1. VENDOR AGREEMENT
This Vendor Agreement (the “Agreement”) is an electronic record in terms of the Information and Technology Act 2000 (the “IT Act”) and the rules framed there under, as maybe amended from time to time. Therefore this Agreement does not require any physical, electronic or digital signature. This Agreement is a legally binding document between you as the Vendor and Helios Medium Bazar Pvt. Ltd (“Helios”). The terms of this Agreement shall be effective upon your acceptance of the same and shall govern the relationship between you and Helios, including with respect to the listing, advertising, exhibiting, making available, marketing, sale and/or delivery of any products through the website www.helioscart.com (the “Website”).
This Agreement is made on the day of your acceptance of this Agreement from your designated e-mail address or in any other form of electronic record including but not limited to, if applicable or provided, clicking on the check box or ‘I Agree’/ ‘Accept’ button or by other means which construe your acceptance of this Agreement. (the “Execution Date”) by and between
HELIOS MEDIUM BAZAR PVT LTD. a company incorporated under the Companies Act, 2013, having its registered office at 64 Sai Chambers, Plot No.44, Sector -11, CBD Belapur, Navi Mumbai-400 614 (hereinafter referred to as “Helios” which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include its successors, subsidiaries, agents and assigns) of the ONE PART.
__________________________, an Indian Inhabitant/a company/partnership firm incorporated under _____________ residing/having its registered office at
______________________ (hereinafter referred to as the “Vendor/You” which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include its successors, subsidiaries, agents and assigns) of OTHER PART
(Helios and the Vendor/You shall hereinafter collectively be referred to as the “Parties” and individually as the “Party”);
A. Helios is inter-alia engaged in the business of online shopping, net marketing, internet advertising and marketing, creating virtual malls, stores, shops, creating shopping catalogues, providing secured payment processing, net commerce solutions for business to business and business to consumers, online trading in and outside India but does not include banking and money circulating business. Helios is also involved in carrying on the business of buying, selling, reselling, importing, exporting, transporting, storing, developing, promoting, marketing or supplying, trading, dealing in any manner whatsoever in all type of goods on retail as well as on wholesale basis in India or elsewhere under its owned e-commerce website named www.helioscart.com (the “Website”).
B. The Vendor is inter-alia engaged in the business of________________ (the “Products”).
C. Helios represented to the Vendor about its skills and expertise in respect selling and marketing the Vendor’s Products on the Website and the Vendor has satisfied himself of the same and agreed to engage the services of Helios.
D. Accordingly, the Parties are desirous of executing this Agreement to record the terms and conditions on which the Vendor shall make available to Helios the Products for marketing and/or selling on the Website and Helios shall market and/or sell the Products on the Website.
2. NOW THIS AGREEMENT WITNESSES AND IT IS HEREBY MUTUALLY AGREED TO BY AND BETWEEN THE PARTIES HERETO AS UNDER
1.1. “Brand” or “Brand Name” shall mean “Helioscart” or such other successor or replacement brand name / trade mark / service mark as may be decided by Helios upon a prior intimation to the Vendor.
1.2. “Confidential Information” Confidential Information” shall mean all information, material, (whether written or otherwise) disclosed, furnished, communicated or supplied or exchanged by the Parties or any of their representatives for marketing and/or selling the Products on the Website. For avoidance of doubt ‘Confidential Information’ shall be deemed to include (without limitation) such information related to (i) any business, marketing, sales, and corporate policies, strategies, operations, procedures, personnel matters, finances, services, plans or opportunities, commercial information, intellectual property and other technical information, know-how, functional design specifications, computer software’s, spreadsheets, processes and other operating procedures, knowledge, data or records, other information concerning the affairs or activities of the Parties, whether written or otherwise, of whatsoever kind or nature (regardless of whether it is specifically marked or identified as confidential or not or whether it is patented or not); (ii) any information which relates to customer names and client information, contracts or other information or documents of a confidential nature relating to the ownership or operation of the Parties or their representatives; (iii) business plans, strategies, methods and/or practices; (iv) process information defined as data/test data/reports/studies in-house or contracted details/quantified steps/process details whether affixed on paper or transferred by way of oral and/or practical instruction with reference to any product which the Vendor may own or be associated with, such as manufacturing information, procurement specifications, quality control specifications, inspection and test protocols inclusive of other data that the Parties have ownership of/retain and is available and being used by either Parties with reference to its business/products/Research and Development (R&D) efforts and general and specific information not limited to processes, machines, manufactures, composition of matter pertaining to the products or services of either Parties and (v) any other information which has been marked and identified as confidential. However, the Confidential Information shall not include any information that:-
1.2.1. Is now or subsequently becomes publicly known or available without breach of this Agreement;
1.2.2. Is required to be disclosed by law.
1.3. “Deliverable(s)” shall mean the specific materials, devices, products, services or other deliverables that are provided by the Vendor to Helios during the course of marketing and/or selling the Products as per this Agreement and any related document thereto.
