the Vendor for which NIKSHOO makes available the platform to the Vendor.
1.1.6
“Business Day(s)” shall
mean the day on which banks are open.
1.1.7
"Buyer"/ "Customer" shall
mean any user of the Platform’s services who purchases any products from the
Seller through the Platform.
1.1.8
"Catalogue" shall
mean details relevant to the sale / purchase of the Products, including the
selling price, an informative description of each Product and its contents, by
way of text descriptions, graphics, or pictures or videos as provided by the
Seller. The seller is supposed to share the information required by the
platform for cataloguing and shall verify the same on platform whenever the
listing is live.
1.1.9
"List Price" shall
mean the price of a Product in INR at which a Product is listed at the Platform
by the Seller.
1.1.10
"Malpractice" shall
mean and include but are not limited to selling and delivering wrong, fake,
duplicate, spurious, counterfeit, damaged, defective, refurbished Products by
the Seller to Users/Buyers.
1.1.11
"Marketplace/Facilitation
Fee" shall mean the total charges that NIKSHOO charges the
seller for any sale in the platform. This shall include but not limited to
payment gateway charges, commission, ancillary fee, etc.
1.1.12
Prohibited
item(s) are the products and services prohibited by any Applicable
Law for the time being in force.
1.1.13
"Margin" is
defined as the agreed value that the platform will pay out the seller for any
successful delivered order to the customer.
1.1.14
“Seller” means the Vendor, who is selling the products through the Platform.
1.1.15
"Seller Cancellation Fee" is
defined as the penalty on account of not fulfilling the order after receiving
an order for a product. If an order is not accepted within 12 hours after
receiving the order, then the order will be marked as Seller cancellation.
1.1.16
"Transaction" shall
mean a bipartite transaction for the sale by the Seller and Customer for the
purchase of the Products, to be sold through the Platform.
1.1.17
“Confidential Information” means and includes any and all information which is confidential to a Party
including any (i) business information and business processes, (ii) any
samples, formulations, specifications, data relating to manufacturing and
quality control processes and procedures, (iii) advertising and marketing
plans, (iv) any past, current or proposed development projects or plans for
future development work, (v) technical, marketing, financial and commercial
information whether relating to past or current or future, (vi) the commercial
and business affairs of a Party, (vi) all customer related information
including any rates and discounts, and (vii) and with respect to NIKSHOO shall
include the End Customer Database.
1.1.18
“End Customer” shall
mean the retail customers to whom the Vendor offers to sell or sells or from
whom the Vendor receives offers to purchase the Products through the Platform.
1.1.19
“End
Customer Database” shall mean all data/information (as
may be updated from time to time) about the persons/entities including their
names, addresses, contact details, queries, orders and other requests made
available by such persons/entities on the Platform or otherwise captured by the
Platform that shall further include the usage, behaviour, trends and other
statistical information/data relating to such persons/entities, who (i) access
the Platform or otherwise get invitation to the Platform or correspond with the
Platform, (ii) place any order for Products on the Platform, or (iii) send any
enquiry/ request with respect to the Platform, and shall include all analysis
and records based on such aforementioned information, including the spending
and other patterns of such persons/entitles and Products. For the avoidance of
doubt, any list, description or other grouping of consumers or customers or any
derivative work from End Customer Database shall be deemed to be End Customer
Database.
1.1.20
“NIKSHOO
Grievance Officer” shall mean the grievance officer of NIKSHOO,
as designated under the Consumer Protection Act.
1.1.21
“Intellectual
Property” includes ideas, concepts, creations, discoveries,
inventions, improvements, know how, trade or business secrets; trademarks,
service marks, domain names, designs, utility models, tools, devices, models,
methods, patents, copyright (including all copyright in any designs and any
moral rights), masks rights, design right, procedures, processes, systems,
principles, algorithms, works of authorship, flowcharts, drawings, books,
papers, models, sketches, formulas, teaching techniques, electronic codes,
proprietary techniques, research projects, and other confidential and
proprietary information, computer programming code, databases, software
programs, data, documents, instruction manuals, records, memoranda, notes, user
guides; in either printed or machine-readable form, whether or not
copyrightable or patentable, or any written or verbal instructions or comments.
The End Customer Database shall be considered to be the Intellectual Property
of NIKSHOO.
1.1.22
“Intellectual
Property Rights” means and includes (i) all rights, title or
interest under any statute or under common law or under customary usage
including in any Intellectual Property or any similar right, anywhere in the
world, whether negotiable or not and whether registerable or not, (ii) any
licenses, permissions and grants in Intellectual Property, (iii) applications
for any of the foregoing and the right to apply for them in any part of the
world, and (iv) all extensions and renewals thereto.
1.1.23
“Sale
Price” shall be the price at which the Product is offered
for sale by the Vendor on the Platform by using the Platform Services, to the
End Customer. Parties agree that the Sale Price is dynamic and volatile and may
vary at different times and points of sale and therefore can be periodically
and from time to time changed or revised by the Vendor in accordance with the
terms of this Agreement.
1.1.24
“NIKSHOO’s Content” shall mean the Platform, all
the pages of the Platform, all the content contained in the Platform (excluding
any third party content and advertisements), look and feel of the Platform, any
and all information or content owned or controlled (e.g. by license or
otherwise) by NIKSHOO or its Affiliates, including text, images, graphics,
photographs, video and audio, and furnished by NIKSHOO or its Affiliates in
connection with Platform Services and for the purpose of offering for sale of
Products by the Vendor.
