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For the purposes of this Agreement, Vishyam defines the following terms as under:
- Website: Website made available for the services accessible through www.vishyam.comdomain and includes sub domains.
- Company : Vishyam Online services Private Limited, a company registered under Company Act, 2013 having its registered office at 113, SadarBoxi Lane, Howrah, West Bengal – 711101 which owns, manages and operates the website, mobile application and tablet application of Vishyam.
- Vendor: Legal person or company who is authorised to sign this document for himself or on behalf of company and is a manufacturer or authorised Vendor(s)/service provider desirous of listing, displaying and selling product or services facilitated through marketplace to such user who visits www.vishyam.com
- Services: Services rendered by Vishyam electronically, that guarantees the possibility to associate the Users via the Service for the purpose of performing the transactions as permitted and available on the Website
- LSP- Logistic service provider or courier partner associated with company
- Buyer: User who has purchased an item from website
- Renter: User who has booked a rental order from the website
- Bidder: User who has participated in an online auction of website
Vishyam is a unique platform consisting of a comprehensive marketplace to sell, buy, rent and auction products and services which are ever inclusive and based on the inclusions made by our participants, partners and visitors to it. Through its website, mobile application and tablet application the company is providing the following platform for its user:
- Advance Marketplace – This platform will be used to deal with new and exclusive range of product where registered customer can purchase any new product from our registered business Vendor
- Rental marketplace- This unique platform as provided is for renting out any movable item / new product/refurbished product/ used product of a vendor/ user to another user which is completely based on the discretion of the users
- Buy & Sell Used Product Marketplace – Company offers another unique platform for either through direct sales or through auctions of refurbished/ used goods / products to its users / participants, wherein an open bidding is administered through a software within the website.
The website does not provide any platform for sale, purchase, rent or auction of any immovable property (land building etc.) or any goods prohibited by any ruling statute within the Republic of India (antiques, weapons, narcotic drugs etc.)
2. VENDOR PRODUCT LISTING
- Subject to the terms of this Agreement and in reliance of the representations and warranties of vendor andagreed for the payment of the amount as per Annexure 1, during the term of this Agreement, company will allow Vendor to list Vendor Products and services for sale on Marketplace at the Listing Price determined by vendor.Notwithstanding the foregoing, the Company has the right to refuse to display, or withdraw from the website, any Product for sale on the website
- Vendor shall be solely responsible for the Product Information and related Content while listing Vendor Product for sale on Marketplace.
- Vendor will be solely responsible to ensure that the vendor Materials, vendor Products and vendor’s offer and sale of the vendor Products comply with all Applicable Laws including all requirements under Legal Metrology Act, 2009 and rules issued thereunder.
- Company may implement mechanism to rate and provide feedback regarding vendor and vendor Products on Marketplace and such information be available publically on Marketplace
- The Products offered for sale by the Vendor are either manufactured by the Vendor or are sourced/ purchased by the Vendor from third party suppliers/manufacturers. In the event the Vendor purchases the Products from the Supplier, the Vendor may be asked to furnish a no objection certificate from the owner/manufacturer of the Products in the format provided by the Company
- Vendor undertakes that the vendor Materials, vendor Products (including their packaging)
- shall not contain any Objectionable Content or any other Content that is not expressly permitted by company; and
- are in compliance with the agreed catalogue and content standards.
- Vendor takes full responsibility for the contents of the packages that it hands over to courier partner/pickup agent or delivers to Buyers under this Agreement and agrees that company shall not be responsible or liable in any manner whatsoever for such contents
3. ORDER, SALE AND FULFILLMENT
- For each vendor Product sold on Marketplace, vendor shall be able to see the same on vendor dashboard. If company believes in its sole discretion that a vendor Transaction represents fraudulent activity, company may, but is not obligated to, prohibit the vendor Transaction or company may permanently block the vendor and take necessary action against the vendor
- Company will also not be liable to vendor for any such action that results in or prevents a Buyer from completing an order or causes a Buyer to cancel an order.
- Vendor agrees and undertakes to comply with the service levels Agreement (Annexure 3) for order fulfilment of this Agreement and acknowledges that its failure to perform or fulfil any of the service levels or other provisions of this Agreement shall have a bearing on its ranking on Marketplace and entitle COMPANY to charge penalty as per Annexure-3 without prejudice to any other consequences and rights as may be available to COMPANY either in this Agreement or the Applicable Law
- The Vendor authorizes the Company to, on behalf of the Vendor, provide to Customers / users of the Portal:
a.Information and assistance in relation to the listed Products and sales thereof,
b.Information in relation to status of the order placed by Customers, and
- Operating a customer helpdesk for other inquiries in relation to Products and orders, customer complaints and grievances. Vendor also agrees and undertakes to fully co-operate with the Company as reasonably required, in connection with any customer-service functions undertaken by the Company.
- The Vendor authorizes the Company to place;
a. description of the Vendor and
b.description of each of its Products (including but not limited to the technical description of the Products, brand name of the Product, the price of the Product and any applicable warranty terms) on the Portal.
c.Vendor rating based on vendor performance and customer reviews.
- The Vendor authorizes the Company to offer certain discounts throughout the year wherein the discount % shall be communicated and agreed mutually between the Vendor and the Company from time to time.
