DALMIA BIZ RETAIL PRIVATE LIMITED

MARKETING AND DISTRIBUTION AGREEMENT


A company /partnership firm/ proprietorship firm having its office in India (hereinafter referred to as "Seller" which expression, unless it be repugnant to the context or meaning thereof, shall be deemed to mean and include all its successors and permitted assigns) of the First Part;


Dalmia Biz Retail Private Limited, a company incorporated under the Companies Act, 2013, having its Corporate office B-38, Ist Floor, Institutional Area, Sector-1,Noida -201301 (hereinafter referred to as, "Dalmia Best Price". which expression, unless it be repugnant to the context or meaning thereof, shall be deemed to mean and include all its successors and permitted assigns) of the Second Part.

(Seller and Dalmia Best Price may be referred to as 'Party' individually and as 'Parties' collectively, as the context may require).

RECITALS

Whereas Seller is engaged in the business of trading / manufacturing / distribution

Whereas Dalmia Best Price is inter alia engaged in the business of providing digital commerce platform in India which enables traders, manufacturers and distributors to demonstrate, market and sell their Products to consumers across India and operates through a digital commerce platform that combines the reach of the internet, television and mobile devices (hereinafter referred to as “Dalmia Best Price Platform”) enabling various brands and business organizations to efficiently and effectively demonstrate, market and sell their Products to consumers across India.


Whereas the Seller is desirous of entering into an agreement with Dalmia Best Price for the purpose of promoting and selling its Products through DALMIA BEST PRICE’s Platform and, DALMIA BEST PRICE, relying upon the covenants, representations and warranties of the Seller, has agreed to enter into this agreement with the Seller subject to the terms and conditions set out hereunder.



NOW HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS


  1. Definitions:


  1. Affiliate” means any persons that directly or indirectly through one or more intermediaries, control or are controlled by or are under common control with such persons; and/or which is a holding company or subsidiary of such specified person. ‘Control’ for the purposes of this definition means the possession, direct or indirect, of the power to direct or cause the board, management and policies of a person to be directed, whether through the ownership of more than 50 % of the voting securities of such a person or through the power to appoint over half of the members of the board of directors of such a person, by contract, or otherwise.

  2. Applicable Law” means all applicable laws, bye-laws, statutes, rules, regulations, orders, ordinances, notifications, protocols, treaties, codes, guidelines, policies, notices, directions, writs, injunctions, judgments, decrees or other requirements or official directive of any court of competent authority or of any competent governmental authority or person acting under the authority of any court of competent authority or of any competent governmental authority of the Republic of India, whether in effect on the date of this Agreement or thereafter.

  3. "Buyer" means a user of the Dalmia Best Price Platform who places an Order on the Seller listed on the Dalmia Best Price Platform for products or services.

  4. Confidential Information” means any and all information and/or data which is obtained, whether in writing, pictorially, in machine readable form, or orally , before or during the term of this Agreement or otherwise, including but not limited to, all tangible information, documents, data, papers, statements, any user/business/ customer information and trade secrets and business practices in connection with the terms of this Agreement or otherwise, and includes all proprietary information. No personal information shall be shared between the Parties under this Agreement. Confidential Information shall not include information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) that: (a) is or has becomes publicly known or part of the public domain through no fault of the Recipient; (b) is lawfully received from a third party without any restriction and without any obligation of confidentiality; (c) is already known to the Recipient with no obligation of confidentiality to the disclosing party; (d) is independently developed by Recipient without use of or reference to the Confidential Information; or (e) is approved for release by written authorization of Disclosing Party.


  1. "Intellectual Property Rights" means:

  1. patents, trade marks, trade names, service marks, service names, logos, internet domain names, corporate names, rights in designs, copyright (including right in computer software) and moral rights, database rights, semiconductor topography rights, utility models, rights in knowhow and other intellectual property rights, in each case, whether registered or not and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world;

  2. rights under licenses, consents, order or statutes or otherwise in relation to a right under paragraph (a);

  3. rights of the same or similar effect or nature as or to those under paragraph (a) and (b) which now or in the future may subsist;

  4. the right to sue for past infringements or any of the foregoing rights.

  1. “Marketing Fees” means the fees that DALMIA BEST PRICE will charge the Seller for every product that Seller sells on the Dalmia Best Price Platform as facilitation charges for usage of the Dalmia Best Price Platform and for availment of any other services provided by DALMIA BEST PRICE under this Agreement.