1.2 Interpretation
1.2.1
Agreement means this Agreement and
includes all annexures, schedules, supplements and appendices (if any);
1.2.2
References to any agreement or document
including this Agreement shall include such agreement or document as amended,
modified, varied, novated, supplemented or replaced from time to time in
writing signed by the concerned Parties;
1.2.3
Descriptive headings of Clauses are
inserted solely for convenience of reference and are not intended as complete
or accurate descriptions of the content of such Clauses;
1.2.4
The use of words in the singular or
plural, or with a particular gender, shall not limit the scope or exclude the
application of any provision of this Agreement to such person or persons or
circumstances unless the context otherwise permits;
1.2.5
The terms “hereof”, “hereto” and
“hereunder” and similar expressions shall mean and refer to this Agreement and
not to any particular Clause of this Agreement;
1.2.6
The terms “Recital”, “Schedule” or
“Clause” mean and refer to the specified Recital of, Schedule to, and Clause
of, respectively, this Agreement;
1.2.7
Any grammatical form of a defined term
herein shall have the same meaning as that of such term; and
1.2.8
The words “including” and “includes”
herein shall always mean “including, without limitation” and “includes, without
limitation”, respectively.
2
NON-EXCLUSIVITY: Arrangement
as set out in this Agreement between the Parties is on a non-exclusive basis
and vendor hereby agrees that NIKSHOO is permitted to enter into a similar or
same agreement with other vendors.
Similarly, NIKSHOO agrees that vendor
is permitted to enter into a similar or same agreement with other similar platforms.
3
ADDITIONAL RIGHTS AND
OBLIGATIONS OF VENDOR:
3.1 The
Agreement is being entered into on a Principal to Principal basis. The Vendor is
an independent person and not a Partner or an agent and/or employee and/or
workmen/worker/labour of NIKSHOO. The Vendor agrees that it will not represent
that it is an agent of NIKSHOO nor hold himself/herself out as such. The Vendor shall not enter into any agreement
or arrangement with any third party which will bind NIKSHOO legally or
otherwise.
3.2 The Vendor
hereby grants NIKSHOO the right to share/display the required details of the Vendor to/with the Customer on NIKSHOO’s
platform.
3.3 The Vendor shall use NIKSHOO platform
in accordance with NIKSHOO terms and conditions and shall ensure that it always
uses an updated version of NIKSHOO platform.
3.4 The Vendor hereby agrees and
covenants that it shall use NIKSHOO Platform, at all times during the term of
this Agreement, only for selling products through the Platform.
3.5 The Vendor shall share with
Platform appropriate information including but not limited to - category of the
Product, Price, GST %, HSN Code, Description, etc. The Vendor hereby confirms
and acknowledges that such Catalogue details shall be in compliance with all
Applicable Laws and the Vendor shall be liable for any violation in this regard.
3.6 The
Seller shall not sell any prohibited products through the Platform, and in case
of being found indulging in such sale, NIKSHOO shall be entitled to block all
such products and suspend or terminate this Agreement with the Vendor.
3.7 NIKSHOO shall intimate the Vendor of an order
been booked by a Customer requiring sale by Vendor, by an agreed mode, and the Vendor
shall immediately make the products ready (in the manner informed by NIKSHOO) and
dispatch in the manner provided by NIKSHOO at the address provided by the Buyer
as shipping address. The Vendor shall provide the Customers with the required
products, whereby ensuring that reasonable care and diligence is being followed
in making sale and delivery of the products to the Customers. The Vendor shall at its sole responsibility
ensure that its performance is of the highest standard and care.
3.8 Notwithstanding
anything elsewhere; the Vendor understands that it alone stands responsible for
its infrastructure and facilities relating to sale, delivery and return of
products and that NIKSHOO shall not bear or have any responsibility or
liability with respect to the same.
3.9 The terms such
as guarantees, warranties and after-sales services related to the Products
and/or the Services shall be between the Seller and the Buyer alone.
3.10 The Vendor shall sell its product
to customer; platform shall just act as an facilitator/enabler for the same.
3.11 The Vendor shall at all times
ensure full compliance with the applicable provisions of the laws.
3.12 Seller hereby acknowledges, agrees and
undertakes that he / it will never obliterate, smudge or alter the Maximum
Retail Price (MRP) indicated by the manufacturer or packer or the importer. If
there is any change in MRP arising due to change in batch of the product or whatsoever
be the reason, the seller shall raise the same with the platform to get the
necessary changes done. In case of violation, the Platform at its sole
discretion may recover GMV of the concerned product (s), indemnify itself of
all losses, damages, legal risks / costs or may decide to impose a penalty as
in the agreement and the Platform may further decide to suspend Seller for
further business till he/it pays the imposed penalty and/or damages, and the
Platform may also terminate the Agreement in the event of finding second and
subsequent such violations on the part of Seller.
3.13 The Parties understand that NIKSHOO’s Platform works as facilitator, wherein the seller will be
taking care of warehousing, packaging and delivery and installation, wherever
required.
