legal

ADDITIONAL TERMS FOR MERCHANT AGREEMENT

By executing the Merchant Agreement, the Merchant agrees that these additional terms and conditions (“Additional Terms”) shall apply in full as though they were included within the Merchant Agreement that govern the relationship between the Service Provider and the Merchant, along with the terms of use and any other policies promulgated by the Service Provider in this regard from time to time.

  1. DEFINITIONS AND INTERPRETATION
    1. DEFINITIONS

      “Affected Party” shall have the meaning ascribed to it under Clause 14.2 below;

      “Claim” shall mean a demand, claim, cause of action, suit, arbitration, audit, hearing, investigation, inquiry (whether formal or informal), action or proceeding made or brought by or against a part, howsoever arising and whether present, unascertained, immediate, future or contingent;

      “Claims Notice” shall have the meaning as set forth in Clause 7.2 below;

      “Confidential Information” means any and all information of any kind disclosed directly or indirectly by one Party to the other in written, oral, electronic or in any other form, with respect to the Products, including without limitation, trade secrets, patents, know-how(s), formulations, specifications, methods and techniques, processes, market research information, business or marketing plans, buyer information, sales and profit figures and forecasts, buyer and client lists, and distribution and sales methods;

      “Data” shall mean all the data and content on/from the Platform including but not limited to the user and / buyer data and all Documentation related thereto which would be utilised for the performance of the Services;

      “Domain Name” means the domain name “www.[●].com” and any sub-domains and directories thereto;

      “Force Majeure Event” shall mean any circumstance beyond a Party’s reasonable control, which shall, without limiting the generality of the term, be deemed to include war or other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, fire, flood, acts of God, acts of State, strike, lock-out or other industrial disputes (whether or not involving employees of the relevant Party), or executive, legislative or regulatory intervention, interruption or failure of telecommunication or digital transmission link, Internet failure or delay;

      “Indemnifying Party” shall have the meaning ascribed to it in Clause 7.1 below;

      “Indemnified Person(s)” shall have the meaning ascribed to it in Clause 7.1 below;

      “Intellectual Property” shall mean patents, utility models, trade and service marks, trade or business names, Domain Names, rights in designs, copyrights, topography rights and rights in databases in all cases whether or not registered or registrable in any country (including but not limited to India) for the full term of such rights including any extension to or renewal of the terms of such rights and including registrations and applications for registration of any of these and rights to apply for the same and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world;

      “Liabilities” shall mean any and all actual debts, liabilities, claims, and obligations, whether

      accrued or fixed, absolute, matured, or determined, and whether legal, regulatory, financial or product related, including those arising under any applicable Laws or any order issued by a Governmental Authority and those arising under any contract, agreement, arrangement, commitment or undertaking;

      “Loss(es)” shall mean any and all actual Liabilities, damages, fines, penalties, deficiencies, losses and expenses including without limitation interest, court costs, amounts paid in settlement, reasonable expenses of investigation, reasonable fees and expenses of attorneys, accountants and other experts and expenses of litigation, suit, action or other proceedings or of any claim, default, assessment involving a Third Party Claim or a claim solely between the Parties hereto;

      “Merchant Agreement” shall mean the agreement signed between the Merchant and the Service Provider;

      “Service Provider’s Intellectual Property Rights” shall mean rights in the Intellectual Property owned by the Service Provider or its Affiliates including but not limited to the Data and Domain Name;

      “Territory” shall mean the geographical limits of India;

      “Third Party” shall mean any Person who is not a party to the Merchant Agreement and these Additional Terms;

      “Third Party Claim” shall have the meaning ascribed to it in Clause 7.2 below; and

      “Warranties” shall have the meaning ascribed to it in Clause 6.1 below.

    2. INTERPRETATION

      These Additional Terms are in addition to and not in derogation with the Merchant Agreement and the terms of use and other policies promulgated by the Service Provider. In the event of any inconsistency between these Additional Terms and terms under the Merchant Agreement, the Additional Terms shall prevail. All capitalized terms used herein but not defined shall have the same meaning ascribed to it under the Merchant Agreement.

