E-COMMERCE SERVICES AGREEMENT
THIS E-COMMERCE SERVICES AGREEMENT (hereinafter referred to as “Agreement”) is made
BY AND BETWEEN
SENUGRA DIGITAL PRIVATE LIMITED, a company incorporated under the provisions of the Companies Act, 2013 and having its Registered Office at 593, First Floor, Orchid Island, Sector-51, Gurugram, Gurgaon, Haryana - 122018 (hereinafter referred to as “COMPANY” which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors in interest and assigns) of the FIRST PART;
You (Hereinafter referred to as the “SUPPLIER / SELLER” which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors in interest and permitted assigns) of the SECOND PART;
The Company and Supplier are hereinafter jointly referred to as the “Parties” and individually, as “Party” (by their name referred above).
• The Supplier is engaged in the business of selling Home décor / Food / Stationery / Gifting / Beauty & Skincare products.
• The Company is the owner of the trademark namely “Magikelf” and is engaged in the business of creating technology and developing software for the purpose of facilitating online sale and purchase of any and all kind of goods, commodities and merchandise and to engage in B2B and B2C ecommerce in the nature of cash and carry wholesale distribution of all kind of goods, commodities and merchandise and providing services incidental thereto through various channels and mediums.
• The Company based on the representations and warranties of the Supplier allows the listing and selling of Supplier’s Products through the instrumentality of this Agreement on the terms and conditions set forth hereinafter.
NOW THEREFORE, in consideration of the payments and mutual covenants and premises herein set-forth, the Parties hereby agree to the terms and conditions as defined below:
1.2 “Confidential Information” shall mean any proprietary information of any Party, including but not limited to commercial, technical and artistic information relating to such Party’s establishment, business, operation, maintenance, marketing and promoting of its own services and Products, programming techniques, experimental work, customers, clients, suppliers, developments, inventions, technology, etc. Confidential Information will include all information (whether available in written, oral or machine-readable form) relating to the business or affairs of the Parties, including (without limitation) information relating to existing or future systems, software, hardware, Products and services, and those in development, and accompanying marketing plans, details of employees and business strategies, etc. Confidential Information shall include information required to be supplied by the Supplier to the Company, or such information furnished by the Company to the Supplier.
1.3 “Customers” shall mean any user of the Company Website who purchases any Product of the Supplier through the website.
1.4 “Logistics” shall mean the commercial act of pick-up and delivery of products ordered from the Supplier to Customers. The services of Logistics shall be executed by the Company.
1.5 “Price” or “Prices” shall mean the net price/ prices of the Products calculated after deducting the margin as mutually agreed by the Parties.
1.6 “Products” shall mean all the goods supplied under this Agreement.
1.7 “Panel” shall mean platform on Company’s website where seller/supplier can access information/updates or do other activities as provided under this Agreement.
1.8 “Order(s)” shall mean the orders placed by the Customers on the Company’s website which shall be then allocated to the Supplier through the Company.
1.9 “TAT” shall mean the turnaround time for processing the Orders by the Supplier. It shall only include business hours/days.
1.10 “Website” shall mean www.magikelf.com.
2.1 The Supplier shall display the list of available Products on the Website through its panel.
2.2 This Agreement is made on a non-exclusive basis in which the Products shall be sold to the Customers subject to the Supplier meeting all the specifications set out in the Orders raised by the Customer. Once the Order is raised, the same will be reflected in the Panel. The Supplier shall perform its obligations with respect to Product availability, packaging and making it ready for delivery for the Customers in accordance with this Agreement and TAT agreed. The delivery shall be the responsibility of the Company.
2.3 The Supplier shall ensure that the Products supplied are in conformity with the Orders raised by the Customers.
2.4 In the event the Products supplied by the Supplier are not in conformity with the Orders raised, the Company shall levy a penalty on the Supplier on the nature of deficiency in supplying the Products as mentioned in Para 14.2 of the agreement, on receipt of consumer complaints with respect to the Products.
ORDERING AND DELIVERING SCHEDULE
3.1 The Supplier shall display a list of Products it is dealing with on the Website which the Customers can view, opt for and place an Order through the Website.
3.2 Each Order raised shall include all the information among other things, the name/ detail of the Product(s) to be purchased, description, quantity, size, Maximum Retail Price (MRP), and any such other information as may be required to enable the Supplier to perform its obligations under this Agreement. The Supplier agrees to supply the Products as reflected in the Panel in compliance with the Orders placed by the Customers through the Website.
