This seller agreement (“Agreement”) is a legal contract between you (hereinafter referred to as the “Vendor” or “you” or “your” “yourself”) and Enozon Online Shopping Private Limited and its subsidiaries and/or affiliates (hereinafter referred to as “Company”).
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE AVAILING THE BENEFITS OF USER BASE OF THE ENOZON PLATFORM (as defined below) AND GETTING YOURSELF REGISTERED ON THE ENOZON PLATFORM THEREBY RENDERING SERVICES TO THE USER(S) (as defined below).
BY CLICKING ON THE “I ACCEPT” OR “I AGREE BUTTON” OR SIMILAR BUTTON, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OR ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, IMMEDIATELY CLICK ON THE “I DO NOT ACCEPT” OR SIMILAR BUTTON AND CONSEQUENTLY, YOU SHALL NOT BE ABLE TO ACCESS, USE AND AVAIL THE BENEFITS/ADVANTAGES OF USER BASE OF THE ENOZON PLATFORM (as defined below)
BY CLICKING ON “I AGREE” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND THAT YOU ACCEPT AND AGREE TO ABIDE BY THE AGREEMENT IN LETTER AND SPIRIT AND ACCORDINGLY, YOU WILL USE THE ENOZON PLATFORM (as defined below). IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, EDUCATIONAL INSTITUTION, OR AGENCY, INSTRUMENTALITY OR DEPARTMENT OF A GOVERNMENT (“Entity”) AS ITS AUTHORIZED LEGAL REPRESENTATIVE, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. ANY REFERENCE TO “VENDOR” OR “YOU” OR “YOUR” “YOURSELF”, HEREIN BELOW SHALL BE DEEMED TO BE A REFERENCE TO YOU AND THE ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT.
FURTHER BY ACCEPTING THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU REPRESENT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD OR HAVE REACHED THE AGE OF MAJORITY AS PER APPLICABLE LAWS (as defined below).
Hereinafter, the Company and You/Vendorshall collectively be referred to as the “Parties” and individually as the “Party”.
1. DEFINITIONS AND INTERPRETATIONS
- 1.1. Unless otherwise defined in this Agreement, all terms capitalized herein but not defined in the body of this Agreement, shall have the meaning ascribed to such terms herein below:
- (a) “Applicable Laws” shall mean: (i) statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, bye-laws, regulations, listing agreements, notifications, guidelines or policies of any applicable jurisdiction (including jurisdictions in which the relevant Party is incorporated and/or carry on any business or activities); (ii) administrative interpretation, writ, injunction, directions, directives, judgment, arbitral award, decree, orders or government approvals of, or agreements with, any governmental authority; and (iii) international treaties, conventions and protocols; as applicable, may be in force and have effect of law from time to time;
- (b) “Banned Product(s)” shall mean the products, goods, articles, services and/or merchandise which are mentioned in the Banned Products List;
- (c) “Banned Products List” shall mean the list containing various products, goods, articles, services and/or merchandise which cannot be sold or purchased by the Customer(s) from the Vendor. The Banned Products List has been prepared by the Company and is updated from time to time by the Company, and is available at Enozon Platform;
- (d) “Commission” shall have the meaning ascribed to it in Clause 3.1 of this Agreement;
- (e) “Company’s Bank Account” shall mean the bank account of the Company in which the Company will deposit the Security Deposit and details of which are specifically mentioned in Seller’s Registration Form;
- (f) “Confidential Information” with respect to the Company shall mean and include any and all information that is of a proprietary, confidential or trade secret nature, of strategic importance, or is otherwise considered to be confidential or proprietary by the Company. Confidential Information will include items such as business plans, marketing plans and strategies, formula, processes, data, software source codes, details of Enozon Platform, financial information, client/vendor/sellers/customers lists, Customer Data and all other information deemed confidential by the Companyand/or any of its subsidiary, affiliate and licensee. Confidential Information shall not include items that are generally available to the public, generally known in the industry, exist in public domain, is learned from an outside source independent from the relationship established by this Agreement, independently developed by the Vendor, was rightfully given to the Vendor by the some third party or was known to Vendor prior to the entering of this Agreement.
- (g) “Customer(s)” shall mean the User(s) who is purchasing the Product(s) from the Vendor and making payment of the requisite Product Price to the Vendor;
- (h) “Customer Data” shall include personal data of the Customer(s) including but not limited to name, address and identification data and account details of the Customer(s) including but not limited to bank details and/or debit/credit card details shared by the Customer(s) with the Vendor for carrying out the transaction as set forth in this Agreement;
- (i) “Customer Invoice” shall mean the invoice raised by the Vendor in name of Customer(s) for the Product(s) purchased by the Customer(s);
- (j) “Demanded Amount” shall have the meaning ascribed to it in Clause 5.6 of this Agreement;
- (k) “Enozon App” shall have the meaning ascribed to it in Recital A of this Agreement;
- (l) “Enozon Platform” shall have the meaning ascribed to it in Recital A of this Agreement;
- (m) “Execution Date” shall mean the date on which the Vendor submitted the Seller’s Registration Form to the Company;
- (n) “Intellectual Property Rights” shall mean any and all now known or hereafter known tangible and intangible rights of the Company including but not limited to:
- (i) all intellectual property rights (of every kind and nature throughout the universe and however designated) (including logos, designs, etc.), whether arising by operation of law, contract, license, or otherwise with respect to Enozon Platform and business of the Company; and
- (ii) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing);
- (iii) patents, designs, algorithms and other industrial property rights;
- (iv) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works;
- (v) trade secret right;
- (vi) trademark and trade name rights and similar rights.