  2. "Order" means a binding purchase order placed by a Buyer on the Seller through Dalmia Best Price Platform for the products.

  3. “Seller” mean shall have the meaning assigned to it in paragraph one above.

  4. “Selling Price” means the total price the Buyer pays to purchase any product on the Dalmia Best Price Platform, including but not limited to any shipping charges and taxes as applicable on the product being offered by the Seller.

  5. "Seller Panel" means a uniform resource locator ("URL") provided by DALMIA BEST PRICE to Seller with a unique login and password to update the order status, price and inventory on the product.


  1. Order Management:

    1. DALMIA BEST PRICE reserves the right to select the products to be displayed on its Platform. DALMIA BEST PRICE also reserves the right to determine the Sellers who may sell on the Platform, and at all times the decision of DALMIA BEST PRICE in this regard shall be final. Seller understands and agrees that the Platform services as provided by DALMIA BEST PRICE under the terms and conditions of this Agreement, is on a non-exclusive basis.

    2. DALMIA BEST PRICE shall only act in the capacity of the owner and operator of the Dalmia Best Price Platform, and render such services as required to facilitate smooth functioning and operations of the DALMIA BEST PRICE Platform. Seller understands that at all times, the Dalmia Best Price Platform and its services shall be used as per the terms of this Agreement, and the same shall in no manner make DALMIA BEST PRICE responsible for actual sale or delivery of the products. Buyers shall raise orders for the desired products of the Seller by using the DALMIA BEST PRICE Platform, which shall then be forwarded to the Seller, who shall alone responsible for arranging for the delivery of the Products to the Buyer. In the event, that a Buyer uses the Dalmia Best Price Platform to make the payment against the purchase, DALMIA BEST PRICE shall only collect the payment on behalf of the Seller. Seller understands and agrees that DALMIA BEST PRICE shall only act as a custodian of the payments made by the buyers for the products of the Seller and shall in no manner be responsible or liable towards the actual transaction between Seller and Buyers. DALMIA BEST PRICE is not an agent, fiduciary, trustee, or other representative of the Seller. At all times Seller shall be solely responsible for any tax liability arising out of the monetary transaction between the Buyer and itself.

    3. DALMIA BEST PRICE does not at any point of time during any transaction between the Buyer and the Seller on the Platform come into or take possession of any of the products or services offered by the Seller. Nor does it at any point gain title to or have any rights or claims over the products or services offered by the Seller to the Buyer.

    4. DALMIA BEST PRICE shall provide the necessary backend infrastructure, like seller panel, call centre, order management system, etc., for capturing the Buyer/order details placed on the Seller products . Once an order is received for a product(s) by the Buyer on the DALMIA BEST PRICE Platform, the Seller shall be intimated about the order as received, on the Seller Panel, for making the required logistic arrangements including packaging of the product(s) to be shipped to the Buyer. DALMIA BEST PRICE shall at all times keep the Seller informed about the packaging and delivery guidelines, which must be followed by the Seller during the Term of this Agreement. Seller shall be solely responsible to update the dispatch/delivery details of the Product(s) on the Seller Panel. DALMIA BEST PRICE shall not be responsible to release the payment as received from the Buyer for the product as ordered on the DALMIA BEST PRICE Platform, in case of incorrect or incomplete updation of the dispatch/delivery details on the Seller Panel.

    5. DALMIA BEST PRICE during the Term of this Agreement and further extensions (if any), shall keep the Seller informed of the required specification of Product display and related advertisements, product promotion on the DALMIA BEST PRICE Platform, which the Seller shall at all times be bound to follow and maintain. In case of any discrepancy or deficiency identified by DALMIA BEST PRICE in the product images or content or otherwise with respect to the listing, DALMIA BEST PRICE shall communicate the same to the Seller for necessary correction, before the same is uploaded on the DALMIA BEST PRICE Platform. At all times DALMIA BEST PRICE shall have the sole right to accept,deny or remove any Seller product, its related images or content and the Seller confirms its undisputed acceptance of the same.

    6. DALMIA BEST PRICE also provides content creation services for creating and designing seller product catalogue to be uploaded on the DALMIA BEST PRICE Platform, which may be used by the Seller at additional charges.

