NOW THIS AGREEMENT WITNESSETH HEREWITH:
1.1 “Confidential Information” shall mean any information, data of any nature relating to or connected with any institutional, business, financial, operational, scientific, technical and other information disclosed verbally or in writing or through electronic communication by and between the parties, whether before or after the execution of this Agreement, and not generally known by or disclosed to the public or known to each party solely by reason of the negotiation, execution and/or performance of any or all of the terms of this Agreement, and shall include, without limitation, development tools and processes, software applications, user information, designs, manuals, documentation, procedures, ideas, know-how, improvements, concepts, records, files, memoranda, reports, plans, forecasts, strategies, modules, policy decisions, strategies and all document, books, papers, and other data of any kind and description, including electronic data recorded or retrieved by any means as well as written or verbal discussions, meetings, amendments, manuscript, instructions or comments and the like, including any of those relating to or connected with or arising out of this Agreement
Confidential Information shall not, however, include any information that either Party can demonstrate with a documentary proof that:
a) It was in possession of the Party prior to it being furnished to the Party receiving information under the terms of this Agreement, provided the source of that information was not known by the Party receiving it, to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to the Party disclosing it;
b) is now, or hereafter becomes, through no act or failure to act on the part of the Party such information, generally known to the public and is available in a public domain for general access;
c) is lawfully, legally and rightfully obtained by the Party receiving information from any third party without breach of any obligation to the Receiving Party; or
d) is independently developed by the Party receiving such information without use of or reference to the Party disclosing the Confidential Information; or
e) is compelled by law, provided the Party disclosing the information provides the other Party with prompt notice of any efforts to compel disclosure and reasonably co-operates with other Party’s lawful attempts to prevent disclosure or to obtain a protective order.
1.2 Customer” means any person placing an order for the Products of the Vendor through the Platform.
1.3 “GST” means Goods and Services Tax Act, 2017.
1.4 “Intellectual Property (“IP”)” shall mean and include without limitation of any nature, any or all patents, copyrights , trademarks, designs, logos, depiction, styles, letterings and any and all other ownership, proprietary rights, exploitation over rights, now or hereafter recognised in any and all global territories and jurisdictions that the Company may operate in and/or have a presence, including graphics, audio and video clips, icons, buttons, images, data compilation, rights of communication in any form or manner or extent to the public, and the right to commercially or otherwise exploit such property throughout the universe in perpetuity in all media, markets and languages, geographies and in any other manner now known or hereafter devised.
1.5 “Net value of taxable supplies” means the aggregate value of taxable supplies of goods or services or both, other than the services on which entire tax is payable by the e-commerce operator, made during any month by a registered supplier through such operator reduced by the aggregate value of taxable supplies returned to such supplier during the said month.
1.6 “Order” means an order for purchase of products wherein the vendor has agreed to sell, and the customer has agreed to purchase the product upon the terms and conditions and at the Price indicated on the Platform.
1.7 “Product/s” means upcycled, recycled, zero waste, chemical free product/s offered for sale by the Vendor on the Platform.
1.8 “Price” means the sale price of a product inclusive of taxes, as per the Price list of the Vendor.
1.9 “Return charges” shall mean the logistics/courier/postal charges including all taxes incurred by the Platform for collection of the returned product(s) from the Customer.
1.10 “Shipping Charges” shall mean the logistics/courier/postal charges including all taxes incurred for delivering the product(s) to the Customer by the shipping partner of the Platform.
1.11 “Subscription Fee” shall mean the non-refundable fees payable by the Vendor at the time of execution of this Agreement towards online registration/sign up with the Platform.
1.12 “Service charges” shall mean the margin or commission per transaction charged by the Company to the Vendor at the rates agreed to between the parties, upon sale of the product on the Platform.
1.13 “TCS (Tax Collection at Source)” means tax collected by the Company at the rate not exceeding 1% as notified by the laws of Government of India, of the net value of taxable supplies made through the Platform, where the consideration with respect to such supplies is to be collected by the Company.
2.1. The Company shall offer to the Vendor its services for facilitating online sale of the Vendor’s product which shall include hosting and technology services, application programming interface, customer support, logistics services (shipping and returns if availed by vendor), digital marketing, payment services and all the other related services to ensure customer satisfaction on behalf of the Vendor.
2.2 For this arrangement, the Vendor shall register/sign-up as a Member / Seller on the Platform and will upload the products on the platform.
2.4 The Vendor shall pay service charges and any other additional marketing charges as specified under these presents, for each transaction through the Platform.