1.4. “End Customer” shall mean the customers to whom the Vendor offers to sell or sells or from whom the Vendor receives offers to purchase the Products through the Website.
1.5. “End Customer Database” shall mean all data / information (as may be updated from time to time) about the persons/ entities including their names, addresses, contact details, queries, orders and other requests made available by such persons / entities on the Website or otherwise captured by the Website that shall further include the usage, behavior, trends and other statistical information / data relating to such persons / entities, who (i) access the Website or otherwise get invitation to the Website or correspond with the Website, (ii) place any order for Products on the Website, or (iii) send any enquiry/ request with respect to the Website and shall include all analysis and records based on such aforementioned information, including the spending and other patterns of such persons/entitles and Products.
1.6. “Intellectual Property” includes existing and future Intellectual Property in the nature of unregistered or registered rights to any and all patents, copyrights, trademark and other confidential and/or proprietary information limited to that forming part of the subject-matter of the Agreement, and inclusive of all intellectual property that is the subject of ownership by the Parties and/or their subsidiaries, venture partners and predecessors in interest, business and/or title, arising out of the performance of this Agreement and/or other business arrangement, inclusive of but not limited to any oral arrangement which company may have entered into with the Party or other party.
1.7. “Intellectual Property Rights” means and includes (i) all rights, title or interest under any statute or under common law or under customary usage including in any Intellectual Property or any similar right, anywhere in the world, whether negotiable or not and whether registerable or not, (ii) any licenses, permissions and grants in Intellectual Property (iii) applications for any of the foregoing and the right to apply for them in any part of the world and (iv) all extensions and renewals thereto.
1.8. “Products” shall mean any and all goods and related services of the Vendor which Helios markets and/or sells on the Website.
1.9. “Sale Price” shall mean the price at which the Products are offered for sale by the Vendor on the Website to the End Customer. The Parties agree that Sale Price is dynamic and volatile and may vary at different times and points of sale and therefore can be periodically and from time to time changed or revised by the Vendor in accordance with the terms of this Agreement.
1.10. “Service Fees” shall mean the fees for availing either whole or part of their services in accordance with the terms of this Agreement.
1.11. “Shipping Charges” shall mean the logistics/courier/postal charges incurred for delivering the Products to the End Customer.
1.12. “Term” shall have the meaning as set out in Section 13.1 hereto.
1.13. “Website” shall mean www.helioscart.com or any of its affiliate website which are powered by Helios from time to time for marketing and/or selling the Products.
In this Agreement, unless the context otherwise requires:
2.1. Words importing persons or parties shall include natural person, entity, partnership firm, organization, operation, company, HUF, voluntary association, LLP, joint venture, trust, limited organization, unlimited organization or any other organization having legal capacity;
2.2. Words importing the singular shall include the plural and vice versa, where the context so requires;
2.3. References to any law shall include such law as from time to time enacted, amended, supplemented or re-enacted;
2.4. Reference to one gender shall include a reference to the other genders;
2.5. References to the words “include” or “including” shall be construed without limitation;
2.6. References to this Agreement or any other agreement, deed, instrument or document shall be construed as a reference to this Agreement, such other agreement, deed, instrument or document as the same may from time to time be amended, varied, supplemented or novated in accordance with the terms of this Agreement;
2.7. The headings and titles in this Agreement are indicative and shall not be deemed part thereof or be taken into consideration in the interpretation or construction of this Agreement;
2.8. The word ‘written’ shall include writing in electronic form and ‘signed’ shall include electronic signature or any other electronic communication which signifies the sender’s or originator’s intention to be bound by such electronic communication.
3. Scope of Services:
3.1 Helios is engaged in the business of online shopping, net marketing, internet advertising and marketing, creating virtual malls, stores, shops, creating shopping catalogues, providing secured payment processing, net commerce solutions for business to business and business to consumers through its website www.helioscart.com (the “Website”). Helios shall provide a panel to the Vendor through which the Vendor shall upload, create their catalogue for marketing, selling and distributing their Products through Website and update order information received in their panels.
