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This document is an electronic record in terms of Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.
This Agreement is made between Banyan Tree Infomedia LLP having its registered office at RB 812 Purva Riviera, Marathahalli, Bangalore - 560037, Karnataka, India and its Corporate Office at 1308, 3rd Floor, Shetty Plaza, HAL 3rd Stage, Jeevan Bima Nagar, Bangalore - 560008, Karnataka, India and Vendor (hereby referred to as Merchant).
1. DESCRIPTION OF BUSINESS PURPOSES & PROCESSES
1.1 BANYAN TREE INFOMEDIA LLP provides a portal (www.awesomeji.com & www.bags109.com) for the merchant to host his merchandise for commercial activities.
1.2 Merchant makes a set of products currently or in future dealt for commercial purposes available for sale in the website currently named Awesomeji Dot Com and Bags109 Dot Com.
1.3 The set of products with consumer prices, as given by the merchant, is listed by BANYAN TREE INFOMEDIA LLP (www.awesomeji.com & www.bags109.com) on the site. The number of products to be offered and features like showcasing with visuals will depend on the type of programmed the merchant has signed in.
1.4 BANYAN TREE INFOMEDIA LLP and the Merchant agree on a Net Amount Payable for each product or SKU (Stock Keeping Unit).This is the amount which, within 30 days from the time of processing the order, is remitted to merchant on making a sale for that SKU.
1.5 The merchant would maintain stocks offered online after checking on a daily basis, he will update / manage the inventory position on the Inventory management module for his products provided by BANYAN TREE INFOMEDIA LLP (www.awesomeji.com and www.bags109.com).
1.6 BANYAN TREE INFOMEDIA LLP (www.awesomeji.com or www.bags109.com) would act as the order processor and the payment collector for the merchant.
1.7 The business process would be as follows:
a) Customer places order at Awesomeji’s or Bags109’s shipping channel (www.awesomeji.com and www.bags109.com) on merchant’s merchandise after selecting the payment method he would like to use for purchase of the product.
b) BANYAN TREE INFOMEDIA LLP redirects order to merchant after checking authencity of the person placing the order.
c) Banyan Tree Infomedia LLP (www.awesomeji.com and www.bags109.com) forwards proof of delivery to bank. In the case of Merchant undertaking delivery himself, Merchant is responsible for sending delivery information to Banyan Tree Infomedia LLP. Bank pays BANYAN TREE INFOMEDIA LLP upon proof of delivery. BANYAN TREE INFOMEDIA LLP remits Transfer value, calculated on the basis of Net Amount payable as described in 1.4 above.
d) It is hereby agreed that the merchant will deduct and deposit the TDS to appropriate authorities on the commissions paid to Banyan Tree Infomedia LLP. Such TDS certificates should be furnished by the Merchant at the end of financial year.
It is agreed between Banyan Tree Infomedia LLP and the merchant that
a) Payments for the sale by the merchant to a customer through www.awesomeji.com or www.bags109.com shall be collected by BANYAN TREE INFOMEDIA LLP on behalf of the merchant.
b) BANYAN TREE INFOMEDIA LLP shall retain and remit on behalf of the merchants amounts due from all payment gateways offered by Banyan Tree Infomedia LLP, on their site www.awesomeji.com or www.bags109.com and all other portal properties of Banyan Tree Infomedia LLP
c) Banyan Tree Infomedia LLP shall retain the agreed commission payable by the merchant on the sale effected by him to the customer through Banyan Tree Infomedia LLP.
d) Banyan Tree Infomedia LLP shall, after reducing the aforementioned amounts, remit to the merchant the Net Amount Payable as defined above.
2. MERCHANT’S OBLIGATIONS
2.1 VERACITY OF INFORMATION SUBMITTED BY MERCHANT
It is assumed that by accepting this agreement, Merchant stands to guarantee that
a) All information submitted by Merchant is correct and complete in all respects, and
b) Merchant promises to update and inform BANYAN TREE INFOMEDIA LLP (www.awesomeji.com or www.bags109.com) of any changes in the information submitted originally or the first time.
c) In the event of any violation of 2.1(a) and 2.1(b), Banyan Tree Infomedia LLP reserves the right to disable/discontinue Merchant’s store.
