MERCHANT AGREEMENT PROVISION OF E-COMMERCE SERVICES
This agreement is
BETWEEN
Hereinafter referred to as “the MERCHANT” which expression shall mean and include his/her/its successors in title, administrators and assigns of the First Part who is interested to promote and sell their products at www.earthenstore.com marketplace.
AND
www.earthenstore.com, (hereinafter referred to as “Earthen Store”) a website owned by a Earthen Living LLP a business entity incorporated under the provisions of Limited Liability Partnership Act, 2008, having its registered office located at 104/8 Jogu, SG Palya, CV Raman Nagar Bangalore – 560093, Karnataka, India. Hereinafter referred to as “the Firm” of Second Part.
“Merchant” and “Earthen Store” shall hereinafter be individually referred to as “Party” and collectively as “Parties”.
WHEREAS:
(a) The merchant is engaged in the business of manufacturing/distributing/selling of products mentioned in the Schedule A and similar items;
(b) The Firm has its skilled expertise and knowledge in the field of providing an E-commerce platform services to enable retailing of various products and services to consumers in India across several categories under its owned URL named www.earthenstore.com
(c) The Firm has presented to merchant about it’s skill and experience in the field of E-commerce and on which merchant has agreed to engage the services of E-commerce on the below mentioned terms and conditions of the agreement.
(d) The Merchant hereby appoints Earthen Store for the purposes of providing E-commerce platform to the merchant and Earthen Store accepts such appointment for proving such services during the term (as defined hereinafter) of this agreement.
NOW THIS AGREEMENT WITNESSES AS UNDER
1 Commencement and Term: The date of execution of this agreement shall be the commencement date and the agreement shall remain valid till the time either party approaches too other party for termination of this agreement express. No oral agreement shall be binding on either of the party.
2 Roles and Responsibility of Earthen Store
2.1 The Firm shall bring in their technology through website development, online promotions, ecommerce engine and payment gateway integration and customer service for successful operation of website.
2.2 The Firm shall be responsible for managing the customer service for only such Products that sold through the www.earthenstore.com.
2.3 The Firm will be responsible for chargeback claims, if any product of Merchant sold through www.earthenstore.com and its affiliates.
2.4 The Firm shall also be responsible for processing all refunds for the Merchant products sold through www.earthenstore.com.
2.5 The Firm shall have the sole right and discretion to decide about the selection and listing of Products on its website (i.e. www.earthenstore.com).
3 Roles and Responsibility of Merchant
3.1 The Merchant agrees to be merchant of Earthen Store for the sale and distributions of their products specified in Schedule A through www.earthenstore.com during the terms of this agreement. The Schedule can be amended to add new products or remove existing products from this list. The said schedul¬¬e is to be treated as part and parcel of the agreement.
3.2 The Merchant shall be solely responsible to the information presented and publish for their product catalogue presented at www.earthenstore.com for sale of their products. Earthen Store shall not be liable for any misleading information presented in the online product catalogue.
3.3 Pricing of Product: Pricing of the Merchant Product will sole prerogative of Merchant and web selling price of the Product (i.e. Product selling price on www.earthenstore.com) is sole discretion of Earthen Store.
3.4 Pricing Update: Merchant shall be solely responsible for pricing update of their products (including discount, promotional offers). All pricing change must be sent to Earthen Store in the predefined formation of product list file in an excel template provided by Earthen Store at least 48 hours prior to price change.
3.5 Inventory Update: The Merchant will keep informed at all times the Earthen Store about the availability of the products in its inventory along with detailed specifications like size, color, texture, price etc. as may be required of the products. Order once placed on the website by the customer shall have to be honored by the MERCHANT at all costs.
3.6 Traceability: The Merchant will provide basic generic business information and traceability details of products required in Schedule B without fail. And the same information would be accessible in the online product catalogue. The schedule can be amended to modify any information in respect of any product. Any amendment to such schedule will be express. The said schedul¬¬e is to be treated as part and parcel of the agreement.
3.7 Guest Visit: The Merchant will have to provide necessary support at his convenience to any of his customers from Earthen Store to provide Guest Visit facility to his firm/Manufacturing unit/Looms/Factory in case a customer insists to visit. However the cost liability for the same must be taken only by the customer. Both parties hold no liability for the same.
