This Seller Agreement is entered into between Vivish Technologies Private Limited, (“MyGate”) and the Seller (“Seller”). The terms between Seller and MyGate shall unless it be repugnant to the context be deemed to include their respective successors and permitted assigns.
This Agreement defines the terms and conditions pursuant to which the Seller shall exhibit, advertise, make available, offer and/or sell or distribute their products (“Products”) to Customers through the platform owned and operated by MyGate (“Platform”).
1.Platform. The Platform is an online platform that Users utilize to meet and interact with one another for their transactions, and which accordingly connects interested Buyers with relevant Sellers. MyGate is not and cannot be a party to or control in any manner any transaction between users on the Platform, accordingly:
a.All commercial/contractual terms are offered by Seller and agreed upon between Seller and Customers alone. MyGate does not determine advice, have any control, or in any way involve itself in the offering or acceptance of such commercial/contractual terms between Seller and Customers;
b.MyGate does not make any representations or warranties regarding any Products;
c.MyGate is not responsible for any non-performance or breach of any contract between Seller and Customers;
d.MyGate reserves the absolute right to cancel all, pending, and future orders without any liability; and
e.MyGate does not control or provide any warranties or guarantees in relation to the information provided by the Customers on the Platform, and Seller’s reliance on the same shall be at the Seller’s own risk.
2.Orders. MyGate’s customers (“Customer”) may, from time to time, place an order for specified Products on the Platform. MyGate may communicate such order to the Seller via the Platform. Seller shall confirm or reject the order within 24hrs of receipt and shall dispatch such order prepared within timelines committed on the platform.
3.Inventory. The Seller shall upload a list of the available Products with stock count and their respective retail prices (“Inventory”) onto the Platform either directly or through MyGate. The Seller agrees and always undertakes to keep the Inventory up to date and shall ensure that the Inventory accurately reflects the available stock of Products. In the event the Seller is unable to fulfill any Order due to shortage of Inventory, the Seller shall immediately inform MyGate in the prescribed manner and seek further instructions from MyGate.
4.Delivery. Seller shall be responsible for the packaging and shipping of the Products to the Buyer via renowned courier service. The Order shall be considered to be delivered when actually delivered to the Buyer. The risk of any delay, damage, loss or deterioration of the Product during the course of delivery or during transit shall be on the Seller, its third parties and not on MyGate. Where the return of Order is allowed, Seller agrees and acknowledges that such returns need to be accepted by the Seller. MyGate shall refund the amount to the Buyer and Seller shall be liable to pay the Payment Gateway charges.
5.Obligations of Seller.
a.Seller shall ensure that all mandatory information pertaining to taxes, levies, and charges applicable on the Order are clearly visible to the Buyers on their invoice as per the applicable laws. Seller shall retain such invoice and proof of delivery for a period of 180 days from the date of delivery;
b.Seller shall process and execute the Order promptly;
c.Seller shall address and resolve all Buyer complaints relating to the efficacy, quality or any other issues relating to the Order expeditiously within timelines prescribed by the Ministry of Consumer Affairs or any other authority from time to time. Further the Seller shall be solely liable and bound to take action on complaints raised by Buyer pertaining to the Order;
d.Seller shall be required for provide all the information required by Banks, Payment Gateways, and others within 3 days of intimation by MyGate, where a charge back request has been raised by the Buyer; and
e.Seller except required for the fulfillment of Order shall not use the Buyer’s data for sending any unsolicited marketing message, announcements. Seller shall not engage in any fraudulent activity or misuse any of the Buyer’s data and shall be liable to MyGate in the event MyGate becomes aware of any fraudulent activity undertaken.
a.Transactions, transaction price, and all commercial terms are as per principal to principal bipartite contractual obligations between Sellers and Customers and the payment facility is merely used by Sellers and Customers to facilitate the completion of transactions. Seller has specifically authorized MyGate to instruct the payment gateway service provider to collect, process, facilitate, and remit payments, refunds, and/or the transaction price, electronically, to and from Customers in respect of transactions through payment facilities available on the Platform. The remittance to the Seller shall be made directly by MyGate to Seller in accordance with RBI Intermediary Guidelines as may be amended by RBI from time to time;
b.MyGate agrees and undertakes to pay the Seller for the invoice after deducting MyGate Fee and other charges as agreed in this Agreement;
c.Where a chargeback occurs for an Order in respect of which the Seller already received the payment, Seller has an unconditional obligation to refund the amount to MyGate; and
d.Parties agrees that they will reconcile their accounts at regular intervals. Any query of the Seller regarding Fee, commission and other withholding shall be raised with MyGate within 3 (Three) months from the date of payment failing which the amount charged shall be deemed to be final and accepted by the Seller.
7.Confidentiality. For the purposes of this Agreement, “Confidential Information” shall mean all and any proprietary information of MyGate or its parent, subsidiary or affiliate company in relation to any of MyGate’s other business partners of which the Seller becomes aware of or is disclosed, either directly or indirectly, in any form or manner, to them in furtherance of this Agreement. The Seller shall not disclose the Confidential Information to any person other than to those of its employees, agents, and sub-contractors who need to know in relation thot his Agreement, and have agreed to confidentiality obligations at least as restrictive as those set out under this Agreement. The Seller shall use the Confidential Information solely for the performance of its obligations under this Agreement. If disclosure of Confidential Information is required pursuant to law or any order of a court, the Seller shall provide prompt notice to Discloser, to enable Discloser to obtain a protective order. If Discloser is unable to obtain a protective order, the Seller may disclose Confidential Information to the extent it is necessary under the law.
8.Ownership of Work Product. Nothing in this Agreement shall grant the Seller any right, title or interest in any intellectual property owned by or licensed to MyGate, whether created before, during or after the term of this Agreement, and whether created during the course of performance of this Agreement or otherwise.
a.Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party or its legal successors in accordance with its terms. (iv) it shall comply with all applicable laws.
b.Seller warrants that:
(i)the Seller has all the requisite permissions, licenses, and approvals to sell the Products;
(ii)the Seller is in compliance with the provisions of all the laws applicable including but not limited to Bureau of Indian Standards Act, 2016, Legal Metrology Act 2009, Electronics & Information Technology Goods (Requirement for Compulsory Registration) Order, 2012, Food Safety and Standards Act, 2006 and any other applicable laws as amended from time to time;
(iii)the Products being sold by the Seller are lawfully manufactured/sourced by the Seller and the Seller is legally authorized to sell the same through the Platform;
(iv)the Products are authentic and genuine products and are not impaired in any manner including but not limited to being fake, duplicate, spurious, counterfeit, damaged, defective, refurbished, previously owned or non-compliant with applicable national/international laws
(v)the Products shall be of good and Sellable quality, and fit for the purposes for which it is sold;
(vi)the Products shall match the Inventory description;
(vii)the manufacturer warranties and guarantees in respect to the Products are applicable and shall be honored by the Seller/applicable manufacturer of the Product; and
(viii)the information regarding Seller’s business and requirements provided to MyGate in connection with the Products will be complete and accurate.
10.Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREUNDER SHALL FAIL OF ITS ESSENTIAL PURPOSE. MYGATE’S MAXIMUM AGGREGATE LIABILITY TO SELLER FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO TOTAL COMMISSION PAID TO MYGATE BY THE SELLER UNDER THIS AGREEMENT IN THE TWO (2) MONTH PERIOD PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
MYGATE SHALL NOT BE LIABLE TO SELLER OR CUSTOMER IN RELATION TO ANY DEFECTS/NON-CONFORMITY OF THE PRODUCTS WITH THE TERMS OF THIS AGREEMENT. MYGATE MAY, IN ITS DISCRETION, SETTLE ANY CUSTOMER CLAIM UPTO THE VALUE OF THE PRODUCTS, AND THE SELLER SHALL INDEMNIFY MYGATE FOR ALL COSTS, DAMAGES, LIABILITIES, AND ACTIONS THAT MYGATE MAY INCUR OR SUFFER AS A RESULT.