3.3 The Supplier shall be responsible for ensuring that the Panel is updated and reflects the real-time availability / non-availability of the Products listed. The Company shall not be responsible for claims made by Customers for inaccurate Product availability details that are displayed due to any negligence / default on the part of the Supplier to provide updated and accurate Product information. The Supplier shall be required to retain an adequate inventory of the Products listed for successful fulfilment of orders.
On intimation of the Orders raised, the Supplier shall configure and confirm the Orders to the Company within a decided TAT. In exceptional cases, solely on discretion of the Company, a reasonable delay on part of the Supplier can be accepted.
3.4 The Supplier shall, before processing the Order to Logistics, ensure that the Products comply with all legal specifications (if applicable) such as necessary registrations, certifications, etc. as required and mandated for manufacturing and supplying of Products. The Supplier shall also ensure that the Products are packed and labelled with proper and safe packaging & invoice(s). The Supplier shall process Orders within the agreed TAT.
3.5 The Company shall be responsible to provide Logistics services for the delivery of the Products to Customers at their specified addresses.
3.6 The Supplier agrees and acknowledges that time is the essence of this Agreement and accordingly shall take all necessary steps for timely accepting and processing of the Orders and in case of any delay(s) attributable to outside factors including Force Majeure Events, the Supplier shall notify the Company immediately in writing about the delay in processing of the Products with the revised date of processing.
3.7 The Company reserves the right to cancel Orders with late processing that are delayed beyond the agreed TAT except in the event of Force Majeure. The Company shall have a right to refuse delivery of Products in case if it observes any of the following defaults on behalf of the Supplier- Products are not in accordance with the specifications provided in the Orders raised in terms of quantity/ descriptions/size/ type of Products ordered/ damaged, packaging/ labelling not as per the guidelines or as per the applicable laws. Any default on the part of the Supplier in making the right Product available to the Customers shall be penalized by the Company as per its Penalty Terms as mentioned in Para 14.2 of the agreement.
BILLING AND PAYMENT TERMS
4.1 The Company shall charge the Supplier a margin as decided by both the parties on the sale of every Product through the Website. The Supplier shall receive the net amount (inclusive of all applicable taxes and charges) of the Price after deduction of the commission chargeable by the Company. Payments shall be made as per the agreed credit terms. In net margin calculation, the amount paid will be the landing cost after margin deduction that is inclusive of taxes.
4.2 Any revision in the margins on the Prices shall take place with mutual discussion by both the Parties. Any such revision in commercials shall be reduced to writing and shall be treated as a part of this Agreement. Any costs relating to GST/IGST/CGST shall be borne by the Supplier. The Company can request the Supplier to submit its periodical GST and all other returns for its record.
RETURN OF PRODUCTS BY THE CUSTOMERS
5.1 The time limit within which the Customer can request for replacement/exchange of Products shall be as per the policy available at the Website (“Return Policy”). The time limit mentioned in the said Return Policy may be extended at Company’s discretion depending upon case-to-case basis which will be intimated to the Supplier. The Supplier shall have a discretion in not accepting returns beyond the lapse of the return period.
5.2 The Supplier needs to check its returned Products and inward in the Panel maintained with the Company (“Supplier’s Panel” or “Panel”) and shall intimate the Company within a time period of 2 days for reimbursement of claims of receipt of returned Products in case of receipt of wrong/ damaged/ used products. –
5.3 The Company shall not be liable to fulfil any claims of the Supplier in the following two events:
If the claim for reimbursement is made after a lapse of the above mentioned
If the returns made by the Customers is for the following reasons: -
Product(s) Missing /Short Quantity
Wrong Item(s) Sent
Received Expired Product
Dirty / Old / Used product sent
Product Description Mismatch
Defective item sent
5.4 The Supplier needs to check “Sales Return” in its Panel on a daily basis and inform the Company if they do not receive their returned Products within 5 days from the Sales return initiated date. Any requests post this period will not be entertained for reimbursement claims.
6. LEGAL COMPLIANCES
6 .1 The Parties shall be responsible for the conformance to the applicable central and state laws, rules, regulations, guidance or standards issued there under as amended from time to time and for applying in India for all necessary and appropriate approvals from all central and state agencies responsible for administering such laws and promptly renewing such approvals.
