SELLER TERMS – MERCHANT AGREEMENT
Seller terms / Merchant Agreement (“Agreement”) is executed on this year 2016 at Madurai by and between:
Sabari Agency. a company registered in India within the meaning of the Companies Act, 1956, and having its registered office at No. 09, Arappalayam main road, Vaigai Nagar, Madurai – 625 016 (hereinafter referred to as “Vasthra Jewels”), which expression shall unless repugnant to the meaning or context thereof also mean and include its successors, of the FIRST PART;
You as an individual / Partnership Firm/LLP/ Company registered under the Companies Act, 1956 herein after referred to as the “Merchant” which expression, unless it be repugnant to the context or meaning thereof, shall be deemed to mean and include all its successors and permitted assigns) of the SECOND PART.
[Each of the parties hereto is referred to individually as “Party” and collectively as “Parties”]
WHEREAS Vasthra Jewels is engaged in the business of providing services and web portal for Online Comparison shopping,
AND WHEREAS the Merchant is engaged in the business of Fashion Jewellery or clothing for women.
AND WHEREAS Merchant is desirous of entering into an agreement with Vasthra Jewels, for the purposes of display and sale of fashion jewellery and / or clothing accessories for women and defined hereinafter as the ‘Products‘) of the Merchant on the Website namely vasthrajewels.com (defined hereinafter as the “Website”) or through other shopping platform through a Merchant’s store created for Merchant’s online products in order to enable the internet users and/ or Website visitors and/or Customers (defined hereinafter as the “Customer”) to access and purchase such products offered by Merchant.
AND WHEREAS Merchant has represented to and assured Vasthra Jewels that it has the requisite right, competence, expertise and facilities to deal in Products and Merchant undertakes to successfully provide the Products and Products Information (as defined hereinafter) to Vasthra Jewels to host and display on the Website or other shopping platform for facilitating the Customers to purchase the Products on the Website.
Vasthra Jewels agrees to enter into an agreement with the Merchant for the above noted Purpose and to provide a platform for the purpose, for sale and promotion of Merchant’s products leveraging Vasthra Jewel’s media tools.
- Vasthra Jewels’s Rights & Obligations:
Vasthra Jewels expressly agrees and undertakes to comply with the obligations defined in Annexure-A forming part of this Agreement.
- Merchant’s Obligations:
Merchant expressly agrees and undertakes to comply with the obligations defined in Annexure-B forming part of this Agreement.
- Logistic support
3.1 Vasthra Jewels shall provide logistic support through a courier company (including department of post and telegraph) (hereinafter referred as the “Logistic Partner”) wherever requested by the Merchant/Customer. Logistic support shall include pick-up and delivery of Products sold to the Customers through the Website. The Logistic Partner shall pick up the Product from Merchant from the pre-designated places for delivery to the Customer at the address given in the invoice/challan/delivery note. The Merchant shall give the Product in the deliverable state to the Logistic Partner for onward transportation and delivery to the Customer. The Logistic Partner, wherever required, shall re-pack the Product for safe delivery to the Customer. In addition to pick-up and delivery of the Product, Vasthra Jewels shall also provide tracking code of the Products, pick up and expected delivery time to the Customer through the Website and/or any other medium.
3.2 Wherever the logistic support service has been provided at the request of the Customer, Vasthra Jewels shall have a Courier Contract with the Customer and the charges for logistic support service, as agreed between Vasthra Jewels and the charges shall be collected from the Customer.
3.3 Wherever the logistic support service has been provided at the request of the Merchant, Vasthra Jewels shall have a Courier Contract with the Merchant and the charges for logistic support service, as mutually agreed between Vasthra Jewels and the Merchant shall be collected from the Merchant.