- Company shall provide the necessary backend infrastructure for capturing the Buyer/Renter order details placed on Vendor. Orders placed by the Buyer will be forwarded to Vendor by email and will be reflected in the Vendor Panel. Vendor shall package the Product(s) in accordance with the applicable packaging guidelines including if any issued by Company from time to time and dispatch the Product(s) to the Buyer.
- Vendor further agrees to pack the Vendor Product as per Packing Specifications of company and will hand over the packed Vendor Product to the designated courier partner and Vendor shall update company in mail/ or through portal with relevant shipping information as suggested by COMPANY, immediately upon handing over of Vendor Products to designated courier partner and COMPANY may make such information publicly available on Marketplace.
- Vendor shall ensure that it will include within each Vendor Product shipment label, invoice, warranty cards or user manual. Vendor shall not include any of its marketing, promotional materials or any other solicitations or any communications to Buyers including emails confirming orders without prior written approval by COMPANY.
- Vendor will not substitute any item or product for an order with another item or product. In the event the order is partly delivered or there is missing accessories or freebies, Vendor agrees to immediately provide the same to Buyer at Vendor’s own cost.
- Title of the Vendor Product will transfer from Vendor to Buyer immediately the full amount of money to be paid by Buyer has been received by COMPANY either online or through Cash on Delivery (COD). COMPANY will not have title to, or be deemed to be the owner of, any Vendor Products at any time under the terms of this Agreement.
- Vendor is solely responsible for the compliance under Legal Metrology Act, 2009 or other Applicable Laws.The Vendor hereby irrevocably confirms that upon receiving the confirmation of the order by the Customer in respect of any Product, the Company shall be entitled to, and be deemed to have been authorized by the Vendor, to collect directly or through its nominees or third party service providers, the relevant Product(s) from the Vendor for the purposes of delivering to the Customer on behalf the Vendor, within 24 hours of the confirmed order being received on the Portal. The Vendor will use packing material mutually agreed with the Company to package the Product and keep it ready for collection. The materials and collaterals to be used for outermost package layer shall be provided by the Company and vendor has to purchase the packing material and keep sufficient stock for fulfilment of order.
- Vendor agrees to identify itself to the Buyer as the actual Vendor of the Products on all shipping and package documents, (including on the invoices and labels) as may be required to be set to Buyer under this Agreement.
- Vendor undertakes and agrees that it shall not collude with a Buyer or other Vendors or users of the Marketplace, for drawing benefits from various promotional offers including but not limited to discount or cashback through false or fraudulent transaction. If Vendor is found involved in such activity, the Vendor acknowledges that COMPANY reserves its right to impose penalty on Vendor and recover the money amounting to five times of the benefits so drawn or maximum retail price; whichever is higher.
- In the event of any default by vendor to deliver the Product to the Courier Partners (and therefore to the Buyer) on time or at all,vendor shall immediately update the company and send an email to firstname.lastname@example.org informing of such non-delivery and the reasons thereof, immediately on the occurrence of such event. In such events, company at its discretion might cancel such orders and mark them under Vendor cancellation and refund on behalf of the vendor and the amount if any paid by the Buyer for that Product.
- Company, without any liability to compensate Vendor, shall have the right to cancel any order if:
a.Vendor has failed to handover the packed Vendor Product to courier partner within agreed timelines or
b.COMPANY understands that Vendor Product is not shipped for any reason within the applicable shipping period indicated in the Order Information.
4. Obligation of Vendor on misusing the platform
- Vendor confirms and understands that selling and delivering wrong, fake, duplicate, spurious, counterfeit, damaged, defective, illicit, stolen, refurbished or previously owned Products through the Platform will cause great prejudice and harm to the reputation and goodwill of marketplace and the company and may also cause harm and prejudice to the Buyers. Vendor acknowledges and warrants that vendor shall not sell any Product which may cause prejudice or harm to the reputation and goodwill of company. Company further reserves the right to remove/block any such listings of Products including without limitation of termination of this Agreement and impose and deduct from the outstanding payments of the Vendor without prior consent of the Vendor or recover damages from the vendor if the vendor is found to be involved in any malpractice. The vendor acknowledges that Company shall impose, deduct or recover Rs.25 lakhs (Rupees twenty five lakhs only) as damages from Vendor and terminate the Agreement forthwith without assigning any reason if the Vendor is found to be indulged / involved in any malpractice.
- Vendor undertakes and agrees to dispatch and deliver only those genuine and original products that were ordered by the Buyer through the Platform and not to dispatch empty box or any other product of lesser value or any other material which is not ordered. If Vendor is found to be involved dispatching or delivering empty box or any other product of lesser value or any other material which is not ordered by the Buyer there by resulting in loss of reputation or goodwill, the same shall be regarded as gross violation of the terms and conditions of this Agreement and Vendor acknowledges that company reserves its right to take recourse to such legal actions and remedies as may available to it.