6.2 The Supplier shall indemnify the Company against any notices, summons, memorandum, consumer complaint, fines, penalties, costs, etc. received from any third party including statutory authority for default in complying with the applicable laws with respect to the Products.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations and warranties of both the Parties:
Each Party mutually represents and warrants that:
It has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and has been fully authorized by all requisite corporate actions to do so;
It is not in violation of any contract, law, regulation, order or decree or that it is hindered or obstructed in any manner by any contract, law, regulation, order or decree in effectively performing its obligations under the terms and conditions of this Agreement;
This Agreement is a valid and binding obligation, enforceable against it in accordance with its terms;
It will perform its obligations under this Agreement in compliance with all applicable laws, necessary for the performance of its obligations hereunder;
It will provide such cooperation as reasonably necessary in order to give full effect to the provisions of this Agreement.
7.2 Representations and warranties of the Company
It shall provide the Supplier an access to the Website through a Panel, to be operated and maintained by the Supplier;
The Supplier shall have access to all the relevant information as required by the Supplier to process the Products from time to time;
It shall make the payment to the Supplier as stipulated under this Agreement.
7.3 Representations and warranties of the Supplier:
It represents that it has the requisite authority and the right to sell the Products in terms of this Agreement and the Products are not subject to any claim, lien, encumbrance of any nature of any third Party;
It represents that the Products comply with all the Legal Compliances as applicable on the Products further agrees to indemnify the Company in cases of any default as applicable from time to time;
It hereby represents that the Products do not infringe upon the intellectual property rights of any third party, including but not limited to copyright design, patent rights and trademark rights. The Supplier shall indemnify and hold Company harmless against disputes and expenses arising from any infringement of such third party rights.
It hereby states that any/all duties, taxes, local levies and fees payable on the Product(s) have been paid or shall be paid within the applicable statutory prescribed period.
It further represents to supply Products that are free from defects in workmanship and materials, conform to the specifications as displayed on the Website.
It further represents and warrants to accept and abide by the Penalty Terms as mentioned in Para 14.2 of the agreement.
7.4 The Supplier further represents and warrants that:
Supplier will be using the Website provided and owned by the Company;
The permission granted by the Company to use the Website as an online marketplace is on a non-exclusive basis;
Before listing any new product, the supplier shall take prior approval of the Company;
Company reserves the right to deny access to, or revoke, such permission to use the Panel at any time;
Company shall have the right to remove the listing of any Product being offered for sale by the Supplier;
Any and all data as a result of this Agreement will be owned by Company and the Supplier shall have the right to utilize such data for the duration of the Term of this Agreement to fulfill its obligations hereunder; and
It agrees and understands that Website is maintained by the Company and at times and in certain locations, there can be limitations in offer for sale of Products or access and usage of Website in the events of internet issues.
Supplier shall in no manner, either directly or indirectly send any promotional messages to the customers or provide any offer, without the approval in writing for the same from the company.
This Agreement shall remain in force from Effective Date and shall continue unless terminated by the Parties.
9. TERMINATION AND EFFECT OF TERMINATION
9.1 Termination by Cause:
If the Supplier breaches any term in this Agreement, the Company may terminate this Agreement by giving at least 15 days advance written notice of termination, specifically identifying the nature of the breach. The breaching Party may avoid termination by curing the breach within the cure fit period of 14 days’ from the date of receipt of such notice.
The Company shall have a right to terminate the Agreement if the Supplier’s defaults/ failures in confirming the delivery of the Products exceeds more than 3 (three) times consecutively.
The Company shall have a right to terminate the Agreement by giving a written notice to the Supplier if the Supplier is engaged in any kind of private consumer solicitation/ marketing for his own brand through the Products supplied to the Customers.
9.2 Termination by Convenience: Either Party may terminate this Agreement at any time by giving each other 30 days written notice of its intention to do so without assigning any reasons for the same.
9.3 All the Orders accepted by the Supplier, prior to termination of this Agreement shall be adhered to and complied by the Parties to this Agreement notwithstanding the Termination of this Agreement. The termination of this Agreement shall not release either Party from fulfilling the remainder of the obligations in respect of this Agreement and/or a specific Order already been issued to the Supplier.