3.14 Seller undertakes and confirms that
while listing the inventory of the Product, the Seller has physical possession
and owns such quantity of product as listed on the platform and further
undertakes to fulfil the orders placed by the buyer promptly. In the event of
delay in shipment/delivery of Product or seller cancellation of orders due to
non-availability of Product, the seller acknowledges that NIKSHOO shall charge
the seller cancellation fee to the seller.
3.15 In accordance with the GST laws, the
Seller shall be solely responsible to issue documents such as E-waybills,
delivery challans etc. as may be required for transportation of Products from
one place to another and the Platform shall not be responsible for any loss
arising due to confiscation of goods by governmental agencies on account of
lack of proper documentation, mis-declaration etc.
3.16 Vendor hereby agrees that NIKSHOO does
not have any control over the Customer and is not responsible for the order
placed/information provided or words spoken/written by the Customer on NIKSHOO
platform. Vendor also acknowledges and agrees that NIKSHOO is not responsible
for verifying the authenticity of the credentials of the Buyer who has placed
the order.
3.17 Vendor shall at its sole cost and
expense, obtain and maintain all permits and licenses necessary in connection
with its performance of its obligations under this Agreement and shall comply
with all relevant governmental rules and regulations.
3.18 Vendor
hereby agrees to comply at all times with NIKSHOO terms & conditions,
privacy policy, applicable rules and regulations regarding safety, security,
use, and conduct, at NIKSHOO’s Platform.
3.19 Vendor
hereby further agrees that in no event and under no circumstances shall NIKSHOO
be held responsible and liable, whether together with the Vendor or
independently, with respect to sale made by Vendor to the Customers
3.20 The Vendor
agrees to provide all the required details to be registered as a Vendor on NIKSHOO.
These details shall include:
3.20.1
Full Name
3.20.2
Unique Gumastha/shop-registration or
incorporation certificate
3.20.3
Proof of authorisation to the person
acting on behalf of Vendor (if name of same person is there in shop
registration certificate then not required, else a letter of authority of the
owner needs to be taken)
3.20.4
Details of manufacturer of the
products being sold by it (Eg. name of manufacturer, address of manufacturer,
relation with the vendor, etc.)
3.20.5
Details of location where the
products will be kept or stored before delivery against the orders made.
3.20.6
Unique Aadhar of owner/authorised
person of theVendor.
3.20.7
Unique PAN of owner/authorised person
of the Vendor.
3.20.8
GSTIN Number/GST registration
certificate
3.20.9
Contact and correspondence information
including contact number and email address.
3.20.10 Bank
Account or other payment details.
3.20.11 High
resolution photograph
3.20.12 List
of other Platforms, whether similar to NIKSHOO or not, through which the Vendor
is currently selling products.
3.21 The Vendor
agrees not to divulge your NIKSHOO Platform credentials to anyone, and that no
one but yourself will be operating this
account.
3.22 The
Vendor understands that he may be provided or get access to Customer’s
sensitive information for the purpose of sale. The Vendor agrees not utilize
this sensitive Customer information for any other purpose, and be in adherence
to the terms of Privacy Policy at all times.
3.23 All information shared by the Vendor for
its profile, or information you share with the Customer on NIKSHOO Platform
will be governed by NIKSHOO Terms & Conditions and Privacy Policy.
3.24 The
Parties further agree that if any responsibility not specifically described in
this Agreement is found to be an inherent, necessary or customary part of the sale
to be made by the Vendor, the same shall be considered part and parcel of the
mandatory performance of services by Vendor under this Agreement.
3.25 The Seller
shall be solely responsible and liable for any complaints and queries of the
Buyers with respect to the Products in terms of the details of the same,
quality and packaging etc. The same will be communicated to the Vendor.
3.26 The Seller
shall be solely responsible for making any representations or warranties with
respect to the quality of the Product to the Buyer, including all relevant
Product warranties.
3.27 The Seller
Agrees and ensures that the seller shall have appropriate infrastructure to
substantiate their genuineness/authenticity of packing the order and when any
claims/dispute arise in case of any third party complaints the platform shall
ask for such proofs from the sellers. The sellers shall protect and preserve
such proofs for at least 30 days from the date of receiving an order
3.28 Seller shall
maintain records of all the Products purchased by the Buyers through the
Platform, all returns, refunds, etc. as may be required for audit and
regulatory purposes and for the Platform’s Customer service purposes.
3.29 The Seller
undertakes and agrees that product Catalogue listing details on Platform shall
be true, correct, duly authorized and constitute complete details that a buyer
needs to know. If the Seller is found to be involved in any such
misrepresentation or illegal activity or malpractices, the Seller acknowledges
that the Platform reserves the right to blacklist the seller from selling on NIKSHOO
in addition to initiating appropriate legal proceedings against the Seller. NIKSHOO
Dispatching of products by the Seller not as desired by the Customers shall
also amount to Malpractice under this agreement.
3.30 If any
information is not provided but required to better represent the Product on the
Platform, the Platform shall intimate the Seller about the same and it shall be
provided within 7 days from the date of such request made by the Platform.
3.31 The Seller
undertakes and agrees to dispatch and deliver only those genuine and original
products that were ordered by the Customer through the Platform or its channel
partner and not to dispatch any other product of lesser value or any other
material which is not ordered, also not to sale any substitute product.