2.5 The Vendor shall ensure that inventory is managed accurately and “out of stock” products shall be fulfilled within 15 days from the date of finish. Else admin has the right to disable the product from the store till stock is back in the inventory. The Company also reserves the rights to remove product/s from the vendor’s listing, if the product is found to be “out of stock” for longer duration.
2.6 The Platform will also provide “pre – order” options to seasonal products for select & qualified vendors who have completed six months of registration/ sign up & also if the vendor is able to commit to the delivery timelines and adhere.
2.7 The Vendor shall use the Platform’s branding and stationery for items being shipped to customers bought from the Platform. Vendor shall keep the packaging waste as limited as possible thereby ensuring eco-friendly and reusable and best suited for the type of product, packaging materials while shipping.
2.8 The Vendor shall provide true and accurate details about the name, address and other contact details of its business and shall update the Company of any change/s in the above-mentioned details within 5 days of the change/s, if any.
3. Consideration and Payment Terms
3.1. Vendor shall provide the bank details of the business for smooth and timely settlements.
3.2. In consideration for the services rendered under this Agreement, the Vendor shall pay a service charge at a flat rate of 20% to the Company, for sale of each product based on its “Price”.
3.3 The Company shall pay the Vendor, based on the invoice submitted, an amount recovered as Price minus the sum of service charges, shipping charges (conditional to where customer is not paying and it is as per free shipping policy of the vendor) , if any and financial transaction charges in respect of executed transactions through the Platform with applicable GST. Return charges are borne by Upciclo.com. They are not passed to the seller or the customer. Further, applicable TCS will be deducted from net value of taxable supplies of Vendor made through the Platform.
3.4 The shipping charges will be levied as applicable per transaction. The rates offered by the shipping partner will be made transparent to the Vendor in advance. However, in the event, the Vendor handles the Shipment of the Products, the Company shall pay to the Vendor an amount recovered as Price minus the service charges, applicable GST on the service charges and TCS. Any amount to be paid to the Vendor by the Company shall be paid net of reversals and deductions.
3.5. In the event if any order is reversed or returned due to “Damaged product”, “Quality Issue”, “Product Not delivered” (due to delay in packing and handing to shipping partner) or “Wrong Item delivered (size, color or variety)” or on any other reasonable grounds, Vendor agrees that the Company shall levy the shipping charges (delivery & returns) plus a penalty of 5% of the product value (maximum of 1000 and minimum amount of 200 Rupees). The said charges will be deducted from the amount due and payable to Vendor. The charges and penalty do not apply if the customer cancels the order in accordance with the Cancellation Policy of the Platform.
3.6 Further, in case of refund, the Vendor shall refund the transaction amount to the customer through the Platform only.
3.7 Further, in case of out of stock items, Company shall debit the penalty (minimum of 200 rupees and maximum of 1000 rupees) to the Vendor in the event the product cannot be delivered by the Vendor due to “out of stock” after it was ordered online, and in such an event Vendor shall be liable to bear all the cost and claims (including cost of legal proceedings, cost of attorneys, claims, etc.) raised against the Company.
3.8. Vendor is responsible for all of expenses in connection with this Agreement, unless this Agreement or the applicable Service Terms provide otherwise. For all payments vendor is required to provide valid bank account in their business name or authorized signatory name that is with a bank located within India and enabled for the Account, which functionality may be modified or discontinued by the Company at any time without notice (with respect to the Platform’s, "Your Bank Account"). Vendor will use only a name that is authorized to use in connection with the Service and will update such information as necessary to ensure that it at all times remains accurate and complete. Vendor authorizes the Company to verify their information (including any updated information), to obtain credit authorizations from the issuer of Credit Card, and to charge the Credit Card or debit Bank Account for any sums payable by vendor to company (in reimbursement or otherwise). The Company shall not be liable to make payments to the Vendor on account of incomplete or inaccurate information provided by the Vendor with respect to “Your Bank Account.”
3.9. Vendor hereby agrees and authorizes the Company or its Service Providers to collect, process, facilitate, and remit payments and/ or transaction fee electronically or through Cash on Delivery (COD) to and from customers in respect of transactions through the Payment facility of the Platform.
3.10. The Vendor accepts and agrees that the payment facility provided by the Company through the Platform is neither a banking or financial service, but is merely a facilitator providing electronic payment, receiving payment through cash on delivery, collection and remittance facility for the transaction on the Platform using existing authorised banking infrastructure and payment gateway networks. Further, by providing Payment facility, the Company is neither acting as a Trustee nor acting in a fiduciary capacity with respect to the Transaction or transaction price.