- Vendor undertakes and confirms that it deals only in original, legitimate and genuine Products and in which it legally owns rights, which are either self-manufactured and/or procured from legitimate channels and in compliance with all the legal requirements. Vendor further undertakes that it shall not sell fake/spurious/non authentic products on the Platform. If the Vendor is found to be selling fake/spurious/non – authentic products, the same shall amount to gross violation under this Agreement and the Vendor acknowledges that Company reserves its right to take action as contemplatedand direct Vendor to forth with disable such product from Company’ Platform and the Vendor agrees to abide by such direction and advise of Company and Vendor would be liable to face further consequences if any thereof. For the purpose of this Agreement, fake/spurious/non authentic products shall means and include but not limited to the following:-
a) If the product received by the User is different from that shown/displayed in the image uploaded on the Platform by the vendor
b) If the vendor is not authorized to sell a product which may either be branded /non branded
c) If a vendor commits a warranty for a product on Platform which it is not authorized to provide
d) If the vendor interchanges warranties between Vendor and brand/Manufacturer/Service Provider as may be applicable
4. If the vendor tampers with Maximum Retail Price (MRP) label of the product, uses outdated packages, makes false representation as to price, date and quality and tampers with any packaging as mandated by Legal Metrology Act and all other applicable laws.
5. Vendor undertakes and confirms that while listing the inventory of the Product, the vendor has physical possession and owns such quantity of product as listed on Company and further undertakes to fulfill the orders placed by the buyer promptly. In the event of delay in shipment/delivery of Product or Vendor cancellation of orders due to non-availability of Product, the vendor acknowledges that Company reserves its right to take action
6. Vendor acknowledges agrees that Company shall have the right to hold/deduct/adjust Order amount, costs, penalty, expenses along with attorney’s fees with respect to any litigation filed against Company by an aggrieved customer or any third party with regard to vendor’s products / services the reason for which is attributable to vendor.
7. Vendor undertakes and agrees that product Catalogue listing details on Platform shall be true, correct, and duly authorized and shall not be misleading, fraudulent, false, unauthorized, illegal and shall not contain any misrepresentation of facts to induce users to order the Vendor’s Products listed on Platform.If the Vendor is found to be involved in any such misrepresentation or illegal activity or malpractices, the Vendor acknowledges that Company reserves its right to terminate this Agreement immediately and claim damages to the extent of Rs.25 lakhs (Rupees twenty five lakhs only) apart from making Vendor liable for criminal prosecution if any.
5. Quality of Vendor Products
Vendor agrees not to sell a Vendor Product unless the Vendor Product is fully fit for its intended use, and is of a style, appearance, quality and consistency that at least meet the standards as shown on the Product Information page. COMPANY reserves the right (but is not obligated) to perform quality checks before shipment of the Vendor Products and approve or disapprove the Vendor Products pursuant to these quality standards and COMPANY will have no liability to compensate Vendor for any Vendor Products disapproved by it following the aforesaid quality checks. Vendor will not ship Vendor Products which are damaged, defective, irregular, excluded products or of disapproved quality standards.
Vendor shall maintain records of all the Products purchased/rented by the Buyers/ renters through the Platform, all returns, refunds, etc., as may be required for audit and regulatory purposes and for the Platform’s Customer service purposes.
6. Shipping Module of Vendor
- Vishyam Shipping Module– ( This will be the default Model for all product of Advance Marketplace except Furniture Category where seller will be converted to self shipping module). In this module, vendor will be responsible for packaging and shipping the ordered Product and ordered quantity to the Buyer via courier through Company assigned courier network. Company will assign Courier partner for each shipments and designated courier partner shall collect the shipments from Vendor’s pick up center or warehouses. The applicable rates for shipment through this module is mentioned in Annexure-2 and vendor will be communicated time to time on any changes in the shipping rates. This shipping Module is also available for Auction Marketplace and Rental Marketplace Vendorswho wish to fulfil orders through this shipping model
- Self Shipping Module– This model is applicable for Rental marketplace, Auction marketplace and furniture category of advance marketplace.Vendor will be responsible for packaging and shipping the Product to the Buyer via any courier service/vendor shipment method. Vendor shall keep company informed promptly on any information that shall impact the delivery of a Product to the customer.
- Customer Self pick up module – This model is applicable for the item which will be placed on Auction marketplace with marked as “As is where is” basis. This products does not attract any shipping cost of vendor and customer will come to vendor’s place to inspect the item and will arrange pick up of the product.
7. EXCHANGES, RETURNS AND REFUNDS
- Vendor will provide COMPANY with the Vendor Return and Refund Policy and such Vendor Return and Refund Policy shall apply to all Vendor Products.
- Exchange of a Vendor Product for another, non-delivery or rejections due to delay in delivery or failure to deliver for any other reason or cancellation of orders by Buyer for any reason, will constitute a return of Vendor Product. Vendor will be responsible for accepting and processing returns of Vendor Products in accordance with this Agreement and the Return and Refund Policy of company as well as his own store policy(if any) declared on vendor account.
- COMPANY will make efforts to ensure that all Vendor Products that are returned by a Buyer are dispatched to Vendor within the period agreed between COMPANY and courier partner after considering the pick-up location of the Vendor Products that are being returned by the Buyer.
- COMPANY will determine and calculate the amount of all refunds (including any Taxes to be refunded) for Vendor Products returned in accordance with this Agreement and will route all such refunds on behalf of Vendor to the Buyer and accordingly debit from the payment to Vendor.
- Buyer Disputes: If Vendor delays in resolving Buyer’s/Renter’s complaints or disputes relating to the Vendor Products within the period of seven days (including failure to perform quality checks of the returned Vendor Products), then on the expiry of such period COMPANY may at its sole discretion decide and remit the refund to Buyer upon receipt of request from Buyer and recover the same from Vendor. Vendor agrees that it will accept COMPANY’s decision to remit the refund to Buyer without any contest or dispute. While arriving at any decision under this clause COMPANY would use reasonable efforts and opportunity of being heard will be provided to Vendor and the Buyer but COMPANY does not take any responsibility to ascertain the truth of such a claim by Vendor or the Buyer.