- (o) “KYC Documents” shall mean the documents relating to the identity, constitution and address proof of the Vendor which Vendor is required to provide as per the policy of the Company;
- (p) “Log-in Details” shall have the meaning ascribed to it in Clause 2.1of this Agreement;
- (q) “Product(s)” shall mean the products, merchandise, services, etc. offered by the Vendor at certain Product Price;
- (r) “Product Price” shall mean the amount (including all taxes) which the Customer(s) is required to pay to the Vendor for purchasing/ availing the Product(s) of the Vendor and for which Customer Invoice has been raised;
- (s) “Registration Fees” shall mean the fees which Vendor is required to pay as per the policy of the Company,in order to get itself registered on the Enozon Platform;
- (t) “Security Deposit” shall mean an interest free refundable amount more particularly mentioned in Seller’s Registration Formdeposited by the Vendor in the Company’s Bank Account towards its obligation regarding payment of the Commission to the Company in accordance with Clause 3.3 of this Agreement;
- (u) “Seller’s Registration Form” shall mean the seller’s registration form duly filled, signed and submitted by the Vendor to the Company at the time of registration of the Vendor on the Enozon Platform;
- (v) “Term” shall have the meaning ascribed to it in Clause 6.1 of this Agreement;
- (w) “User(s)” shall mean the persons having an active customer user account on the Enozon Platform;
- (x) “Vendor Panel” shall mean www.enozonseller.in which the Vendor can access through its “username” and “password”.
- (y) “Websites” shall have the meaning ascribed to it in Recital A of this Agreement.
- 1.2. Interpretations
In this agreement (unless the context requires otherwise):
- (a) the headings are inserted for ease of reference only and shall not affect the construction or interpretation of this Agreement;
- (b) time is of the essence in the performance of the Parties’ respective obligations. If any time period specified herein is extended in writing by the Parties, such extended time shall also be of the essence;
- (c) references to one gender include all genders;
- (d) words in the singular shall include the plural and vice versa;
- (e) unless specified otherwise any reference to the recital, clause, annexure or schedule shall be deemed to be a reference to a recital, clause, annexure or schedule of this Agreement;
- (f) the words “include”, “including”, “for example” or “such as” are not used as, nor is it to be interpreted as, a word of limitation and when introducing an example, do not limit the meaning of the words to which the examples are of a similar kind;
- (g) the terms “herein”, “hereof”, “hereto”, “hereunder” and words of similar purport refer to this Agreement as a whole and are not limited to the particular Clause or provisions in which the relevant expression appears.
2. SCOPE OF THE AGREEMENT
- 2.1. Prior to availing the service of the Company, the Vendor is required to register itself on the Enozon Platform by submitting a duly filled registration form available on the Enozon Platform along with requisite Registration Fees and KYC Documents. Upon receipt of a duly filled registration application, requisite Registration Fees and KYC Documents in soft copy, the Company, after scrutinizing the said application, shall register the Vendor on the Enozon Platform and will provide a registration number to the Vendor. The Vendor shall be liable to submit the duly signed /authenticated KYC Documents in hard copy at the head-office of the Company within fifteen (15) days from the day on which the Company received the duly filled registration application from the Vendor. In case, the Vendor fails to submit the KYC Documents within the aforementioned time period, the Company shall have a right to cancel/terminate the registration of the Vendor and forfeit the Registration Fees paid by the Vendor. Once registered, the Vendor shall be able to access the Vendor Panel through a “username” and “password” provided by the Company (“Log-in Details”). It is hereby clarified that the Vendor is not required to register itself on both, the Website and the Enozon App. If the Vendor is registered on the Website, it will be deemed that the said Vendor is also registered on the Enozon App and vice versa.
- 2.2. Once registered, the Vendor’s name will be added on the Enozon Platform as a registered seller and the Vendor will be entitled to avail the service of the Company through Enozon Platform.
3. COMMISSION AND PAYMENT OF PRODUCT PRICE
- 3.1. In consideration for availing the service of the Company under this Agreement, the Vendor shall be liable to pay, to the Company, commission at such percentage as mentioned in Seller’s Registration Formon each Product Pricecollected by the Vendor from the Customer(s) (“Commission”). The Vendor hereby acknowledges that the Company reserves the right to revise/modify/change/alterthe rates/percentage of Commissionmentioned in Seller’s Registration Form,from time to time at its sole discretion.