3.8 Terms of Business: The Merchant has to accept the Terms of Business mentioned in the website www.earthenstore.com. The Terms of Business can be amended to modify any condition in respect of doing ethical practices of conducting business. Any amendment to such terms of business will express. The said Terms of Business is to be treated as part and parcel of the agreement.
4 Fees, Commissions etc.
4.1 All sales that are made/generated through www.earthenstore.com, a commission shall be paid by the merchant to the Firm. The details of commissions to be paid product category wise is specified in Schedule C. The schedule can be amended to modify any rate of commission in respect of any product category. Any amendment to the said schedule will be express. The said schedul¬¬e is to be treated as part and parcel of the agreement.
4.2 It is expressly agreed by the parties hereto that the Firm shall debit the amount of commission including all taxes from the remittance to MERCHANT at the time of forwarding the order received from the end customer.
4.3 Reconciliation of Account: The parties will endeavor to perform reconciliation of accounts/orders every 30 days. Ideally in every calendar month.
5 Order, Handling, Delivery, Return etc.
5.1 Order Fulfillment: During the terms of this agreement, Merchant will be solely responsible for fulfillment of their products to end customer sold though www.earthenstore.com. Merchant will source, pick, pack and dispatch the products to the applicable address of end customer.
5.2 The merchant shall upon confirm the Order received from the FIRM within 24 hours of time from the time of receiving the order. In-case of any changes in the order due to stock limitation, partial availability of product, mismatch of quantity and packaging, same has to me informed to Firm via email to myorder@earthenstore.com within 24 hours of time from the time of receiving a new order.
5.3 The merchant shall dispatch the order within 2 (Two) days of the receipt of a order. Any delay caused shall be considered as breach of the agreement and be one of the causes for termination of agreement and even attracts penalty to damage the reputation of faster delivery promise to customers.
5.4 The merchant shall provide to the Firm the consignment readiness status and other details about order via email within 48 hours of time from the time of order receive.
5.5 The merchant shall ensure that the products dispatched are of the specifications ordered and there is no variation whatsoever. The necessary guarantee/warranty shall be provided by the merchant to the customer.
5.6 The merchant agrees to replace the defective or wrong products supplied to the customer at its own cost and shall not hold the Firm responsible in any manner whatsoever.
5.7 Reverse Logistics: Merchant shall solely responsible for accepting and processing including pick, pack and returns of their products and will communicate to Firm all necessary information for the return of product which are sold thought www.earthenstore.com.
5.8 The Firm may, at its discretion arrange to lift the defective products from the customer however the merchant will still be liable to replace the defective product. Any charges incurred by the Firm for lifting and forwarding such defective goods shall be on account of the merchant. The merchant shall make good such charges to the Firm upon receipt of invoice/debit note
5.9 Firm at its sole discretion will refund the entire amount of the product/s to the customer, in case of failure of the merchant to arrange for reverse pick up within 10 days from the day customer raises a return request.
5.10 No request for any adjustment from future payables to the merchant from Firm will be made however, the Firm is at its liberty to deduct such amount from future payables of fresh Orders. Such deductions shall not be treated as practice and/or precedent. For avoidance of doubts it is clarified that defective would mean and include but is not limited to wrong product, damaged product, miss sized product and any other shortcoming which the customer may point out.
5.11 Merchant hereby authorizes the Firm to entertain all claims of return of the Product in the mutual interest of the merchant as well as the Customer.
5.12 Return Policy: Further Merchant hereby agree to accept the return of their products upto 30 days from the date of delivery of the product to end customer.
5.13 Non Delivery of Product: In case if Earthen Store receive any complaint from end customer regarding non delivery of product, then in that case Merchant agreed to provide all the necessary details including proof of delivery, virtual proof of delivery to Earthen Store for providing sufficient reason to prove authenticity of delivery of such product.
5.14 Ownership & Risk of Loss: Merchant will bear the risk and will be responsible for all the loss of and/ or damage of Products at all times which are sold through www.earthenstore.com.