- Loss in Transit: In case of loss of Vendor Product after delivery to courier partner but before the delivery to Buyer, COMPANY shall make a claim to courier partner or the transit insurance service provider and shall treat Vendor as the beneficiary for the recoveries from courier partner or transit insurance service provider. However, risk of loss or damage to the Vendor Products will remain with Vendor if Vendor fails to adhere with the Packing Specification.
8. INVOICING BY VENDOR
Vendor shall create invoices and shipping labels for Vendor Transactions through the Transaction Processing Service using the functionality enabled for Vendor Account. Vendor will invoice the Listing Price of the Vendor Product sold to Buyer as adjusted for any discounts offered to Buyer. GST/ SGST/ CGST will be charged as per Applicable Law on the adjusted Listing Price. If COMPANY at its sole discretion decides to charge Shipping Charges and COD charges from the Buyer, Vendor shall print the invoice in this regard and send the same with Vendor Product to the Buyer.
9. PROBLEMS WITH VENDOR PRODUCTS
Vendor agrees and acknowledges that it will be solely responsible for any sale of Vendor Product to Buyer that is not in accordance with the order of Buyer or COMPANY Policies. Vendor further agrees to resolve all Buyer service issues arising from, or in connection with such sale or delivery of Vendor Products. If Vendor fails to respond to Buyer service issues related to any Vendor Product, or requests received by COMPANY related to same, COMPANY may take necessary steps for the resolution of such issues.
10. TRANSACTION PROCESSING
Collection of Payment by Payment Gateway
- COMPANY will collect the payment for Vendor Products through one or more of its designated payment gateways aggregators (“ Payment Gateway”). Vendor authorises the Payment Gateway to act as Vendor’s agent for the purposes of processing payments, refunds and adjustments for Vendor Transactions, receiving and holding Sales Proceeds on Vendor’s behalf and remitting entire Sales Proceeds to COMPANY’s bank account (collectively, the ” Transaction Processing Service”).
- Vendor agrees that as a security measure or in compliance with Applicable Law or any reason thereof, COMPANY or the Payment Gateway shall have the right (but not obligation) to impose limits or restriction on transaction at Marketplace. Neither COMPANY nor Payment Gateway will be liable to Vendor in case of any transaction failure to meet regulatory requirement or due to any technology failure or limitations of technology being used.
- If COMPANY or the Payment Gateway reasonably conclude based on information available to COMPANY or the Payment Gateway that Vendor’s actions or performance may result in Buyer disputes, charge backs or other claims, then COMPANY may, in its sole discretion, may delay initiating remittances related with such dispute and withhold corresponding payments that are otherwise due to until the completion of investigation regarding any Vendor actions or performance in connection with this Agreement and COMPANY will not be liable to Vendor for any of its action or Payment Gateway’s action
11. Payment to Vendor
- COMPANY will remit to Vendor the Sales Proceeds collected by COMPANY in respect of Vendor Products delivered to Buyers, every 15 days for the successful Vendor Transaction held during the preceding 15 days. Any amount to be paid to Vendor by COMPANY shall be paid after deducting COMPANY Fees and other amounts covered , reversals on account of return of Vendor Product, refund to the Buyer, Sales Proceeds previously remitted to Vendor for the Settlement Period and any other amounts due to COMPANY. All payments to Vendor will be subject to the deduction of tax at source under Applicable Law. For avoidance of doubt it is clarified that COMPANY will not be obligated to pay to Vendor any amount pertaining to Vendor Products that have been initiated for return by Buyer.
- COMPANY will initiate a transfer to Vendor’s Bank Account on each Payment Date for the total amount of Sales Proceeds payable to Vendor, less any COMPANY Fees or Other Costs due to COMPANY (including any refunds, adjustments, or other amounts paid to Buyers in connection with the Vendor Transactions, or for funds Vendor otherwise received since the last Payment Date). The amount of the COMPANY Fees will be posted to Vendor’s ledger account and will be deducted from the balance of credits in the Vendor’s ledger account as the amount to be remitted to Vendor on the next Payment Date.
- COMPANY reserves the right to withhold the Sales Proceeds or any portion of the Sales Proceeds in a reserve account pertaining to the disputes with Buyers or third parties arising out of any default or defect in services of Vendor or the Vendor Product.
12. CHARGES AND COSTS
With respect to each Vendor Transaction, Vendor will pay COMPANY the fees at the applicable percentage, more specifically covered under Annexure 1, plus GST. Prior to each Payment Date, COMPANY will raise an invoice towards the COMPANY Fees (plus GST as per the prevailing rates) due to COMPANY for the relevant Settlement Period.
13. Return/ Refund due to the fault of Vendor
In case of returns/ refunds occasioned due to any reason attributable to the Vendor, COMPANY shall be entitled to deduct the logistics cost and payment gateway charges, on actuals, incurred by COMPANY on such returns/ refunds from the payment to Vendor.
Storefront development and personalization
- At the request of Vendor, COMPANY may set up a dedicated online Storefront for Vendor within Marketplace on such terms and conditions as may be agreed between the Parties.