- Payments & Compensation:
By accessing Vasthra Jewels’s services, Merchant agrees to pay the fees as applicable i.e., Maintenance Fee, Listing Fee, Advertising Fee, Service Fee, Pay per click and Setup Fee. Additional fees are imposed only if Merchant has selected optional services as and when applicable, complete fee schedule is given in Annexure C forming part of this Agreement. Vasthra Jewels’s service fee structure is given in Annexure F forming essential part of this Agreement
- Records and Reports
The Merchant shall establish a book-keeping, accounting and record keeping system and maintain financial records in accordance with generally accepted accounting principles. The Merchant shall also maintain the record of the detail of the dispatches along with the actual proof of dispatch/s and other related documents, based on which the Service Fee claims will be made to Vasthra Jewels. The Merchant shall maintain at each location an accurate record and account of all transactions regarding each sale for a period of five (5) years after the initial dates of sale.
- Representation and Warranties
Both parties represent and warrant that:
- All the obligations of the Parties under this Agreement are legal, valid and binding obligations enforceable in accordance with its terms.
- There are no proceedings pending, which may have an adverse effect on the ability of the parties to perform and meets its obligations under this agreement.
- It has obtained the necessary permissions including but not limited to licenses, permissions, etc. to carry out its business under this agreement and does not violate any proprietary rights of any third party, including, without limitation, confidential relationships, patent, trade secrets, copyright rights and any other proprietary rights.
- It shall not deliver any goods/products / services to Customers which:
- Do not correspond with the description as stated in the Website against that product.
- Are not of the same quality standards as mentioned in the Website.
- Do not serve the purpose for which the goods / services are meant as described in the Website.
- Are counterfeit, defective in nature, damaged, are of lower quality, etc.
- Products offered for sale shall confirm to the requirements of The Prevention of Food Adulteration Act, 1954, Drugs and cosmetics Act 1940, Drugs and Magic Remedies ( objectionable advertisement Act, 1954, Indian Penal Code and any relevant certification process required under Central and State legislations.
- Ownership Intellectual Property
8.1 The proprietary rights and all Intellectual Property rights, interests and claims in regard to the information as provided on Internet including on-line information Web-site, data development materials and the delivery material and updates communication network, electronic commerce support services and other allied services, dedicated ports and end-user database of Vasthra Jewels in terms of this agreement including the design and other intellectual property rights connected thereto including but not limited to copyright, trademark, trade name, brand name, service marks, etc. shall vest with Vasthra Jewels in perpetuity, for all intent and purposes. Merchant shall neither have nor shall assert any claim concerning the above, whatsoever.
8.3 The proprietary rights and all Intellectual Property rights connected with Merchant’s products shall vest with the Merchant for all intent and purposes and Vasthra Jewels shall neither assert any claim concerning the same.
- Parties shall Indemnify and hold each other and their affiliates, directors, officers and employees harmless for any and all claims, demands, action suits or proceedings, liabilities, losses, costs, expenses (including reasonable attorney’s fees) or damages asserted against the other party arising out of:
- breach or non performance by either of the parties of any of its undertakings, representations, warranties and / or obligations arising under the Agreement;
- infringement of any third party right or interest ( including intellectual property rights) by the Merchant in connection with the materials offered by the Merchant on Vasthra Jewels’s Platform; or
- One Party’s failure to comply with applicable laws including discharge of any tax liability.
- Indemnification right shall survive perpetually even after the termination of this Agreement.
- Term and Termination:
- This agreement shall come into force, on the day it is signed by both the parties and shall remain in force for an indefinite period of this agreement and may be mutually extended by mutual consent of the parties in writing, unless terminated by parties
- Parties shall have the right to terminate this agreement forthwith in the event
- If one party commits a Material Breach of the obligation assumed on its part and fails to rectify the same within reasonable period.
- If one party commits any act detrimental to the interest, goodwill, of the other party or to the operations in the sole discretion of the other party.
- This Agreement may be terminated by either of the parties by giving seven (7) days written notice in writing to the other. During the notice period and in the event of termination of this Agreement parties shall continue to honor all obligations arising out of this Agreement including but not limited to, order fulfillment, replacement of damaged products, payment held as at the date of termination (irrespective of whether the obligations are extending after the expiry/early termination).