3.32 The seller
agrees and acknowledges that all costs including attorney’s fee, for any
claim/dispute arising out of this agreement (not limited to malpractice)
initiated by customer/platform/any third party shall be borne completely by the
Seller.
3.33 The Seller
acknowledges that the Platform has the right to cap the maximum quantity of
Product to be sold and listed on the Platform.
3.34 It is
the responsibility of the Seller to provide correct Harmonized System
Nomenclature Code/Service Accounting Code to the Platform, at the time of
listing its Products on the Platform.
3.35 Any
seller initiated/sponsored promotion will be recovered from the seller. The
same can be deducted from payments to seller.
3.36 The
Seller shall be bound to intimate the Platform through e-mail, in case it
remains closed for a period more than 2 days or in case it becomes ineligible
to make sale of products through the platform (for any reasons whatsoever) for
a period more than 2 days.
3.37 In case of any grievance arising
in relation to the Platform services, the Vendor shall discuss the same with
the Platform, without disclosing the grievance to any other person.
4
RETURN OF
PRODUCT:
4.1 Where the
Product has been returned or couldn’t be delivered due to any reason/fault
attributable to Seller (including but not limited to non-availability of stock
of products which were listed on the Platform), then the Platform may on behalf
of the Seller refund to the Buyer the Selling Price and delivery charges if any
paid by the customer to purchase the Product and Seller shall be liable to pay the
platform the amount paid by it as refund. Returns due to unsuccessful delivery
to Customer or Customer cancellations prior to delivery completion are not
charged. The facilitation fee if any charged shall be returned. These returns
are commonly termed as RTO.
4.2 Seller agrees
and acknowledges that the Platform shall be entitled to recover/adjust any
outstanding amount due and payable by the Seller to the Platform under this
Agreement from the Seller Proceeds payable to Seller and Seller undertakes not
to object to such recovery/adjustment.
5
RIGHTS AND OBLIGATIONS OF NIKSHOO:
5.1 NIKSHOO shall be responsible for
development of the platform, day to day upkeep of platform and any upgradation
of the platform.
5.2 NIKSHOO shall ensure that platform is
operational and accessible at all times (subject to unforeseen technical
errors/failures).
5.3 NIKSHOO shall reasonably ensure that the
technology and experience provided by NIKSHOO and its personnel are of the
highest quality and standard.
5.4 NIKSHOO shall have the right to respond to Customer
reviews listed on NIKSHOO’s platform, on behalf of the Vendor and in
consultation with the Vendor.
5.5 NIKSHOO shall have the right to call upon the Vendor
to report to any personnel, employees, agents or contractors of NIKSHOO, after
informing Furniture Store 2 Business Days in advance to check and ensure that
the Vendor is performing its part at a desired level.
5.6 NIKSHOO at its sole cost and expense, shall
obtain and maintain all permits and licenses necessary in connection with NIKSHOO
performance of its obligations under this Agreement and shall comply with all
relevant governmental rules and regulations.
5.7 NIKSHOO hereby agrees to honor the payment
commitment set out in this Agreement and confirms that NIKSHOO shall not act or
cause any of its employees, officers, directors, staff or personnel to act in a
manner so as to dishonor any of its obligation under this Agreement or to
adversely affect the revenue of Vendor or adversely affect the business of Vendor.
5.8 In order to process payments made by the End
Customers and to generally provide the Payment Facilitation Services, NIKSHOO
shall reasonably maintain appropriate contracts with payment gateways and shall
comply with the applicable laws.
5.9 In case of
customised sale of furniture, which has been facilitated by Nikshoo, the Vendor
shall pay a commission to Nikshoo at a rate/amount decided by Nikshoo at the
time of facilitating sale to the Vendor.
6
ADDITIONAL PAYMENT TERMS:
6.1 By
the end of every fortnight, NIKSHOO shall share a settlement statement (“Fortnight Settlement Statement”) with the Vendor providing the break-up
for each of the sale and return made by/to the Vendor in the period. The
payment under statement shall be made on 05th and 20th of
every month, provided 10 days have elapsed after completion of delivery /
installation of the product.
6.2 All
payments made by NIKSHOO to the Vendor shall be subject to withholding taxes
and such other taxes as and when applicable.
6.3 The
Seller will be responsible for payment of all applicable taxes from time to
time as notified by the statutory governing authorities including GST, local
levies or other charges levied by Central/State/local authorities etc. as per
prevailing government rates.
6.4 The seller expressly agrees & acknowledges that NIKSHOO
through its platform is facilitating sale by the seller, and the Seller hereby
authorises NIKSHOO that in certain cases Nikshoo may raise invoice on Seller’s
behalf and to collect the payment thereof from the customers. NIKSHOO may
hold/keep the payment of the Seller with it until the time permitted under this
Agreement, and NIKSHOO shall be solely entitled to any benefits arising out of
holding/keeping of the said payments for the permitted time.
6.5 Remittances to a seller for successful transactions under
the payment facility would be in compliance with directions issued by the
Reserve Bank of India (RBI) for opening and operation of accounts and
settlement of payments for electronic payment transactions involving
intermediaries vide its notification RBI/200910/231DPSS.CO.PD.No.1102 /
02.14.08/ 2009-10 dated November 24, 2009 as amended time to time (“RBI
Intermediary Guidelines”).