3.2 The Vendor agrees and acknowledges that Helios is free to provide its services in any manner and for any consideration as may be decided by Helios in its sole and absolute discretion, in any part of the world.
3.3 Helios in its sole and absolute discretion may refuse to provide any one or more of its services including making the Website available, facilitating to market or sell the Products on the Website, for any reason whatsoever and especially if providing such services to the Vendor can be detrimental to the reputation, goodwill and competitiveness of Helios or could cause any breach of any contractual commitments of Helios and cause Helios to breach any applicable laws.
3.4 In the event of any conflict or inconsistency between the terms of this Agreement and any commercial terms agreed between the Parties, the terms of this Agreement shall prevail to the extent of such conflict or inconsistency.
4. Advertising, Marketing and Sales Promotion:
4.1 Helios as the proprietor and owner of the Website and the rights holder of the Brand Name may at its sole discretion carry out advertising and marketing activities in relation to promotion of the Website and its services and Brand Name in any manner and to any extent as it may deem fit and for such purposes may engage in certain sales promotion activities to increase the sales of Products on the Website.
4.2 The Parties shall mutually agree the terms on which the Vendor shall support such sales and marketing activities of Helios including providing discounts on the Products or other free of cost goods and services to the End Customers.
4.3 Helios may at its sole and absolute discretion on reasonable commercial efforts, on the basis of the market conditions, promote or advertise the Products made available for sale by Vendor on the Website in compliance with this Agreement.
4.4 Where the Vendor believes or is notified by other entity including any third party manufacturers of the Products that any promotion plan/ activity undertaken by Helios is against any applicable law or in breach of any contractual obligation of the Vendor or such third party manufacturer (in both cases supported by a written legal opinion from a reputed advocate/solicitor), the Vendor shall intimate the same to Helios and upon such intimation, Helios shall within reasonable time cease such plan/ activities.
4.5 The Vendor agrees and acknowledges that Helios shall have the sole right (as to between the Parties) for the design, look and feel, architecture, layout, positioning and all aspects of the Website including listing, positioning, indexing, placement and tiering the Products offered for sale on the Website by the Vendor and the Vendor shall not question or dispute such exercise of right or discharge of responsibility by Helios.
4.6 Helios shall reasonably ensure that all advertisement/ promotion activities undertaken by Helios:
a) do not contain any material that, in its knowledge, would infringe or violate any Intellectual Property Rights or any other personal or proprietary right of any person; and
b) are not obscene or libelous; and
c) Comply with all applicable laws including standards and rules set forth by the Advertising Standards Council of India or any other relevant government authority.
4.7 The Vendor shall keep informed at all times Helios about the availability of the Products along with detailed specifications, as may be required for the Products.
4.8 The Vendor agrees and undertakes to take all reasonable efforts to honor every order placed on the Website by the End Customer.
5. End Customer Database:
6. Order, Acceptance Handling, Delivery service etc.
6.1 The orders placed by the End Customer for the Products on the Website shall be forwarded to the Vendor by Helios via email/ SMS.
6.2 The aforesaid placed orders shall expressly stipulate the following terms & conditions:-
· Description of the Products with brief technical specification
· Quantity of the Products.
· Price (per unit & total) with Incoterm & whether with Helios or with PVC.
· GST & Any other taxes, levy.
· Payment Terms & Mode Of Payment.
· Warranty Period.
· Delivery- Commencing & Completion period.
· Period Specifying Drawings/GTP/ Type Test Reports submission for buyer/client approval.
· Inspection Clause.
· Buyer & Consignee details.
6.3 The Vendor shall upon receipt of the order from the Helios acknowledge the same immediately and convey acceptance of the order within two (2) working days.
6.4 The Parties agree that the End Customer and the Vendor enter into an agreement upon the order placed by the End Customer on the Website and upon acceptance of the said order by the Vendor.
6.5 The Vendor shall upon receipt of the order from Helios, immediately arrange to deliver the Products to the designated address as early as possible but in any case the dispatch shall be made within 15 (fifteen) days of the receipt of the order except in the event where the Vendor has not received any specific dispatch instructions from the End Customer.