- Upon termination /expiry of this Agreement parties shall immediately return any intellectual property including confidential information and documents owned by them, in their possession and certify in writing, within seven (7) days of doing so. The termination / expiry shall not affect the accrued rights and obligation of the Parties.
- Confidentiality and Prevention of Unauthorized Use
- Parties shall keep strictly confidential all information related to business plans, End-user database manuals and all other documents disclosed to the Merchant in the course of the implementation of this agreement, except to its employee’s, as may be required for the purpose of the business. Parties will cause all such employees and persons appointed by them to execute appropriate confidentiality agreements to protect the rights of parties and Vasthra Jewels’s End user.
This obligation shall survive for a period of five (5) years, even after the termination or expiry of this Agreement.
- Employee Non-Solicitation
During the currency of this Agreement and for the period of 6 month after expiry or termination of this Agreement, the Merchant shall not directly or indirectly solicit, induce, recruit, encourage or otherwise endeavor to cause or attempt to cause any employee or consultant of Vasthra Jewels to terminate their relationship with Vasthra Jewels.
- No Partnership or Agency: – This Agreement does not operate to create a partnership between the Parties, or to authorize any Party to act as an agent for the other.
- Waiver: – The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies.
- Severability:- If any provision of this Agreement is or becomes, in whole or in part, invalid or unenforceable but would be valid or enforceable if some part of that provision was deleted, that provision shall apply with such deletions as may be necessary to make it valid.
- Non -Exclusivity: This is a non-exclusive agreement and parties are free to enter into any sort of similar arrangement or any other business transaction with other person and the other party shall have no role in any manner whatsoever for the same.
- Governing Law: – This Agreement (and any dispute or claim relating to it, its enforceability or its termination) is to be governed by and construed in accordance with the laws of India. The Courts at Madurai shall have exclusive jurisdiction over any disputes under this Agreement.
- Dispute Resolution: – Each of the parties herein agree that if any dispute or differences arise within this agreement then the parties shall strive to resolve such disputes or differences upon due notice with in a period of 15 (fifteen )days by way of amicable settlement. In the event that the dispute still persists or the parties are unable to settle their differences or disputes then either of the party reserves the right to appoint an arbitrator to adjudicate the dispute or difference. The seat of the Arbitration shall be in Madurai and language of the Arbitration shall be in English only. The award of the Arbitrator shall be final and binding on both the parties. Arbitrator shall also decide the fee payable to the Arbitrator for presiding over the Arbitration proceedings. The arbitration proceedings shall be held as per the provisions of Arbitration and Conciliation Act, 1996..
- Notices:- All documents, approvals, consents and notices are required to be given in the English Language and will be sent in writing by tealeaf, E-mail, Courier, first class airmail, postage prepaid, by either party hereto, to the other at the addresses mentioned above unless specified otherwise. Also in case of a change of address the party shall inform the other party, in writing, about the change of address.
- Renewal / Modification / Alteration of Agreement: – This Agreement may be renewed, modified and altered upon mutual written consent of both Parties.
- Assignment: – Neither party may assign or transfer this Contract without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.
- Force Majeure: – Both the parties to the agreement shall not be liable for any failure to honour their respective commitments due to causes beyond their control. “Causes beyond control” would include natural disaster, fire, embargo, strike, war, act of government, governmental regulation, delays in transportation or any other circumstances beyond control of either party. However, once the interfering clause is removed then both the parties shall promptly honour the commitment/s.
- Annexure:- This agreement, along with all annexure attached hereto represents the entire agreement between the parties and supersedes all prior or present oral, written agreements, understandings, exchange of letters, negotiations, etc. with respect to the matters covered under this agreement.
- Counterparts: – This Agreement is executed in duplicate; either party shall retain one copy.
If any questions, please contact us at email@example.com
Annexure – A
Rights & Obligations of Vasthra Jewels
- Rights of Vasthra Jewels:
- Vasthra Jewels shall have rights to
- host and/or exhibit the Products and Products Information on the Website;
- index the Products and Products Information;
- promote and market the Products;
- use the Product Information to promote and market the Products using the different features, mediums, channels and functionalities now available and/or developed in the future on the Website;
- display the Products and Products Information on the Website; and
- modify the Products Information only to the extent technically necessary to index and display (in whole and/or in part) the Products on the Website.