Seller understands and undertakes that it shall not make any direct contact through Email, telephone or any other electronic or physical mode with the Buyer on the Dalmia Best Price Platform, and shall strictly carry out the sale of its products in compliance and as per the terms of this Agreement.  Seller agrees that engaging in such an activity shall be considered as a material breach of this Agreement and that monetary damages for such breach, or threatened breach of this Section will not be adequate and that Dalmia Best Price shall be entitled to an injunctive relief (including temporary and preliminary relief) without posting any bond, and any/or all other remedies available to Dalmia Best Price at law or in equity.


  1. Commercials, Pricing, Payments:

    1. The Seller agrees and acknowledges that it shall pay to DALMIA BEST PRICE a Commission Fee towards use of the DALMIA BEST PRICE Platform and related services. The Commission as payable by the Seller under this Agreement, is more specifically laid out in Annexure A attached hereto.  

    2. Seller agrees and warrants that under this Agreement, it shall at all times quote the most competitive and lowest product prices (inclusive of applicable taxes) to DALMIA BEST PRICE, and if at any time during the term of the Agreement, DALMIA BEST PRICE becomes aware of a lower price of the listed Seller product on any other e-commerce platform, it shall inform the Seller of the same, and the Seller shall immediately offer the same or lower price to DALMIA BEST PRICE. However, Seller shall have the right to withdraw such product(s) under review from the DALMIA BEST PRICE Platform, if it dissents with price discovered by DALMIA BEST PRICE, and shall notify the same to DALMIA BEST PRICE. All such requested withdrawals from the Seller, shall take effect within 12- 24 hours from receipt of a written request from the Seller.  

    3. During the Term of this Agreement, DALMIA BEST PRICE shall have the right to offer any additional discounts/offers on the product(s) and for such period of time as deemed fit by DALMIA BEST PRICE in its sole discretion, without any prior intimation to the Seller. Additionally, in order to promote sales and business on the Platform, DALMIA BEST PRICE reserves its right to display the comparative prices of the listed products across different e-commerce platform with no liability to the Seller, and the Seller hereby undertakes that it shall have no objection to the same.

    4. Parties understand and agree that for the payments against the products as ordered and completed by the Buyer and the Seller respectively, using the DALMIA BEST PRICE Platform, shall be released by DALMIA BEST PRICE on the following basis:

For the products delivered by the Seller to the Buyer, during the period between the 1st day to the 7th day of the current month, payment shall be released on the 8th day of the current month; and so on.

All payments shall be made by DALMIA BEST PRICE to the Seller by way of account payee cheque /RTGS NEFT after deducting DALMIA BEST PRICE's Commission Fee as per Annexure- 1 attached hereto.

  1. Logistics and Customer Rights:

    1. DALMIA BEST PRICE will at the time of execution of this Agreement, provide to the Seller its logistics and delivery mandates including but not limited to the maximum delivery time, within which an order product is to be dispatched to the Buyer. Seller understands that in the event that DALMIA BEST PRICE does not provide the Seller with a specific packaging material, it shall use plain packaging material to pack the product(s). Seller is required to operate strictly in compliance with these mandates, and in case of any foreseen delay in dispatch, Seller must inform DALMIA BEST PRICE of the same along with the expected delay time, within 24 hours {twenty-four} of receipt of order on the Seller Panel.    

    2. Until successful receipt of the ordered product(s) by the buyer, the ownership of the product(s) at all times including while in transit for delivery shall remain with the Seller. DALMIA BEST PRICE shall have no responsibility or liability towards the logistic or transportation charges of the Product(s).   

    3. The Seller hereby agrees to accept all sales return/ replacements requested by the Buyer at the time of delivery, or within a period of 45 days (forty five days) from the date of delivery. In case of such sales returns, any logistics cost/ packaging cost incurred would be borne by the Seller only.DALMIA BEST PRICE or the Buyer shall have no responsibility towards such charges.

    4. Seller shall offer standard manufacturers or seller warranty actually associated with the products as offered for sale on the DALMIA BEST PRICE Platform. However, the Seller agree that repair, replacement or 100% (one hundred percent) refund of money shall be given to the Buyer by the Seller against any manufacturing defect or damage to the Product. Seller shall issue a suitable, duly stamped, manufacturer’s warranty card along with the product at the time of dispatch of the product(s) to the Buyer, wherever applicable.

    5. DALMIA BEST PRICE shall in no manner be responsible for unsatisfactory or delayed performance of services by the Seller or towards any damages or defects in  the product(s) or provided by the Seller.