  2. ORDER PRICING AND MANAGEMENT
    1. Service Fees and Taxes
      1. The Merchant agrees that the Service Provider shall not be liable for any failure to make payments to the Merchant on account of incomplete or inaccurate information provided by the Merchant with respect to Merchant’s bank account.
      2. If the Service Provider discovers erroneous or duplicate transactions initiated by the Merchant, it reserves the right to delay initiating any payments to be made or that are otherwise due to the Merchant..
      3. If on the basis of information available with the Service Provider, the Service Provider is of the opinion that the Merchant’s actions and/or performance in connection with the Merchant Agreement and Additional Terms may result in a significant number of buyer disputes, chargeback or other Claims in connection with the Platform, then the Service Provider may, in its sole discretion, subject to applicable Law, delay initiating any payments to be made or that are otherwise due to the Merchant for the shorter of: (a) a period of 90 (ninety) calendar days following the initial date of suspension; or (b) completion of any investigation(s) regarding Merchant’s actions and/or performance in connection with the Merchant Agreement and Additional Terms.
    2. Order Management
      1. The Service Provider reserves the right to select the Products to be displayed on its Platform. The Service Provider also reserves the right to determine the list of merchants who may be entitled to list their Products on its Platform.
      2. The Service Provider shall not receive orders on behalf of the Merchant. Buyers shall be placing the order directly with the Merchants. The Service Provider shall merely provide a Platform for connecting the buyers and the Merchants. Payments collected by the Service Provider on behalf of the Merchant, if any, will be collected while acting as an agent of the Merchant with the
        sole intent of facilitating the transactions of the Merchant.
      3. The Merchant is required to update the Service Provider regarding the availability of the Products listed on the Platform to ensure that the buyers do not place orders for Products which are no longer available with the Merchant. In case an order is rejected after confirmation by the Merchant, the Merchant agrees to pay the Service Fees in relation to such orders as penalty./li>
      4. The Merchant shall provide the necessary backend infrastructure as specified by the Company, for capturing the buyer/order details placed through the Platform. Orders placed through the Platform will be forwarded to the Merchant for packaging and dispatch to end buyers.
      5. The Merchant shall provide the necessary backend infrastructure as specified by the Company, for capturing the buyer/order details placed through the Platform. Orders placed through the Platform will be forwarded to the Merchant for packaging and dispatch to end buyers.
      6. On receipt of the order information, the Merchant will prepare the Products for dispatch along with corresponding invoices in favour of the buyer, within 2 (two) Business Days. The Merchant shall be responsible for delivery of the Product to the Buyer and shall bear charges such as courier charges, travelling expenses and any other charges incurred by the Merchant for completing the transaction. The Merchant will update the Service Provider regularly about the status of the orders. In case of delays, the Merchant shall immediately notify the Service Provider of the same, along with the expected time of dispatch, so that the buyer may be appropriately informed.
      7. During the term of these Additional Terms and the term of the Merchant Agreement, the Merchant will be solely responsible for fulfilment of all orders for their Products placed through the Platform.
      8. The Service Provider shall inform the Merchant of the modalities involved to access the orders of the buyers placed on the Platform.
    3. Pricing and Discounts

      1. Merchant shall quote the best, lowest and competitive prices (inclusive of all applicable Taxes) of the Products to be displayed on the Platform.
      2. The Merchant shall be solely responsible for providing pricing updates for their Products (including discounts and promotions and information about the Product discontinuation) from time to time, which will be published on the Platform.
      3. The Merchant agrees and acknowledges that the Service Provider shall have the right to run internal promotions offering benefits to the buyer with respect to the Products on the Platform and the same shall be governed by the terms and conditions laid down in this regard from time to time.
  3. MERCHANT UNDERTAKINGS
    1. The Merchant shall provide accurate and complete information, content and images, as may be required, for each Product that is to be listed for sale through the Platform and promptly update such information as necessary to ensure that at all times it remains accurate and complete.
    2. The Merchant shall ensure that the Products to be sold on the Platform are procured in compliance with applicable Law and that the warranties in relation to, offer and subsequent sale of any of, the same on the Platform complies with all applicable Laws (including all marking and labelling requirements).
    3. The Merchant shall not provide any information on or otherwise seek to list on the Platform, any Product, which is illegal or offensive or banned, including those listed in SCHEDULE I.
    4. The Merchant shall at all times be solely responsible for the quality, quantity, merchantability, guarantee and warranties in respect of the Products offered by it for sale on the Platform. Further, the Merchant shall be responsible for providing warranties in relation to the title to the Products or any implied warranty arising from course of dealing or usage of trade. The Merchants shall at all times be solely responsible for any fault, imperfection, shortcoming or inadequacy of quality of any goods, or the nature and manner of performance of any services listed on the Platform, and any Liabilities arising out of any such defect in the goods and services offered by the Merchant shall lie only with the Merchant providing the goods and services pursuant to their bipartite agreement with buyers. We expressly disclaim all obligations and Liabilities emanating from an agreement between the buyers and the Merchants on the Platform.
    5. The Merchant shall not make any representation or do any act, which may be taken to indicate that it has any right, title or interest in or to the Platform or any of the Service Provider’s Intellectual Property Rights.
    6. The Merchant shall not do, cause or authorize to be done anything which will or may:

      1. Impair, damage or be detrimental to the rights, reputation and goodwill of/ associated with, the Service Provider or the Intellectual Property.
      2. Jeopardize or invalidate the registration or any rights associated with the Platform or Service Provider’s Intellectual Property Rights or use the Platform or Service Provider’s Intellectual Property Rights in a manner which is likely to result into any Third Party Claim against the Platform, Service Provider’s Intellectual Property Rights or any associated registrations.
    7. The Merchant shall not use or register in the Territory or elsewhere in the world, the Domain Name, the Platform or any of Service Provider’s Intellectual Property Rights, which, in the Service Provider’s opinion, is identical, improvement over, dilution of, combination involving or confusingly similar to the Website or such Domain Name or Service Provider’s Intellectual Property Rights or, that constitutes any translation thereof into any language.
    8. The Merchant shall be responsible for all sales returns, which are refused/ not accepted by the buyers at the time of delivery. All Merchant policies and terms governing returns and exchanges shall be displayed by the Merchant on the Platform. The Parties also agree and acknowledge that the primary and sole responsibility for redressal of buyer complaints will rest solely with the Merchant at all times.
    9. The Merchant shall be responsible for any deficiency in services provided by the Merchants to the buyers. All Merchant policies and terms for dealing with complaints, refunds etc. in relation to the services offered by the Merchant shall be displayed by the Merchant on the Platform. The Parties also agree and acknowledge that the primary and sole responsibility for redressal of buyer complaints with respect to services rendered by the Merchant will rest solely with the Merchant at all times.
    10. The Merchant hereby agrees to cooperate with the Service Provider in furnishing any information sought by the income tax department in relation to the sales made through the Platform of the Service Provider. The Merchant shall also cooperate with the Service Provider to rectify any error or omission in respect of the details of outward supplies furnished under the applicable Laws.
    11. The Merchant hereby undertakes that it shall not promote its products, services, offers, packages etc. to the buyer directly, indirectly and/or through email, SMS or any other electronic or physical mode.
    12. The Merchant undertakes to abide by all applicable terms of use and policies regarding use of the Platform, as promulgated by the Service Provider from time to time.
  4. RIGHTS OF THE SERVICE PROVIDER
    1. The Service Provider reserves its right to restrict at any time in its sole discretion the access to list the Products in any or all categories on the Platform.
    2. The Service Provider may use mechanisms that rate, or allow shoppers to rate, the Products of the Merchant and/or its performance as a merchant on the Platform and the Service Provider may make these ratings and feedback publicly available.
    3. The Service Provider will provide information in relation to orders placed to the Merchant for each of the transactions of the Merchant.
    4. The Service Provider shall provide to the Merchant such information in relation to the buyer as is required for the purpose of consummating the purchase/ delivery of the Products on the Platform.
    5. The Merchant acknowledges that all the Intellectual Property in the Data/ databases on the Platform vests with the Service Provider and that the Merchant shall, except for the limited access provided under these Additional Terms and the Merchant Agreement for fulfilling the buyers orders, have no access to or rights on such Data/databases or any Intellectual Property of the Service Provider.
  5. LICENCE
    1. The Merchant grants to the Service Provider a royalty-free, non-exclusive, worldwide, irrevocable right and licence co-terminus with the Term of these Additional Terms and the Merchant Agreement and for as long thereafter as is permitted under applicable Law to use, reproduce, perform, display (public communication), distribute, adapt, modify, re-format, create and exploit derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the Merchant materials, and to sublicense the foregoing rights to the Affiliates of the Service Provider.
    2. Merchant agrees that the Service Provider has the exclusive right to supervise, permit and reject the contents of the Platform. The Service Provider shall not be liable for contents and images shared, uploaded or displayed on Platform by Merchant regarding its Products and all consequent liability will be borne by Merchant only.
    3. Merchant hereby grants to the Service Provider the right to display/delist the Product (as updated or to be updated by the Merchant on the Merchant panel at any/all times) and/or related logo and/or trademark and/or brand name etc. owned by it or Affiliates for marketing/selling through the Platform. Merchant represents that it has the necessary rights to grant such permission to the Service Provider and agrees to indemnify Service Provider in respect of any claims, damages, Losses etc., arising out of or in connection with violation of the same.
    4. Except as agreed to by the Parties, the Data of buyer will be the exclusive property of the Service Provider, and Merchant will not use for its own purpose or distribute it in any form or means except for the purpose of these Additional Terms and the Merchant Agreement and shall keep it confidential at all times. Confidential Information of the Service Provider shall include but not be limited to buyer details, market information, etc. The Merchant also undertakes to fully indemnify the Service Provider against the breach of this Clause.
  6. REPRESENTATIONS AND WARRANTIES
    1. Each Party hereby represents and warrants to the others as follows (the “Warranties”):
      1. It has the full power and authority to enter into, execute and deliver this these Additional Terms and the Merchant Agreement and to perform the transactions contemplated herein and is duly incorporated or organized and validly existing under the Laws of the jurisdiction of its incorporation or organization;
      2. The execution and delivery by it of these Additional Terms and the Merchant Agreement and the performance by it of the obligations contained herein have been duly authorized by all necessary corporate or other action;
      3. These Additional Terms and the Merchant Agreement constitutes legal, valid and binding obligations, enforceable against it in accordance with its terms, except to the extent such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting the enforcement of creditors’ rights generally; and (ii) general principles of equity; and
      4. No liquidation, dissolution, winding up, commencement of bankruptcy, insolvency, liquidation or similar proceedings, whether voluntary or involuntary, with respect to it; is pending or has been pending, or to the knowledge of such Party, is threatened.
    2. None of the Warranties shall be treated as qualified by any actual, implied or constructive knowledge on the part of the other Party or any of its respective agents, representatives, officers, employees or advisers. The Warranties shall not be in any manner limited by any information disclosed or made available to or received by either Party or any representative of either Party.
  7. INDEMNITY