- Vasthra Jewels at its sole discretion shall have rights to refuse and/or remove any of the Products and/or Products Information at any time for any reason whatsoever including, but not limited to, receipt of claims and/or allegations and/or complaints from third parties and/or authorities relating to such Products.
- Vasthra Jewels shall have an irrevocable, perpetual, sub-licensable, transferable, non-exclusive, royalty-free and fully paid-up, worldwide right and License to use, transmit, perform, display, incorporate and embed into other works, and distribute such Products and Products Information provided by Merchant on the Website and all of the Vasthra Jewels properties and web sites (including, without limitation, those properties and web sites of its affiliated companies in any medium and/or form now existing and/or later created.
- The Merchant shall, at all times, make available and deliver products for which offers made by the Customers have been accepted or deemed to have been accepted by the Merchant. In case of failure to deliver orders within the stipulated timelines for reasons attributable to Merchant, Vasthra Jewels reserves the right to make deductions from the amount that may be payable by Vasthra Jewels to the Merchant, as per Vasthra Jewels’s policy, which may be communicated to the Merchant from time to time.
- Vasthra Jewels shall be entitled to hold back / refuse the payment/s to Merchant of all or a part of the amount of any transaction, or if payment has been made to seek immediate reimbursement from the Merchant of such sum or set off such amount from future payments in any one or more of the following events:
- The Customer disputes the nature, quality, quantity, use or fitness of the goods sold and/or services rendered;
- Merchant does not furnish to Vasthra Jewels the original or copy or printout of any statement or other document or record relating to the transaction and/ or proof of delivery forthwith upon request as required by Vasthra Jewels.
- Vasthra Jewels’s Obligations
- Vasthra Jewels, shall, on best effort basis, provide a platform for display / sale / promotion of the Merchant’s Products, in accordance with Merchant’s requirement, on “AS IS” basis on Merchant’s online store.
- Vasthra Jewels shall receive offers for the purchase of the Products from the Customers by giving access to the customer to view and offer to buy various products of the Merchant on the Website and after processing the same, transmit and/or forward the such offers to the Merchant either electronically or through other means of communication for acceptance and delivery of the Product to the Customer;
- Vasthra Jewels shall use its payment gateway and collect payments on behalf of the Merchant, with a view to facilitate the transactions of the Merchant by a mechanism by which buy offers to the Merchant for the products placed by the Customer are reflected in Merchant’s / Merchants’ panel automatically.
- Vasthra Jewels shall provide logistic support wherever requested by the Merchant/Customer. Wherever the logistic support service has been provided at the request of the Customer, Merchant shall not be liable to bear such cost and charges.
Annexure – B
- Merchant’s Obligations:
- Merchant expressly agrees and undertakes that Vasthra Jewels acts as a mere facilitator by providing a platform for of Products and Product information and therefore does not take guarantee of the offered through the Channel.
- Merchant shall be responsible at all times during the Term of this Agreement for maintaining the inventory of the Products contemplated to be displayed and / or sold through the Website, providing Products Information, continuous updates on the status of the Products and delivery thereof to the Customer.
- Merchant shall update stock / inventory of all Products that the Merchant intends to sell through the On-line Store, on day to day basis, through the Vasthra Jewels Merchant panel as prescribed by Vasthra Jewels (from time to time), so that only those products are listed whose stock is available with Merchant.
- Merchant shall be solely responsible for timely and correct upload and updations of all the product prices through Vasthra Jewels Merchant panel. The Price shall be of the Product in the deliverable state and shall be inclusive of all taxes, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing forwarding and the like, as the case may be. Merchant in no circumstances can hold Vasthra Jewels responsible and shall indemnify Vasthra Jewels for all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities including legal fees, howsoever arising due any wrong updations or discrepancies in updations whatsoever.