    6. DALMIA BEST PRICE also disclaims any and all liability towards fulfillment of warranties or guarantees by the Seller and/or any promised commitment by the Seller to the Buyer. Seller understands and acknowledge that  DALMIA BEST PRICE shall not be made a party to or be liable in any manner whatsoever in any action or proceeding arising out of deficiency in goods and/or delivery of the goods purchased by the Buyer, using the Platform. The Parties also agree and acknowledge that the primary and sole responsibility for redressal of Buyer complaints will rest solely with the Seller, with no responsibility of DALMIA BEST PRICE whatsoever.

    7. Seller agrees to display the list of cities along with the respective pin codes in its product(s) listings as uploaded and available on the DALMIA BEST PRICE Platform.

OWNERSHIP INTELLECTUAL PROPERTY

DALMIA BEST PRICE Platform and the proprietary information and all Intellectual Property Rights, interests and claims respecting the information as provided thereon including on-line information, web-site, data development materials, delivery material, updates, communication network, electronic commerce support services and other allied services, dedicated ports and end-user database in terms of this Agreement including the design and other Intellectual Property Rights connected thereto including but not limited to copyright, trademark, trade name, brand name, service marks, etc., shall vest with the DALMIA BEST PRICE worldwide and in perpetuity, for all intent and purposes. The Seller shall neither have nor shall assert any claim concerning the above, whatsoever.


It is hereby clarified that DALMIA BEST PRICE shall own the Intellectual Property Rights in any and all forms of still photography, shoot and other videography prepared in relation to the Products, as uploaded and advertised on the DALMIA BEST PRICE Platform.


This clause shall survive the expiry or early termination of this Agreement.


6. INDEMNITY


6.1 Seller shall indemnify and hold DALMIA BEST PRICE including its Affiliates, and its directors, officers and employees harmless from any and all claims, demands, actions, suits or proceedings, liabilities, losses, costs, expenses (including attorney's fees) or damages asserted against DALMIA BEST PRICE arising out of following or for any reason whatsoever:


  1. breach or non-performance by the Seller of any of the terms or covenants, undertakings, representations, warranties and/or obligations under this Agreement;


  1. infringement of any third party right or interest (including Intellectual Property Rights) by the Seller in connection with the Products offered by the Seller or failure of the Vendor in complying with the operational guidelines including but not limited to the packaging mandates as specified by DALMIA BEST PRICE;


  1. Seller’s failure to comply with Applicable Laws including discharge of any liability in respect of Taxes;


  1. Seller’s failure to comply with Applicable Laws relating to packing of Products;


  1. Seller’s failure in complying with any applicable legal and statutory guidelines, rules and regulations including the requirement to maintain at all times requisite licenses and permissions and tax documents;


  1. any willful act or negligence/omission by the Seller, resulting as a loss to DALMIA BEST PRICE or the Buyer;

This clause shall survive expiry or termination of this Agreement.


7. COMPLIANCE WITH TAXES


7.1 It shall be the responsibility of the Seller to issue invoice in accordance with the provisions applicable law (including but not limited to The Central Goods and Service Tax Act, 2017 and the relevant rules associated therewith (“GST Act’)).


7.2 The Seller agrees that the Seller shall be solely responsible for performing all compliances required under Applicable Laws and making payments of goods and services tax (“GST”), cesses, interest, penalties or any other tax/ duty/ amount/ charge/ liability arising out of any Applicable Laws. The Seller shall also be responsible for any law applicable overseas or any demand/claim/recovery initiated by any revenue authority under Applicable Laws or applicable laws overseas.


7.3 The Seller (“Indemnifying Party”) agrees to indemnify and hold harmless DALMIA BEST PRICE, its directors, officers, employees, agents (individually, an “Indemnified Party”, and, collectively, the “Indemnified Parties”), at all times, against and in respect of all losses liabilities, costs and expenses arising out of or caused by any actions/ claims/ demands pertaining and arising out of non-compliance of any provisions of GST or any other statute.


7.4 The indemnification obligations of the Indemnifying Parties above, shall be without prejudice to the rights and remedies of the Indemnified Party under applicable law, including without limitation, claiming appropriate compensation or damages from the Indemnifying Party, and/ or termination of this agreement or any part thereof, in accordance with the terms hereunder.


7.5 Seller shall also be responsible to furnish the Chartered Accountants Certificate to DALMIA BEST PRICE regarding its compliance of all its statutory payments and tax compliance at the end of each financial year at their own cost.