a.Termination for Convenience. Either Party may terminate this Agreement for convenience at any time for any reason by providing the other Party not less than seven (7) days’ prior written notice.
b.Termination for Cause. Either Party may terminate this Agreement in the event of other Party’s default in the performance of any of its duties and obligations in accordance with this Agreement. A remedial notice of seven (7) days shall be provided to cure such default, in the event that the failure is not cured by the other Party within the seven (7) days period specified above, the Agreement shall be terminated with immediate effect with no claims for further payments. MyGate also has the right to suspend Seller’s access to the Seller Dashboard for any period of time (during which time period Seller shall not be permitted to sell Seller’s Products on the Platform) on breach of any of its obligations, gross violation of terms, representations or warranties or any other material terms as contained in this Agreement.
12.Consequences of Termination.
a.The expiration or termination of this Agreement for any reason will not affect any accrued rights or liabilities of either Party nor release Parties from any liabilities or obligations set forth herein which: (a) the Parties have expressly agreed will survive any such expiration or termination, or (b) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination.
b.Upon termination or expiry of this Agreement, for whatsoever reason each Party shall promptly return or if such return is not possible, destroy as per the instructions of the other Party, all the tangible and/or intangible Confidential Information and Intellectual Property of the other Party.
13.Intellectual Property Rights.
a.Both Parties agree that all intellectual property, including any brands/logos, trademarks, etc., belonging to each Party are the exclusive property of the respective Party.
b.Seller hereby authorize MyGate to use and include trademarks (as may be provided from time to time) and corporate name on the Platform and/or in any directory or promotional material produced in connection with the promotion of the Platform or the Products offered without any license fee or royalty.
14.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of India, without regard to its conflict of law provisions. Each Party irrevocably consents to the exclusive jurisdiction of the courts at Bengaluru, Karnataka.
15.Force Majeure. A Party shall not be liable for any delay or failure to perform any of its obligations under this Agreement on account of any cause beyond such Party’s reasonable control, including without limitation, the outbreak of infectious diseases, fire, flood, earthquake, explosion or other casualty or accident or act of God, war or other violence, governmental action, or changes in laws (“Force Majeure Event”).
16.Relationship. The Parties hereby expressly agree that neither Party shall be deemed, either directly or indirectly, to be the employer, franchiser, contractor nor principal of the other Party or the staff/employees of the other Party and this Agreement has been executed expressly on a principal to principal arrangement.
17.General. (i) All notices pertaining to this Agreement shall be addressed and sent to the respective addresses as noted above. (ii) Seller may not sell, transfer, assign, sublicense or subcontract any right or obligation hereunder without the prior written consent of MyGate. (iii) The failure, with or without intent, of any Party hereto to insist upon the performance by the other Party, of any term or stipulation of this Agreement, shall not constitute a waiver of the right of such Party. (iv) Any amendment to or modification of this Agreement must be made in writing and signed by both parties. This Agreement is the complete and final agreement of the parties with respect to the subject matter herein. (v) This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective legal successors. (vi) The headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. (vii) If any provision of this Agreement is determined to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the intent of the parties to the extent possible. In any event, all other terms and provisions shall be deemed valid and enforceable to the maximum extent possible
18.Non-Solicitation. During the term of this Agreement and for a period of One (1) year after any termination of this Agreement, Seller shall not, without explicit approval of MyGate, either directly or indirectly, solicit or attempt to solicit, divert or hire away or engage any person involved in the execution of this agreement and employed or retained by MyGate. Notwithstanding the foregoing, it shall not be a violation of this Agreement to conduct general solicitations.