3.11 Payment reimbursement of the Sale Proceeds to Vendor shall be done by Company in the following manner:
3.11.1. Vendor shall prepare a consolidated advice list of all orders delivered to the customer, 2 times in a month for every 14 days, based on the report downloaded from the Platform.
3.11.2. The Company shall within 7 working days of receipt of advice process the amount due to Vendor and dispatch the Cheques / Demand draft favouring “ ________________________” / on line transfers. Company shall not process the payment of the orders that are within a return window and shall take it to the next payment schedule.
3.11.3. The Company shall deduct charges, TCS as specified above and agreed with the Vendor from the total amount collected as Price for the orders received by the Vendor through the Platform.
3.11.4. Any error in reconciliation or mismatch in the sale/payable needs to be intimated via email to the Company within 7 days of receipt of the payment.
3.12. The Vendor shall raise invoice along with details of GST in the name of Customer. Vendor further undertakes and agrees to raise the invoice of an amount equivalent to the amount displayed on the Platform to the customer and paid by/charged to the customer.
3.13 Vendor agrees to bear all the applicable taxes duties, or other similar payments (including GST) arising out of the sales transaction of the product through the online store and the Company shall not be responsible to collect, report, or remit any taxes arising from any transaction.
3.14. Vendor is responsible for deducting and depositing the legally applicable taxes (Eg: TDS under Income tax Act, 1961) and delivering to Company sufficient documents evidencing the deposit of such tax. Upon receipt of the evidence of deposit of such tax, Company will remit the amount evidenced in the certificate to the Vendor. Upon Vendor’s failure to duly deposit these taxes and provide evidence to that effect within five (5) Business Days from the end of the relevant month, Company shall have the right to utilize the retained amount for discharging its tax liability
4. Customer service
4.1 If the Vendor chooses to avail the logistic services provided by the Company, the Company will be responsible for and have the sole discretion relating to handling and shipment.
4.2 The Company reserves the right to determine, whether a customer will receive a refund, adjustment or replacement for any product and to require vendor to reimburse customer.
5. Obligations of the Vendor
5.1. Registration on the Platform is permissible ONLY if the Vendor deals with upcycled, recycled or zero waste products.
5.2 Vendors shall provide true, accurate and adequate description about the product including material or composition used for making/producing the product, price (inclusive of taxes), 2-dimension/3-dimension size of the product, front, rear and side view images of the exact product, quantity of products available at the time of order, delivery timelines, expected timeline for “pre-order”, disclaimers, such as, “colors may vary slightly etc”, promotion/discount, if any, on the product, guarantee, warranty and such other information as may be required to more fully describe the product.
5.3 Any product material/composition should be minimum 50% upcycled/recycled , should be categorized as zero waste and chemical free.
5.4 Vendor shall provide for safety and health warnings, if any and shelf-life of the Product, if applicable on the Product and shall display the above-mentioned details in the description on the Product Page of the Platform.
5.5 Product description should be in simple language. Images should be at least 1000 pixels in either width or height. The product should fill 85% of the frame. At least 1 image of the product should have a pure white background. One video of 10 seconds uploaded to showcase image, is permissible.
5.5. Vendor shall ensure not to upload any description/image/text/graphic that is unlawful, illegal, objectionable, obscene, vulgar, opposed to public policy, prohibited or is in violation of intellectual property rights including but not limited to Trademark and copyright of any third party.
5.7 Vendor shall be solely responsible for the quality, quantity, merchantability, guarantee, warranties in respect of the products offered for sale through the Platform.
5.8. Vendor shall, at all times have access to the Internet and its email account to check the status of approved orders.
5.9. On receipt of the approved order, Vendor shall dispatch the products within a period not exceeding next 48 hours or within the time as specified on its product page. It is vendor’s responsibility to ensure that product dispatch timelines are mentioned in the product.
5.10. In respect of the orders for Products placed through the Platform, Vendor shall submit proof of dispatch to the satisfaction of Company within 24 hours of the request made by Company if not already captured by the system.
5.11. In the event the products are not accepted by the Customer due to any wrong / damaged products dispatched, then the same shall be replaced by the Vendor at no extra cost to the customer.
5.12. The Vendor or its affiliates shall not send any of its promotional or any other information with the Products ordered by the customer and also shall ensure that no material or literature (Both for profit or non-profit) is sent which may be detrimental to the business/commercial interests of the Company.
5.13 The Vendor shall display single-figure total and break-up price for the product that includes all compulsory charges such as taxes, shipping charges, handling and conveyance charge etc.
5.14 The Vendor shall list the products in appropriate categories on the Platform. Vendors can approach admin to create categories as long as they fall under the range sold on the platform.