- Vendor agrees to mention the Vendor Storefront URL on Marketplace in all its press and media advertisements as an authorized Storefront. Vendor agrees to provide without charge branding space to COMPANY as per requirement of COMPANY in all its stores in every location in India and will make best endeavours and facilitate initiatives to register customers of such stores on Marketplace. Vendor recognizes and confirms that COMPANY has the exclusive right to supervise, allow and reject the contents of the Storefront and Marketplace. COMPANY shall not be liable for Contents uploaded or displayed on the Storefront or Marketplace by or on behalf of Vendor pertaining to Vendor’s Products and all consequent liability will be borne by the Vendor only.
- Vendor takes full responsibility for any Content that is uploaded on its Storefront or used in relation to the Vendor Products or their listing on Marketplace and agrees that COMPANY shall not be responsible or liable for the Content and any issues arising from such Content whether provided by Vendor or procured from the COMPANY reference catalogue.
15. PROPRIETARY RIGHTS AND LICENSES
12.1 Property Right
- Both Parties agree that the brands/logos, trademarks, etc., belonging to each Party are the exclusive property of the respective Party and cannot in any circumstances be used, or copied, or altered in any manner which is identical/ similar to the brands/logos/trademarks of the other Party without being specifically authorized in writing by that other Party.
- Vendor acknowledges that, COMPANY possesses and reserves all right, title and interest in and to the Intellectual Property Rights in the trademarks and any other intellectual property, know-how developed or provided by COMPANY or its Service Providers during performance of the services under this Agreement (collectively, “COMPANY IPR”) and except as may expressly be set forth in this Agreement, no title to or ownership of any of COMPANY IPR is transferred or licensed to Vendor or any other Person pursuant to this Agreement.
12.2 Content and Trademark License
- Vendor hereby grants to COMPANY and COMPANY’s Affiliates a royalty-free, non-exclusive, worldwide, irrevocable right and license to use, reproduce, perform, display on Marketplace and on COMPANY Connected Properties (e.g. Facebook account of COMPANY or twitter handle of COMPANY etc.), and in advertising and other marketing communications promoting Marketplace that consist of text or a logo or other derivative work provided or made available by Vendor or its Affiliates or COMPANY Connected Properties or Service Providers.
- Notwithstanding the foregoing, nothing in this Agreement will be construed as restricting COMPANY from using any Vendor trademarks in a manner permitted under Applicable Law without a license from Vendor (such as fair use or referential use, or valid license from a third party). All goodwill arising out of use of Vendor trademarks by COMPANY will inure solely to the benefit of Vendor and its Affiliates.
12.3. Usage of COMPANY Intellectual Property
Any COMPANY IPR expressly provided or made available to Vendor or its Affiliates may be used by Vendor solely for the express purposes described in this Agreement during the Term of this Agreement. For the avoidance of doubt, Vendor will not:
(i) copy, reproduce, modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble, or make derivative works or improvements based on any COMPANY IPR or use, rent, loan, sublicense, lease, distribute, or attempt to grant other rights to COMPANY IPR; or
(ii) Use any COMPANY IPR to act as a consultant, service bureau or application service provider, or to permit remote access to any COMPANY IPR; or
16. PROMOTION AND MARKETING
COMPANY may undertake merchandising, promotion and digital marketing of Marketplace and Vendor’s Storefront including Vendor Products as solely determined by COMPANY including via the COMPANY Connected Properties or any other functions, features, advertising, or programs on or in connection with Marketplace. Vendor acknowledges that COMPANY will have complete rights of approval and ownership over the creative content, themes, sales literature, copy and layout of all advertising and promotional materials and programs, trade materials, business cards, invoices, stationery and other printed matter relating to such merchandising, promotion and marketing activities. Depending on mutual agreement between the Parties, COMPANY reserves the right to charge a fee from Vendor for its promotion and marketing of the Storefront and Vendor Products.
Vendor will, at its own expense, obtain all permits and licenses required to operate its business in accordance with applicable Law, and will pay and discharge all applicable taxes levies and assessments which may be due for selling or offering of the Vendor Products for sale on Marketplace. It is Vendor’s responsibility to determine the States in which it has an obligation to collect and remit any kind of taxes including GSTservice taxes and other levies by Governmental Authority (“Taxes”). COMPANY will remit the Taxes collected from Buyer directly to Vendor and Vendor will be solely responsible for remitting the Tax to the applicable Governmental Authority. If a Governmental Authority requires COMPANY to pay any of Vendor’s Taxes, Vendor will promptly reimburse COMPANY for the amounts, fines and penalties paid and agrees to defend, indemnify and hold COMPANY harmless from and against all liabilities incurred or suffered by or assessed against COMPANY because of Vendor’s failure to remit or pay timely such Taxes to the appropriate Governmental Authority. Company will deduct TCS (Tax Collection at Source) @1 % from each transaction of vendor sales through company and will deposit it to Government (as per Section 52 of the CGST/SGST Act, 2017)
Vendor acknowledges and agrees that while Service Providers may take the Tax related data (Tax Data) from the Vendor Portal, Vendor acknowledges and agrees that COMPANY and its Service Providers do not provide Tax advice, and that Vendor is solely responsible for determining the applicability and accuracy of any Tax Data. As a condition of receiving the Tax data, Vendor agrees to fully and forever waive any liabilities against COMPANY and the Service Provider arising from Vendor’s use of and reliance on such Tax Data and further agrees to defend, indemnify and hold COMPANY and its Service Provider harmless from liabilities arising from such use or reliance.