7.6 If for any reason, any income tax or withholding tax is determined to be deducted and deposited on any payments or remittances to the Seller, DALMIA BEST PRICE shall have the right to deduct and deposit any such applicable Taxes with the appropriate regulatory/statutory authority. No claim in respect of the Taxes deposited shall be made by the Seller against DALMIA BEST PRICE.


8. TERM AND TERMINATION


8.1 This Agreement shall come into force, on the day it is signed by both the Parties and shall remain in force for a period of 1(one) year from the date of execution of this Agreement and may be extended by mutual consent of the Parties in writing, unless mutually terminated earlier by the Parties.


8.2 This Agreement may be terminated by DALMIA BEST PRICE without assigning any reason thereto by giving thirty (30) days prior written notice to the Seller. During the notice period, the Parties shall continue to honor all obligations arising out of this Agreement including but not limited to, order fulfillment, replacement of damaged Products, payments, etc., (irrespective of whether the obligations are extending after the termination or not).


8.3 Either Party shall have the right to terminate this Agreement forthwith in the event the other Party (i) commits a breach of its obligations and fails to rectify the same within a period of fifteen (15) days from the date of notice to do so; (ii) commits any act detrimental to the interest and goodwill of the other Party.


8.4 This Agreement will terminate immediately and without notice as a consequence of or due to directions and/or orders of any regulatory or governmental Authority or by the provisions of any Applicable Law, in which case DALMIA BEST PRICE shall incur no liability whatsoever to the Seller under this Agreement.


8.5 DALMIA BEST PRICE may terminate this Agreement with immediate effect by giving written notice to the Seller upon the occurrence of the following events:


  1. An order is made by a court of competent jurisdiction for the dissolution or winding-up of the Seller (otherwise than in the course of a re-organise on or restructuring previously approved in writing by DALMIA BEST PRICE, which approval shall not be withheld unreasonably);


  1. Any step is taken (and not withdrawn within thirty (30) days) to appoint a liquidator, receiver or other similar officer in respect of any assets of the Seller; or


  1. The Seller ceases to hold any of the requisite licenses, approvals or authorizations or ceases to have the benefit of any consents or exemptions necessary to be able to perform its obligations under this Agreement.

9. EFFECTS OF TERMINATION


9.1 Upon termination/expiry of this Agreement, the following shall be the consequences:


  1. each Party shall return all the properties belonging to the other Party including any data, information, products, including without limitation the Confidential Information and shall have no lien over such properties of the other Party; and


  1. the provisions of this Agreement shall, to the extent stated or necessarily implied, survive the termination thereof.


  1. Termination of this Agreement shall not affect a Party’s accrued rights and obligations at or before the date of termination.


10. CONFIDENTIALITY


10.1 All details, documents, data, applications, papers, images, statements, information pertaining to EZ- MALL’s employees, business, customers, practices and trade secrets (hereinafter referred to as Confidential Information”) as may be disclosed by a Party (“Disclosing Party”) or as may be accessed, received or obtained, directly or indirectly by other Party (“Receiving Party”) under the terms of this Agreement or which may be communicated to the Receiving Party and/or its personnel / agents / authorized representatives shall be treated as absolutely confidential by the Receiving Party. The Receiving Party hereby irrevocably agrees and undertakes that it and all its personnel / agents / authorized representatives shall keep the Confidential Information secret and confidential and shall not disclose the same, in whole or in part to any person without the prior written permission of the Disclosing Party nor shall use or allow to be used any Confidential Information than as may be necessary for the due performance of its obligations hereunder.


10.2 The Receiving Party shall not publicise the terms of this Agreement in any advertising, marketing or promotional materials without prior written consent of the Disclosing Party. If the Receiving Party is required by law to make any disclosure that is prohibited or otherwise constrained by this Agreement, the Receiving Party will provide the Disclosing Party with prompt written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate relief. The Receiving Party shall provide such assistance as the Disclosing Party may request to enable it to obtain such order or other appropriate relief.


10.3 The Disclosing Party understands that if required by Applicable Law or if directed by any statutory or governmental authority, the Receiving Party may disclose any information which it considers necessary or appropriate, including but not limited to details about the vendor, Products, information about Customers, etc.


10.4 The Seller agrees and understands that the data/details of Customers will be solely and exclusively owned by DALMIA BEST PRICE. The Seller shall at all times keep the details of Customers confidential and shall not use or distribute the same in any form or manner other than as contemplated by the Agreement. The Seller shall not use the data of Customers for any other purpose other than as contemplated under the Agreement without the prior written consent of DALMIA BEST PRICE.