- 3.2. At the time of making payment of the Product Price to the Vendor(s), the Customer(s) shall scan QR code provided to the Vendor(s) and shall upload the Customer Invoice on the Enozon Platform within two (2) days from the date on which the Customer Invoice was issued to the Customer(s) by the Vendor(s). The said uploading of the Customer Invoice shall be done in such manner and form as prescribed on the Enozon Platform by the Company, from time to time. Once the uploading of the Customer Invoice is completed in the prescribed manner and time by the Customer(s), the Customer(s) shall be entitled toreceive rewards/referral commission under the User(s) Beneficial Programs.
- 3.3. The Vendor(s) shall pay, to the Company, the Commission along-with goods and services taxor any other tax of a similar nature (by whatever name called) which might be chargeable/leviable on the Commission as per Applicable Laws (collectively, “Taxes”), within six (6) hours fromtime the Product Price is received by the Vendor(s) as per Clause 3.2 of this Agreement. In the event the Vendor(s) fails to pay the Commission and/or Taxes payable on such Commission within the aforementioned time period, the Company shall be entitled to deduct such outstanding Commissionand/oroutstanding Taxespayable on such Commission as the case may be, from the Security Deposit. In case the Vendor(s) is liable to deduct tax at source under the provisions of the Income Tax Act, 1961 from the Commission payable to the Company (“TDS”), the Company shall deduct the Commission net of TDS from the Security Deposit.
- 3.4. If at any timethe amount of the Security Depositremaining with the Company isten percent (10%)or less of the original amount of the Security Deposit, the Vendor shall be liable to replenish the amount of Security Depositwithin thirty (30) days from the date of replenishment in such mannerso as to bring it equivalent to the original amount of Security Deposit. In the event the Vendor fails to replenish the amount of the Security Deposit within the prescribed time period, the Company shall be entitled to terminate this Agreement and consequences set out under Clause 6.3(a) of this Agreement shall follow. The Vendor acknowledges and agrees that such transactions where the Commission to be deducted exceeds the amount of Security Deposit remaining with the Company shall not beeligible to be covered under User(s) Beneficial Programs.
- 3.5. The Vendor shall, within the time period prescribed under the Applicable Laws,deposit the TDS in the name of the Company with the relevant tax authorities and provide the Company with necessary certificate for the TDS so deposited within the time period prescribed under the Applicable Laws.
- 3.6. The Commission payable under this Agreement to the Company, shall be exclusive of the (i) goods and service tax or any other tax of a similar nature (by whatever name called) which might be chargeable/leviable on the transaction contemplated in this Agreement in connection with such Commission, and (ii) all past and future taxes in respect of this Agreement and the Commission.
- 3.7. With respect to the Commission received by the Company on each Product Pricewhich is collected by the Vendor, the Company shall, for the purpose of record, raise an invoice in name of the Vendor, on monthly basis, depicting the total amount of Commission received by the Company in the said month.
- 3.8. The Vendor shall be liable for and shall pay all taxes and charges payable with respect to the Product Price under Applicable Laws and shall always keep the Company indemnified with respect to the same.
4. REPRESENTATIONS AND WARRANTIES
- 4.1. Each Party represents and warrants to the other Party that:
- (a) It is duly incorporated under the laws of India and has obtained all the valid authorization/licenses/permits required to conduct its business within the territory of India and shall maintain such permit, authorization, licenses in accordance with the Applicable Laws, regulations and rules as amended from time to time, during the Term of this Agreement.
- (b) It has all the necessary corporate power and authority and is authorized to execute this Agreement and to perform its obligations under this Agreement and that by entering into this Agreement it will not contravene the provisions of its memorandum and articles of association and/or any other instrument of its constitution.
- (c) Unless terminated, this Agreement will constitute a valid and legally binding obligation on its part and would be enforceable in accordance with its terms.
- (d) By executing this Agreement, neither of the Party violate: (i) the terms of any existing agreement or arrangement or understanding between the Parties; (ii) the provision of any decree issued by a competent authority; and (iii) the provisions of any Applicable Laws.
- (e) It shall comply with or cause to be complied with all legal and valid provisions of statute, law, bye-law, rules, regulations or provisions having the force of law of the central and/or state governments, municipal corporation, municipality, local body or public authority, order of courts or law, and/or revenue or tax authority in so far as the same relates to the part of their obligations/responsibilities mentioned.
- 4.2. The Vendor hereby represents and warrants that:
- (a) There is no litigation, proceeding, dispute or action, pending or threatened, against the Vender, the adverse determination of which might affect Vendor’s ability to perform any of its obligations hereunder or have a materially adverse effect on the business of the Vendor which shall in turn affect the rights of the Company under this Agreement.
- (b) The Vendor has not previously sold or is selling or plans to sell any Banned Product(s) to the Customer(s).