18.REPRESENTATIONS, WARRANTIES AND COVENANTS
Vendor represents and warrants to COMPANY that:
(i) It is duly organized and validly existing under the Applicable Laws and is duly registered and authorized to do the business and has all requisite government and regulatory approvals, corporate powers and authority to own and operate its business and to enter into this Agreement and while entering into this Agreement shall not violate or conflict with any agreement, contract, arrangement and understanding or any instrument, to which it is a party or by which it is bound.
(ii) It has the requisite power, licenses, consents, permission, approvals and authorities to execute, perform and deliver this Agreement.
(iii) There is no action, suit, proceeding, claim, arbitration, inquiry or investigation pending against Vendor, its activities, properties or assets or for its winding up which may materially affect its financial condition. It is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or Governmental Authority or instrumentality which affects the business or interests of Vendor.
(iv) Vendor Products used in, offered and sold on Marketplace legally procured or manufactured and is not disabled in any manner and is allowed to sell Vendor Product on Marketplace.
(v) The Vendor trademarks and all the rights title and interest are the sole property of the Vendor or its licensors and the Vendor trademarks do not infringe or pass off the trademarks or logos or service marks or other Intellectual Property Rights of any Third Party and there is no claim, action or proceeding pending before any Governmental Authority that prevents or prohibits Vendor from using or exploiting the Vendor trademarks under this Agreement.
(vi) Vendor Product listings, Vendor Material and all information provided to COMPANY is and will be accurate, complete, current, and does and is and will not be misleading or deceptive in any manner.
(vii) The publication, reproduction, display, modification, distribution or transmission of Vendor Material or Vendor Product listing does and will not (a) infringe, misuse, dilute, misappropriate, or otherwise violate any Intellectual Property Rights of Third Parties, (b) constitute an invasion of a party’s rights of privacy or publicity; or (c) reflect unfavorably on COMPANY, Marketplace, COMPANY Affiliates or other Vendors on Marketplace.
(viii) All Vendor Products sold pursuant to this Agreement are and will not be subject to any health, safety, defect or product quality recall or prohibitive order of any Governmental Authority or otherwise not disallowed to be sold through online sales.
(ix) All information or data uploaded or transmitted by Vendor on Marketplace, or any COMPANY Connected Properties, application, or system, or to a Buyer or user shall be free from any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of Marketplace or any COMPANY Connected Properties, application, or system.
(x) Vendor will not use Marketplace, Vendor Account or Storefront to violate the security of, or gain unauthorized access to, any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes to use any robot, spider, site search or retrieval application, or other device to retrieve or index any portion of Marketplace, collect any information about other users (including usernames or email addresses); or to reformat or frame any portion of Marketplace), or use Marketplace, Vendor Account, Storefront or any other Vendor Material, intentionally or unintentionally, to violate any Applicable Law.
(xi) Vendor shall conform with and adhere to the terms and conditions of COMPANY Policies.
(xii) Vendor will comply with all Applicable Laws in its performance of this Agreement in connection with the offering and sale of all Vendor Products and services offered or sold on Marketplace and the shipment or delivery of Vendor Products to Buyers.
(xiii) Vendor Products shall be sold only in their original packages. Vendor shall not, either directly or indirectly, relabel, repackage, mark, or assist any other entity to relabel, repackage, or mark the Vendor Products except as may be specifically approved by COMPANY or provided in this Agreement.
(xiv) Vendor agrees to provide after sale support services to Buyers in respect of the Vendor Products sold on Marketplace in accordance with Vendor Terms and COMPANY Policies.
(xv) Vendor agrees and accepts that it shall be fully responsible for providing complete documentation for clearing Vendor Products at any check-posts by the LSP.
(xvi) Vendor shall not disparage Marketplace, COMPANY, its Affiliates, their respective shareholders, officers, employees and representatives or any of their respective products or services.
(xvii) Vendor warrants that will not host, display, upload, modify, publish, transmit, update or share any information that is Objectionable Content.
19. MARKETPLACE PLATFORM
17.1 Vendor acknowledges that COMPANY’s role under this Agreement is limited to managing the Marketplace for the display of the Vendor Products and other incidental services to facilitate online transactions between Vendor and the Buyers and hence COMPANY is merely an intermediary under the terms of Information and Technology Act, 2000 and rules thereunder. The transaction for sale of any of the Products is a bipartite contract between Vendor and the Buyer and COMPANY neither will have any obligations or liabilities in respect of such contract nor shall COMPANY hold any rights, title or interest in the Vendor Products. COMPANY will also not be responsible for any unsatisfactory performance or any actions or inactions or omissions by the Vendor including delays, defects or wrong information.
17.2 COMPANY may not check or monitor the listings, data and Contents displayed appearing, published and transmitted on Marketplace and that COMPANY or Marketplace does not own, stock, sell, distribute or in any manner come into possession of or verifies any items or products listed or put up for sale on Marketplace. Marketplace is a technology platform which facilitates transactions among various users of the Marketplace in the Territory. COMPANY is not originator of or for any Third Party or user Content on Marketplace.