    1. The Merchant and its Affiliates (“Indemnifying Party”) hereby agrees to indemnify, defend and hold harmless the Service Provider (and its officers, directors, employees, agents and Affiliates) (“Indemnified Persons”) against any and all Losses, incurred by or suffered by the Indemnified Party or any of them and/or from and against any diminution in the value of the Company or its assets that may arise from or in connection with or related to the following:
      1. Any breach of any obligations in these Additional Terms and the Merchant Agreement by the Merchant;
      2. Any gross negligence or willful misconduct by the Merchant or any of its Affiliates, directors, officers and employees;
      3. Breach of any representations, warranties and covenants contained in these Additional Terms and the Merchant Agreement, by the Merchant, including without limitation those pertaining to the quality, quantity and merchantability;
      4. The offer, sale, fulfillment including delivery, refund, adjustment, or return of any of the Products of the Merchant (or any of the materials and/or parts of such Products), which may or may not result in any personal injury, death or property damage;
      5. Any actual or alleged infringement of any Intellectual Property by any of the Products of the Merchant;
      6. Any material inaccuracies in Product information provided, misleading or deceptive content in respect of the Products listed;
      7. There being erroneous or duplicate transactions initiated by the Merchant on the marketplace; and/or
      8. The Tax obligations of the Merchant including any Tax obligation on account of sales undertaken by the Merchant through the Platform of the Service Provider.
    2. If an indemnification claim is intended to be made pursuant to the terms and conditions of these Additional Terms and the Merchant Agreement and/ or if any Third Party commences a legal action, against the Indemnified Party or in a manner that gives rise to an indemnification obligation under these Additional Terms and the Merchant Agreement and the Indemnified Party seeks indemnification from the Indemnifying Party under this Agreement (“Third Party Claim”), then the Indemnified Party shall, within a period of 15 (fifteen) Business Days from its becoming aware of the relevant event, notify the Indemnifying Party in writing (“Claims Notice”) of any claims against the Indemnified Party as contemplated in these Additional Terms and the Merchant Agreement. The Claims Notice shall be accompanied by a reasonably complete description of the claim in respect of which indemnification is being sought. Delay by the Indemnified Persons in issuing the Claims Notice will not reduce or otherwise affect the obligation of any Indemnifying Persons to indemnify and hold harmless the Indemnified Persons.
    3. Within 15 (fifteen) Business Days of receipt of the aforesaid Claims Notice from the Indemnified Party, the Indemnifying Party shall communicate in writing to the Indemnified Party, its decision as to whether or not it agrees to assume the defence of such claims and failing such communication, the Indemnifying Party shall be deemed to have decided not to assume such defence.
    4. For a period of 15 (fifteen) Business Days from the date of receipt of the Claims Notice by the Indemnifying Party or until the response of the Indemnifying Party is received (whichever is earlier), the Indemnified Party shall not settle or compromise any such claims without the prior written consent of the Indemnifying Party.
    5. If the Indemnifying Party chooses to defend such claims, it shall specifically confirm that:
      1. it undertakes full liability for any outcome of such defence and any liability arising therefrom; and
      2. it shall do so at its own cost or expense.
    6. Failure to so confirm shall mean that the Indemnifying Party has decided not to assume such defence.
    7. If the Indemnifying Party chooses to defend such claims pursuant to Clause 7.5 above, then the Indemnifying Party shall be entitled to settle such claim in consultation with the Indemnified Party.
    8. If the Indemnifying Party does not choose to defend the claims, the Indemnified Party shall have the right to defend itself against such claims and be indemnified for the costs and expenses of such defence and the amount of the claims. In such an event, the Indemnifying Party shall be bound to indemnify the Indemnified Party in the first instance against any order, judgment, decree or direction arising from or passed based on such claims which require any monetary payments. Thereafter, the Indemnifying Party may choose to prefer an appeal against such order, judgment, decree or direction arising from or passed based on such claims at its own responsibility, cost or expense.
    9. Even where the Indemnifying Party elects to defend the claims in the first instance or at any time, the Indemnified Party shall have the right to retain separate counsel (at its own cost, until indemnified by the Indemnifying Party pursuant to this Clause), to defend itself against the claims, if in the reasonable judgment of the Indemnified Party a conflict of interest between the Indemnified Party and the Indemnifying Party exists with respect to such a claim.
    10. Whether or not the Indemnifying Party elects to defend any Third Party Claim, the Parties shall cooperate and exercise all reasonable efforts in the defence or prosecution of any such claim and shall furnish one another with such records, information and testimony, and attend such conferences, proceedings, hearings, trials and appeals as may be reasonably required by the other in connection therewith, under the obligations of confidentiality as set out under these Additional Terms and the Merchant Agreement.