5. COVENANTS OF THE VENDOR
- 5.1. At the time of registration, the Vendor shall provide true, accurate and correct details as required in the registration application. After registration, the Vendor shall be solely responsible to timely intimate the Company regarding any change including but not limited to the information provided at the time of registrationand description of the Vendor. Further, Vendor hereby acknowledges that grant of registration on the Enozon Platform is subjected to discretion of the Company.
- 5.2. The Vendorshall not sell, display or indulge in any activity promoting the selling/displaying of any Banned Product(s) to the Customer(s). In case, the Vendor receives any payment in relation to Banned Product(s) sold/displayed by the Vendor to any of the Customer(s), the Company shall be entitled tosuspend the registration of the Vendor and restrain the Vendor from accessing the Vendor Panel or terminate this Agreement.
- 5.3. The Vendor shall maintain proper and accurate records and documentation of, including but not limited to,every order of the Product(s) received and/or completed by the Vendor, taxreturns, refunds, books of accounts and any other record which the Company may require the Vendor to prepare and maintain for any reason whatsoever and/or which are required to be maintained under Applicable Laws (“Records”). The Company shall have a right to inspect the Records at any point of time subject to prior intimation. In case the Company demands a copy of any Record, the Vendor shall be liable to provide the same within twenty-four (24) hours of such demand.
- 5.4. The authorized representative of the Vendor as mentioned in the title of the Agreement or any other person as specified by the Vendor (“Concerned Person”)shall be the Company’s point of contact, at all time, to discuss any matter related to this Agreement including but not limited to all Product Pricepayment related matters, usage of the Enozon Platform and/or Vendor Panel by the Vendor and any technical difficulty being faced by the Vendor in availing the service.
- 5.5. The Vendor shall be solely responsible for maintaining the safety and confidentiality of: (a)the Log-in Details. It is hereby clarified that the Vendor is entitled to change the password provided in the Log-in Details from time to time; and (b)details mentioned on the Vendor Panel. The Vendor shall immediately notify the Company of any unauthorized use of Log-in Details or Vendor Panel or any other breach of security, so that corrective actions can be undertaken.
- 5.6. The Vendor shall be solely responsible and liable for the quality, quantity, merchantability, guarantee and warranties with respect to the Product(s) being sold by the Vendor to the Customer(s). Further, the Vendor shall be solely responsible to entertain/accommodate the complaints and queries raised by the Customer(s) with respect to any of the Product(s) purchased/availed by them from the Vendor, including but not limited to details, specificationsand usage of the Product(s), selling price of the Product(s), warranty terms of the Product(s), and any other complaint with respect to the quality or quantity of the Product(s) (“Disputed Product(s)”). The Vendor hereby acknowledges that the Company shall not in any manner be liable to entertain and/or satisfy the demands of refund of the Product Price with respect to the Disputed Product(s) or any amount paid by the Customer(s) with respect to the Product(s) or any other amount, expense, cost incurred to the Vendor/Customer(s)in relation to disputes/complaints/queries raised by the Customer(s) with respect to the Disputed Product(s) (“Demanded Amount”).
- 5.7. The Vendor is aware about the review and rating system available on the Enozon Platform which can be used by the Customer(s)to provide reviews and ratings to the Vendor based upon their level of satisfaction in relation to the Product(s) provided by the Vendor. The Vendor acknowledges that such reviews and ratings given by the Customer(s) shall be visible to all the persons accessing Enozon Platform and based upon which the ranking of the Vendor in the list of Seller(s) available on the Enozon Platform may fluctuate. The Vendor hereby undertakes that it shall not indulge in any sort of unethical activity or malpractice including manipulation, directly or indirectly, of any relevant information,which might affect its rating/ranking on the Enozon Platform. The Vendor further acknowledges that such ratings and reviews are opinions of Customer(s) using its Product(s) and the Company is not responsible for such ratings and reviews. The Vendor further confirms that the Vendor shall not initiate any proceedings, litigations, disputes or actions for defamation against the Company and/or Customer(s) for providing reviews and ratings to the Vendor on the Enozon Platform.
- 5.8. The Vendor is aware about the various User(s) beneficial programs which are organized and facilitated by the Company on the Enozon Platform from time to time including but not limited to: (a) “Rewards Program” where User(s) are rewarded with reward points; and (b) “Refer &Earn Program” where User(s) are paidreferral commission for referring/promoting the services of Enozon Platform and encouraging people to become User(s) of the Enozon Platform (collectively, “User(s) Beneficial Programs”). The Vendor hereby acknowledges that the Customer(s) being User(s) of the Enozon Platform will also be entitled to participate in the User(s) Beneficial Program.
- 5.9. The Vendor undertakes that: (a) no adjustment/set-off/ deductions of any kind will be carried out by the Vendor from the Product Pricepayable by the Customer(s); and/or (b) the Vendor shall not charge/demand any kind of additional amount over and above the Purchase Price from the Customer and/or force the Customer(s) to pay such additional amount and/or refuse sale of the Products to the Customer due to non-receipt of such additional amount, on account of Customer(s) participating in the User(s) Beneficial Programs.