Vendor (“Indemnifying Party”) will defend, indemnify and hold harmless COMPANY, COMPANY Connected Properties and their Affiliates and their respective employees, directors and representatives (“ Indemnified Party”) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorney’s fees) arising out of or in connection with (i) a breach of any of the representations, warranties, covenants or undertakings of the Indemnifying Party (ii) any claims relating to or based on: (a) any actual or alleged breach of any term of this Agreement or COMPANY Policies by the Indemnifying Party; (b) the Vendor Sales Channels, Vendor Products (including the offer, sale, fulfilment, refund, or return thereof), Vendor Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing or its submissions, posting of materials or deletion thereof, and any personal injury, death, damage to property related thereto; (c) Vendor’s use of COMPANY service under this Agreement.
- Except as expressly provided in this Agreement, COMPANY does not make, and hereby waives and disclaims, any representations or warranties regarding this Agreement or the transactions contemplated hereby, including any implied warranties of merchantability, fitness for a particular purpose or non-infringement or implied warranties arising out of course of dealing, course of performance or usage or trade and without limiting the generality of the foregoing with regard to: (i) the operations of Marketplace and Content, information, products or services included on or otherwise made available on Marketplace, (ii) the quantum of sale that may occur during the Term, and (iii) any economic or other benefit that Vendor might obtain through access to the Marketplace or performance under this Agreement.
- COMPANY reserves the right to change, upgrade, modify, limit or suspend Marketplace services or any of its related functionalities or applications at any time temporarily or permanently without prior notice. COMPANY further reserves the right to introduce new features, functionalities or applications to the services or to future versions of the Marketplace services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise expressly stated by COMPANY.
- Vendor expressly acknowledges and agree that COMPANY shall have the full power, authority and discretion (but not the obligation) to make a determination on any dispute between Buyer and Vendor, if Vendor fails to settle dispute within such time period as mentioned including the remittance of the funds under a Vendor Transaction that are held by Payment Gateway in accordance with this Agreement and COMPANY, its Affiliates and Payment Gateway will not be liable in any manner whatsoever. Vendor acknowledges that this Agreement and the relevant COMPANY Policies may not cover all issues that may arise in connection with a Vendor Transaction. Vendor agrees and accepts that COMPANY shall have the right to modify or supplement the COMPANY Policies at any time without notice. Vendor further agrees and accepts that COMPANY shall have the right to make determinations wherever COMPANY considers appropriate having regard to the evidence received by COMPANY and interests of both Buyer and Vendor regardless whether the issue in question has been expressly addressed in the COMPANY Policies or this Agreement.
- In case of any dispute in connection with any Vendor Transaction, the books and records of COMPANY shall take precedence and be conclusive.
- COMPANY will endeavour to procure delivery of Vendor Products by LSPs in accordance with the Order Information. COMPANY shall not be held liable for the failures attributable to LSP.
- The prices, Shipping Charges, payment details, date, period and mode of delivery, warranties related to Vendor Products and after sales services, if any, shall depend upon and be the responsibility of the Vendor and COMPANY shall not be liable in any manner whatsoever. Vendor acknowledges and agrees to accurately and fairly represent its offers and COMPANY does not warrant, guarantee, support or verifying the veracity or accuracy of any information Vendor displays on Marketplace.
- COMPANY may arrange for customer service centre to provide assistance to Buyers in purchase, payment related queries, or any enquiries as may be requested by Buyers. Vendor shall provide all information and assistance as may be requested by COMPANY or its customer service centre to assist Vendor in resolving any queries, enquiries or grievances of Buyer. The customer service centre shall be responsible only to provide contact information of the Manufacturer or Authorised Vendor for any queries, enquiries or grievances relating to the Vendor Products and after sale services and Vendor is solely responsible for resolving any queries, enquiries or grievances. COMPANY disclaims any liability arising due to delay in providing information to Buyers, or failure in resolution of queries, grievances and disputes of Buyers to their satisfaction.
- Vendor acknowledges and accepts that since COMPANY is not a party to any Vendor Transactions between Vendor and Buyer or other participants and Vendor releases and discharges COMPANY from any claims, disputes, demands, liabilities and damages, of any nature (whether direct, indirect, actual or consequential), arising out of or in relation to or in connection with the Vendor Transactions.
- Vendor, for itself and its successors, Affiliates, subsidiaries, officers, employees, shareholders, assignees or other Person or entity claiming through, by or for Vendor, release and discharges forever COMPANY and all of its predecessors, successors, COMPANY Affiliates, its partners, subsidiaries, directors, officers, employees, shareholders, agents, representatives, attorneys, assignees, whether past or present, and acting or claiming through, by or for COMPANY, from any and all claims, disputes, demands, liabilities, damages, losses, debts, obligations, legal or judicial proceedings (including suits), causes of action or any rights of any kind or nature, whether accrued or unaccrued, arising or resulting from or related to the shipment or delivery of Vendor Products to Buyers including tax registration or collection obligations.
22. LIMITATION OF LIABILITY
TO THE GREATEST EXTENT PERMISSIBLE UNDER LAW, VISHYAM SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, LOSS OF PROFITS, BUSINESS, REVENUE AND/OR GOODWILL. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF VISHYAM AND ITS AFFILIATES UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY AND ALL CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (WHETHER LIABILITY ARISES DUE TO NEGLIGENCE OR OTHER TORT, BREACH OF CONTRACT, VIOLATION OF STATUTE, MISREPRESENTATION OR FOR ANY OTHER REASON), SHALL AT ALL TIMES BE LIMITED TO RUPEES FIVE THOUSAND (RS.5000) ONLY.