11. REPRESENTATION, WARRANTIES AND COVENANTS


11.1 The Seller hereby represents, warrants and covenants to DALMIA BEST PRICE that:


  1. it is a legal entity, validly existing and in good standing under the Applicable Laws as detailed in the title page;


  1. it has all necessary corporate power and authority to conduct its business as it is currently being conducted and it is competent to enter into this Agreement and to perform its obligations under this Agreement;


  1. the terms of this Agreement constitute a valid and binding agreement, enforceable in accordance with its terms under Applicable Laws;


  1. it has obtained the necessary permissions including but not limited to licenses, permissions, etc. to carry out its business under this Agreement;


  1. there are no proceedings pending, which may have an adverse effect on its ability to perform and meet its obligations under this Agreement;


  1. it is in compliance with all Applicable Laws, orders, rules and regulations of all Authorities, governmental bodies and agencies, except where such non-compliance has and shall have no adverse effect on this Agreement;


  1. it is the authorised vendor of the Products and has the requisite rights and licenses to sell, distribute, market, promote, advertise, publish, display the Products on DALMIA BEST PRICE Platforms;


  1. the sale, distribution, marketing, promotion, advertising, publishing, display of the Products on DALMIA BEST PRICE Platforms shall not infringe, or constitute an infringement or violation of any Intellectual Property Rights any other right of any party/entity;


  1. the Seller and its personnel will perform its obligations under this Agreement in a competent and professional manner and with all reasonable skill and care required for the effective performance of its obligations;


  1. it has legally obtained, purchased, acquired the Products and it has full, complete and legal title to the Products and that it is legally able and authorized to sell/offer for sale the Products and services on DALMIA BEST PRICE’s Platforms;


  1. the statements, representations and warranties made by it in this Agreement do not contain any untrue statement of a fact or omit to state a fact necessary to make the statements contained herein or therein, in light of the circumstances under which they were made, and are not misleading;


  1. Products offered by it for sale shall conform to the requirements of central and state legislations and all other local municipal bodies; and


  1. it shall not deliver any Products to Customers which:


  1. do not correspond with the description as stated on DALMIA BEST PRICE’s Platforms against that Product;


  1. are not of the same quality standards as mentioned on the Product display page on DALMIA BEST PRICE’s Platforms;


  1. are counterfeit, fake, imitation, fabricated, spurious, obtained by way of illegal or unlawful means;


  1. do not serve the purpose for which the goods / services are meant as described on the Product display page on DALMIA BEST PRICE’s Platforms; and


  1. are defective in nature, damaged, are of lower quality, etc.


12. DISCLAIMER


12.1 The services provided by DALMIA BEST PRICE in accordance with this Agreement, including all content, software, functions, materials and information available or provided in connection with such services, are on “as- is basis,” through DALMIA BEST PRICE’s Platforms and the Seller agrees to avail such services at its own risk. Dalmia Best Price and its Affiliates waives and disclaims: (i) any representations, warranties, declarations or guarantees regarding this Agreement, the services or the transactions contemplated hereby, including any implied warranties, declarations or guarantees of merchantability, fitness for a particular purpose or non- infringement; and (ii) any obligation, liability, right, claim or remedy in tort, whether or not arising from DALMIA BEST PRICE’s negligence.


12.2 DALMIA BEST PRICE does not warrant that DALMIA BEST PRICE’s Platforms will meet the requirements of the Seller or will be available in a timely, secure and uninterrupted or error free manner. DALMIA BEST PRICE will not be liable for any service interruptions, including, but not limited to system failures or other interruptions that may affect the receipt, processing, acceptance, completion or settlement of any transactions. DALMIA BEST PRICE and Its Affiliates disclaim to the maximum extent permitted under Applicable Laws all warranties of any kind, whether express, implied or statutory, including without limitation warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, non- infringement or quiet enjoyment, in respect of the Products.


13. LIMITATION OF LIABILITY


To the maximum extent permitted by Applicable Laws, in no event will DALMIA BEST PRICE or its Affiliates be liable for (i) any indirect, incidental, consequential, punitive, special, or exemplary damages arising out of or that relate in any way to this Agreement or its performance, or (ii) any amount of direct damages for violation of this Agreement to the Seller in excess of commission received by DALMIA BEST PRICE from the Seller under this Agreement during the prior one (1) month period. This exclusion will apply regardless of the legal theory upon which any claim for such damages is based, whether the Parties had been advised of the possibility of such damages, whether such damages were reasonably foreseeable, or whether application of the exclusion causes any remedy to fail of its essential purpose.