- 5.10. The Vendor shall not do, or omit to do, anything which is prejudicial to the interests of the Company in any manner, or which would adversely affect the interests and business of the Company and shall not make any representations or statements on behalf of the Company.
- 5.11. The Vendor shall always comply with the Applicable Laws and shall undertake such acts and deeds and shall obtain all the licenses, permits, approvals, authorizations and/or certificates required for availing theservice of the Companyand for carrying out itsbusiness and shall always keep the Company indemnified with respect to the same.
- 5.12. The Vendor shall be entitled to provide a general description of its business on the Vendor Panel, however, such description shall not consist of any information/image/text/graphic that is unlawful, illegal, objectionable, obscene, vulgar, defamatory and is opposed to public policy or is prohibited or is in violation of Intellectual PropertyRights of the Company as well as of any third party (collectively, “Objectionable Description”). The Vendor hereby acknowledges that the Company shall not be under any obligation or duty to verify or monitor the content/description, the Vendor uploads on the Vendor Panel and/or on the Enozon Platform. In case, there exists any Objectionable Description on the Vendor Panel and/or on the Enozon Platform, the Company shall have an absolute right to: (a) remove/delete/block such Objectionable Description; and/or (b) suspend or cancel the registration of the Vendor; and/or (c) terminate this Agreement immediately. The Vendor hereby undertakes to keep the Company fully indemnified against any liability arising out of such Objectionable Description.
- 5.13. The Vendor hereby acknowledges that the contract for sale of any of the Product(s) shall be a bipartite contract between the Vendor and the Customer(s), therefore, (a) with respect to the products, merchandise and goods being sold by the Vendor to the Customer(s), the ownership, title and risk of the same will get transferred from the Vendor to the Customer(s) after successful payment of the requisite Product Price is made by the Customer(s) to the Vendor and delivery of the Product(s) to the Customer(s); and (b) with respect to the services being rendered by the Vendor to the Customer(s) and for which Product Price has been collected by the Vendor, the Vendor shall be considered as an expertise of such service and shall remain liable to duly comply with the obligations and duties attached with such services. At no time shall the Company have any obligations or liabilities in respect of such contract between the Customer(s) and the Vendor and/or with respect to the Products(s) nor shall the Company hold any title in/expertise in the Product(s) as the case may be.
- 5.15. The Vendor shall not without prior authorization from the Company, release any promotion/advertisement material for its Product(s) and/or use the name of the Company, in so far as the same relates to services offered pursuant to the terms of this Agreement. Any branding, marketing and advertising expenses shall be incurred by the Vendor solely.
- 5.16. The Vendor shall not without prior authorization of the Company and Customer(s) use, share or sell the Customer Data to any third party for telemarketing or any other purposes. The Vendor acknowledges and agrees that the Vendor shall always comply with the laws, rules, regulations, ordinances or any other applicable law(s) in relation to data protection of the Customer(s).
6. TERM AND TERMINATION
- 6.1. Term
The Agreement shall come into existence on the Execution Date and shall remain in force for a term as specifically mentioned in Seller’s Registration Form(“Term”) unless otherwise terminated in accordance with Clause 6.2 of this Agreement. The Partieshereby agree and acknowledge that after expiry of the Term, the Agreement will get automatically renewed for such number of years as mentioned in Seller’s Registration Form.After such renewal, the term “Term” shall be construed accordingly. It is hereby clarified that after expiry of the Term, renewal of the Agreement will be carried out automatically unless and until either of the Party intimates the other Party regarding its intention to not renew the said Agreement through a written notice,at least thirty (30) days prior to the expiry of the concerned Term.
- 6.2. Termination
- (a) Each Party shall have the right to terminate this Agreement, at any point of time, by giving a written notice of thirty (30) days to theother Party. It is hereby clarified that during the said notice period, the Parties shall be bound to perform its obligations and duties as per the terms of this Agreement.
- (b) Notwithstanding anything to the contrary contained herein, the Company shall be entitled to terminate this Agreement immediately, without giving any prior notice and without assigning any reason for such immediate termination to the Vendor and shall not be liable to pay any compensation/damages to the Vendor for the same, upon occurrence of any/all of the following events:
- (i) If the Vendor ceases to carry on its operations for a period of one (1) month for any reason whatsoever;
- (ii) If any authority cancels, declines or suspends to renew the Vendor’s license/permission to carry on business and/or to avail the service of the Company;
- (iii) Any act or omission by the Vendor, which is in contravention of any Applicable Laws, as may be applicable from time to time, or industry practice, or the circumstances under which such act or omission is undesirable and/or objectionable;
- (iv) Any default and/or negligence on the part of the Vendor which prejudices the image, interest and/or goodwill and/or reputation of the Company and/or results in criticism of the Company and/or the Enozon Platform;
- (v) If rendering of the service under this Agreement is or becomes violative of any law, statute, rules or regulations, being in force from time to time, for any reason whatsoever;
- (vi) If the Vendor has committed any breach of any terms of this Agreement and the same is not rectified/cured by the Vendor within thirty (30) days from the date of receipt of notice for such rectification from the Company;
- (vii) If the Vendor uses, shares or sells the Customer Data to any third party for telemarketing or any other purposes without proper prior authorization of the Company and Customer(s);
- (viii) If the Company is of the view that the Vendor is carrying out or engaged in any fraudulent activity on the Vendor Panel. For the purpose of this Clause, the term “fraudulent activity” shallencompass without limitation, the following activities:
- A. If the Vendor is using multiple accounts on Vendor Panels;and/or
- B. If any of the Customer Invoice uploaded by the Customer(s) on the Vendor Panel is found to be false/incorrect/forged/misrepresented/manipulated; and/or
- C. any other activity carried out by the Vendor to take/attempt to take unfair advantage/gain of the Vendor Paneland/or the Enozon Platform.
- 6.3. Effect of Termination
- (a) Upon termination or expiration of the Agreement for any reason whatsoever:
- (i) The Company shall terminate the registration and Log-in Details of the Vendor;
- (ii) The Company shall remove the Vendor from the Enozon Platform and decline of the link through which the Vendor can access the Vendor Panel;
- (iii) Subject to Clause 6.3(b) of this Agreement, the Company shall refund the Security Deposit after adjusting/setting-off any amount required to be paid by the Vendor as per the terms of this Agreement;
- (iv) The amounts which are required to be paid by/to the Company to/by the Vendor shall be determined as per the terms of this Agreement and accordingly, the Vendor shall pay/be paid such amounts to/by the Company;
- (v) The Vendor shall immediately cease to avail the service and do any/all such acts and things and execute all such documents as the Company shall require, in particular but without limitation such notification of cessation of this Agreement; and
- (vi) The Vendor shall promptly deliver/handover to Company or its nominee the possession of all documents, records, material, database, Confidential Information, Intellectual Property Rights and any other property provided by the Company to the Vendor or to the Concerned Person under this Agreement.
- (b) In case, the Agreement is terminated as per Clause 3.4, Clause 5.2, Clause 5.11 and/or Clause 6.2(b), of this Agreement, then in addition to the consequences of termination specified in Clause 6.3(a) of this Agreement, the Company shall be entitled to forfeit the Security Depositremaining with the Company.
- (c) Notwithstanding anything mentioned in this Agreement, even after termination of this Agreement, the Vendor shall remain liable for: (i) satisfaction of any warranty claim with respect to the Products sold prior to termination and whose Product Price was received by the Vendor; and/or (ii) payment of the Demanded Amount.
- (d) The Company shall not be liable for any loss or damages (direct, indirect or consequential) incurred by the Vendor by virtue of termination of this Agreement.
- (e) The termination or expiry of this Agreement as aforesaid shall not relieve, affect, diminish or dilute any liability or obligation accrued or incurred by either Party prior to such termination.
- (f) In the event of termination of this Agreement, Clause 7, Clause 9 and Clause 10 of this Agreement and any other clause hereof which by its nature should survive, shall survive and continue in effect and shall inure to the benefit of and be binding upon the Parties.
- (g) Nothing contained in this clause shall limit or restrict nor shall preclude the Company from pursuing such further and other legal actions for any breach or non-compliance of the terms of this Agreement by the Vendor.
- 7.1. The Vendor shall fully indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents including mobile operators, operators of payment gateways and such other agencies through which the Company runs the Enozon Platform and receive payments (collectively, “Indemnified Parties”), from and against any and all claims, actions, costs, damages, losses, liabilities, judgments, grants, and expenses including reasonable attorneys’ fees and costs, arising out of or in connection with any claim arising from or relating to:
- (a) any breach, non-fulfillment or failure to perform (whether in whole or part) any representation, warranty, obligation or covenant required to be performed by the Vendor pursuant to this Agreement;
- (b) any claims, damages arising out of any negligence, misconduct or misrepresentation by the Vendor or any of its representatives;
- (c) any wrongful, incorrect, dishonest, criminal, fraudulent or negligent work, default, failure, misfeasance, bad faith, disregard of duties and obligations hereunder by the Vendor and/or employees, agents, representatives, etc.; and
- (d) the event specified in Clause 3.5, Clause 3.8, Clause 5.5, Clause 5.6, Clause 5.7, Clause 5.10 and Clause 5.11 of this Agreement.
- 7.2. The Parties agree that the remedy at law for failure to perform according to the terms of this Agreement may be inadequate, and that the Company shall have the right to seek equitable relief, including and not limited to, specific performance and injunctive relief and the Vendor shall be liable for the costs and expenses of the Company including reasonable attorneys’ fees and costs, incurred in enforcing or attempting to enforce the terms of this Agreement. This remedy shall be cumulative and in addition to any and all other rights and remedies available to the Company in law or in equity.