6.6 The Seller agrees and acknowledges that the
Platform retain the right to deduct tax collected at source “TCS” as per GST
law or any other taxes (at the rates prescribed under the Applicable Law), for
the Seller with respect to physical goods. The Seller shall be responsible for
reconciliation of Tax Collected at Source (TCS) with the Platform statements,
within the timelines specified by the Platform, or by law, from time to time.
In due compliance of its obligations, the Platform may remit, the TCS from the
Seller, to the respective Central and State Government/Union Territory. Such
remittance is in full discharge of obligations on the part of the Platform.
Upon the fulfilment of such obligations, the Platform shall not be responsible
for any inability on the part of the Seller, to claim a tax credit of the
applicable tax collected from it by the Platform. However, the Platform shall
not be responsible for denial of TCS credit to the Seller.
6.7 Seller agrees that the Platform shall, at all
times, have the right and option to deduct / adjust any payments due to, or
from, Seller in one transaction, against any payments due to, or from, Seller
in other or previous transactions.
6.8 All payment exchanges between the Parties
shall be consummated through a direct bank transfer using NEFT/RTGS/IMPS or
through a cheque/demand draft/pay order as specified by the
Parties.
6.9 The Parties agree that NIKSHOO shall pay the Vendor
a differential amount, that is, the amount equal to the Vendor invoice
amount minus NIKSHOO Fee. Additionally, in order to scale up the business for
the Vendor, NIKSHOO at its discretion may charge the Customer a discounted
amount that can be lower than the agreed Vendor invoice amount. In such an
event NIKSHOO shall borne the cost towards the discounted fee and continue to
pay the Vendor an amount equal to the Vendor invoice amount minus NIKSHOO Fee.
Further, NIKSHOO may charge the Customer a higher amount and retain the excess
amount charged from the Customer over the agreed Vendor invoice amount. In such
events NIKSHOO shall continue to pay the Vendor an agreed amount, that is, the
amount equal to the Vendor invoice amount minus NIKSHOO Fee.
6.10
All the payments made under
this Agreement shall be subject to applicable withholding taxes and such taxes
as applicable from time to time.
7
TRANSFER OF OWNERSHIP OF PRODUCT, LOGISTICS
AND CONSUMER RIGHTS
7.1 The Seller will
offer standard Manufacturer’s or Seller’s warranty actually associated with the
Products. However, the Seller agrees that repair, replacement or 100% (one
hundred Percent) refund of money will be given to the Customer against any
manufacturing defect or damage reported by the Customer. The Seller shall be
solely responsible to issue a suitable, duly stamped, manufacturer’s warranty
card to the Buyer with the Product at the time of dispatch of the Product, if applicable.
7.2 The Seller
undertakes to bear all logistics cost with respect to return/reverse orders due
to fault in terms of Product attribute.
7.3 In case the
Platform cancels their order for any reason whatsoever before the pick-up of
order, the Platform will inform Seller to stop the delivery of the said order.
7.4 The Platform
may run schemes for the purpose of improving their operational efficiency. The
said scheme shall be announced by the platform from time to time. Participation
in these schemes is at the discretion of the sellers. The said schemes shall be
informed to the seller's prior to the supply/sale of good and only on
acceptance the scheme will be applicable.
7.5 NIKSHOO
as
the proprietor and owner of the Platform and the Platform Services and rights
holder of the Brand Name may at its sole discretion carry out advertising and
marketing activities in relation to promotion of the Platform, Platform
Services and Brand Name in any manner and to any extent as may be deemed fit by
NIKSHOO and for such purposes may engage in certain sales promotion activities
to increase the sales of the Products on the Platform. NIKSHOO
and
the Vendor may agree on certain terms on which the Vendor shall support such
sales and marketing activities of NIKSHOO including providing
discounts on the Products or other free of cost goods and services to the End
Customers.
7.6 NIKSHOO may at its
sole and absolute discretion, on reasonable commercial efforts basis, market, promote
or advertise the Products made available for sale by the Vendor on the Platform
in compliance with this Agreement.
7.7 Where the Vendor
believes or is notified by other entity including any third party manufacturers
of the Products that any promotion plan/activity undertaken by NIKSHOO is against any
applicable law or in breach of any contractual obligation of the Vendor or such
third party manufacturer (in both cases supported by a written legal opinion
from a reputed senior advocate), the Vendor shall intimate the same to NIKSHOO and upon such intimation,
NIKSHOO shall within reasonable time cease such
plan/activities.
7.8 The Vendor
agrees and acknowledges that NIKSHOO shall have the
sole right (as to between NIKSHOO and the Vendor)
for the design, look and feel, architecture, layout, positioning and all
aspects of the Platform including listing, positioning, indexing, placement and
tiering the Products offered for sale on the Platform by the Vendor and the Vendor
shall not question or dispute such exercise of right or discharge of
responsibility by NIKSHOO.