    11. The Claims Notice shall be issued in the manner contemplated in Clause 16.1 (Notices) and shall specify, in reasonable detail, the circumstances which give rise to the Claim, the relevant alleged breach and the amount of Loss claimed against the Merchant (to the extent known).
    12. Any compensation or indemnity as referred to in this Clause 7 (Indemnity), shall be such, as to place the Indemnified Person in the same position as it would have been in, had there not been any breach, and as if, the representations, warranties and covenants under which the Indemnified Person is to be indemnified had been correct.
    13. All sums payable by the Merchant arising from or in connection with a breach of these Additional Terms and the Merchant Agreement or pursuant to an indemnity under this these Additional Terms and the Merchant Agreement shall be paid free and clear of all deductions or withholdings unless a deduction or withholding is required by applicable Law, in which event the Merchant shall pay such additional amount as shall be required to ensure that the net amount received by the Indemnified Person shall equal the full amount which would have been received by it had no such deduction or withholding been required to be made.
    14. The Merchant shall be liable to make payment of the amounts specified in the Claims Notice (on an after Tax basis) within a period of 7 (seven) Business Days of receipt of the Claims Notice and shall remit to the Indemnified Person the amount specified in the Claims Notice. In the event that the Merchant disputes and/or does not accept the Claim specified in the Claims Notice such an event shall be deemed be a dispute and the provisions of Clause 15 (Governing Law and Jurisdiction) shall apply.
    15. Nature of Indemnification
      1. The indemnification rights of the Indemnified Persons under these Additional Terms and the Merchant Agreement are without prejudice, independent of and in addition to, such other rights and remedies as the Indemnified Persons may have at Law or in equity or otherwise, including the right to seek specific performance, rescission, restitution or other injunctive relief, none of which rights or remedies shall be affected or diminished thereby.
      2. Notwithstanding any investigation conducted before or after the Effective Date, and notwithstanding any actual or implied knowledge or notice of any facts or circumstances which the Indemnified Persons may have as a result of such investigation, the Indemnified Persons shall be entitled to rely upon the representations, warranties, covenants, undertakings and/or agreements of the Merchant, set forth in these Additional Terms and the Merchant Agreement. The Indemnified Persons may bring a claim for indemnification under this Clause 7 (Indemnity), notwithstanding the fact that the Indemnified Persons had knowledge of the breach or inaccuracy giving rise to such claim prior to the Effective Date. Furthermore, any knowledge of the Indemnified Persons or the conduct of any investigation in relation to the Merchant thereof (actual, constructive or imputed) shall not in any manner affect or limit the right to indemnification, payment of claims or other remedies with respect to the accuracy, or inaccuracy of or compliance or non-compliance with, any representation, warranty, covenant, undertaking, obligation or arrangement set forth herein.
      3. The obligation of the Merchant to indemnify the Indemnified Persons in accordance with the provisions of this Clause 7 (Indemnity) shall subsist notwithstanding any change in Control of the Indemnified Person.
  8. LIMITATION OF LIABILITY
    1. The Service Provider shall not be liable (whether in contract, warranty, tort (including negligence, product liability, any type of civil responsibility or other theory or otherwise) to the Merchant or any other Person for cost of cover, recovery or recoupment of any investment made by the Merchant or its Affiliates in connection with these Additional Terms and the Merchant Agreement, or for any loss of profit, revenue, business, or data or punitive or consequential damages arising out of or relating to these Additional Terms and the Merchant Agreement, even if the Service Provider has been advised of the possibility of such costs or damages. Further, the aggregate liability of the Service Provider arising out of or in connection with this Agreement or the transactions contemplated hereby shall not at any time exceed the total amounts paid by the Merchant to the Service Provider during the prior 6 (six) month period, in connection with the particular service and the Platform giving rise to the claim, subject to submission of evidence, satisfactory to Service Provider, supporting such claims. The Service Provider shall not be liable for any Losses incurred by the Merchant on account of any error or omission in maintenance of any accounts, filing of inward or outwards details of supplies, filing of returns and any other documentation or compliances as required under the applicable Laws, except where there is a gross negligence in this regard, on the part of the Service Provider.
  9. DISCLAIMER