6.6 Upon dispatch of the order, the Vendor shall provide to Helios the consignment number, details of courier/shipment agency immediately followed by proof of delivery.
6.7 The Vendor shall dispatch the Products only on getting the specific dispatch instructions from the End Customer after successfully completing the process of inspection and test report approval.
6.8 The Vendor shall ensure that the Products dispatched are of the specifications ordered and there is no variation whatsoever. The agreed necessary guarantee/warranty shall be provided by the Vendor to the End Customer.
6.9 The Vendor agrees to replace the defective Products supplied to the End Customer at its own cost and shall not hold Helios responsible in any manner whatsoever.
7. Fee/Commissions, etc.
7.1 Helios shall not charge any registration fees for providing web space/display on Website, commencing from the date of execution of this Agreement.
7.2 However for all sales that are made/generated using the Website, a commission (as per the enclosure) of the order value plus Goods and Service Tax (GST) on such commission shall be paid by the Vendor to Helios.
7.3 Helios reserves the right to modify the commission rate at any time without prior intimation to the Vendor.
8. Inspection and Testing:
The Products undergo a system of testing before delivery to the End Customer subsequent to which a test report is generated. If any additional testing is required by the End Customer, the additional expense which is incurred thereby shall be borne by the End Customer.
9. Covenants of Vendor:
The Vendor hereby covenants with Helios as under:
9.1 The Vendor agrees to be the vendor of Helios for selling and/or marketing their Products through the Website during the term of this Agreement.
9.2 To deliver the Products of the ordered specifications/description only including quantity and quality prescribed in the order and that there shall be no instances of wrong products being delivered and/or quality issue and/or issue of Non delivery of the products.
9.3 The Vendor shall be solely responsible to create and publish and to make live their Products catalogue for display and sale of their products through the Website and shall also be responsible for updating / publishing or maintaining such information. Helios shall not be liable for any catalogue creation, updating and management of the Products catalogue.
9.4 Pricing of Products: Pricing of the Products shall be the sole prerogative of the Vendor and web selling price of the Products (i.e. Product selling price on the Website) is the sole discretion of Helios.
9.5 Pricing Updates: The Vendor shall be solely responsible for pricing update of their Products (including discount and promotion information) on the Website. Helios shall not be liable in any circumstances for any pricing update of the Products. Until a new price update by the Vendor to their catalogue, the Vendor shall abide by the earlier price provided.
9.6 Inventory Updates: The Vendor shall be solely responsible for inventory updates of their Products (including discounts and promotions and information about product discontinuation) from time to time for publishing on the Website. Until a new inventory update is published to the Website, the Vendor shall abide by the earlier inventory update and shall be liable to deliver the products ordered to the End Customers within the stipulated time. Helios shall not be liable in any circumstances for any inventory update of the Products on the Website.
9.7 The Vendors shall not send any kind of promotion material or any such material, which is, derogatory to and/or adverse to the interests financial or otherwise of Helios, to the customer either along with the products supplied or in any manner whatsoever.
9.8 The Vendors shall not do any act/deal in a thing / products/goods/services which are either banned/prohibited by law or violates any of the Intellectual Property Rights of any party in respect of such Products.
9.9 The Vendor declares that it has all rights and authorizations in respect of the Intellectual Property Rights of third parties and is authorized to sell/provide/license such products to the End Customer. The copy of such authorization shall be provided on demand without failure and/or protest.
9.10 The Vendor shall provide to Helios, for the purpose of creation/display on the Website, the product description, images, disclaimer, delivery time lines, price and such other details for the Products to be displayed and offered for sale.
9.11 The Vendor shall provide full, correct, accurate and true description of the Products so as to enable the customers to make an informed decision. The Vendor agrees not to provide any such description/information regarding the Products which amounts to misrepresentation to the End Customer.
9.12 The Vendor shall be solely responsible for the quality, quantity, merchantability, guarantee, warranties in respect of the Products offered for sale through the Website.
9.13 The Vendor shall at all times have access to the internet and its email account to check the status of approved orders and will ensure prompt deliveries within the agreed time frame.
9.14 The Vendor shall provide information about the order status and/or on line tracking system.
9.15 The Vendor shall raise an invoice as well as receipt of payment in the name of the End Customer.
9.16 The Vendor shall not offer any Products for sale on the Website which are prohibited for sale, dangerous, against the public policy, banned, unlawful, and illegal/prohibited under the Indian laws.