5.15 Invoicing: Merchant will raise an invoice directly to the end Customer for all ordered successfully fulfilled by the Merchant to end customers
5.16 Merchant shall provide a Self-Attested copy of GST Certificate, PAN Card. & Merchant Bank account details / Cancelled cheque and copy of RTGS mandate form.
5.17 By entering into this Agreement and posting a listing for fixed price sale, Merchant agree to complete the transaction as described by this Agreement. Merchant acknowledge that by not fulfilling these obligations, Merchant action or inaction may be legally actionable.
5.18 Merchant is obligated to sell the product at the listed price to end customer who meet the Seller's terms. By listing an item in a fixed price sale, Merchant represent and warrant to prospective Buyers that Merchant have the right and ability to sell, and that the listing is accurate, current, and complete and is not misleading or otherwise deceptive.
6 Covenants of Merchant
6.1 To deliver the product of the ordered specifications/description only including quantity and quality prescribed in the Order and there should be no instance of wrong item being delivered and/or quality issue and/or issue of Non delivery.
6.2 Merchant shall maintain adequate stock/inventory of the items at all times. In case the mercahant is running out of supplies or is likely not to fulfill the Order received by the Firm, it shall intimate to the Firm at least 48 hours (two days) in advance so that notice of OUT OF STOCK / SOLD OUT for the product can be placed on the website.
6.3 Not to send any kind of promotion material or discount coupon or own website link or any such material, which is, derogatory to and/or adverse to the interests financial or otherwise of the Firm, to the customer either along with the products supplied or in any manner whatsoever.
6.4 Not to do any act/deal in a thing / products/goods/services which are either banned/prohibited by law or violates any of the intellectual property right of any party in respect of such product.
6.5 Merchant declares that it has all rights and authorizations in respect of intellectual property rights of third parties and is authorized to sale/provide/license such products to the customer. The copy of such authorization shall be provided on demand without failure and/or protest.
6.6 Merchant agrees to indemnify and keep indemnified the Firm from all claims/losses (including advocate fee for defending/prosecuting any case) that may arise against the Firm due to acts/omission on the part of the merchant.
6.7 Merchant to provide to the Firm, for the purpose of the creation/display on website of Firm, the product description, images, disclaimer, delivery time lines, price and such other details for the products to be displayed and offered for sale.
6.8 Merchant to ensure and not to provide any description/image/text/graphic which is unlawful, illegal, intimidating, obnoxious, objectionable, obscene, vulgar, opposed to public policy, prohibited by law or morality or is in violation of intellectual property rights including but not limited to Trademark and copyright of any third party or of inaccurate, false, incorrect, misleading description or is surrogatory in nature. Further it will forward the product description and image only for the product which is offered for sale through the website of the Firm. The MERCHANT agrees that in case there is violation of this covenant, it shall do and cause to be done all such acts as are necessary to prevent disrepute being caused to the Firm.
6.9 Merchant to provide full, correct, accurate and true description of the product so as to enable the customers to make an informed decision. The merchant agrees not to provide any such description/information regarding the product which amounts to misrepresentation to the customer.
6.10 Merchant to be solely responsible for the quality, quantity, merchantability, guarantee, warranties in respect of the Merchant’s products offered for sale through portal of the Firm.
6.11 At all times have access to the Internet and its email account to check the status of approved orders and will ensure prompt deliveries within the time frame mentioned herein before in the agreement.
6.12 Provide information about the Order Status including Airway Bill Number on a daily basis.
6.13 To raise an invoice as well as receipt of payment in the name of Customer for an amount equivalent to the amount displayed as MRP on the online store to the customer and paid by/charged to the customer.
6.14 Not to offer any Products for Sale on the Online Store, which are prohibited for sale, dangerous, against the public policy, banned, unlawful, illegal or prohibited under the Indian laws.
6.15 To provide satisfactory proof about the ownership / licences of all the legal rights in the Products that are offered for sale on the Online Store as and when demanded by the Firm.
6.16 To pass on the legal title, rights and ownership in the Products sold to the Customer.
6.17 To be solely responsible for any dispute that may be raised by the customer relating to the goods, merchandise and services provided by the merchant. No claim of whatsoever nature will be raised on the Firm.
6.18 Merchant shall at all time during the pendency of this agreement endeavor to protect and promote the interests of the Firm and ensure that third parties rights including intellectual property rights are not infringed.
6.19 Merchant shall at all times be responsible for compliance of all applicable laws and regulations including but not limited to Intellectual Property Rights, Goods and Service Tax, Standards of Weights & Measures legislation, Sale of Goods Act, Code of Advertising Ethics, etc.
6.20 To provide to the Firm copies of any document required by the Firm for the purposes of performance of its obligations under this agreement within 48 hours of getting a written notice from the Firm.
6.21 To seek advance written approval from the Firm, prior to release of any promotion/advertisement material, in so far as the same relates to services offered pursuant to the terms of this Agreement.
7 Warranties, Representations, and Undertakings of the MERCHANT
7.1 The signatory to the present agreement is having the right and full authority to enter into this Agreement with the Firm and the agreement so executed is binding in nature.
7.2 All obligations narrated under this Agreement are legal, valid, binding and enforceable in law against merchant.
7.3 There are no proceedings pending against the merchant, which may have a material adverse effect on its ability to perform and meet the obligations under this Agreement;
7.4 That it is an authorized business establishment and hold all the requisite permissions, authorities, approvals and sanctions to conduct its business and to enter into present agreement with the Firm.
7.5 It shall, at all times ensure compliance with all the requirements applicable to its business and for the purposes of this agreement including but not limited to Intellectual Property Rights, Goods and Service Tax, Standards of Weights & Measures legislation, Sale of Goods Act, etc. It further declares and confirms that it has paid and shall continue to discharge all its obligations towards statutory authorities.
7.6 That it has adequate rights under relevant laws including but not limited to various Intellectual Property Legislation(s) to enter into this Agreement with the Firm and perform the obligations contained herein and that it has not violated/ infringed any intellectual property rights of any third party.
7.7 It shall maintain details of all transaction and mark as complete / incomplete as the case may be and shall provide the same to the Firm upon demand.
8 Rights of Firm
8.1 Merchant agrees and acknowledges that the Firm, at all times during the continuance of this Agreement, shall have the right to remove/block/delete any text, graphic, image(s) uploaded on the online store if it is found to be in violation of law, breach of any of the terms of this Agreement, terms and conditions of www.EarthenStore.com Shopping Website. In such an event, the Firm reserves the right to forthwith remove/close the online store of the merchant without any prior intimation or liability to the merchant.
8.2 Appropriate disclaimers and terms of use on www.earthenstore.com shopping portal shall be placed by the Firm.
8.3 At any time if the Firm believes that the services are being utilized by the Merchant or its Customer in contravention of the terms and provisions of this Agreement, Terms and conditions of use of www.earthenstore.com shopping, the Firm shall have the right either at its sole discretion or upon the receipt of a request from the legal / statutory authorities or a court order to discontinue/terminate the said service(s) to Customer or the End user as the case may be, forthwith remove/block/close the online store of the merchant and furnish such details about the merchant and/or its customers upon a request received from the Legal/ Statutory Authorities or under a Court order.
9 Indemnity
9.1 The merchant indemnifies and shall hold indemnified the Firm, its partners, officers, employees, representatives, agents from and against all losses, damages, claims, suits, legal proceedings and otherwise howsoever arising from or in connection with any claim including but not limited to claim for any infringement of any intellectual property rights or any other rights of any third party or of law, concerning quality, quantity and any claim in relation to the MERCHANT’s product, the breach of any of the MERCHANT’s warranties, representations or undertakings or in relation to the non-fulfillment of any of its obligations under this Agreement or arising out of the MERCHANT infringing any applicable laws, regulations including but not limited to Intellectual Property Rights, Goods and Service Tax, The Standards of Weights & Measures legislation, etc . For the purpose of this clause, reference to the Firm shall also include the Mobile Operators and such other agencies through whom the Firm shall make the goods available online to the Customers.
9.2 This article shall survive the termination or expiration of this Agreement.
10 Limitation of Liability
10.1 The Firm on the basis of representation by the MERCHANT is marketing the products of the MERCHANT on the shopping portal www.EarthenStore.com to enable MERCHANT to offer its products for sale through the said online shopping portal. This representation is the essence of the Contract. It is expressly agreed by the MERCHANT that the Firm shall under no circumstances be liable or responsible for any loss, injury or damage to the MERCHANT, customer or any other party whomsoever, arising on account of any transaction under this Agreement or as a result of the Products being in any way damaged, defective, in unfit condition, infringing/ violating any laws/ regulations/ intellectual property rights of any third party. The MERCHANT agrees and acknowledges that it shall be solely liable for any claims, damages, allegation arising out of the Products offered for sale through online shopping portal www.EarthenStore.com (including but not limited to quality, quantity, price, merchantability, use for a particular purpose, or any other related claim) and shall hold the Firm harmless and indemnified against all such claims and damages. Further the Firm shall not be liable for any claims, damages arising out of any negligence, misconduct or misrepresentation by the MERCHANT or any of its representatives.
10.2 The Firm under no circumstances will be liable to the MERCHANT for loss and/or anticipated loss of profits, or for any direct or indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this Agreement, regardless of the type of claim and even if the MERCHANT has been advised of the possibility of such damages, such as, but not limited to loss of revenue or anticipated profits or loss business, unless such loss or damages is proven by the MERCHANT to have been deliberately caused by the Firm.
11 Termination and effects of Termination
11.1 This Agreement may be terminated by the Firm forthwith in the event
11.1.1 Merchant fails to make payment of the sum demanded after it has been served a 48 hours written notice.
11.1.2 Merchant commits a material breach of any representation, obligations, covenant, warranty or term of this agreement and the same is not cured within 30 days after written notice given by the Firm.
11.1.3 If a Petition for insolvency is filed against the Merchant.
11.1.4 If the Merchant is in infringement of the third party rights including intellectual property rights.
11.2 This agreement may be terminated without reason by either party after serving upon the other, a written notice of 30 days. The agreement shall stand terminated after expiry of such period.
11.3 Effect of Termination:
11.3.1 In the event of termination/expiry of this Agreement, the Firm shall remove the Links and shall discontinue display of the Products on online shopping portal www.earthenstore.com with immediate effect.
11.3.2 Firm shall not be liable for any loss or damages (direct, indirect or inconsequential) incurred by the merchant by virtue of termination of this agreement.
11.3.3 During the period under notice both the parties shall be bound to perform its obligations incurred under this agreement and this sub-clause shall survive the termination of this agreement.
12 Jurisdiction, governing law and ex-parte Orders
12.1 This agreement is subject to exclusive jurisdiction of competent Courts of law at Karnataka only.
12.2 The Firm is entitled to obtain ex-parte ad- interim injunction orders restraining the MERCHANT to prevent any loss/anticipated loss either in material terms or in terms of intellectual property or causing damage/loss/harm to reputation/goodwill of the Firm by the MERCHANT, its representatives, associates or assigns.
13 Notices: All notices and other communication under this Agreement shall be in writing, in English language and shall be caused to be delivered by hand or sent by fax, email or courier in each case to the addresses as set out at the beginning of this Agreement.
14 Intellectual Property Rights: The Merchant expressly authorizes the Firm to use its trade marks/copy rights/ designs /logos and other intellectual property owned and/or licensed by it for the purpose of reproduction on the website and at such other places as the Firm may deem necessary. It is expressly agreed and clarified that, except as specified agreed in this Agreement, each Party shall retain all right, title and interest in their respective trademarks and logos and that nothing contained in this Agreement, nor the use of the trademark / logos on the publicity, advertising, promotional or other material in relation to the services shall be construed as giving to any Party any right, title or interest of any nature whatsoever to any of the other Party’s trademarks and / or logos.
15 Entire Agreements: This Agreement embodies the entire agreement and understanding of the Parties and supersedes any and all other prior and contemporaneous agreements, correspondence, arrangements and understandings (whether written or oral) between the Parties with respect to its subject matter.
16 Assignments: Neither this Agreement nor any part of it is assignable, transferable, sub-licensable, sub-contractable or conveyable by MERCHANT, either by operation of law or otherwise, without the express, prior, written consent of the Firm signed by an authorized representative of such Party. The Firm is at liberty to refuse such consent.