    1. The Platform and the Services, including all content, software, functions, materials and information available or provided in connection with the Services, are provided on an “as-is” basis. As a user of the Services, the Merchant’s access to the Platform, Services and any online portal or tool provided by the Service Provider to help it avail the Services are at the Merchant’s own risk. The Service Provider and its Affiliates waive and disclaim: (i) any representations, warranties, declarations or guarantees regarding these Additional Terms and the Merchant Agreement, the Services or the transactions contemplated hereby, including any implied warranties, declarations or guarantees of merchantability, fitness for a particular purpose or non-infringement; (ii) implied warranties arising out of course of dealing, course of performance or usage of trade; and (iii) any obligation, liability, right, claim or remedy in tort, whether or not arising from negligence of the Service Provider. The Service Provider does not warrant that the functions contained in the Platform or the Services will meet the Merchant’s requirements or be available, timely, secure, uninterrupted or error free, and the Service Provider will not be liable for any Service interruptions, including, but not limited to system failures or other interruptions that may affect the receipt, processing, acceptance, completion or settlement of any transactions. Some jurisdictions’ laws do not allow exclusion of an implied warranty, in which case the foregoing disclaimer may not apply, and the Service Provider and its Affiliates disclaim to the maximum extent permitted under applicable Law all warranties of any kind, whether express, implied or statutory, including without limitation warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, non- infringement or quiet enjoyment.
    2. The Service Provider is not involved in transactions between buyers and Merchants or other participant dealings and therefore, if a dispute arises between one or more participants, each of the participants, companies, merchants and buyers release the Service Provider (and its agents, Affiliates and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
  10. TAX MATTERS
    1. The Merchant shall be responsible for the collection and payment of any and all of its Taxes together with the filing of all relevant returns, in relation to the supplies effected by it through the Platform, and shall issue invoices/credit memos with respect thereto, in terms of the applicable Laws.
    2. Unless stated otherwise, any and all fees payable by the Merchant pursuant to these Additional Terms and the Merchant Agreement are exclusive of all GST and similar taxes, and it shall be the responsibility of the Merchant to pay any applicable Taxes that are imposed and payable on such amounts. If the Service Provider is required by law or by administration thereof to collect any applicable Taxes from the Merchant, the Merchant shall pay such Taxes to the Service Provider.
    3. If for any reason, any income tax or withholding tax is determined to be deducted and deposited on any payments or remittances to the Merchant, the Service Provider will have the right to deduct and deposit any such applicable Taxes with the appropriate Governmental Authority. No claim in respect of the Taxes deposited would be made by the Merchant against the Service Provider.
  11. CONFIDENTIALITY
    1. Each Party shall:
      1. Keep and maintain as secret and confidential all Confidential Information contained in these Additional Terms and the Merchant Agreement and all information provided to it by the other Party from time to time, whether of a commercial, technical or other nature;
      2. Ensure that its directors, employees, agents, representatives and its Affiliates and their respective directors, employees, agents and representatives retain such Confidential Information as secret and confidential; and
      3. At all times take all necessary precautions to ensure that no Third Party has access to these Additional Terms and the Merchant Agreement unless authorised by the other Party in writing, and in such cases only to the extent necessary to carry out its obligations in terms hereof.
    2. The provisions of this Clause 11 (Confidentiality) shall not apply to the disclosure of any Confidential Information in the following instances:
      1. To the extent that such Confidential Information is required or requested to be disclosed by any applicable Law or any applicable regulatory requirements or by any regulatory body to whose jurisdiction the relevant Party is subject or with whose instructions it is customary to comply under notice to the other Party;
      2. In so far as the Confidential Information is disclosed to the employees, directors or professional advisors of any Party, provided that such Party shall inform such persons of the confidential nature of such Confidential Information;
      3. To the extent that any such Confidential Information is later acquired by a Party from a source not obligated to any other Party, or its Affiliates, to keep such Confidential Information confidential;
      4. To the extent that any such Confidential Information was previously known or already in the lawful possession of a Party, prior to disclosure by any other Party; and
      5. To the extent that any information, similar to the Confidential Information, shall have been independently developed by a Party without reference to any Confidential Information furnished by any other Party.
    3. In the event that for any reason these Additional Terms and the Merchant Agreement shall lapse and the transactions contemplated hereby shall not be implemented, each Party shall, on the written demand of any of the other Parties, immediately return the Confidential Information in relation to such Party, together with any copies in its possession.
    4. No formal or informal public announcement or press release which makes reference to a Party or the terms and conditions of these Additional Terms and the Merchant Agreement or any of the matters referred to herein, shall be made or issued by or on behalf of the other Party without the written consent of the Party being made a reference to in such public announcement or press release. If a Party is obliged to make or issue any announcement or press release required by Law or by any stock exchange or Governmental Authority, it shall give the other Party every reasonable opportunity to comment on any announcement or release before it is made or issued.
    5. The obligations of confidentiality specified herein shall survive the termination of this these Additional Terms and the Merchant Agreement.
  12. PERMITS AND LICENSES