2.2 DELIVERY SCHEDULE
a) Merchant is bound by this agreement to adhere to a delivery schedule agreed upon. It is the merchant’s obligation to ensure that he is able to give pick up advice to the Logistics Service Provider within the agreed time from the time he has received the order. In the event of the merchant not delivering within the committed time if the customer denies to accept the delayed delivery from the merchant and further, if the customer denies to accept an alternate product from the merchant and BANYAN TREE INFOMEDIA LLP being bound to send a complimentary gift as a token of gesture, 50% of the value of the order, subject to a maximum of Rs.2000/- would be recovered from the merchant.
b) Merchant is bound by this agreement to extend full cooperation to the Logistics Service Provider or Courier Company with respect to pick up. He would ensure that on no account would the LSP have to wait for a pick up, once the pick up advice has been sent.
c) Successive failures to adhere to agreed delivery schedule would empower BANYAN TREE INFOMEDIA LLP to disable/discontinue the merchant’s store.
d) Merchant would also ensure that requests for specific date delivery by a customer are honored depending on the lead time specified by the merchant in the details provided by the merchant to BANYAN TREE INFOMEDIA LLP and would hand over the consignment 3 days before the specified date to the logistics service provider in case of an outstation delivery, and ensure that the ordered goods reach the customer or the customer’s nominee exactly on the requested date in case the delivery is local.
e) Merchant is further bound to update the dispatch details of the products to BANYAN TREE INFOMEDIA LLP (www.awesomeji.com or www.bags109.com) within 24 hours on weekdays and 48 hours on weekends of dispatch of the product. The dispatch information of the same should be available to BANYAN TREE INFOMEDIA LLP and the Customer to see in 12-hrs time.
2.3 STOCK UPDATION
a) Merchant would be responsible for updating stock position through mails, so as to give correct information on stock availability to the browser at any point of time.
b) In the unavoidable event of a merchant not having stock of an item ordered, merchant would need to immediately inform BANYAN TREE INFOMEDIA LLP (www.awesomeji.com or www.bags109.com) whether "he will not have the stock at all" or whether the product is "currently out of stock and the same will be available in 1 business day."
c) This will then trigger a mail to customer informing him about the delay, and the customer can then decide on the future course of action. If the customer does not revert back during the period of delay then the product gets fulfilled as part of the normal course of fulfillment to the customer.
Merchant would ensure that items to be shipped as per customers’ orders are packed in a manner so as to not cause any damage during shipment. The LSP would have all rights to refuse pick up in case of non-satisfaction arising out of poor packing.
2.5 PRODUCT WEIGHT
Merchant would be solely responsible for keying in accurate gross weight (inclusive of packing) for every item he would be offering for selling. The gross weight of a consignment as calculated based on weight information provided by the merchant and the actual weight as per weighing scale at the LSP cannot vary more than 2%. Any financial implications arising out of weight differences between calculated weight and actual weight would be recovered from the merchant at the time of remitting Transfer Value.
2.6 PRODUCT QUALITY
Merchant would be solely responsible for the quality of all products and services made available by him in his store. BANYAN TREE INFOMEDIA LLP reserved the right to withdraw any product from its distribution channels immediately, if at any stage it is found that the product does not conform to the quality & other warranties/representation being made by MERCHANT on that product.
Returns will be accepted and replaced by the Merchant only if it is due to any manufacturing defect\damage\wrong order and has to be returned within 7 working days from the date of receipt of product by the customer.
Merchant is further bound to intimate BANYAN TREE INFOMEDIA LLP (www.awesomeji.com or www.bags109.com) before dispatching an alternate product.
3. PROPRIETY RIGHTS
3.1 INTELLECTUAL PROPERTY
Any content available from BANYAN TREE INFOMEDIA LLP is protected by copyright, trademark, patent or propriety rights and laws.
4. MERCHANT PRIVACY
4.1 ANY INFORMATION
a) BANYAN TREE INFOMEDIA LLP could maintain information about Merchant and his store on Banyan Tree Infomedia LLP's servers. Merchant agrees that BANYAN TREE INFOMEDIA LLP may use Merchant information in any form for marketing purposes only.
All warranties, conditions, representations, indemnities and guarantees with respect to the merchandise sold online, whether expressed or implied, arising by law, custom, prior oral or written statements by BANYAN TREE INFOMEDIA LLP or otherwise (including, but not limited to any warranty or merchantability, satisfaction, fitness for particular purpose, title and non-infringement) are hereby overridden, excluded, and disclaimed. Banyan Tree Infomedia LLP also disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any information or material. Banyan Tree Infomedia LLP further disclaims any responsibility for any harm resulting from downloading or accessing any information or material though the products and services.
6. NO CONSEQUENTIAL DAMAGES
Under no circumstances will Banyan Tree Infomedia LLP be liable for any consequential, indirect, special, punitive or incidental damages or lost profits whether foreseeable or unforeseeable, based on claims of merchant.
7. TAXES, DUTIES AND OTHER STATUTORY OBLIGATIONS
At no point of time does BANYAN TREE INFOMEDIA LLP take on ownership of Merchant’s merchandise or Merchant Agency responsibility of any form and all invoicing will be done by the merchant. Banyan Tree Infomedia LLP only takes the role of a business facilitator for the Merchant but not as an agent. Merchant, therefore, shall not raise any invoice on Banyan Tree Infomedia LLP. All statutory compliance’s, e.g. accurate calculation, payment and filing of Local Sales Tax or Central Sales Tax returns, Octroi, Excise or any prevailing duties would be the sole responsibility of the Merchant. It is clarified further that Merchant will not claim any such tax or duty payments from BANYAN TREE INFOMEDIA LLP and that all such amounts would be considered before arriving at the consumer price.
The term of the Agreement shall be for a period of 12 months commencing on the date the Merchant’s store becomes operational. However, at any time during the term, Banyan Tree Infomedia LLP has the right to review any store to ensure Merchant’s compliance with the Agreement, and terminate, remove or disable store.
9.1 TERMINATION FOR ILLEGAL OR OTHER ACTIVITY
BANYAN TREE INFOMEDIA LLP may terminate, disable or remove Merchant’s store if it concludes that Merchant is engaged in illegal, indecent or harmful activities or the sale of illegal, indecent or harmful goods or services, or engaged in activities or sales that may damage the rights of BANYAN TREE INFOMEDIA LLP or others. Any termination under this shall take effect immediately without the Merchant having any opportunity to cure.
9.2 TERMINATION FOR NON FULFILMENT OF OBLIGATIONS
BANYAN TREE INFOMEDIA LLP reserves the right to terminate, disable or remove Merchant’s store if it concludes that Merchant has failed to fulfil all obligations as stated in Section 2 of this Agreement, including all areas covered under sub sections 2.1 to 2.6.
9.3 TERMINATION FOR MISCONDUCT WITH BANYAN TREE INFOMEDIA LLP ASSOCIATES
Merchant shall endeavor to conduct himself properly with any associate of Banyan Tree Infomedia LLP. Any perception of misconduct through speech, action, gestures or any possible form of communication, as and when reported by any associate of BANYAN TREE INFOMEDIA LLP shall empower BANYAN TREE INFOMEDIA LLP to terminate the agreement and pull down the merchant’s store.
Merchant will fulfil any orders placed by users prior to the termination or expiry of this agreement as long as fulfillment does not constitute an illegal activity or sale of illegal or harmful goods or services.
Banyan Tree Infomedia LLP, on its part, will complete such transactions by remitting the Transfer Value as stipulated in Section 1.8.
Upon this expiration of this Agreement or its termination, Merchant will not be entitled under local law or otherwise to receive any payment from Banyan Tree Infomedia LLP except for the amount due on the date of expiration, whether for actual, consequential, Indirect, special or incidental damages, costs or expenses, whether foreseeable or unforeseeable (including, but not limited to, labour claims and loss of profits, investments or goodwill), any right to which Merchant hereby expressly waives and disclaims.
10. RELATIONSHIP: INDEPENDENT PARTIES
Merchant and BANYAN TREE INFOMEDIA LLP are independent parties. Nothing in this Agreement will be construed to make either party an agent, employee, franchisee, joint venture or legal representative of the other party. Except as otherwise provided in this Agreement, neither party will have, nor represent itself to have, any authority to bind the other party by its action or act on its behalf.
11. FORCE MAJEURE
Neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to cause beyond its reasonable control, such as natural catastrophes, governmental acts or omissions, laws or regulations, transportation stoppages or slowdowns and the like. These causes will not excuse Merchant from paying accrued amounts due to BANYAN TREE INFOMEDIA LLP through any available lawful means acceptable to Banyan Tree Infomedia LLP. If any of these causes continue to prevent delay or performance for more than 60 days, BANYAN TREE INFOMEDIA LLP may terminate this Agreement, effective immediately upon notice to Merchant.
Any notice, approval, or other communication required or permitted under this Agreement will be given in the English language and will be sent in writing by telefax, courier, first-class airmail, postage prepaid, to the address given below or to any other address that may be designated by prior notice.
If to BANYAN TREE INFOMEDIA LLP:
Banyan Tree Infomedia LLP
1308, 3rd Floor,
HAL 3rd Stage,
Jeevan Bima Nagar,
Bangalore – 560008.
If to Merchant, to its communication address which it has shared it with BANYAN TREE INFOMDIA LLP.
Except as otherwise contemplated above, Merchant may not assign, delegate, sub-contract or otherwise transfer this Agreement or any of its rights or obligations without Banyan Tree Infomedia LLP’s prior written approval. Any attempt to do so without Banyan Tree Infomedia LLP’s prior written approval will be null and void.