7.9 NIKSHOO
shall be solely responsible at its sole discretion to sell or license any
and all advertising and promotional time and space with respect to the Platform
including webpages or such portions of the Platform that contains the details
of the Products. The advertisement and promotions on any part of the Platform
may include video advertising, display/ banner/text advertisements, including
but not limited to medium rectangle, leader-board, roadblock, hyperlink, page
branding, framing, widgets, pop-ups, pop-under, network advertisements (for the
sake of example, Google AdSense) available on the Platform. NIKSHOO
shall have the sole right and discretion to decide the style, placement and
format of the advertisement and promotion and the price and/or any other
consideration, if any, for the sale and license of such advertisement and
promotion. Except for the facilitation of payment of sale consideration of the
Product through the Payment Facilitation Services, NIKSHOO
and/or its Affiliates shall be entitled to retain any and all revenues
generated from any sales or licenses of all such advertisements and promotions
8
TERM AND TERMINATION:
8.1 The
date on which the Vendor registers itself on the Platform shall be regarded as
the date of commencement of this Agreement (“Commencement Date”).
8.2 The
Agreement is valid until the time the Vendor deactivates or requests deletion
of its Account with NIKSHOO, or NIKSHOO deactivates or deletes the Account. The
obligations of either party in respect of breaches of the terms of this
Agreement shall survive any such termination.
8.3 Either
Party may terminate this Agreement for (i) breach or non-conformity by the
defaulting Party of any of the terms of this Agreement or failure to perform
the obligations/duties under this Agreement, which breach or failure, if
capable of cure or remedy, has not been cured or remedied within thirty (30)
days of the receipt of written notice of such breach or failure from the
non-defaulting Party; or (ii) in the event of a Party being ordered to be insolvent/wound
up for any reasons by any court or direction and/or liquidator/receiver being
appointed.
8.4 Notwithstanding
anything else contained in this Agreement, the either Party may terminate this
Agreement , for any or no reason, at any given point in time by giving the
other Party a thirty (30) days’ notice of such termination.
8.5 Notwithstanding
anything else contained in this Agreement, NIKSHOO may terminate this Agreement
with a day notice in the case of provable negligence, fraud or misconduct on
the part of the Vendor in performance of its part under this Agreement.
8.6 Notwithstanding
anything else contained in this Agreement, the Vendor may terminate this
Agreement with a day notice in the case of (i) provable negligence or gross
misconduct on the part of NIKSHOO and/or its staff in performance of the
services to be provided by NIKSHOO and (ii) Major malfunction, bug or outage in
NIKSHOO platform that affects Vendor sale to the Customers and provided that
bug has not been cured or remedied by the Vendor within thirty (30) days of the
receipt of a written notice by the Vendor in this regard.
8.7 Upon
termination of this Agreement whether by expiry of the Term or early
termination, both Parties shall settle all accounts and payments due to the
other Party as on the date of termination.
8.8 Without
prejudice to the generality of the foregoing clause, NIKSHOO reserves the right
to terminate this Agreement with immediate effect for:
i.
Any breach of the terms of this
Agreement by the Vendor;
ii.
failure to verify or
authenticate Vendor Store Information; and
iii.
any action or omission by the Vendor
which can cause legal or contractual liability for NIKSHOO including but not
limited to fraudulent conduct, customer complaints, continuous unsatisfactory
reviews by the Vendor or the Users, misconduct, negligence, and all other
actions specifically prohibited under Applicable Law.
iv.
NIKSHOO is also at liberty to
terminate the contract at their discretion, where, in their opinion,
continuance of sale by Vendor through the Platform is detrimental to the
business interest of NIKSHOO due to the acts of the Vendor, such as the following:
a.
Misbehavior, rude behavior with
the staff of NIKSHOO, Users or any other persons associated with NIKSHOO.
b.
Any acts involving criminal
offence punishable under law, including physical assault, threatening any of
the staff of NIKSHOO, person associated with NIKSHOO and any other persons.
c.
Concealment of fact / material
information while entering into contract with NIKSHOO.
d.
Poor & irregular for work,
meetings and failure to abide by the rules / terms of contract.
f.
Poor performance for two
consecutive weeks. Performance includes - daily productivity, number of sale
made, quality standards such as denying/ fast forwarding/ cancelling the order
placed at Vendor.
g.
Commission of fraud/
misappropriation/embezzlement for undue monetary gain, which is against the
interest of NIKSHOO.
h.
Negligence in performing the
duty, causing damage of moveable and immoveable assets of NIKSHOO, its
employees, Users.
i.
Indulging in spreading content
through digital media, social networking sites, or any other form, which could
be detrimental to NIKSHOO brand and its image.
j.
Indulging in acts such as
creating ruckus/ strike/ or any activity against NIKSHOO, which could be
detrimental to NIKSHOO brand and its image.
k.
Indulging in unauthorized
disclosure of Confidential Information of NIKSHOO to external agency, person, NIKSHOO
or organization.
l.
Misuse of assets provided by NIKSHOO
and welcome kits, which could be detrimental to the interest of NIKSHOO brand
and its image.
m.
Absconding for more than 4
hours with any asset, delivery item, money or any other valuable item belonging
to NIKSHOO, its employees, Users, and/ or other staff member(s).
n.
Failure to abide by any of the
rules and guidelines given by NIKSHOO as part of product sale quality standards
and principles.
o.
Doing any act unbecoming of a Vendor.
9
DATA PRIVACY & SECURITY:
9.1 Parties
shall ensure that all personal information, including without limitation, name,
age, address (including postcode), telephone number, or email address, shall be used in accordance with NIKSHOO
privacy policy as defined in …………………and as per applicable laws in relation
thereto.