5.15 The Vendor shall be responsible for adequate and safe packaging of the product to avoid any damage during transit.
5.16. The Vendor shall be solely responsible for any dispute that may be raised by the customer relating to the goods, merchandise and services provided by the Vendor other than transit related handling issues.
5.17 Vendor cannot pass the Platform membership to their affiliate or subsidiary companies or sister concerns.
5.18. Vendors should not hack, scrap information from the Platform or do competition analysis or run scripts or tools or conduct data analytics on the website or servers without prior permission of the Company.
5.19. The Vendor shall not send separate marketing mailer or emails to the customer.
5.20. All products hosted on the portal should not portray any agenda or socio political, religious causes.
6. Warranties, Representations and Undertakings of the Vendor
The Vendor warrants and represents that –
6.1. They have the right and full authority to enter into this Agreement with the Company.
6.2. All their obligations under this Agreement are legal, valid and binding obligations enforceable in law.
6.4. That the Vendor shall provide the Company with copies of any document required by the Company for the purposes of performance of its obligations under this arrangement within 24 hours of getting a written notice from the Company.
6.8. The Vendor shall, prior to release of any promotion/advertisement material seek prior written approval for the same from the Company, in so far as the same relates to services offered pursuant to the terms of this Agreement.
7. Company Rights:
7.1. Vendor agrees and acknowledges that the Company, at all times during the continuance of this Agreement, shall have the right to remove/block/delete any text, graphic, image(s) uploaded on the Platform by the Vendor without any prior intimation to Vendor in the event the said text, image, graphic is found to be in violation of law, breach of any of the terms of this Agreement, terms and conditions of Platform. In such an event, the Company reserve the right to forthwith delete the products of the Vendor without any prior intimation or liability to the Vendor.
7.3. At any time if the Company believes that the services are being utilized by the Vendor or its Customer in contravention of the terms and provisions of this Agreement, Terms and conditions of use of the Platform , the Company shall have the right either at its sole discretion or upon the receipt of a request from the legal / statutory authorities or a court order to discontinue/terminate the said service(s) to Customer or the End user as the case may be, without liability to refund the amount to the Vendor to forthwith remove/block/ the Vendor and furnish such details about the Vendor and/or its customers upon a request received from the Legal/ Statutory Authorities or under a Court order.
8.1. The Vendor shall defend, indemnify and hold indemnified the Company, its directors, sponsors, affiliates, officers, employees, representatives, agents from and against all losses, damages, claims, suits, legal proceedings and otherwise howsoever arising from or in connection with any claim including but not limited to claim for any issues concerning quality, quantity and any claim in relation to the Vendor’s product, the breach of any of the Vendor’s warranties, representations or undertakings or in relation to the non-fulfilment of any of its obligations under this Agreement or arising out of the Vendor infringing any applicable laws and regulations.
8.2. The Company shall defend, indemnify and hold indemnified the Vendor in respect of all claims, losses, damages, suits and expenses (including the cost of litigation if any) arising out of any breach or default on the part of the Company to perform its obligations under this Agreement or infringement of any intellectual property rights or any other rights of any third party or of law.
8.3. The Indemnity Clause shall survive the termination or expiration of this Agreement.
9. LIMITATION OF LIABILITY
9.1 The Vendor hereby agrees, confirms and acknowledges that the Company is merely a facilitator for sale of the Vendor’s Product.
THE COMPANY SHALL HAVE NO DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ANY OTHER LIABILITY, WHETHER IN CONTRACT OR TORT OR ANY OTHER LAW FOR THE TIMEBEING IN FORCE, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE INABILITY TO USE THE SERVICES OR THE TRANSACTION PROCESSING SERVICE, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSILBILTY OF SUCH DAMAGES.
10. Term, Termination and Effects of Termination
10.1. Term: The Term of this Agreement shall commence on the date of execution of the contract and shall continue for a period of 12 months unless terminated earlier. The Agreement may be extended for such further period as may be mutually agreed by and between the parties hereto in writing to this effect electronically.
10.2. This Agreement may be terminated by the Company with immediate effect in the event:
10.2.1. Vendor fails to meet the obligations for a maximum of 3 instances.
10.2.2. Vendor commits a material breach of any representation, obligations, covenant, warranty or term of this agreement and the same is not rectified within 36 hours after written notice given by the Company.
10.2.3. If the Vendor is in infringement of the third-party rights including intellectual property rights especially with regards to the products posted for sale on the Platform.
10.2.4. This Agreement may be terminated by either party giving the other 30 days written notice with reason cited.
10.3. Effect of Termination: In the event of termination/expiry of this Agreement, the Company shall remove the Links and shall discontinue display of the Products of the vendor on the Platform and terminate all access of the vendor to the Platform with immediate effect.