14. MISCELENEOUS



Entire Agreement


This Agreement along with all the annexures, schedules or exhibits contains the entire agreement between the Parties in respect of the matters referred to herein and shall supersede all prior agreements and arrangement between the Parties in respect of the subject matter hereof. No modification, amendment or alteration of this Agreement shall be made except in writing and signed by authorized representatives of both Parties.


Force Majeure


Neither Party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by acts of God, natural disasters, fire, war, riots / civil disturbance, system network failure, database crash, strike and other causes beyond either Party’s reasonable control (“Force Major Event”) which directly impacts such a Party. The Party affected by the Force Majeure Event will provide notice to the other Party within a reasonable time and will use its best efforts to resume performance. Either Party may terminate this Agreement by giving the other Party fifteen (15) days notice if the Force Majeure Event continues for a period of thirty (30) consecutive days or more.  


Insurance


The Seller will be exclusively responsible for insuring the Products and DALMIA BEST PRICE will not be liable for any loss or damage to the goods pursuant to any order, nor liable to settle any Buyer complaints seeking compensation.


No partnership or agency


The Seller and DALMIA BEST PRICE are independent Parties and are executing this Agreement on principal to principal basis. Nothing in this Agreement will be construed to make either Party an employee, franchisee, joint venture or legal representative of the other Party. The Parties shall have no authority to bind each other to any third party (except as provided in this Agreement), in any respect, whatsoever and shall not hold itself out as owned by or associated with the other Party other than as an independent legal entity acting in accordance with this Agreement.


Waiver


The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies.


Severability


If any provision of this Agreement is or becomes, in whole or in part, invalid or unenforceable but would be valid or enforceable if some part of that provision was deleted, that provision shall apply with such deletions as may be necessary to make it valid.


Governing law and jurisdiction


This Agreement shall be governed by and construed, governed and interpreted in accordance with the laws of India, and the courts of Noida, shall have exclusive jurisdiction over the terms hereof.


Dispute Raising


Parties agree to attempt to resolve any dispute arising out of the terms of this Agreement by mutual discussion. The Seller undertakes to resolve the dispute amicably and peacefully without interference/hindrance/stoppage to the work and obligation undertaken by the Seller.

In regards to dispute regarding any payments or deduction of the Commission Fee, the Seller shall raise the claim within {15 days} of the shipment. Post which no Seller claim shall be entertained by DALMIA BEST PRICE. The Seller will sign a No Dues Certificate (NDC) on quarterly basis with the details of pending shipments, disputes, if any, related to the period covered by the NDC. Any dispute, controversy or claim arising out of or relating to this agreement or the validity, interpretation, breach or termination thereof as may be designated as Dispute, including claims seeking redress or asserting rights under applicable law, shall, be referred for arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The place of arbitration shall be New Delhi.


NOTICES


  1. Any notice required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been sufficiently given when (i) hand delivered by one party to the addresses set forth below, (ii) deposited in the Indian Postal Mail, postage prepaid, for mailing by certified mail, return receipt requested, or (iii) sent by reputable overnight courier, addressed as follows:


If to DALMIA BEST PRICE:


Dalmia Biz Retail Private Limited

B-38, Ist Floor, Institutional Area, Sector-1, NOIDA - 201301


If to the Seller:



Or to such other address or address as may be specified from time to time in a written notice given by such Party. Notwithstanding the foregoing, routine instructions, requests, directions and notices dealing with day to day operations under this Agreement may be given in such manner to such persons as may be agreed by Parties from time to time is reasonable and practicable.


Renewal/modification/alteration of Agreement


This Agreement may be renewed, modified and altered upon mutual written consent of both Parties.


Assignment


The Seller shall not assign or transfer this Agreement to any Person or entity. DALMIA BEST PRICE shall be entitled to assign or transfer this Agreement in whole or in part, without any  responsibility to the Seller.


Counterparts


This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, is an original, but all the counterparts taken together shall constitute one document.






Annexure 1


Exclusive   of Goods and Service Tax

PART -B

Payment Collection Fees


PART -C

Courier Fees


PART -D

Order Processing Fees

PART-E

Return Handling

In case of Customer Returns due to order cancellation, refund, replacement of product due to any reason as mentioned in agreement or below mentioned table, Seller shall be liable to pay charges as per the below mentioned table:

Sr. No.