9.2 Neither
Party shall disclose personal information without following due
course/applicable privacy, security and data protection laws, rules and
regulations including without limitation those restricting cross border
transfer of data, and all applicable laws, rules and regulations governing
outbound telephone calls, transmission of electronic mail or other electronic
messages not limited to SMS or WhatsApp messages or transmission of facsimile
messages.
9.3 Without
NIKSHOO prior written approval, the Vendor shall not publish or use any
advertising, sales promotion or publicity matter relating to the Agreement
and/or NIKSHOO.
9.4 The
Vendor agrees that NIKSHOO for its promotional purposes shall be allowed to use
the information provided by the Vendor.
10 OWNERSHIP OVER IP RIGHTS:
10.1
Intellectual
Property Rights in Relation to Brand Name
· The Vendor acknowledges NIKSHOO’s absolute
ownership of, interest in and rights to the Brand Name and the Platform.
· Without
limitation to the foregoing, the Vendor acknowledges and agrees that all
goodwill in or associated with the Brand Name, including any goodwill generated
or arising by or through NIKSHOO’s or the Vendor’s activities pursuant to this
Agreement shall accrue for the benefit of and shall belong exclusively to NIKSHOO.
· No
right or interest in the Brand Name are granted or deemed to be granted by NIKSHOO
to the Vendor.
10.2
All plans, ideas, materials,
data or information furnished by NIKSHOO to the Vendor in connection with the
Agreement (“NIKSHOO-furnished Materials”) are the sole property of NIKSHOO. The
Vendor must not use any of those items at any time in connection with any
product or service of any other organization, or for any purpose other than the
Vendor’s performance of its obligations under the Agreement.
10.3
Upon termination or expiration
of the Agreement, Vendor will transfer to NIKSHOO, title and ownership of all
Material which it got access/custody to during the course of this Agreement.
Thereafter, NIKSHOO shall have no liability to anyone arising from NIKSHOO use
of any of that Material.
11 QUALITY
OF PERFORMANCE:
11.1
Parties hereby agrees to:
(a) perform their respective parts under this agreement in a proper, timely and
efficient manner using the standard of care, skill, diligence, prudence and
foresight that would reasonably be expected from a prudent, expert and
experienced Platform/Vendor that are similar to the acts to be performed under
this Agreement; (b) ensure the highest quality of work and the sale with the
utmost efficiency and care; (c) act in good faith and in the best interests of
the other Party; (d) keep the other Party informed of all matters of which it
ought reasonably be made aware, and provide such information in relation to the
sale of products as may reasonably be required by the other Party; and (e)
fully comply with their obligations and duties under this Agreement.
12 WARRANTY: Each
Party warrants that (i) it has the power and authority to execute and deliver
this Agreement and is not prohibited from entering into this Agreement; (ii)
this Agreement has been duly authorized by all necessary resolutions and upon
execution and delivery by it will be a legal, valid and binding obligation
against it, enforceable in accordance with its terms; (iii) the execution and
delivery of this Agreement by it and the promises, agreements or undertakings
under this Agreement do not violate any applicable law, or any rule, regulation
or order applicable to it or violate or contravene the provisions of or
constitute a default under any documents, contracts, agreements or any other
instrument to which it is a party or which are applicable to it; and (iv) all acts
done by it will be done in a professional manner and with the highest
standard and care.
13 CONFIDENTIALITY:
13.1
Any information relating to a Customer
or about either Party obtained during the subsistence of this Agreement shall
remain confidential and the Parties shall not disclose such confidential
information to any third party (provided that NIKSHOO may reveal such
information to any of its employees, officers, advisers, on need to know basis)
without prior written consent of the disclosing Party.
13.2
Obligations of confidentiality contained
herein shall not apply to any information which is already in the public
domain.
13.3
Legal Obligation to Disclose: Either
Party may disclose Confidential Information of the other Party in accordance
with a judicial, administrative or governmental order, provided that the Party
disclosing the information against the judicial, administrative or governmental
order gives the other Party reasonable notice and opportunity prior to such
disclosure to take any lawful actions that are available to prevent or minimize
the extent of disclosure of the Confidential Information.
13.4
Party’s obligations for
confidentiality shall survive the termination of this Agreement.
13.5
The Vendor’s personal/sensitive
personal data/information shall be governed by the Privacy Policy of the
Platform, which terms (including all amendments, modifications, reinstatements
and substitutions) shall be deemed to be incorporated herein by way of
reference.
14 INDEMNITY:
14.1
Except expressly covered under
this Agreement, NIKSHOO shall not become or be responsible for any other
liability on any account.
14.2
Vendor shall indemnify, defend
and hold NIKSHOO harmless from all actions, proceedings, complaints, claims,
damages, demands, liabilities, costs, expenses, etc arising out of or in
relation with:
14.2.1
any violation of
confidentiality obligations;
14.2.2
any form of negligence;
14.2.3
any violation of the intellectual
property rights of NIKSHOO;
14.2.4
any act of willful misconduct,
gross negligence by the vendor and/or its representative;
14.2.5
any statutory violation;
14.2.6
any other act which may have
any form of legal impact on NIKSHOO.