17 Confidentiality: The contents of the agreement and any information passed on by the Firm to the MERCHANT is highly confidential in nature and the MERCHANT agrees and undertakes to maintain the confidentiality of the information and user/customer data disclosed, generated or made available to MERCHANT under this Agreement. The said information shall not be used by the MERCHANT or its agents, servants, representatives or any person acting through or claiming through the MERCHANT for any purpose other than for the performance of its obligations under this Agreement. The MERCHANT agrees that the unauthorized disclosure or use of such information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, MERCHANT agrees that the Firm shall have the right to obtain an immediate injunction from any court of law ensuing breach of this Agreement and/or disclosure of the Confidential Information. The Firm shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
18 Relationships of Parties: Nothing in this Agreement will be construed as creating a relationship of partnership, joint venture, agency or employment between the Parties. The Firm shall not be responsible for the acts or omissions of the MERCHANT and MERCHANT shall not represent the Firm, neither has, any power or authority to speak for, represent, bind or assume any obligation on behalf of the Firm.
19 Non Solicitation: The Parties agree that during the term of this Agreement and 24 months thereafter or without the prior written approval of the other party, not to solicit for employment any employees of either party other than through general solicitation for employment among the public.
20 Change in Policy: The Site created and controlled by the Firm reserves the right to make any changes to the website and the terms, conditions and disclaimers at any time without prior information to the customers or users of the services. Merchants are bound to understand the terms and conditions before accessing to www.earthenstore.com and using the service provided by Earthen Store. Merchant continuous use of the site after the revising the terms and conditions will be consider as Merchant acceptance of the said revised terms and conditions.
21 Waivers and Amendment
21.1 No waiver of any breach of any provision of this Agreement constitutes a waiver of any prior, concurrent or subsequent breach of the same or any other provisions, and will not be effective unless made in writing and signed by an authorized representative of the waiving Party.
21.2 Except as expressly set out in this Agreement, no amendment is binding on the Parties unless it is in writing and signed by a duly authorized representative of each of the Parties.
22 Force Majeure: Neither Party shall be responsible or liable for any delay or failure to perform its obligations (other than an obligation to make payment) under this Agreement due to unforeseen circumstances or any event which is beyond that Party's reasonable control and without its fault or negligence, but not limited to, acts of God, war, riots, embargoes, strikes, lockouts, acts of any Government authority, delays in obtaining licenses or rejection of applications under the Statutes, failure of telephone connections or power failure, fire or floods.
23 Originals: This Agreement shall be signed and stamped by the authorized signatory and sent over to postal address or shall be scanned and send to info@earthenliving.in email box within 7 days from the date of receiving the agreement.
24 Disclaimer: THIS DISCLAIMER SHALL BE APPLICABLE TO ANY PERSON, COMPANY, INDIVIDUAL OR ENTITY WHO HAS ENTERED INTO THIS MERCHANT AGREEMENT AND OTHER RELATED SERVICES PROVIDED HEREIN. THE INFORMATION CONTAINED IN THESE TERMS AND CONDITIONS HAVE BEEN PROVIDED SPECIFICALLY FOR THE PURPOSE OF OFFERING THE SERVICES MENTIONED IN THIS MERCHANT AGREEMENT AND THE SAME IS ACKNOWLEDGED AND DULY SIGNED BY MERCHANT. EARTHEN STORE DOES NOT HAVE ANY METHOD TO ASSESS OR VERIFY THE VERACITY OF INDIVIDUAL'S OR ENTITY'S OR THIRD PARTY'S PRODCUCT AND SERVICES WHICH ARE OFFERED UNDER THIS AGREEMENT. MERCHANT FURTHER AGREE AND ACKNOWLEDGE THAT MERCHANT ALONE SHALL BE HELD RESPONSIBLE FOR ANY PROFIT OR LOSS INCURRED DURING THE TERM OF THIS AGREEMENT. EARTHEN STORE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. MERCHANT EXPRESSLY AGREE THAT MERCHANT USE OF THIS SITE IS AT MERCHANT SOLE RISK.
Note: The said SCHEDULE A, B & C are to be treated as part and parcel of this agreement.