9.4 Upon termination of the Agreement, both the Parties shall settle all dues to the other Party. Each Party shall return all data, documents, materials, if any provided to the other Party and the Company shall immediately cease marketing of the Products purchased from the Supplier and stop using the brand name of the Products.
10.1 Each Party will defend, indemnify, save, and hold harmless the other Party and the officers, directors, agents, technology partners, and employees of the other Party from any and all demands, liabilities, costs or expenses, including attorney fees, claims, actions, disputes, proceedings, brought directly against the other Party by any government authority, third party resulting from the indemnifying party’s breach of, or act or omission in connection with this Agreement, except where liabilities result solely from the negligence or knowing and willful misconduct of the other Party.
10.2 The Supplier accepts and acknowledges that in the event of any deficiency in services of supplying Products including not limited to Products’ mismatch in quality, quantity, size, descriptions, wrong products, Products not handed over to the Logistics, manufacturing defect(s), packaging, labelling, marketing, damage, the Supplier shall indemnify and hold the Company and its directors, officers, representatives, employees and agents harmless from and against any and all losses, damages, liabilities, claims (including third party claims), demands, suits, expenses and any other out-of-pocket costs (including reasonable attorneys’ fees and expenses) which the Company may incur or be liable to be arising out of complaint made by its Customers for ‘defect of products’ including but not limited to quality or manufacturing defect that could lead to any death/ injury to any person, damage to any property or any other damage or loss due to defect or in use of any Product, any infringement or misappropriation of any proprietary and/or third party intellectual property rights by Products, which is solely attributable on account of Supplier’s conduct.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Nothing contained herein shall be deemed to grant to the Party either directly or by implication, estoppels, or otherwise, any license to any patents, trademarks, designs etc. belonging to the other Party.
11.2 In order that either Party may protect its trademarks, service marks, trade names, trade secrets, corporate slogans, corporate logos, Product designations (collectively as “Marks”) and its goodwill, both Parties agree that they shall have no right to use the others Marks in any mode or manner without the prior written consent of the other.
11.3 In cases of infringement of the Trademark and other IPR’s of one Party by the other Party, the affected party shall have the right to obtain the injunctive and other relief against the defaulting party. The Supplier shall undertake that the Products are authentic and have been legally procured. The Supplier shall be solely responsible for the authenticity of the Products and the permitted use of the brand and trademarks associated with the Product.
12.1 The Parties agree to keep confidential all the details, data, other information exchanged with the other Party in respect of their business, Products, designs, trademarks, pricing, this Agreement, other details with respect to this Agreement, etc. Upon termination of this Agreement, the Party shall promptly return all such information to the other Party without retaining any copy/s of the same in any manner and form, upon request of the Parties.
12.2 Each Party may use the Confidential Information of the other Party only for the purpose of this Agreement and shall disclose the Confidential Information only to those employees, representatives and third parties on a “need to know” basis.
13. DISPUTE RESOLUTION
13.1 In the event of any dispute, Parties will use their best efforts to arrive at an amicable settlement within 30 days of the dispute. Each Party shall pay its own fees and costs for mediation and all other alternate dispute resolution mechanisms. However, if after expiry of the period of 30 days, it is found that the dispute cannot be amicably resolved the Parties will proceed to arbitration as provided below.
13.2 Such arbitration shall be in accordance with the Arbitration and Conciliation Act, 1996 and shall be held in Gurgaon. All the proceedings of such arbitration shall be in the English language. The number of arbitrators shall be 1(one). The Sole Arbitrator shall be appointed by mutual consent of both the parties in accordance with the provisions of the Arbitration and Conciliation Act, 1996 as amended from time to time.
13.3 In case the Arbitration fails to work, the Parties can approach the courts over any/all claims arising out of this Agreement.
14.1 Governing Law and Jurisdiction: This Agreement shall be interpreted and construed in accordance with the laws of India. Courts at Haryana shall have the exclusive jurisdiction for matters relating to this Agreement.
14.2 Penalty and Other terms:
The Supplier accepts and acknowledges that for every Product for which Order has been raised by Customer as displayed on the Supplier Panel, either not serviced or wrongly serviced, the Company shall levy a penalty on the outstanding balance payable to the Supplier as provided below. This entry will be mentioned in the payment voucher.