9.17 The Vendor shall provide satisfactory proof about the ownership/licenses of all the legal rights in the Products that are offered for sale on the Website as and when demanded by Helios.
9.18 The Vendor shall pass on the legal title, rights and ownership in the Products sold to the End Customer.
9.19 The Vendor shall be solely responsible for any dispute that may be raised by the End Customer relating to the goods, merchandise and services provided by the Vendor. No claim of whatsoever nature shall be raised on Helios.
9.20 The Vendor shall at all time during the pendency of this Agreement endeavor to protect and promote the interests of Helios and ensure that third parties rights including the Intellectual Property Rights are not infringed.
9.21 The Vendor shall at all times be responsible for compliance of all applicable laws and regulations including but not limited to Intellectual Property Right, GST, Value added tax, Standards of Weights & Measures legislation, Sale of Goods Act, Excise and Import duties, etc.
9.22 The Vendor shall provide to Helios copies of any document required by Helios for the purposes of performance of its obligations under this Agreement within 48(forty-eight) hours of receiving a written notice from Helios.
9.23 The Vendor shall seek prior written approval from Helios, in order to release of any promotion/advertisement material, in so far as the same relates to services offered pursuant to the terms of this Agreement.
9.24 By entering into this Agreement and posting a listing for fixed price sale, the Vendor agrees to complete the transaction as described in this Agreement. The Vendor acknowledges that by not fulfilling these obligations, a legal action may be initiated against him.
9.25 The Vendor shall provide such necessary assistance (at no additional direct cost to Helios) as may be required, to facilitate Helios to carry out its obligations under this Agreement.
9.26 The Vendor shall not use or register anywhere in the world, the Brand Name or any other trade mark, trade name or domain name, except as authorized under this Agreement, which, in the reasonable opinion of Helios, is identical, improvement over, dilution of, combination involving or confusingly similar to, the Brand Name or, that constitutes any translation thereof into any language.
9.27 The Vendor understands and acknowledges that the Brand Name and reputation of Helios is of utmost importance for its business and that the conduct of the Vendor in the performance of this Agreement and otherwise would have material impact and bearing on such Brand Name and reputation of Helios.
9.28 The Vendor also understands and acknowledges that the obligations and covenants placed on the Vendor in this Agreement are essential for the maintenance of quality control and protection of Brand Name, and to ensure timely payments to the Vendor. Accordingly, the Vendor acknowledges that no hardship or onerous obligation is being placed on the Vendor under this Agreement.
10. Warranties, Representations and Undertakings of the Vendor
The Vendor warrants and represents that
10.1 The signatory to the present Agreement is having the right and full authority to enter into this Agreement with Helios and the agreement so executed is binding in nature.
10.2 All obligations narrated under this Agreement are legal, valid, binding and enforceable in law against Vendor.
10.3 There are no proceedings pending against the Vendor, which may have a material adverse effect on its ability to perform and meet the obligations under this Agreement.
10.4 That it is an authorized business establishment and hold all the requisite permissions, authorities, approvals and sanctions to conduct its business and to enter into present agreement with Helios.
10.5 It shall, at all times ensure compliance with all the requirements applicable to its business and for the purposes of this Agreement including but not limited to Intellectual Property Rights, GST, Service tax, Standards of Weights & Measures legislation, Sale of Goods Act, Value added tax, Excise and Import duties, etc. It further declares and confirms that it has paid and shall continue to discharge all its obligations towards statutory authorities.
10.6 That it has adequate rights under relevant laws including but not limited to various Intellectual Property Legislation(s) to enter into this Agreement with Helios and perform the obligations contained herein and that it has not violated/ infringed any Intellectual Property Rights of any third party.
10.7 It shall maintain details of all transaction and mark as complete / incomplete as the case may be and shall provide the same to Helios upon demand.
11. Covenants and Rights of Helios:
11.1 Helios shall bring in their technology through website development, online promotions, e-commerce engine and payment gateway integration and customer service for successful operation of the Website.
11.2 Helios shall reasonably maintain the registration of the domain name in relation to the Website at all times, at its own costs free from any and all encumbrances, including encumbrances which may lead to any adverse effect on Helios’ registration of the domain name or its use of the Website.
11.3 In order to process payments made by the End Customer and to generally provide payment facilitation services, Helios shall reasonably maintain appropriate contracts with payment gateways and shall comply with the applicable laws.