14.3
NIKSHOO liability under this
Agreement shall not exceed INR Five Thousand (5,000/-).
14.4
Vendor may not in any
circumstances be liable for any claims or damages in respect of NIKSHOO Platform
services rendered to any person independent of the acts/duty of the Vendor.
15 MISCELLANEOUS:
15.1 Vendor shall be responsible for compliance,
and shall ensure that it complies with all applicable laws and regulations
related to the acts of the Furniture Store, including obtaining all required
registrations or licenses, paying government taxes and filing tax returns and
following procedures whatsoever required. Vendor shall be responsible for
compliance with all agreements, obligations and covenants which affects the Vendor’s
ability to sell the products. This Agreement is based on the assumption that the Vendor
is in compliance with all such regulations, and the information and documents
provided by the Vendor in relation to this compliance are true and
accurate.
15.2 NIKSHOO shall be responsible for compliance,
and shall ensure that its employees and staff comply, with all applicable laws
and regulations related to the sale made through NIKSHOO platform, including
obtaining all required registrations or licenses, paying government taxes and
filing tax returns and following procedures. NIKSHOO shall be responsible for
compliance with all agreements, obligations and covenants which affects its
ability to operate and run its business.
15.3 Either
Party shall not be characterized as owner, operator, joint venture, partner,
employee, agent, employer, occupier or a contractor in relation to the other
Party.
15.4 A
Party shall not be liable or required to perform any of its obligations under
this Agreement in the event of any contingency beyond the reasonable control of
the Party, such as an act of God, flood, earthquake, war or national emergency,
insurrection, any epidemic, and/or an act of terrorism and change in government
policies. If the delay or failure continues for more than thirty (30) days,
either Party may terminate this Agreement in whole or in part, upon notice in
writing to the other Party.
15.5 Nothing
in this Agreement shall be deemed to create a partnership or establish a
relationship of principal and agent between the Parties hereto or in any manner
authorize either Party to bind the other for any purpose and neither Party
shall become liable by reason of any representation, action or omission of the
other Party except in accordance with the provisions of this Agreement.
15.6 Except
as otherwise expressly limited or provided for herein, neither Party shall
assign and transfer any of its rights, privileges, or obligations set forth in,
arising under, or created by this Agreement in whole or in part without prior
written notice to the other Party.
15.7 If
any term or provision in this Agreement is held to be illegal or unenforceable,
in whole or in part, under any enactment or rule of law or by order of a court
of law, such term or provision or part thereof to that extent will be deemed
not to form part of this Agreement and the same shall be replaced by a valid provision,
which comes as close as reasonably possible to the original intended purpose of
the original provision and the enforceability of the remainder of this
Agreement will not be affected.
15.8 Any
term or condition of this Agreement may be waived at any time by the Party that
is entitled to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf of the
Party waiving such term or condition and accepted by the Other Party. No waiver
by any Party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies
under this Agreement or by law or otherwise afforded, will be cumulative and
not alternative.
15.9
This Agreement may be amended,
changed, modified, supplemented, by the Company by seeking Your consent to the
updated Agreement in a specified manner prior to any further use/conduct/sale
at the Platform. You may withdraw your consent to the amended Agreement, at any
time by initiating request for deletion of your account at the platform,
forthwith your account will be deleted and the updated Agreement shall not be
applicable to you. Your use of Platform, conduct at the Platform, sale and all
the obligations under this agreement are subject to the most current version of
the Agreement made available on the Platform, at the time of such
use/conduct/provision. You are requested to regularly visit the Platform to
view the most current Agreement. It shall be your responsibility to check the
Agreement periodically for changes incorporated therein.
15.10 Any
notice, consent, request, demand, approval or other communication to be given
or made under or in connection with this Agreement (each, a “Notice” for
the purposes of this clause) shall be in English, in writing and signed by or
on behalf of the Party giving it and must be effected by electronic mail with a
signed pdf attachment and shall be deemed to be served upon delivery.
In
the case of notices to NIKSHOO: E-mail: info@nikshoo.com
In
the case of notices to Vendor: E-mail address provided by Vendor at the time of
registration.
15.11 This
Agreement shall be governed in accordance with the laws of India without
reference to conflict of laws principles. In the event that any dispute or
difference should arise between You and Company in performance, interpretation
and/or application with respect to the Agreement and/or any matter relating to
or arising out of the Agreement shall be referred to the Sole Arbitration of an
Arbitrator to be appointed by the Company whose decision shall be final and
binding upon the Parties. Any notice by the Arbitrator to You shall be sent by
registered post at the address mentioned by you while registering your account
with us, and it will be deemed to be sufficient notice to the Parties. The
costs and expenses of the arbitration proceedings shall be borne by You. The
sole Arbitrator shall conduct the arbitration proceedings at place and location
to be decided by Company, in case of such dispute and shall be binding on You.
It is also agreed by You that arbitration proceeding would be conducted in
English only and in no other language. You agree that all claims, differences
and disputes arising under or in connection with or in relation hereto the
Platform, the Agreement or any transactions entered into on or through the
Platform or the relationship between You and Company shall be subject to the
exclusive jurisdiction of the courts at Indore, India and You hereby accede to
and accept the jurisdiction of such courts.
<END
OF VENDOR AGREEMENT>