BANYAN TREE INFOMEDIA LLP may assign this Agreement or any of its rights or obligations, upon notice to Merchant, (i) to a related company or (ii) to an unrelated company pursuant to a sale, merger or consolidation of BANYAN TREE INFOMEDIA LLP or any of its operating divisions. Merchant consents in advance to any such assignment, sub-contract or other transfer. Merchant acknowledges that the provisions of this Agreement are intended to inure to the benefit of Banyan Tree Infomedia LLP's affiliated companies and its or their licensors as third party beneficiaries hereof, that such legal entities accept their third party beneficiary rights and that such rights will be deemed irrevocable.
14. WAIVER, AMENDMENT, MODIFICATION
Except as otherwise provided above, any waiver, amendment or other modification of this Agreement will not be effective unless in writing and signed by the party against whom the enforcement is sought.
If any portion of this Agreement is unenforceable, in whole or in part, such holding will not affect the validity of the remaining enforceable portion of the provision or any other provisions of this Agreement. However, the parties will endeavour, in good faith, to substitute for such an unenforceable provision a lawful provision that most closely approximates its purpose, unless BANYAN TREE INFOMEDIA LLP deems the unenforceable provision to be essential to this Agreement, in which case BANYAN TREE INFOMEDIA LLP may terminate this Agreement, effective immediately upon notice to Merchant.
The terms that are used in this Agreement may be used in singular or plural, as the context requires. “Days” means calendar days, unless otherwise specified. “Person” means an individual, partnership, company, corporation or other legal entity, as the context requires. “Agreement” means this Agreement and all of its Exhibits. Headings are intended for reference purposes only. This Agreement will be interpreted and performed in English language only.
a. General: Any question, dispute or differences arising out of or in connection with this Agreement or breach, termination or validity hereof, shall be first endeavoured to be settled through friendly discussion or negotiations between the Parties.
b. Proceedings: In the event of any dispute arising out of or concerning these terms and conditions, the same shall be referred to the arbitration of an arbitral tribunal consisting of one arbitrator nominated by “BANYAN TREE INFOMEDIA LLP” and acceptable to “The Merchant”. The choice and right to nominate the sole arbitrator vests exclusively with “BANYAN TREE INFOMEDIA LLP”. It is also further agreed that the sole arbitrator appointed by “BANYAN TREE INFOMEDIA LLP” can be an employee/director of “BANYAN TREE INFOMEDIA LLP” or its group companies. The decision of the arbitral tribunal shall be final.
c. Award: The arbitral award will be the exclusive remedy of the parties for all claims, counterclaims, issues or accounting presented or pleads to the arbitrators. Any additional costs, fees or expenses incurred in enforcing the arbitral award will be charged against the party that resists its enforcement.
d. Legal Actions: Nothing in this section will prevent Banyan Tree Infomedia LLP from seeking interim injunctive relief against Merchant or filing an action against Merchant to collect unpaid and past due amounts in the courts having jurisdiction over the other party.
19. GOVERNMENT REGULATIONS
At all times during the term of this Agreement, the Parties hereto agree to comply and remain in compliance with all applicable laws, rules and regulations relating to or affecting the performance of each of their obligations hereunder and shall secure and maintain in full force and effect all licenses, permits and authorizations from all concerned Government agencies, to the extent the same are required or necessary for the performance of their respective obligations hereunder.
20. GOVERNING LAW
This Agreement has been executed and delivered in India, and its interpretations, validity and performance shall be construed and enforced in accordance with the laws of India, and shall be subject to the jurisdiction of high court at Mumbai/Delhi/Jaipur.
21. ENTIRE AGREEMENT
This Agreement and its Exhibits constitute the complete and entire statement of all terms, conditions, and representations of the agreement between Banyan Tree Infomedia LLP and Merchant with respect to its subject matter and it supersedes all prior writings or understandings.
ANNEXURE: 1 – COMMERCIAL TERMS & CONDITIONS
1. Enlistment Fee
2. Commission Structure (% age margin / Rate Sheet)
2.1 Merchant agrees to offer its mutually consented commission to BANYAN TREE INFOMEDIA LLP (www.awesomeji.com or www.bags109.com).
2.2 Cost of Logistics to be borne by the merchant.
3. Payment Cycle
The merchant shall receive his payment against Proof of Despatch / Delivery (for Hand Delivery products) within 30 days of updating the same to Banyan Tree Infomedia LLP.
4. BANYAN TREE INFOMEDIA LLP (www.awesomeji.com or www.bags109.com) shall display upto a maximum of (number) of (the merchants) products on (the merchants) store on www.awesomeji.com or www.bags109.com. The cost of building the store would be to your account. Further costs of adding new products to the store would be borne by Banyan Tree Infomedia LLP.