Particulars

Marketing Fees/Commission

Payment Collection Charges

Customer Retention Charges

Shipping Fee

Reverse Pick Up Fee

1

Vendor related cancellation: Out of Stock, Cancellation due to breach in shipping days

Borne by Seller

Borne by Seller

NA

Borne by Seller

Borne by Seller

2

Damaged/ Defective/ Fake Product, Wrong SKU shipment, Partial order shipped/Missing items, Partial order shipped/Missing items.

Borne by Seller

Borne by Seller

10% of Selling Price

Borne by Seller

Borne by Seller

3

Post Shipment return upto a period of 30 days from delivery, because of product quality issue

Borne by Seller

Borne by Seller

10% of Selling Price

Borne by Seller

Borne by Seller

4

Refund/ Replacement in case of wrong size, color issues

NA

NA

NA

NA

Borne by Seller


Note: - In addition to the fees and charges mentioned in Part- B, C, and D, GST and other levies, penalties and retention charges shall be charged extra.


PART-E

Sellers Non-Availability / Non-Acceptance of returned goods/ Unclaimed Goods


In case the returned product remains undelivered to the seller because either seller is not available at the delivery location or seller refuses to accept the product, then:


Dalmia Best Price will send a communication to the seller


  1. If the seller does not respond back in 2 working days, Dalmia Best Price will instruct the Logistics Partner for second attempt for the delivery of the returned product.


  1. If the seller responds back, Dalmia Best Price will arrange a second attempt as per the seller’s request. The seller is entitled to request for a delivery attempt not later than 3 calendar days of first communication


  1. If the product remains undelivered even after the second attempt, Dalmia Best Price will send the communication to the seller about such second attempt and thereafter Dalmia Best Price will not entertain any request or claims regarding the same. It shall also be presumed that the seller has waived all the ownership rights vested in the product shipped to the customer and thus the product will become an unclaimed shipment/product.


  1. Further, due to cost and space constraints, Dalmia Best Price reserves all rights to liquidate all such unclaimed products without any obligations of any kind to the seller or any third party/parties.


Note:


  1. Post-delivery of the returned product, the seller should acknowledge the receipt of product in the shipping panel by marking it as return accepted


  1. In case the seller does not acknowledge the receipt of the product in the shipping panel, the return will automatically be marked as accepted after the expiry of 7 days from the day return is updated in the panel. Also, the seller will not be eligible for raising a dispute.


  1. The seller should not mark the return as accepted in the (Seller Panel)  if the seller wishes to raise a dispute and unless the dispute is resolved by Dalmia Best Price.


  1. In the event the seller refuses to accept the returned product within 45 days from the date of shipped, then the date on which the seller refused to accept the returned product shall be deemed to be the date of delivery of the returned product for the above purposes.


  1. Date of dispatch is the date on which the order was shipped by the seller



Timelines


  1. If a seller needs to raise a dispute with respect to the returned order, the seller must do so within 7 calendar days of return update date*. Any dispute raised post 7 calendar days of return update date* shall not be entertained by Dalmia Best Price


  1. In case the seller does not receive the product and the Logistics Partner confirms delivery of the product to Dalmia Best Price, the seller should raise a claim within 7 calendar days of return update date*. Failure to raise a claim within the stipulated timeline would lead to the shipment being marked by Dalmia Best Price l as return accepted, which will be final and binding. No claim would be entertained thereafter by Dalmia Best Price

  2. When a product is delivered to the seller, the seller should stamp and sign the Proof of Delivery (POD)


  1. Seller should check outer packaging of the (returned) product at the time of delivery by the courier partner. If not satisfied with the state of outer packaging, seller should mention the same on the Proof of Delivery (PoD) - along with their name, signature and stamp of the firm.


  1. In case Seller discovers the issue later, they can raise dispute (if required) within 7 calendar days of receipt of the returned product.


* Return update date is the date on which Dalmia Best Price updates the ‘return delivered date’ on seller’s panel


Resolution Mechanism


  1. Disputes would be resolved and sellers shall be compensated as per “Dispute resolution framework” which is internal to Dalmia Best Price


  1. All genuine claims received within stipulated time period along with requisite proofs will be resolved within 10 calendar days from the date when the claim was raised. The proof of delivery would be conclusive evidence for the closure of such claims. If the dispute is not resolved within 10 days, Dalmia Best Price will make payment as per “Dispute resolution framework” and this will be credited to your account in next payment cycle

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