- Merchant shall provide all the information which may be required by Vasthra Jewels for preparing a catalogue for the Products contemplated to be displayed on the Website.
- It shall ensure that it has the requisite rights and capacity to grant a License to Vasthra Jewels and all the approvals and/or licenses pertaining to display of third party brands and logos and does not violate any Intellectual Property Rights of any third party such as copyright, patent, trademark, servicemark, trade secret and/or other proprietary rights, rights of publicity and/or privacy. In the event Vasthra Jewels is held liable for any such violation under this Agreement, Merchant shall at all times hold harmless and fully indemnify Vasthra Jewels against such acts and/or actions of third-party rights. It shall be responsible for all the Products Information provided by it on the Website and shall ensure that the Products Information is (a) accurate and not misleading and/or otherwise deceptive; (b) does not violate the Intellectual Property Rights of any third party such as copyright, patent, trademark, servicemark, trade secret and/or other proprietary rights, rights of publicity and/or privacy; (c) does not violate any law, statute, ordinance and/or regulation; (d) is not defamatory, trade libellous, unlawfully threatening and/or unlawfully harassing; and, (e) shall not create liability for Vasthra Jewels and (f) is listed with all the appropriate notices and disclaimers informing the Customers in relation to the Product.
- Merchant shall be solely responsible for quality of the products as offered to be sold though Vasthra Jewels’s Platform and also assures and undertakes not to market, sell, offer any counterfeit / damaged / spurious / refurbished / stolen product.
- Merchant further undertakes to deliver the product/s within 7 working days from date of receipt of Order from Vasthra Jewels, to end customer.
- It shall within 12 working hours of the placement of offer for purchase of Products by the Customer communicate to Vasthra Jewels about rejection of such offer, if any. If Vasthra Jewels doesn’t receive written intimation of rejection of the offer within 12 working hours of the placement by the Customer, it shall be deemed that the Merchant has accepted the offer from the Customers for supply of Products.
- In case, Merchant fails to deliver the product within the specified time, all offers for purchase will automatically be cancelled by Vasthra Jewels and Vasthra Jewels, in its sole discretion, will be entitled to levy penalty, for the same, which may be up to 100 % Vasthra Jewels Service fee on such sale/s.
- Merchant agrees to be liable to pay penalty (up to) at the rate of:
- Rs 500/- per order for wrong updations.
- Rs 250/- per order in case of partial delivery shall be debited to Merchant.
- In case of partial delivery, full value of product/s so not delivered shall be debited to Merchant even after the complaint is lodged with the Merchant.
- Merchant shall be solely responsible for the payment of all the applicable taxes, including but not limited to sales tax, service tax, octroi and other levies including delivery charges as required on the web-site selling price of the products, sold through its (Merchant’s) store on Vasthra Jewels’s website. Merchant shall indemnify Vasthra Jewels for any liability arising out of such violations during and after termination of this Agreement.
- Merchant agrees and undertakes that the Product/s delivered by Merchant are accompanied with invoice, delivery challans, guarantee card, instruction manuals, free materials, etc. including all other relevant documents as required under statutory and governmental regulations. Merchant agrees to provide actual proof of dispatch and other related documents, to Vasthra Jewels.
- In case, any complaint, with respect to the product of the Merchant is received from a customer, including late delivery, quality of the product, defective product, etc., Merchant shall be liable to give 100% free replacement / refund (through Vasthra Jewels) to the customer within 7 days from the date of such complaint. Merchant agrees and undertakes that Vasthra Jewels or its officers / employees, affiliates, will not be responsible or liable to release payment for such orders to Merchant.
- The Merchant agrees to provide after sales services to the customers whenever instructed by Vasthra Jewels, including but not limited to procurement of spare parts, repairing of products and free of cost replacement, if such services are sought within the warranty period. The Merchant agrees that the after sales services shall be provided to the customers, within a reasonable period of time. In the event the Merchant fails to offer after sales services to the satisfaction of customer, including failure to replace the product where the product cannot be repaired, the vendor shall be liable to immediately refund the entire sale price for the products to Vasthra Jewels which shall in turn be paid to customer.