- 7.3. The Vendor hereby agrees and acknowledges that the Company shall, at all times, have the right and option to deduct/adjust/set-off from the Security Deposit, any payment which Company is entitled to receive from the Vendor under this Agreement with respect to any matter whatsoever.
- 8.1. THE ENOZON PLATFORM, VENDOR PANEL AND THE SERVICES INCLUDING THIRD PARTY SERVICES, ALL CONTENT, FUNCTIONS, SOFTWARE, MATERIALS AND INFORMATION AVAILABLE OR PROVIDED IN CONNECTION WITH THE SERVICES ARE PROVIDED ON “AS-IS WHERE IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY THAT (I) THE ENOZON PLATFORM, VENDOR PANEL OR ANY THIRD PARTY SERVICES IN RELATION TO THE SAME WILL MEET THE REQUIREMENTS OF THE VENDOR OR VENDOR’S USE OF THE ENOZON PLATFORM, VENDOR PANEL OR ANY THIRD PARTY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE ENOZON PLATFORM, VENDOR PANEL OR ANY THIRD PARTY SERVICES IN RELATION TO THE SAME WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (III) THE FEATURES OF ENOZON PLATFORM, VENDOR PANEL OR ANY THIRD PARTY SERVICES IN RELATION TO THE SAME WILL MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS OR DEFECTS IN THE ENOZON PLATFORM, VENDOR PANEL OR ANY THIRD PARTY SERVICES IN RELATION TO THE SAME WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE VENDOR FROM THE COMPANY, THE THIRD-PARTY SERVICE PROVIDERS OR THROUGH THE ENOZON PLATFORM AND/OR VENDOR PANEL SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
- 8.2. THE VENDOR ACKNOWLEDGES THAT THE ENOZON PLATFORM MAY NOT BE UNINTERRUPTED OR ERROR FREE OR FREE FROM ANY VIRUS OR OTHER MALICIOUS, DESTRUCTIVE OR CORRUPTING CODE, PROGRAM OR MACRO OR HACKING PRACTICES OR UNAUTHORIZED ACCESS BY ANY THIRD PARTY. THE COMPANY SHALL ADOPT SUCH TECHNICAL AND NON-TECHNICAL SECURITY MEASURES THAT IT CONSIDERS ARE APPROPRIATE / REASONABLE TO OPERATE THE ENOZON PLATFORM. HOWEVER, THE COMPANY DOES NOT GUARANTEE THAT SUCH SECURITY MEASURES CANNOT BE SUBVERTED / INTERRUPTED TO GAIN UNAUTHORIZED ACCESS BY THE THIRD PARTY. IN THE EVENT OF INTERRUPTION TO THE ENOZON PLATFORM OR LOSS OF USE, DATA AND/OR ACCESS, THE COMPANY AND THE VENDOR SHALL USE ALL REASONABLE ENDEAVORS TO RESTORE THE ENOZON PLATFORM AND/OR ACCESS AS SOON AS REASONABLY POSSIBLE. HOWEVER, THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED TO THE VENDOR DUE TO VENDOR’S FAILURE TO KEEP THE LOG-IN DETAILS AND VENDOR PANEL DETAILS PROTECTED FROM ANY UNAUTHORIZED ACCESS, BLOCKAGE OR MISUSE BY ANY THIRD PARTY OR VIRUS OR OTHER MALICIOUS, DESTRUCTIVE OR CORRUPTING CODE, PROGRAM OR MACRO. FURTHER, THE VENDOR SHALL ALWAYS KEEP THE COMPANY INDEMNIFIED AGAINST SUCH UNAUTHORIZED USE AND AGAINST THE HARM/DAMAGE CAUSED TO THE ENOZON PLATFORM IN ANY MANNER WHATSOEVER, DUE TO SUCH UNAUTHORIZED USE.
- 8.3. EXCEPT FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER THE APPLICABLE LAWS, THE COMPANY SHALL BE NOT LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, INTERRUPTION OR STOPPAGE TO THE VENDOR’S ACCESS TO AND/OR USE OF THE ENOZON PLATFORM, LOSS OF GOODWILL OR UNAUTHORIZED ACCESS TO INFORMATION INCURRED BY VENDOR ARISING OUT OF, OR RELATING TO THE USE OF THE ENOZON PLATFORM BY THE VENDOR AND, WHETHER FRAMED AS A BREACH OF WARRANTY, IN TORT, CONTRACT, OR OTHERWISE EVEN IF THE VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. INTELLECTUAL PROPERTY RIGHTS
The Vendor hereby acknowledge that, all the Intellectual Property Rights owned by the Company at the time of entering into this Agreement and subsequently developed by the Company at any time during the Term of this Agreement shall be exclusive property of the Company and the Vendor and/or its employees, agents, representatives or personnel shall not have and shall not claim any charge, claim, lien, right of retention, sale or set-off or other right, title or interest on the Intellectual Property Rights for any reason whatsoever. The Vendor shall not be entitled to make use of any/all Intellectual Property Rights of the Company without obtaining written consent of the Company.