• Order Processing TAT (Turn Around Time) Breach - If the Supplier delays in processing, accepting, configuring and confirming the Order/s as per the TAT agreed in this Agreement or displayed on the Supplier Panel, the Company may penalize the Supplier for 5% of the Product Order value or Rs.50, whichever is higher. Any such charge will be applied after discussion with the supplier.
• Handover TAT(Turn Around Time) Breach - If the Supplier fails to handover the Products to the Logistics within the specified timeline, as displayed on the Supplier Panel (more than two times in a month) the Supplier maybe be penalized Rs.50 or 5% of the Product Order value not handed over, whichever is higher.
• Not Found/ cancelled due to delay/ handover issue - These instances arise when the Supplier fails to update their accurate inventory list on the Supplier Panel or if the Supplier delays in processing an Order due to which the Order would have to be cancelled or if the Supplier processes an Order but has not handed over the Product to the Logistics, as a result of which, the Products get displayed on the Website but are not serviced or fulfilled by the Supplier resulting in cancellation of the Customer Order. In such cases, the Company shall have a right to levy a penalty of 10% of the Product order value or Rs.100, whichever is higher.
• Wrong Items Sent- If the Supplier sends the Customer Product which is different from the Product actually ordered by the Customer due to reasons not limited to handover of a different product, color, size, age, products beyond shelf life, etc. and the Customer raises a complaint about it, the Company shall have a right to penalize the Supplier by charging 100% of the Product order value or for the coupon value that may be issued to the customer as compensation.
• Logistics Recovery Charges - If the amount of sales returns exceeds 10% of the total revenue of the Supplier from Magikelf on a monthly basis, the Company shall have a right to change the commission post discussion with Supplier (if Supplier commission model is not the one with actual Logistics cost).
14.3 Waiver: The failure of any Party to enforce any term or provision hereof shall not be construed to be a waiver of such term or provision and shall in no way affect the right of such Party thereafter to enforce such term or provision or any term or provision hereof.
14.4 Amendments: No modification, amendment or waiver of the terms and conditions of this Agreement shall be valid or binding unless made in writing and duly executed by the Parties.
14.5 Principal-To-Principal Agreement: This Agreement has been entered into on a principal-to-principal basis and nothing contained in this Agreement shall be deemed to constitute a joint venture, partnership, or agency relationship between the Company and the Supplier. The Parties hereto shall not represent as an agent of the other under any circumstances and at any place and at any point of time and shall fulfil their obligations strictly in terms of this Agreement as between two independent principals in commercial transactions and none of the terms and conditions of this Agreement or their context shall be read or meant to be otherwise.
14.6 Assignment: The Supplier shall not, in any manner whatsoever, transfer or otherwise assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party. The Company may assign the rights or obligations under this Agreement to any of its subsidiary, group, affiliate or holding companies by issuing a forthwith written notice to the Supplier informing of such assignment.
14.7 Responsibility of the Supplier: It is sole responsibility of the Supplier if any adverse effect occurs from the application or consumption of a product to the customer.
14.8 Notices: All notices, requests or letters for written approval and other communication provided for in this Agreement shall be submitted in writing and transmitted by registered post, courier service or facsimile transmission at the address of the Party as follows:
Address of Company:
Senugra Digital Private Limited
593, First Floor, Orchid Island, Sector 51,
Gurugram, Gurgaon (Haryana) - 122018
Either Party shall inform the other Party in writing, of any address change, within 5 (five) business days of such address change.
• Severability: Each Party acknowledges that the provisions of this Agreement are reasonable and waives any defense to the strict enforcement thereof by the other Party. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, the remaining provisions shall remain in full force and effect.
• Force Majeure: Neither Party shall incur liability to the other for delay in performance or for failure to perform under this Agreement if due to causes beyond its control, including, but not limited to, acts of God, acts of war, fire, riot, website not responding, server down, pandemic diseases and each Party shall take steps to minimize any such delay. The Company shall have a right to terminate the Agreement if such Force Majeure continues for a period of 30 (thirty) days or more.
• Survival: The following clauses of this agreement and their sub-parts shall survive the termination and/or expiration of this Agreement:- Indemnity, Intellectual Property Rights, Confidentiality, Dispute Resolution, Governing Law and Venue.
• Limitation of Liability: IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, ARISING IN ANY WAY OUT OF THIS AGREEMENT.
• Counterparts: This Agreement is executed online and shall be deemed signed once the Terms & Conditions are accepted at the time of submitting company information by the Supplier.