COMPANY shall have the right to assign or transfer any of its rights or delegate any of its obligations under this Agreement in whole or in part to any Person without the consent of Vendor; provided, however, with respect to any assignment resulting in the subsequent performance by the assignee of the obligations of COMPANY the assignee shall expressly assume and agree to perform such obligations of COMPANY in writing; and from and after the date of any such assignment, COMPANY shall have no further obligation or liability to Vendor or any other Person or any Third Party under this Agreement. Vendor shall not be voluntarily, involuntarily, directly or indirectly sub-contract or otherwise assign this Agreement to a third party without prior written acknowledgement of COMPANY. Any assignment as aforesaid shall not affect any rights that have already accrued to COMPANY prior to the assignment.
- The Parties agree and undertake that during the Term of this Agreement and thereafter, the Parties shall keep this Agreement and all data confidential, and information disclosed and divulged by one Party to another Party or which comes to its knowledge whether in print, digitalised, any other electronic form, oral or software format, whether or not marked “Confidential” (“Confidential Information”) strictly confidential. Confidential Information will include without limitation Buyer lists, new product information, price information, launch date, projections, plans, forecasts, financial, business and sourcing information, analytics, designs, specifications, software, techniques, technology, passwords and other non-public information obtained in the course of this Agreement.
- All Confidential Information relating to Marketplace and services shall be obtained and retained by Vendor in confidence and trust and except as expressly provided by this Agreement, shall not be used, duplicated, copied or disclosed by Vendor in any form for the use or benefit of any Person, nor reproduced, transcribed, imitated or simulated in whole or in part. Vendor may disclose relevant aspects of the Confidential Information to its employees, representatives or agents on a need to know basis who have been advised of and are bound by the confidentiality provisions of this Agreement.
- Vendor shall notify COMPANY immediately if Vendor learns of any misappropriation or misuse of Confidential Information by anyone in any manner not expressly authorised under this Agreement and shall co-operate with any efforts by COMPANY to prevent any misappropriation or misuse of Confidential Information.
- If COMPANY makes available any passwords or password-protected areas of Marketplace or other service (including in connection with the use of any Vendor Account or management tools), Vendor is solely responsible for maintaining the security and confidentiality of such passwords and password-protected areas. Vendor will use the password of Vendor Account on Marketplace only to access Marketplace, use the services and management tools, electronically transact, and review Vendor’s completed Vendor Transactions. Vendor shall not disclose its password to any Third Party (other than third parties authorised by Vendor to use the Vendor Account). If Vendor becomes aware that any such password or password-protected area has been compromised, it will immediately notify COMPANY of the same via a telephone number or other contact method designated by COMPANY for such purpose followed by notice in writing, and will change the applicable passwords. If Vendor’s password is compromised, Vendor shall be fully responsible for any loss or damage or liability arising from the compromise or misuse of Vendor Account or other password protected areas.
25. TERM AND TERMINATION
This Agreement may be terminated by COMPANY, with immediate effect, if:
- Vendor is in breach of any of its obligations, representations or warranties, or any other material terms as contained in this Agreement and/or any of the COMPANY Policies; and
- A petition for relief under any bankruptcy or insolvency is filed by or against Vendor or Vendor makes an assignment for the benefit of the creditors, or a receiver or an administrative receiver or administrator is appointed.
- Vendor acknowledges that in case of non-compliance with the provisions of this Agreement, COMPANY has the right to immediately terminate the Vendor’s account and access to Marketplace.
- Notwithstanding anything contained under this Agreement, any Party may terminate this Agreement for convenience upon 7 (seven) days written notice to other Party. It is agreed that such provisions and obligations which, by their very nature, survive the termination of this Agreement, shall continue to be binding on the Parties.
- On termination of this Agreement:
- COMPANY will, with immediate effect, block Vendor’s access to the Marketplace and Vendor Portal and consequently, Vendor shall not be able to offer any Products to the Buyers thereafter and shall not have the right to re-register himself /itself as a Vendor on the Marketplace at any time after such termination, unless COMPANY, in its discretion, permits such re-registration; and
- Vendor shall return to COMPANY all the confidential information of COMPANY and all other properties and materials belonging to COMPANY. Where the confidential information cannot be returned in material form, Vendor shall destroy all of COMPANY’s confidential information and shall provide COMPANY with a certificate of destruction with respect to the same.
- On the termination of the Agreement, Vendor will be entitled to only the undisputed Vendor Proceeds which have become due to Vendor on account of any purchase of the Products, made through the Marketplace, prior to the date of termination of this Agreement. COMPANY shall be entitled to adjust any receivables, due from Vendor to COMPANY till the date of termination, from the Vendor Proceeds payable to Vendor on termination.
- Without prejudice to the foregoing, the termination of this Agreement pursuant to any of the provisions contained herein above shall not limit or otherwise affect any other remedy (including a claim for damages), which either Party may have, arising out of the event which gave rise to the right of termination.
26.GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the Indian laws. The competent courts in Kolkata shall have exclusive jurisdiction in all matters or disputes arising out of this Agreement.