- Merchant shall submit details of all tax registration(s) along with self attested copies of the registration certificate(s). Merchant shall also provide a half yearly declaration to Vasthra Jewels that all applicable taxes have been duly paid by them and all relevant returns have also been duly filed within the prescribed time with the concerned authorities.
Annexure – C
Payments & Compensation
- Fee & Service Fee
- Vasthra Jewels shall pay to the Merchant on the basis of System Generated Report of Vasthra Jewels, as per the period agreed.
- Vasthra Jewels shall make the payment/s or the realized amount, by way of cheque/RTGS drawn in favour of The said amount will be paid by Vasthra Jewels, after deducting Vasthra Jewels’s Service Fee as agreed to between the parties and detailed below.
One time Store creation
|Service Fee on all Listed Products
Fulfillment Charges (inclusive)
on Payments using Vasthra Jewels PG
|As per Annexure F|
User redirected to Merchant’ site from Vasthra Jewels.com.
*Service tax on service at applicable rates.
- Payment Timings:
After the buyer confirmed about the receipt of order in good condition and no further disputes raised off, payment will be released. That is 5 working days from the delivered date.
- Vasthra Jewels shall be entitled to retain the disputed amount under this Agreement, which shall become payable upon the resolution of dispute.
- Vasthra Jewels has a right to reward the Merchant through its program based on Vasthra Jewels Merchant evaluation policy, where the Merchant performs transactions which consistently deliver high levels of customer satisfaction and aid strengthening of Vasthra Jewels brand equity.
** Note: Transaction completion means undisputed delivery of goods with proper proof of delivery and updated on Vasthra Jewels as delivered.
It is hereby clarified that where the Product has been sold ex-warehouse of the Merchant and logistic support has been provided by Vasthra Jewels at the request of the Customer, delivery of Product to the Logistic Partner shall be deemed to be completion of transaction.
- Duties & Taxes
All applicable duties and taxes will be paid by Merchant in addition to the fees mentioned in this document. TDS on service fee will be paid by the merchant on behalf of Vasthra Jewels. Vasthra Jewels will reimburse the amount so paid towards TDS to merchant once the same is updated in Form 26AS.
Service Fee Structure (Category Wise)
|Root Category Name||Category_Name||Service Fee on WOP|
|Jewellery||Artificial Anklets, Artificial Bracelets, Artificial Bangles, Artificial Chains, Artificial Earrings, Artificial Jewellery, Artificial Necklaces, Artificial Pendants, Artificial Rings, Gemstone Jewellery, Gemstone Bracelets, Gemstone Earrings, Gemstone Necklaces, Gemstone Rings, Gemstone Pendants, Jewellery Accessories
Terracotta Jewellery, Quilling Jewellery, Silk Thread Jewellery
|Clothing for Women||
Sarees, Kurtis, Lehengas, Salwars, Leggings, Tops, Tees, Bottoms, Stoles, Scarfs, Jeans, Joggers, Pants, Shirts, Shorts, Trackpants, Jackets, Blazers, Winter Wear, Casual wear
|Other Fashion Accessories||
Footwear, Bags, Wallets, Purse, Handbags, Belts, Sunglasses, Shoes and Sandals
In addition to the above, fulfillment charges would be collected based on total weight (rounded up to 500 gms) for each order. The slab rates as below.
|S. No||Order Weight (in Gms.)||Amount|
|1||0 – 500||70|
|2||501 – 1000||140|
|3||1001 – 1500||210|
|4||1501 – 2000||280|
|5||2001 – 2500||350|
|6||2501 – 3000||420|
|7||3001 – 3500||490|
|8||3501 – 4000||560|
|9||4001 – 4500||630|
|10||4501 – 5000||700|
|11||Above 5000 gms||1000|
**Note: The above list is not exhaustive and more product categories can be added in the future depending on the business needs.