11.4 Helios shall ensure that it has or procures adequate technology as necessary to maintain the Website and its services under this Agreement.
11.5 Helios, as a part of transaction support services, shall list the Products on the Website for the Vendors at the Sale Price provided or informed by the Vendor. Helios acknowledges that the Sale Price is dynamic and volatile and may vary at different times and points of sale and that the Vendor reserves the right to change or modify the Sale Price of the Products at any time before the same is bought by the End Customer on the Website. The intimation of such revisions of the Sale Price could be oral or in writing. For any oral intimation, Helios may on reasonable basis confirm such oral intimation within reasonable time from such intimation and through written records including through electronic communications.
11.6 The Vendor agrees and acknowledges that Helios, at all times during the continuance of this Agreement, shall have the right to remove/block/delete any text, graphic, image(s) uploaded on the Website by the Vendor without any prior intimation to Vendor in the event the said text, image, graphic is found to be in violation of law, breach of any of the terms of this Agreement and Terms and Conditions of the Website. In such an event, Helios reserves the right to forthwith remove the Vendor from the Website without any prior intimation or liability to the Vendor.
11.8 In the event, Helios believes that the services are being utilized by the Vendor or its End Customer in contravention of the terms and provisions of this Agreement, Terms and conditions of use of Helios, Helios shall have the right either at its sole discretion or upon the receipt of a request from the legal / statutory authorities or a court order to discontinue/terminate the said service(s) to End Customer, forthwith remove/block the Vendor from the Website and furnish such details about the Vendor and/or its customers upon a request received from the Legal/ Statutory Authorities or under a court order.
12.1 The Vendor indemnifies and shall hold indemnified Helios, its partners, officers, employees, representatives, agents from and against all losses, damages, claims, suits, legal proceedings and otherwise howsoever arising from or in connection with any claim including but not limited to claim for any infringement of any Intellectual Property Rights or any other rights of any third party or of law, concerning quality, quantity and any claim in relation to the Vendor’s Products, the breach of any of the Vendor’s warranties, representations or undertakings or in relation to the non-fulfillment of any of its obligations under this Agreement or arising out of the Vendor infringing any applicable laws, regulations including but not limited to Intellectual Property Rights, GST, Value Added tax, The Standards of Weights & Measures legislation, Excise and Import duties, etc. For the purpose of this clause reference to Helios shall also include the mobile operators and such other agencies through whom Helios shall make the Website available to the End Customers.
12.2 The Vendor shall also indemnify and hold Helios and their subsidiaries, affiliates, successors, assigns, and their officers, directors, shareholders, employees and agents harmless against any material claim, liability, demand, loss, damage, legal cases, judgment or other obligation or right of action, which may arise as a result of :-
a) Misrepresentation by the Vendor to Helios or third Parties; or
b) Any act, deed or thing done or omitted to be done through the negligence or otherwise, default or misconduct of the Vendor or of its officers, directors, employees or agents.
c) Breach of third party Intellectual Property Rights.
12.3 This clause 12 shall survive the termination or expiration of this Agreement.
13. Limitation of Liability
13.1 Helios on the basis of representation by the Vendor is marketing the Products of the Vendor on the Website to enable the Vendor to offer its products for sale through the said Website. This representation is the essence of this Agreement.
13.2 Helios shall not be liable for any damages of any kind, including without limitation direct, indirect, incidental, punitive, and consequential damages, arising out of or in connection to this agreement, the inability to use the services or the transaction processing service, or those resulting from any goods or services purchased or obtained or messages received or transactions entered into through the services. This limitation shall apply regardless of the form of action, whether in contract or tort, including negligence, or any other form of action.
13.3 It is expressly agreed by the Vendor that Helios shall under no circumstances be liable or responsible for any loss, injury or damage to the Vendor, customer or any other party whomsoever, arising on account of any transaction under this Agreement or as a result of the Products being in any way damaged, defective, in unfit condition, infringing/ violating any laws/ regulations/ Intellectual Property Rights of any third party.
13.4 The Vendor agrees and acknowledges that it shall be solely liable for any claims, damages, allegation arising out of the Products offered for sale through the Website (including but not limited to quality, quantity, price, merchant ability, use for a particular purpose, or any other related claim) and shall hold Helios harmless and indemnified against all such claims and damages.
13.5 Further Helios shall not be liable for any claims, damages arising out of any negligence, misconduct or misrepresentation by the Vendor or any of its representatives.