10.4 Company shall not be liable for any loss or damages (direct, indirect or inconsequential) incurred by the Vendor by virtue of termination of this agreement. During the period under notice both the parties shall be bound to perform its obligations incurred under this agreement and this sub-clause shall survive the termination of this agreement.
10.5 Upon termination of the Agreement, the vendor shall not use the Company’s branding, reviews, intellectual property & confidential information.
11. Dispute Resolution11.1. Any/all disputes arising out of this Agreement shall be first attempted to be resolved amicably by mutual negotiations. If the dispute cannot be settled amicably, either Party, as soon as practicable, but not earlier than 45 days after a request for such amicable settlement has been made, give to the ether Party a notice, in writing, of the existence of such Dispute, and the same shall be referred to Mediation in the second instance and finally settled by fast track arbitration conducted by a sole Arbitrator in Bengaluru in accordance with Section 29B of the Arbitration and Conciliation Act, 1996 or any statutory enactment thereof and the rules made thereunder for the time being in force shall apply to the said arbitration proceedings.
12. Jurisdiction and Governing law
12.1. The obligations, performance, interpretation and contents shall be governed by Indian law.
12.2. This Agreement shall be subject to the exclusive jurisdiction of the Courts in Bengaluru.
Any notice or other communication to be given by one Party to the other, in connection with or under this Agreement, shall be made in writing and signed by or on behalf of the Party giving it. It shall be served by letter or electronic mail and shall be deemed to be duly given or made when delivered (in case of personal delivery), at the time of transmission, or seven days after being dispatched in the post, postage prepaid or registered mail to such party at its address or facsimile number or electronic mailing address herein above, or at such other address, as such Party may hereafter specify for such purpose to the other Part hereto by notice, in writing.
14. Intellectual Property Rights
14.1 It is expressly agreed and clarified that, each Party shall retain all sole and exclusive right, title and interest in their respective Intellectual Property and that nothing contained in this Agreement, nor the use of the trademark / logos on the publicity, advertising, promotional or other material in relation to the Services shall be construed as giving to any Party any right, title or interest of any nature whatsoever to any of the other Party’s Intellectual Property.
14.2 All reviews, customer comments, communications, database & other information on the Platform will be the Intellectual property of the Company. The Vendor shall not extract, utilize, or create or publish database using all or substantial part of such intellectual property without the prior written consent of the Company.
15. Entire Agreement
15.1 This Agreement embodies the entire agreement and understanding of the Parties and supersedes any and all other prior and contemporaneous agreements, arrangements and understandings (whether written or oral) between the Parties with respect to its subject matter.
16.1 Neither this Agreement nor any part of it is assignable, transferable, sub-licensable, sub-contractable or conveyable by Vendor, without the express, prior, written consent of the Company signed by an authorized representative of such Party.
17. Confidentiality and Privacy:
17.1 Vendor agrees and undertakes to maintain the confidentiality of the information and user/customer data collected, disclosed, generated or used by the Vendor under this Agreement.
17.2 The confidential information shall not be used by the Vendor for any purpose other than for the performance of its obligations under this Agreement.
17.3 The Vendor agrees that the unauthorized disclosure or use of such Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.
17.4 The Vendor agrees that the Company shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining breach of this Agreement and/or disclosure of the Confidential Information. Company shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
17.5 The Vendor shall not collect or store information about the customers’ login credentials.
18. Relationship of Parties
18.1 Nothing in this Agreement will be construed as creating a relationship of partnership, joint venture, agency or employment between the Parties. The Company shall not be responsible for the acts or omissions of the Vendor, and Vendor shall not represent neither has, any power or authority to speak for, represent, bind or assume any obligation on behalf of the Company.
19. Waiver and Amendment
19.1. No waiver of any breach of any provision of this Agreement constitutes a waiver of any prior, concurrent or subsequent breach of the same or any other provisions and will not be effective unless made in writing and signed by an authorised representative of the waiving Party.
19.2. Except as expressly set out in this Agreement, no amendment is binding on the Parties unless it is in writing and signed by a duly authorized representative of each of the Parties.
20. Force Majeure
20.1 Neither Party shall be responsible or liable for any delay or failure to perform its obligations (other than an obligation to make payment) under this Agreement due to unforeseen circumstances or any event which is beyond the Party's reasonable control and without its fault or negligence, including, but not limited to war, riots, embargoes, strikes, lockouts, acts of any Government authority, delays in obtaining licenses or rejection of applications under the Statutes, failure of telephone connections or power failure, fire or floods.