- 10.1. The Vendor shall use the Confidential Information solely in connection with availment of the services as per the terms of this Agreement and not for any other purpose. The Vendor shall not disclose any or part or summary or extract of the Confidential Information to any third party without the prior written consent of the Company. The Company may at its own discretion without assigning any reasons, refuse or consent to such disclosure.
- 10.2. The Vendor shall hold and keep in strictest confidence any and all the Confidential Information and shall treat the Confidential Information of the Company with the same degree of care and protection as it would treat its own confidential information but not below the level of reasonable care.
- 10.3. In case the disclosure of the Confidential Information is lawfully required by any competent authority in accordance with judicial or government order, the Vendor shall give a prompt notice of such requirement to the Company so that the Company may request an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions herein. In the event that such protective order or other remedies cannot be obtained, the Vendor shall disclose only such portion of the Confidential Information which the Vendor is legally bound to disclose.
11. DISPUTE RESOLUTION
Any dispute, difference, controversy or claim (“Dispute”) arising between the Parties out of or in relation to or in connection with this Agreement, of the breach, termination, effect, validity, interpretation or application of this Agreement or as to their rights, duties or liabilities thereunder, or as to any act, matter or thing arising out of, consequent to or in connection with this Agreement, shall be settled by the Parties by mutual negotiations and agreement. If, for any reason, such Dispute cannot be resolved amicably by the Parties, the same shall then be referred to and settled by way of arbitration proceedings in accordance with the Arbitration and Conciliation Act, 1996 or any subsequent enactment or amendment thereto. A sole arbitrator shall be appointed by the Company, who will preside over the said arbitration proceedings. The seat of arbitration proceedings shall be Jaipur, Rajasthan. The language of the arbitration and the award shall be English. The cost of arbitration shall be borne equally by the Parties. The award of the arbitrator shall be final and conclusive and binding upon the Parties to the Agreement.
- 12.1. No Waivers: No omission, failure or delay in exercising any right, power or privilege accruing to any Party upon any breach or default of the other Party under this Agreement shall impair any such right, power or remedy of such Party nor shall it be construed to be a waiver of any such breach or default or an acquiescence thereof or in any similar breach or default thereafter occurring nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default therefore or thereafter occurring.
- 12.2. Notices
- (a) Any/all notices or other communications required to be given or served by any of the Party on the other Party in respect of this Agreement shall be given in writing in English and may be sent by personal delivery or post or courier or facsimile. Any such notice or other communication shall be deemed to have been received, if sent by e-mail or prepaid registered post acknowledgement due, at the address specified in the title clause of this Agreement for the Company and for the Vendor, the address mentioned in Seller’s Registration Form.
- (b) All such notices and other communication shall be effective (i) on delivery if transmitted by e-mail, or (ii) on the expiry of seven (7) days after posting if sent by registered post, or (iii) the business date of receipt if sent by courier when deposited with the courier.
- 12.3. Amendments: Unless otherwise provided in this Agreement, no amendment, change, modification, variation, addition or alteration of any terms or provisions hereof shall be effective except with the prior written approval of the Parties.
- 12.4. Entire Agreement: This Agreement and the schedules attached to this Agreement constitutes the entire understanding between the Parties with respect to the subject matter of the Agreement and the Parties declare that in entering into this Agreement, they do not rely upon any prior oral or written agreements, representations, understandings, arrangements, communications, offer or expressions of intent not included within the Agreement whether express or implied, relating to the subject matter herein and all prior discussions, negotiations, conditions, warranties, understandings or representations with respect to such subject matter other than those expressly provided herein are hereby cancelled.
- 12.5. Severability: If any provision or any part of a provision within this Agreement be rendered void, invalid, inoperative or unenforceable as a matter of law for any reason, such provision shall be modified to the extent possible to make it enforceable in such circumstances and any other circumstances, and, whether or not such modification is possible, such invalidity or unenforceability shall not void or render invalid or unenforceable any other provision or part of a provision in this Agreement.
- 12.6. Assignment: The Companyshall have right to assign any of its rights and/or liabilities arising from this Agreement to any other person, entity and/or company for whole or part of the terms and conditions, the Company deems fit. However, the Vendor shall not be allowed to assign its right and/or liabilities to any third party.
- 12.7. Governing Laws and Jurisdiction: The Parties agree that this Agreement shall be subject to, governed by the law of India. Further, subject to the Clause 11 hereinabove, only the courts and tribunals of competent jurisdiction of Jaipur, Rajasthanshall have exclusive jurisdiction with respect to any proceedings relating to this Agreement.
- 12.8. Cost: Each Party acknowledged that it shall bear its own legal, accounting, professional and advisory fees, commissions and other costs and expenses incurred by it in connection with this Agreement and the transactions contemplated herein. Stamp duty and registration charges payable in relation to this Agreement shall be borne equally by both the Parties.
- 12.9. Counterparts: This Agreement may be executed in one or more counterparts, each of which is an original, but all of which constitute one and the same agreement.