13.6 Helios under no circumstances shall be liable to the Vendor for loss and/or anticipated loss of profits, or for any direct or indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this Agreement, regardless of the type of claim and even if the Vendor has been advised of the possibility of such damages, such as, but not limited to loss of revenue or anticipated profits or loss business, unless such loss or damages is proven by the Vendor to have been deliberately caused by Helios.
14. Terms, Termination and effects of Termination:
14.1 This Agreement shall commence from the date of acceptance of this Agreement by the Vendor and shall be valid until termination.
14.2 Either Party shall have the right to terminate this Agreement and all then existing commercial terms by issuing a 30 (thirty) day prior notice of termination in writing without any additional obligations or liabilities to each other.
14.3 This Agreement may be terminated by Helios forthwith in the event:
i. The Vendor commits a material breach of any representation, obligations, covenant, warranty or term of this agreement and the same is not cured within 30 (thirty) days from the date of a written notice of Helios.
ii. The Vendor has ceased to carry on or threatens to cease the business.
iii. The Vendor has passed an effective resolution or a binding order has been made for its winding up except under a scheme of amalgamation
iv. The Vendor has entered into, or taken steps to enter into, administration, administrative receivership, receivership, a voluntary arrangement, a scheme of arrangement with creditors, any analogous or similar procedure in any jurisdiction or any other form of procedure relating to insolvency, reorganization or dissolution in any jurisdiction, or a petition is presented or other step is taken by any person with a view to any of those things
v. If a Petition for insolvency or bankruptcy is filed against the Vendor or the Vendor has entered into liquidation (unless such liquidation is for the purposes of a fully solvent reorganization).
vi. If the Vendor is in infringement of the third party rights including Intellectual Property Rights.
14.4 Effect of Termination:
(a) In the event of termination of this Agreement, Helios shall remove the links and shall discontinue display of the Products on the Website with immediate effect.
(b) Helios shall not be liable for any loss or damages (direct, indirect or inconsequential) incurred by the Vendor by virtue of termination of this Agreement.
(c) During the period under notice both the Parties shall be bound to perform its obligations incurred under this Agreement and this sub-clause shall survive the termination of this Agreement.
(d) Termination of this Agreement shall not affect any obligations or duties of the Vendor and Helios towards the End Customer which obligations or duties accrued before the termination of this Agreement.
15. Governing Law, Jurisdiction and ex-parte orders:
15.1 This Agreement shall be governed by the laws of India without giving effect to its principles of conflict of laws.
15.2 The Courts and Tribunals at Mumbai shall have exclusive jurisdiction in respect of any matter or dispute under or connected with this Agreement. The Parties hereby irrevocably consent to the jurisdiction of such courts and tribunals.
15.3 Helios is entitled to obtain ex-parte ad- interim injunction orders restraining the Vendor to prevent any loss/anticipated loss either in material terms or in terms of Intellectual Property or causing damage/loss/harm to reputation/goodwill of Helios by the Vendor, its representatives, associates or assigns.
All notices and other communication under this Agreement shall be in writing, in English language and shall be caused to be delivered by hand or sent by, email or courier in each case to the addresses as set out at the beginning of this Agreement provided that no notice of termination of this Agreement shall be or deemed to be appropriately served unless sent by registered A.D. to Helios.
17. Intellectual Property Rights
17.1 The Vendor expressly authorizes Helios to use its trade marks/copy rights/ designs/logos and other Intellectual Property owned and/or licensed by it for the purpose of reproduction on the Website and at such other places as Helios may deem necessary.
17.2 It is expressly agreed and clarified that, except as specified agreed in this Agreement, each Party shall retain all right, title and interest in their respective trademarks and logos and that nothing contained in this Agreement, nor the use of the trademark / logos on the publicity, advertising, promotional or other material in relation to the services shall be construed as giving to any Party any right, title or interest of any nature whatsoever to any of the other Party’s trademarks and / or logos.
17.3 The Vendor acknowledges that Helios has the absolute ownership of, interest in and rights to the Brand Name and the Website.
17.4 Without limitation to the foregoing, the Vendor acknowledges and agrees that all goodwill in or associated with the Brand Name, including any goodwill generated or arising by or through the activities of Helios or the Vendor pursuant to this Agreement shall accrue for the benefit of and shall belong exclusively to Helios.