    Unless otherwise stated in these Additional Terms and the Merchant Agreement, the Parties shall, at their own cost, obtain all permits and licences, as are necessary for undertaking the activities related to their scope of work under these Additional Terms and the Merchant Agreement and shall pay all, taxes and fees payable under any Law for the time being in force and during the Term of these Additional Terms and the Merchant Agreement. The Parties shall provide to the other Party, evidence to prove the compliance of the legal requirements as stated above as well as payment of Taxes or fees, if required.

  13. TITLE RISK

    The Parties acknowledge and understand that the title to the Products proposed to be sold on the Platform vest with and shall always vest with the Merchant, and the Service Provider shall in no manner be responsible for or be understood to have any risk connected with the title for the Products.

  14. FORCE MAJEURE
    1. Neither Party shall be liable in any way for any breach or Losses arising directly or indirectly from any failure or delay in performing any of its obligations under these Additional Terms and the Merchant Agreement caused by a Force Majeure Event, provided that where the Force Majeure Event impacts the fulfilment of orders by the Merchant in any manner, the Merchant agrees to refund the amounts paid by the buyers for such orders.
    2. On the occurrence of a Force Majeure Event which affects or may affect a Party’s (“Affected Party”) ability to perform any of its obligations under these Additional Terms and the Merchant Agreement:
      1. The Affected Party shall promptly notify the other Party in writing of the nature and extent of the circumstances in question; and
      2. The time for performance of the affected obligation shall be suspended and extended accordingly.
    3. The Affected Party shall bear the onus, in so far as may be necessary, of proving the Force Majeure Event.
  15. GOVERNING LAW AND JURISDICTION

    These Additional Terms shall be governed by and construed in accordance with the Laws of India and the courts in Punjab, India shall have exclusive jurisdiction.

  16. MISCELLANEOUS
    1. Notices

      Notices, demands or other communication required or permitted to be given or made under these Additional Terms shall be in writing in English, and shall be delivered personally, or sent by registered post A.D., or by email or by first class courier, addressed to the intended recipient at its address set forth below, or to such other address as either Party may from time to time, duly notify in writing to the others:

      In the case of notices to the Merchant:

      Name:

      Address :

      Telephone:

      Email:

      Attention:

      In the case of notices to the Service Provider:

      Name:

      Address :

      Telephone:

      Email:

      Attention:

      A Party may change or supplement the addresses given above, or designate additional addresses, for purposes of this Clause, by giving the other Parties written notice of the new address in the manner set forth above.

    2. Relationship of the Parties
      1. The Parties’ rights and obligations under these Additional Terms and the Merchant Agreement are in the nature of a contractual agreement between two independent parties. The Service Provider is neither an auctioneer nor an intermediary between the buyers and Merchants on the Platform. Further, neither the Merchant nor any officer, agent or employee of the Merchant shall be regarded as an employee, agent, or partner of the Service Provider.
      2. No Party to these Additional Terms and the Merchant Agreement shall have any right or authority to assume, create or incur any liability or any obligation of any kind, express or implied, against or in the name of or on behalf of the other Party to these Additional Terms and the Merchant Agreement. Except as may be specifically provided in these Additional Terms and the Merchant Agreement, none of the Parties shall assume or be responsible for any liability or obligation of any nature of, or any liability or obligation that arises from any act or omission to act of, the other Party however or whenever arising.
      3. (c) The Merchant shall not use or in any way associate the name of the Service Provider with any work or work product of the Merchant in any oral or written communication with a third party, without the prior written consent of the Service Provider.
    3. Severability

      If any provision of these Additional Terms and the Merchant Agreement is rendered void, illegal or unenforceable in any respect under any Law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Should any provision of these Additional Terms and the Merchant Agreement be or become unenforceable, the Parties shall use reasonable endeavours to agree upon a new provision which shall as nearly as possible have the same commercial effect as the ineffective provision.

    4. Entire Agreement

      These Additional Terms and the Merchant Agreement and the terms of use and other policies promulgated by the Service Provider shall constitute the entire agreement between the Parties hereto with respect to the subject matter of these Additional Terms and the Merchant Agreement and supersedes all prior agreements and undertakings, written or oral, with respect to the subject matter hereof.

    5. Amendment

      No modification, amendment or waiver of any of the provisions of these Additional Terms and the Merchant Agreement shall be effective unless made in writing specifically referring to these Additional Terms and the Merchant Agreement and duly signed by each of the Parties.

    6. Non-waiver and Other Remedies

      No failure or delay on the part of any Party in exercising any right, power or privilege under these Additional Terms and the Merchant Agreement and no course of dealing between the Parties shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any provision of these Additional Terms and the Merchant Agreement or consent to any departure from it by any Party shall be effective unless it is in writing. The rights, powers and remedies herein expressly provided are cumulative and not exclusive of any rights, powers or remedies, which the Parties would otherwise have.

    7. Assignment

      These Additional Terms and the Merchant Agreement shall be binding on the Parties and their respective successors and permitted assigns. Each of the Parties to these Additional Terms and the Merchant Agreement may not assign its rights or obligations under these Additional Terms and the Merchant Agreement to any other Person, except with the prior written consent of the other Party. However, it is hereby clarified that the Service Provider may assign its rights to its Affiliates without the requirement of prior written consent.

    8. Further Assurance

      Each Party hereto shall co-operate with the other and execute and deliver to the other such instruments and documents and perform (or procure the performance of) such other actions as may be required by Law or as may be necessary or reasonably requested from time to time in order to carry out, give effect to and confirm their rights and intended purpose of these Additional Terms and the Merchant Agreement, provided that no such document or agreement shall be inconsistent with the spirit and intent of these Additional Terms and the Merchant Agreement.

    9. Costs

      All costs incurred in relation to the execution and stamping of these Additional Terms and the Merchant Agreement will be borne by equally by the Parties. Each of the Parties shall pay its own legal, accountancy and other similar costs and expenses incurred in relation to the negotiation, preparation and execution of these Additional Terms and the Merchant Agreement.

    10. Counterparts

      These Additional Terms and the Merchant Agreement may be executed simultaneously in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Delivery of a counterpart of these Additional Terms and the Merchant Agreement by e-mail attachment or telecopy shall be an effective mode of delivery.

    11. Specific Performance

      The Parties shall be entitled to seek and enforce specific performance of these Additional Terms and the Merchant Agreement, in addition to any other legal rights and remedies, without the necessity of demonstrating the inadequacy of monetary damages.

    12. No Third Party Beneficiaries

      These Additional Terms and the Merchant Agreement is solely for the benefit of the Parties and no provision of these Additional Terms and the Merchant Agreement shall be deemed to confer upon any other Person any remedy, claim, liability, reimbursement, and claim of action or other right in excess of those existing without reference to these Additional Terms and the Merchant Agreement.

SCHEDULE I
BANNED PRODUCTS

Banned list of products and services is as mentioned herein below:-

  1. Adult goods and services which includes pornography and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services; website access and/or website memberships of pornography or illegal sites.
  2. Alcohol which includes alcohol or alcoholic beverages such as beer, liquor, wine, or champagne.
  3. Body parts which includes organs or other body parts.
  4. Bulk marketing tools which include email lists, software, or other products enabling unsolicited email messages (spam).
  5. Cable descramblers and black boxes which includes devices intended to obtain cable and satellite signals for free.
  6. Child pornography which includes pornographic materials involving minors.
  7. Copyright unlocking devices which includes Mod chips or other devices designed to circumvent copyright protection.
  8. Copyrighted media which includes unauthorized copies of books, music, movies, and other licensed or protected materials.
  9. Copyrighted software which includes unauthorized copies of software, video games and other licensed or protected materials, including OEM or bundled software.
  10. Counterfeit and unauthorized goods which includes replicas or imitations of designer goods; items without a celebrity endorsement that would normally require such an association; fake autographs, counterfeit stamps, and other potentially unauthorized goods.
  11. Drugs and drug paraphernalia which include illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms.
  12. Drug test circumvention aids which includes drug cleansing shakes, urine test additives, and related items.
  13. Endangered species which includes plants, animals or other organisms (including product derivatives) in danger of extinction.
  14. Gaming/gambling which includes lottery tickets, sports bets, memberships/ enrolment in online gambling sites, and related content.
  15. Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles.
  16. Hacking and cracking materials which include manuals, how-to guides, information, or equipment enabling illegal access to software, servers, website, or other protected property.
  17. Illegal goods which includes materials, products, or information promoting illegal goods or enabling illegal acts.
  18. Miracle cures which includes unsubstantiated cures, remedies or other items marketed as quick health fixes.
  19. Offensive goods which includes literature, products or other materials that:
    1. Defame or slander any Person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors;
    2. Encourage or incite violent acts; and
    3. Promote intolerance or hatred.
  20. Offensive goods, crime which includes crime scene photos or items, such as personal belongings, associated with criminals.
  21. Prescription drugs or herbal drugs or any kind of online pharmacies which includes drugs or other products requiring a prescription by a licensed medical practitioner.
  22. Pyrotechnic devices, combustibles, corrosives and hazardous materials which includes explosives, fireworks and related goods; toxic, flammable, and radioactive materials and substances.
  23. Regulated goods which includes air bags; batteries containing mercury; Freon or similar substances/refrigerants; chemical/industrial solvents; government uniforms; car titles; license plates; police badges and law enforcement equipment; lock-picking devices; pesticides; postage meters; recalled items; slot machines; surveillance equipment; goods regulated by government or other agency specifications.
  24. Securities which includes stocks, bonds, or related financial products.
  25. Tobacco and cigarettes which includes cigarettes, cigars, chewing tobacco, and related products.
  26. Traffic devices which includes radar detectors/jammers, license plate covers, traffic signal changers, and related products.
  27. Weapons which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments.
  28. Wholesale currency which includes discounted currencies or currency exchanges.
  29. Live animals or hides/skins/teeth, nails and other parts etc. of animals.
  30. Multi-Level Marketing collection fees.
  31. Matrix sites or sites using a matrix scheme approach.
  32. Work-at-home approach and/or Work-at-home information.
  33. Drop-shipped merchandise.
  34. Businesses or website that operate within the scope of laws which are not absolutely clear or are ambiguous in nature (e.g. web-based telephony, website supplying medicines or controlled substances, website that promise online match-making).
  35. Businesses out rightly banned by law (e.g. betting and gambling/ publications or content that is likely to be interpreted by the authorities as leading to moral turpitude or decadence or incite caste/communal tensions, lotteries/sweepstakes & games of chance.
  36. Bulk marketing tools which includes email, lists, software, or other products enabling unsolicited email messages (spam).
  37. Web-based telephony/SMS/Text/Facsimile services or dialling cards. Bandwidth or data transfer/ allied services. Voice process /knowledge process services.
  38. Any other product or service, which is not in compliance with all applicable Laws and regulations whether central, State, local or international laws, including without limitation laws of India, or as may be deemed unfit for carriage by the Service Provided.