17.5 No right or interest in the Brand Name are granted or deemed to be granted by Helios to the Vendor.
18. Entire Agreement
This Agreement embodies the entire agreement and understanding of the Parties and supersedes any and all other prior and contemporaneous agreements, correspondence, arrangements and understandings (whether written or oral) between the Parties with respect to its subject matter.
Neither this Agreement nor any part of it is assignable, transferable, sub-licensable, sub- contractable or conveyable by Vendor, whether voluntarily, involuntarily or either by operation of law or otherwise, without the express, prior, written consent of Helios signed by an authorized representative of such Party. Helios is at liberty to refuse such consent.
20.1 The contents of the Agreement and any information passed on by Helios to the Vendor is highly confidential in nature and the Vendor agrees and undertakes to maintain the confidentiality of the information and user/customer data disclosed, generated or made available to Vendor under this Agreement. The said information shall not be used by the Vendor or its agents, servants, representatives or any person acting through or claiming through the Vendor for any purpose other than for the performance of its obligations under this Agreement.
20.2 The Vendor agrees that the unauthorized disclosure or use of such information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, the Vendor agrees that Helios shall have the right to obtain an immediate injunction from any court of law ensuing breach of this Agreement and/or disclosure of the Confidential Information. Helios shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
21. Relationship of Parties assigns.
The relationship between the Parties is on principal-to-principal basis. Nothing in this Agreement shall be construed as creating a relationship of partnership, joint venture, agency or employment between the Parties. Helios shall not be responsible for the acts or omissions of the Vendor and the Vendor shall not represent Helios, neither has any power or authority to speak for, bind or assume any obligation on behalf of Helios.
No waiver of any breach of any provision of this Agreement constitutes a waiver of any prior, concurrent or subsequent breach of the same or any other provisions, and will not be effective unless made in writing and signed by an authorized representative of the waiving Party.
23. Force Majeure
Neither Party shall be responsible or liable for any delay or failure to perform its obligations (other than an obligation to make payment) under this Agreement due to unforeseen circumstances or any event which is beyond that Party's reasonable control and without its fault or negligence, but not limited to, acts of God, war, riots, embargoes, strikes, lockouts, acts of any Government authority, delays in obtaining licenses or rejection of applications under the Statutes, failure of telephone connections or power failure, fire or floods.
The headings contained in this Agreement are inserted for the sake of convenience of referencing only and are not intended to be a part of or to affect the meaning or interpretation of any of the provisions of this Agreement.
25. Press Releases / Public Statement:
Unless required by law, the Vendor shall not make any public announcement or issue any press release concerning the transactions contemplated by this Agreement without the prior consent of Helios.
26. Non Solicitation:
The Parties agree that during the term of this Agreement and 24 (twenty-four) months thereafter or without the prior written approval of the other Party, not to solicit for employment any employees of either party other than through general solicitation for employment among the public.
27. Counsel and management participation
The Parties acknowledge and confirm that their respective attorneys and management representatives have read, reviewed and approved this Agreement and that the Parties have had the benefit of its independent legal counsel’s advice with respect to the terms and provisions hereof and its rights and obligations hereunder.
28. Independent Rights
Each of the rights of the Parties hereto under this Agreement are independent, cumulative and without prejudice to all other rights available to them, and the exercise or non-exercise of any such right shall not prejudice or constitute a waiver of any other right of the Party, whether under this Agreement or otherwise.
It is the intent of the Parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such provision shall be modified to the extent necessary to render it, as modified, valid and enforceable under applicable laws and such invalidity or unenforceability shall not affect the other provisions of this Agreement.
30. Further Assurance
Each Party shall co-operate with the other Party and execute and deliver to the other Party such instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, evidence and confirm their rights here under and the intended purpose of this Agreement and to ensure the complete and prompt fulfillment, observance and performance of the provisions of this Agreement and generally that full effect is given to the provisions of this Agreement.
31. Grievance Officer
In accordance with the IT Act and the rules framed there under, the name and contact details of the Grievance Officer currently is R. Viswanathan and the email ID is: firstname.lastname@example.org. Any change in respect thereof shall be communicated on the Website. Service of notice for Dispute Resolution and for purposes other than those which are required under IT Act to be given only to the Grievance Officer shall not be valid.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed as of the date first herein written.
SIGNED AND DELIVERED
For and on behalf of
Heliosmedium Bazaar Private Limited
In the presence of:
SIGNED AND DELIVERED
For and on behalf of
In the presence of: