This Marketplace & Seller Agreement is executed on the current date by and between :
The seller (Business that is registering on the DIPL marketplace for selling the products of it’s own brands or some other brands) with legal name, registered address and all the legal information as provided by the seller in the seller registration form filled on the app/website/microsite of DIPL and/or provided to DIPL through email/physical post during the process of registration of the seller(The first part)
Dilocious Internet Private Limited (DIPL), the online marketplace, having registered office at 1568, 15th Floor Avenue GC 11 Gaur City, Greater Noida, Gautam Buddha Nagar, UP 201306 India(The second part)
- DIPL is an online technology platform (Marketplace) accessible through web (www.dilocious.com) / mobile applications owned and operated by DIPL. Subject to the presents here, DIPL may allow Sellers to use Marketplace, on “as-is basis” to list and display their product and other data on www.dilocious.com.
- The seller is an Authorised Reseller/Manufacturer of Products sold “under the brand as captured in the online seller registration and is desirous of listing, displaying and selling their Products facilitated through Marketplace to such Buyers who visit www.dilocious.com
In consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound, the Parties hereby agree as follows:
Any reference herein to any clause or Annexure is to such clause or Annexure to this Agreement unless the context otherwise requires. The headings are inserted for convenience only and shall not affect the interpretation of this Agreement. Unless the context requires otherwise, words importing the singular include the plural and vice versa, and pronouns importing a gender include each of the masculine, feminine and neutral genders. References to the knowledge, information, belief or awareness of any Person shall be deemed to include the knowledge, information, belief or awareness such Person would have if such Person had made due, reasonable, careful and proper inquiries. The words “hereof”, “hereunder” and “hereto” and words of like import, refer to this Agreement and not to any clause or Annexure hereof. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until’ each mean “to and including”. The word "including" and words of similar import when used in this Agreement will mean "including, without limitation," unless otherwise specified. In case of a conflict between the Seller Return and Refund Policy and DIPL Policies the DIPL Policies shall prevail. Recitals form an integral part of this Agreement.
- SELLER PRODUCT LISTINGS
- Subject to the terms of this Agreement and in reliance of the representations and warranties of Seller and on payment of the amount per the Commercial Annexure, during the term of this Agreement, DIPL will allow Seller to list the Products for sale on Marketplace at the Listing Price determined by Seller or the Person authorised by Seller.
- DIPL may implement mechanism to rate and provide feedback regarding Seller and Seller Products on Marketplace and such information be available publicly on Marketplace.
- Seller shall be solely responsible for the Product Information, related Content Seller Materials, Seller Products and Seller’s offer and sale of the Seller Products on Marketplace and will ensure that during the term of this Agreement Seller remains fully compliant with all Applicable Laws including all requirements under Legal Metrology Act, 2009, Food Safety and Standards Act, 2006, and rules issued thereunder.
- Seller undertakes that the Seller Materials, Seller Products (including their packaging) (i) shall not contain any Objectionable Content or any other Content that is not expressly permitted by DIPL; and (ii) are in compliance with the agreed catalogue and content standards. Seller takes full responsibility for the contents of the packages that it hands over to Logistics Service Providers (LSP) or delivers to Buyers under this Agreement and agrees that DIPL shall not be responsible or liable in any manner whatsoever for such contents.
- Notwithstanding any provision of this Agreement, Seller while listing Seller Product will not: (i) provide any information or otherwise seek to list for sale on Marketplace, any Excluded Products; or (ii) provide any URL or links to its website or any other website or web page(s).
- ORDER, SALE AND FULFILLMENT
- For each Seller Product sold on Marketplace, Seller shall be able to see the same on Seller Portal. If DIPL believes in its sole discretion that a Seller Transaction represents fraudulent activity or any other reason whatsoever, DIPL may (but is not obligated to) prohibit the Seller Transaction without any liability thereof.
- Seller shall retrieve the Order Information using the functionality enabled for Seller login of Marketplace (“Seller Login”) and agrees not to cancel any Seller Transaction except as may be permitted by DIPL or applicable Seller Terms.
- Seller agrees and undertakes to comply with the following service levels for order fulfilment of this Agreement and acknowledges that its failure to perform or fulfil any of the service levels or other provisions of this Agreement shall have a bearing on its ranking on Marketplace and entitle DIPL without prejudice to any other consequences and rights as may be available to DIPL either in this Agreement or the Applicable Law.
- Seller will hand over the packed Seller Product, packed as per Packing Specifications, to the designated LSPs and Seller shall update Seller Portal with relevant shipping information, immediately upon handing over of Seller Products to and DIPL may make such information available on Marketplace.
- Seller shall ensure that it will include within each Seller Product shipment package, the authenticity certificate/ warranty card, user manual and invoice(s). Seller shall not include any of its marketing, promotional materials or any other solicitations or any communications to Buyers including emails confirming orders without prior written approval by DIPL.
- Seller will not substitute any item or product for an order with another item or product. In the event the order is partly delivered or there is missing accessories or freebies, Seller agrees to immediately provide the same to Buyer at Seller’s own cost.
- Title of the Seller Product will transfer from Seller to Buyer immediately the full amount of money to be paid by Buyer has been received by DIPL either online or through Cash on Delivery (COD).
- Seller shall use the packaging material provided by or advised by DIPL for packaging of shipments of Seller Products as per Packaging Specifications only. Seller shall at all time keep sufficient stocks of the packaging materials to meet the obligations arising under this Agreement and shall ensure that there is no wastage, pilferage or misuse of the packaging material and no part of the printed matter on the packaging material is defaced, tampered, modified or obliterated. Seller shall place orders on DIPL for the packaging material required by it and once accepted, DIPL will deliver the packaging material as per its delivery terms. DIPL reserves the right to (a) charge Seller for the packaging material at any time during the Term of this Agreement as per the mutually agreed terms and (b) perform inspections to monitor usage of packaging material by Seller.
- Seller undertakes and agrees that it shall not collude with a Buyer or other Sellers or users of the Marketplace, for drawing benefits from various promotional offers including but not limited to discount or cashback through false or fraudulent transaction. If Seller is found involved in such activity, the Seller acknowledges that DIPL reserves its right to impose penalty on Seller and recover the money amounting to five times of the benefits so drawn or maximum retail price; whichever is higher.
- Overdue Orders: DIPL, without any liability to compensate Seller, shall have the right to cancel any order if Seller has failed to handover the packed Seller Product to LSP within agreed timelines or DIPL understands that Seller Product is not shipped for any reason within the applicable shipping period indicated in the Order Information.
- Quality of Seller Products: Seller agrees to not sell a Seller Product unless the Seller Product is fully fit for its intended use, manufactured and produced as per FSSAI Guidelines and FSS Act 2006 and is of a style, appearance, quality and consistency that at least meets the standards as shown on the Product Information page. DIPL reserves the right (but is not obligated) to perform quality checks before shipment of the Seller Product and approve or disapprove the Seller Product pursuant to such quality checks. DIPL will have no liability to compensate Seller for any Seller Products disapproved by DIPL following the aforesaid quality checks. Seller will not ship Seller Products which are not in consumable condition, damaged, defective, Excluded Products or of disapproved quality standards.
- Seller agrees to integrate its Designated Store(s) with the Marketplace for ordering, sale, delivery and return of the Seller Products.
- With respect to the orders fulfilled through Seller store(s), Seller shall source, sell, pack and hand over Seller Products at the Seller Stores(s) to Buyers or LSPs in accordance with the terms of the applicable Order Information, Seller Terms, DIPL Policies and this Agreement.
- It is agreed that title to and risk of loss of or damage to the Seller Products that are delivered by Seller to Buyers at Seller Stores(s). Seller Stores(s) shall pass on delivery of the Seller Product to Buyer. With respect to return of Seller Products to the Seller Stores(s) or other specified and agreed locations title to and risk of loss of or damage to the Seller Products will pass to Seller when delivered by Buyer to Seller at the Seller Stores(s) or other specified and agreed locations. DIPL does not hold and will not hold title to, or be deemed to be the owner of, any Seller Products at any time under the terms of this Agreement.
- EXCHANGES, RETURNS AND REFUNDS
- Seller agrees to abide by the Return and Refund Policy of DIPL.
- DIPL will make efforts to ensure that all Seller Products that are returned by a Buyer are dispatched to Seller within the period agreed between DIPL and Seller.
- DIPL will determine and calculate the amount of all refunds (including any Taxes to be refunded) for Seller Products returned in accordance with this Agreement and will route all such refunds on behalf of Seller to the Buyer and accordingly debit from the payment to Seller.
- Buyer Disputes: If Seller delays in resolving Buyer’s complaints or disputes relating to the Seller Products within the period of three days (including failure to perform quality checks of the returned Seller Products), then on the expiry of such period DIPL may at its sole discretion decide and remit the refund to Buyer upon receipt of request from Buyer and recover the same from Seller. Seller agrees that it will accept DIPL’s decision to remit the refund to Buyer without any contest or dispute. While arriving at any decision under this clause DIPL would use reasonable efforts and opportunity of being heard will be provided to Seller and the Buyer but DIPL does not take any responsibility to ascertain the truth of such a claim by Seller or the Buyer.
- Loss in Transit: In case of loss of Seller Product after delivery to LSP but before the delivery to Buyer, DIPL shall make a claim to LSP or the transit insurance service provider and shall treat Seller as the beneficiary for the recoveries from LSP or transit insurance service provider. However, irrespective of claim processing by DIPL with LSP or insurance service provider, DIPL will settle the seller payment in a month’s time.
- INVOICING BY SELLER
- Seller shall create invoices and shipping labels for Seller Transactions through the Transaction Processing Service using the functionality enabled for Seller Account. Seller will invoice the Listing Price of the Seller Product sold to Buyer as adjusted for any discounts offered to Buyer. GST/ SGST/ CGST will be charged as per Applicable Law on the adjusted Listing Price. If DIPL at its sole discretion decides to charge Shipping Charges and COD charges from the Buyer, Seller shall print the invoice in this regard and send the same with Seller Product to the Buyer.
- All discounts offered during the Term of this Agreement will be borne by Seller. If DIPL offers any additional discounts over the Listing Price, DIPL shall obtain prior approval from Seller or the Person authorised by. However, where additional discount is offered by DIPL or not, DIPL will be entitled for the DIPL Fees as mentioned in the Commercial Annexure as agreed in this regard.
- Seller agrees to use the invoice and label format provided to Seller through the functionality of the Seller Account. The invoice will be placed and sent with the Seller Product shipment package prior to handing over Seller Products to the LSP or Buyer in connection with each Buyer order.
- PROBLEMS WITH SELLER PRODUCTS
Seller agrees and acknowledges that it will be solely responsible for any sale of Seller Product to Buyer that is not in accordance with the order of Buyer or DIPL Policies. Seller further warrants to resolve all Buyer service issues in connection with such sale or delivery of Seller Products.
- EQUALITY WITH SELLER SALES CHANNELS
Seller will ensure there is equality between the offerings (e.g. listing price and other terms including but not limited to the discounts, minimum price, warranties, return and refund policies, after sales service etc. regarding the sale of the same Seller Product) by Seller on other ecommerce platform and offerings on Marketplace.
- COLLECTION OF PAYMENT BY PAYMENT GATEWAY AND PAYMENT TO SELLER
- DIPL will collect the payment for Seller Products through payment gateways aggregators (“Payment Gateway”) or on its own. Seller authorises the Payment Gateway for processing payments, refunds and adjustments for Seller Transactions, receiving and holding Sales Proceeds on Seller’s behalf and remitting entire Sales Proceeds to DIPL’s bank account (collectively, the "Transaction Processing Service").
- Seller agrees that as a security measure or in compliance with Applicable Law or any reason thereof, DIPL or the Payment Gateway shall have the right (but not obligation) to impose limits or restrictions on transaction at Marketplace. Neither DIPL nor Payment Gateway will be liable to Seller in case of any transaction failure to meet regulatory requirements or due to any technology failure or limitations of technology being used.
- If DIPL or the Payment Gateway reasonably conclude based on the available information that Seller's actions or performance may result in Buyer disputes, charge backs or other claims, then DIPL may, in its sole discretion, may delay initiating remittances related to such dispute and withhold corresponding payments that are otherwise due to until the completion of investigation regarding any Seller actions or performance without any further liability.
- DIPL will remit to Seller the Sales Proceeds collected by DIPL in respect of Seller Products delivered to Buyers, every 30 days (or on the next Business Day if the scheduled payment date falls on a non-Business Day) for the successful Seller transactions held and payment accrued since last payment to the seller, after deducting DIPL Fees, Charges for shipping services and other amounts covered under clause 9.2, reversals because of return of Seller Product, refund to the Buyer and any other amounts due to DIPL. All payments to seller will be subject to the deduction of tax at source under Applicable Law. For avoidance of doubt, it is clarified that DIPL will not be obligated to pay to Seller any amount pertaining to Seller Products that have been initiated for return by Buyer.
- DIPL reserves the right to withhold the Sales Proceeds or any portion of the Sales Proceeds in a reserve account pertaining to the disputes with Buyers or third parties arising out of any default or defect in services of Seller or the Seller Product.
- In case of Return/ Refund due to the fault of Seller as referred to in clause 9.2, DIPL shall be entitled for the amount covered in clause 9.2.
- Seller agrees and warrants that Seller will deposit the correct amount of TDS with the Government authorities within time prescribed under the law. DIPL, on receipt of proof of deposit of TDS by Seller, will pay the corresponding amount to Seller within fifteen days.
- CHARGES AND COSTS
- DIPL Fees: With respect to each Seller Transaction, Seller will pay DIPL the fees at the applicable percentage, more specifically covered under the Commercial Annexure, plus GST. Prior to each Payment Date, DIPL will raise an invoice towards the DIPL Fees (plus GST as per the prevailing rates) due to DIPL for the relevant Settlement Period.
- Return/ Refund due to the fault of Seller: In case of returns/ refunds occasioned due to any reason attributable to the Seller, DIPL shall be entitled to deduct the logistics cost and payment gateway charges, on actuals, incurred by DIPL on such returns/ refunds from the payment to seller.
- PROPRIETARY RIGHTS AND LICENSES
- Reservation of Rights
- Both Parties agree that the brands/logos, trademarks, etc., belonging to each Party are the exclusive property of the respective Party and cannot in any circumstances be used, or copied, or altered in any manner which is identical/ similar the brands/ logos/ trademarks of the other Party without being specifically authorized in writing by that other Party.
- Seller acknowledges that, DIPL possesses and reserves all right, title and interest in and to the Intellectual Property Rights in the trademarks and any other intellectual property, know-how developed or provided by DIPL or its Service Providers during performance of the services under this Agreement (collectively, “DIPL IPR”) and except as may expressly be set forth in this Agreement, no title to or ownership of any of DIPL IPR is transferred or licensed to Seller or any other Person pursuant to this Agreement. DIPL IPR will own the internet presence developed over time on the world-wide web of the seller including seller domain by offering the online services of the seller.
- Content and Trademark License
- Seller will ensure that during the term of this Agreement DIPL and DIPL's Affiliates have a royalty-free, non-exclusive right and license to use, reproduce, perform, display on Marketplace and on DIPL Connected Properties (e.g. Facebook account of DIPL or twitter handle of DIPL etc.), and in advertising and other marketing communications promoting Marketplace that consist of text/ logo/ other derivative work.
- Notwithstanding the foregoing, nothing in this Agreement will be construed as restricting DIPL from using any Seller trademarks in a manner permitted under Applicable Law without a license from Seller such as fair use or referential use, or valid license from a third party. All goodwill arising out of use of Seller trademarks by DIPL will inure solely to the benefit of Seller.
- Usage of DIPL Intellectual Property
- Any DIPL IPR expressly provided or made available to Seller or its Affiliates may be used by Seller solely for the express purposes described in this Agreement during the Term of this Agreement. For the avoidance of doubt, Seller will not:
- copy, reproduce, modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble, or make derivative works or improvements based on any DIPL IPR or use, rent, loan, sublicense, lease, distribute, or attempt to grant other rights to DIPL IPR; or
- use any DIPL IPR to act as a consultant, service bureau or application service provider, or to permit remote access to any DIPL IPR; or
- Except as may be expressly authorised by this Agreement, Seller will not and will cause its Affiliates not to, without the prior written approval of DIPL, engage in, conduct, authorise, assist or encourage any marketing or promotional activities (whether by Seller, its Affiliates or any Third Party or whether online (including through links, private or public forums or URL redirection) or offline related to or referencing Marketplace or any DIPL IPR or any trademarks of DIPL or any of its Affiliates.
- PROMOTION AND MARKETING
DIPL may undertake merchandising, promotion and digital marketing of DIPL Marketplace and Seller’s Online Store including Seller Products as solely determined by DIPL including via the DIPL Connected Properties or any other functions, features, advertising, or programs on or in connection with Marketplace. Seller acknowledges that DIPL will have complete rights of approval and ownership over the creative content, themes, sales literature, copy and layout of all advertising and promotional materials and programs, trade materials, business cards, invoices, stationery and other printed matter relating to such merchandising, promotion and marketing activities. Depending on mutual agreement between the Parties, DIPL reserves the right to charge a fee from Seller for its promotion and marketing of the Storefront and Seller Products.
- Seller will, at its own expense, obtain all permits and licenses required to operate its business in accordance with Applicable Law, and will pay and discharge all applicable taxes levies and assessments which may be due for selling or offering of the Seller Products for sale on Marketplace. It is Seller's responsibility to determine the States in which it has an obligation to collect and remit any kind of taxes including GST/CGST/SGST and other levies by Governmental Authority (“Taxes”). DIPL will remit the Taxes collected from Buyer directly to Seller and Seller will be solely responsible for remitting the Tax to the applicable Governmental Authority. If a Governmental Authority requires DIPL to pay any of Seller's Taxes, Seller will promptly reimburse DIPL for the amounts, fines and penalties paid and agrees to defend, indemnify and hold DIPL harmless from and against all liabilities incurred or suffered by or assessed against DIPL because of Seller’s failure to remit or pay timely such Taxes to the appropriate Governmental Authority. The provisions of Tax Deduction at Source (Section 51 of the CGST / SGST Act 2017) and Tax Collection at Source (Section 52 of the CGST/SGST Act, 2017) will become applicable from a date promulgated by the Government Authority and accordingly DIPL will be entitled for Tax Deduction at Source or Tax Collection at Source from the payment to Seller.
- Seller acknowledges and agrees that while Service Providers may take the Tax related data (Tax Data) from the Seller Portal, Seller acknowledges and agrees that DIPL and its Service Providers do not provide Tax advice, and that Seller is solely responsible for determining the applicability and accuracy of any Tax Data. As a condition of receiving the Tax data, Seller agrees to fully and forever waive any liabilities against DIPL and the Service Provider arising from Seller's use of and reliance on such Tax Data and further agrees to defend, indemnify and hold DIPL and its Service Provider harmless from liabilities arising from such use or reliance.
- REPRESENTATIONS, WARRANTIES AND COVENANTS
Seller represents and warrants to DIPL that:
- it is duly organised and validly existing under the Applicable Laws and is duly registered and authorised to do the business and has all requisite government and regulatory approvals, corporate powers and authority to own and operate its business and to enter into this Agreement and while entering into this Agreement shall not violate or conflict with any agreement, contract, arrangement and understanding or any instrument, to which it is a party or by which it is bound.
- there is no action, suit, proceeding, claim, arbitration, inquiry or investigation pending against Seller, its activities, properties or assets or for its winding up which may materially affect its financial condition. It is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or Governmental Authority or instrumentality which affects the business or interests of Seller.
- Seller Products used in, offered and sold on Marketplace legally procured or manufactured and is not disabled in any manner and is allowed to sell Seller Product on Marketplace.
- Seller Product listings, Seller Material and all information provided to DIPL is and will be accurate, complete, current are not misleading or deceptive in any manner.
- The publication, reproduction, display, modification, distribution or transmission of Seller Material or Seller Product listing does and will not (a) infringe, misuse, dilute, misappropriate, or otherwise violate any Intellectual Property Rights of Third Parties, (b) constitute an invasion of a party's rights of privacy or publicity; or (c) reflect unfavourably on DIPL, Marketplace, DIPL Affiliates or other sellers on Marketplace.
- All Seller Products sold pursuant to this Agreement are and will not be subject to any health, safety, defect or product quality recall or prohibitive order of any Governmental Authority or otherwise not disallowed to be sold through online sales.
- All information or data uploaded or transmitted by Seller on Marketplace, or any DIPL Connected Properties, application, or system, or to a Buyer or user shall be free from any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of Marketplace or any DIPL Connected Properties, application, or system.
- Seller will not use Marketplace, Seller Account or Storefront to violate the security of, or gain unauthorised access to, any computer or computer network or other device or system (including unauthorised attempts to discover passwords or security encryption codes to use any robot, spider, site search or retrieval application, or other device to retrieve or index any portion of Marketplace, collect any information about other users (including usernames or email addresses); or to reformat or frame any portion of Marketplace), or use Marketplace, Seller Account, Storefront or any other Seller Material, intentionally or unintentionally, to violate any Applicable Law.
- Seller shall conform with and adhere to the terms and conditions of DIPL Policies.
- Seller Products shall be sold only in their original packages. Seller shall not, either directly or indirectly, relabel, repackage, mark, or assist any other entity to relabel, repackage, or mark the Seller Products except as may be specifically approved by DIPL or provided in this Agreement.
- Seller agrees and accepts that it shall be fully responsible for providing complete documentation for clearing Seller Products at any check-posts by the LSP.
- Seller shall not disparage Marketplace, DIPL, its Affiliates, their respective shareholders, officers, employees and representatives or any of their respective products or services.
- Seller will not host, display, upload, modify, publish, transmit, update or share any information that is Objectionable Content.
- MARKETPLACE PLATFORM
- Seller acknowledges that DIPL’s role under this Agreement is limited to managing the Marketplace for the display of the Seller Products and other incidental services to facilitate online transactions between Seller and the Buyers and hence DIPL is merely an intermediary under the terms of Information and Technology Act, 2000 and rules thereunder. The transaction for sale of any of the Products is a bipartite contract between Seller and the Buyer and DIPL neither will have any obligations or liabilities in respect of such contract nor shall DIPL hold any rights, title or interest in the Seller Products. DIPL will also not be responsible for any unsatisfactory performance or any actions or inactions or omissions by the Seller including delays, defects or wrong information.
- DIPL may not check or monitor the listings, data and Contents displayed appearing, published and transmitted on Marketplace and that DIPL or Marketplace does not own, stock, sell, distribute or in any manner come into possession of or verifies any items or products listed or put up for sale on Marketplace. Marketplace is a technology platform which facilitates transactions among various users of the Marketplace in the Territory DIPL is not originator of or for any Third Party or user Content on Marketplace.
Seller (“Indemnifying Party”) will defend, indemnify and hold harmless DIPL, DIPL Connected Properties and their Affiliates and their respective employees, directors and representatives (“Indemnified Party”) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorney’s fees) arising out of or in connection with (i) a breach of any of the representations, warranties, covenants or undertakings of the Indemnifying Party (ii) any claims relating to or based on: (a) any actual or alleged breach of any term of this Agreement or DIPL Policies by the Indemnifying Party; (b) the Seller Sales Channels, Seller Products (including the offer, sale, fulfilment, refund, or return thereof), Seller Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing or its submissions, posting of materials or deletion thereof, and any personal injury, health hazard, death, damage to property related thereto; (c) Seller’s use of DIPL service under this Agreement.
- Except as expressly provided in this Agreement, DIPL does not make, and hereby waives and disclaims, any representations or warranties regarding this Agreement or the transactions contemplated hereby, including any implied warranties of merchantability, fitness for a particular purpose or non-infringement or implied warranties arising out of course of dealing, course of performance or usage or trade and without limiting the generality of the foregoing with regard to: (i) the operations of Marketplace and Content, information, products or services included on or otherwise made available on Marketplace, (ii) the quantum of sale that may occur during the Term, and (iii) any economic or other benefit that Seller might obtain through access to the Marketplace or performance under this Agreement.
- DIPL reserves the right to change, upgrade, modify, limit or suspend Marketplace services or any of its related functionalities or applications at any time temporarily or permanently without prior notice. DIPL further reserves the right to introduce new features, functionalities or applications to the services or to future versions of the Marketplace services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise expressly stated by DIPL. Seller agrees and accepts that DIPL shall have the right to modify or supplement the DIPL Policies at any time without notice.
- Seller expressly acknowledges and agree that DIPL shall have the full power, authority and discretion (but not the obligation) to make a determination on any dispute between Buyer and Seller, if Seller fails to settle dispute within such time period as mentioned under clause 4.5, including the remittance of the funds under a Seller Transaction that are held by Payment Gateway in accordance with this Agreement and DIPL, its Affiliates and Payment Gateway will not be liable in any manner whatsoever. Seller acknowledges that this Agreement and the relevant DIPL Policies may not cover all issues that may arise in connection with a Seller Transaction accordingly, Seller agrees and accepts that DIPL shall have the right to make determinations wherever DIPL considers appropriate having regard to the evidence received by DIPL and interests of both Buyer and Seller regardless whether the issue in question has been expressly addressed in the DIPL Policies or this Agreement.
- The prices, payment details, date, period, mode of delivery, warranties related to Seller Products and after sales services, if any, shall depend upon and be the responsibility of the Seller and DIPL shall not be liable in any manner whatsoever. Seller acknowledges and agrees to accurately and fairly represent its offers and DIPL does not warrant, guarantee, support or verifying the veracity or accuracy of any information Seller displays on Marketplace.
- DIPL through customer service may aid Buyers in purchase, payment related queries, or any enquiries as may be requested by Buyers. Seller shall provide all information and assistance as may be requested by DIPL or its customer service centre to assist Seller in resolving any queries, enquiries or grievances of Buyer. The customer service centre shall be responsible only to provide contact information of the seller contact or the for any queries, enquiries or grievances relating to the Seller Products and after sale services and Seller is solely responsible for resolving any queries, enquiries or grievances. DIPL disclaims any liability arising due to delay in providing information to Buyers, or failure in resolution of queries, grievances and disputes of Buyers to their satisfaction.
- Seller acknowledges and accepts that since DIPL is not a party to any Seller Transactions between Seller and Buyer or other participants and Seller releases and discharges DIPL from any claims, disputes, demands, liabilities and damages, of any nature (whether direct, indirect, actual or consequential), arising out of or in relation to or in connection with the Seller Transactions.
- Seller, for itself and its successors, Affiliates, subsidiaries, officers, employees, shareholders, assignees or other Person or entity claiming through, by or for Seller, release and discharges forever DIPL and all of its predecessors, successors, DIPL Affiliates, its partners, subsidiaries, directors, officers, employees, shareholders, agents, representatives, attorneys, assignees, whether past or present, and acting or claiming through, by or for DIPL, from any and all claims, disputes, demands, liabilities, damages, losses, debts, obligations, legal or judicial proceedings (including suits), causes of action or any rights of any kind or nature, whether accrued or unaccrued, arising or resulting from or related to the shipment or delivery of Seller Products to Buyers including tax registration or collection obligations.
Except to the extent arising out of any breach of clause 11 neither Party will be liable (whether in contract, warranty, tort, including negligence or product liability or otherwise) to the other Party or any other person for cost of cover, recovery or recoupment of any investment made by either Party or its Affiliates in connection with this Agreement, or for any loss of profit, revenue, business, or data or punitive or indirect or consequential damages arising out of or relating to this Agreement, even if such Party has been advised of the possibility in this regard. DIPL being Intermediary within the ambits of the Information Technology Act, 2000, DIPL’s total liability whether arising under this Agreement or otherwise or the transactions contemplated hereby shall not exceed the aggregate sum of DIPL Fee received by DIPL from the relevant sale transaction which is the subject matter of the claim.
DIPL shall have the right to assign or transfer any of its rights or delegate any of its obligations under this Agreement in whole or in part to any Person without the consent of Seller; provided, however, with respect to any assignment resulting in the subsequent performance by the assignee of the obligations of DIPL the assignee shall expressly assume and agree to perform such obligations of DIPL in writing; and from and after the date of any such assignment, DIPL shall have no further obligation or liability to Seller or any other Person under this Agreement. Seller shall not be voluntarily, involuntarily, directly or indirectly sub-contract or otherwise assign this Agreement to a third party without prior written acknowledgement of DIPL. Any assignment as aforesaid shall not affect any rights that have already accrued to DIPL prior to the assignment.
- The Parties agree and undertake that during the Term of this Agreement and thereafter, the Parties shall keep this Agreement and all data confidential, and information disclosed and divulged by one Party to another Party or which comes to its knowledge whether in print, digitalised, any other electronic form, oral or software format, whether or not marked “Confidential” (“Confidential Information”) strictly confidential. Confidential Information will include without limitation Buyer lists, new product information, price information, launch date, projections, plans, forecasts, financial, business and sourcing information, analytics, designs, specifications, software, techniques, technology, passwords and other non-public information obtained in the course of this Agreement.
- All Confidential Information relating to Marketplace and services including but limited to the password to access the Marketplace or Seller Portal or Seller Account and information derived therefrom, shall be obtained and retained by Seller in confidence and trust and except as expressly provided by this Agreement, shall not be used, duplicated, copied or disclosed by Seller in any form for the use or benefit of any Person, nor reproduced, transcribed, imitated or simulated in whole or in part. Seller may disclose relevant aspects of the Confidential Information to its employees, representatives or agents on a need to know basis who have been advised of and are bound by the confidentiality provisions of this Agreement. Seller shall notify DIPL immediately if Seller learns of any misappropriation or misuse of Confidential Information by anyone in any manner not expressly authorised under this Agreement and shall co-operate with any efforts by DIPL to prevent any misappropriation or misuse of Confidential Information.
- TERM AND TERMINATION
- Term: This Agreement shall take effect on the date of registration on dilocious.com and remains valid for an initial term of one (1) years (Initial Term). The Initial Term shall be renewed automatically for successive one year period(s) (Renewal Term) after the Initial Term unless the Parties agree otherwise and upon payment of Annual Development Fee by the seller to DIPL for Online Store and domain renewal.
- This Agreement may be terminated by DIPL, with immediate effect, if:
- Seller is in breach of any of its obligations, representations or warranties, or any other material terms as contained in this Agreement and/or any of the DIPL Policies; and
- a petition for relief under any bankruptcy or insolvency is filed by or against Seller or Seller makes an assignment for the benefit of the creditors, or a receiver or an administrative receiver or administrator is appointed.
- Notwithstanding anything contained under this Agreement, any Party may terminate this Agreement for convenience upon 60 (sixty) days written notice to other Party. It is agreed that such provisions and obligations which, by their very nature, survive the termination of this Agreement, shall continue to be binding on the Parties.
- On termination of this Agreement:
- DIPL will, with immediate effect, block Seller’s access to the Marketplace and Seller Portal and Seller shall not have the right to re-register himself /itself as a Seller on the Marketplace at any time after such termination, unless DIPL, in its discretion, permits such re-registration;
- Seller shall return to DIPL, all Confidential Information of DIPL and all other properties and materials belonging to DIPL. Where the confidential information cannot be returned in material form, Seller shall destroy all of DIPL’s confidential information and shall provide DIPL with a certificate of destruction with respect to the same; and
- Seller will be entitled to only the undisputed Seller Proceeds which have become due to Seller on account of any purchase of the Products, made through the Marketplace, prior to the date of termination of this Agreement. DIPL shall be entitled to adjust any amount due from Seller to DIPL till the date of termination, from amount payable to Seller on termination.
- Without prejudice to the foregoing, the termination of this Agreement pursuant to any of the provisions contained herein above shall not limit or otherwise affect any other remedy (including a claim for damages), which either Party may have, arising out of the event which gave rise to the right of termination.
- GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the Indian laws. The competent courts in Noida shall have exclusive jurisdiction in all matters or disputes arising out of this Agreement.
(i) Entire Agreement: This Agreement sets forth the entire understanding of the Parties and supersedes all prior or simultaneous representations, letters, proposals, MoU, LoI and understandings between the Parties hereto, with respect to the subject matter hereof. Each Party acknowledges that it has not been induced to enter into this Agreement by, and to the extent permitted by applicable law, a Party is not liable to another Party in contract or tort or in any other way for, a representation or warranty that is not set out in this Agreement. (ii) Amendment: This Agreement may be amended only by a written instrument signed by a duly authorized representative of each of the Parties. (iii) Severability: If any provision of this Agreement be held invalid or unenforceable by a competent court, such provision shall be modified to the extent necessary to make it valid and enforceable whilst preserving the intent of the Parties and all other provisions of this Agreement shall remain fully valid and enforceable unless otherwise agreed between the Parties. (iv) Waiver: No provision of this Agreement nor any breach thereof will be considered waived by either Party, unless such waiver is in writing signed on behalf of that Party and no such waiver will constitute a waiver of, or excuse for any other or subsequent breach of this Agreement. Any agreement on the part of any Party to any such waiver shall be valid only if set forth in a duly executed written instrument. (v) Survival: Certain provisions of this Agreement which by their very nature ought to survive, shall so survive the termination of this Agreement. (vi) Non-Exclusivity: Except as expressly provided otherwise in this Agreement, each Party acknowledges that the rights and obligations of the Parties hereunder are non-exclusive and that each Party may engage in transactions with Third Parties. (vii) Principal-to-Principal basis: It is hereby agreed that this Agreement is on principal-to-principal basis and neither Party. This Agreement is being executed in 2 (two) counterparts, each of which shall be deemed an original and all of such counterparts taken together are deemed to constitute one and the same Agreement. (viii) Notices: Any notice or other communication under this Agreement given by either Party to the other Party to be served by email or post to the addresses as stated above. (ix) Right of Set-off: DIPL and Seller acknowledge and agree that DIPL has the right to set-off any payments owed to Seller by the amount of any amount receivable by DIPL. DIPL may obtain reimbursement of any amounts owed by Seller to DIPL by deducting from future payments owed to Seller or seeking such reimbursement from Seller by any other lawful means. Seller hereby authorises DIPL to use any or all the foregoing methods to seek reimbursement. (x) No Presumption Against Drafting Party: Each of the Parties acknowledges that any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting Party has no application and is expressly waived. (xi) Force Majeure: Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay is caused by any reason beyond its reasonable control, such as fire, flood, earthquake, elements of nature or acts of God, acts of state, strikes, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, quarantines, embargoes and other similar governmental actions, computer hacking, unauthorised access to computer data and storage device, system failure, virus, attacks, bugs, computer crashes, breach of security and encryption or any other cause which is beyond the control of affected Party (a "Force Majeure Event"). The affected Party will immediately notify the other by reasonable detail of the Force Majeure Event. If a Force Majeure Event continues for more than 30 days, either Party may, by a written notice to the other Party, terminate this Agreement, without liability. (xiii) Press Releases and other Communications: Without the prior written consent from DIPL, Seller will not issue any press releases (which includes electronic or print media), or otherwise make any public statements or communications regarding this Agreement and its terms.
Whenever used in this Agreement with initial letters capitalised, the following terms will have the following specified meaning;
- “Affiliate” shall mean any Person or entity that, directly or indirectly Controls, is Controlled by, or is under common Control with, a Party whereas “Controlled by” or “Controls” has the meaning as defined under section 2(27) of the Companies Act, 2013.
- “Agreement” shall mean this Agreement and any modifications or variations thereto in accordance with the terms hereof.
- “Applicable Law” shall mean all applicable laws, statutes, ordinances, rules, regulations, guidelines, policies and other pronouncements including amendments thereof having the force of law by Central, State, municipality, court, tribunal, Governmental Authority, ministry, department, commission or any judicial forum.
- “Authorised Seller” means a Person designated by a manufacturer/ authorised distributor/ brand and authorised to sell or distribute the Seller Products in the Territory (including through online sales) to consumers under a valid written contract with the manufacturer.
- “Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorised by Applicable Law of India to be closed in Aligarh, India.
- “Buyer” shall mean any individual, group of individuals, firm, company or any other entity placing an order to purchase the Seller Products on Marketplace for their own use.
- “Content” means images, videos, text, designs, themes, styles, fonts, colours, concepts, drawings, sketches, illustrations, charts, plans, tables, layouts, diagrams, specifications, images, photographs, audios, artwork and other works in physical, electronic or other form.
- “Excluded Products” means: (i) alcoholic beverages; (ii) cigars, cigarettes, or other tobacco products; (iii) guns intended to provide lethal force (and related gun parts, kits and ammunition), mace, black powder and other explosives; (iv) any drug, vitamin, herbal product or similar substance which requires a doctor’s or other health care provider’s prescription as a prerequisite for purchase; (v) any product that contains ingredients regulated under Applicable Law; (vi) ‘sex and sensuality’ products; adult goods and services pornography and other sexually suggestive materials (including literature, imagery and other media) (vii) loose gemstone products; (viii) any jewellery (including watch) product for which Seller either is not an “authorised reseller” (as designated by the product’s manufacturer or distributor), or does not provide to customers the manufacturer’s standard warranty therefore; (ix) any electronic product for which Seller either is not an “authorised reseller” (as designated by the product’s manufacturer or Authorised Seller), or does not provide to customers the manufacturer’s standard warranty for the product (x) Copyright unlocking devices mod chips or other devices designed to circumvent copyright protection, copyrighted media unauthorised copies of books, music, movies, and other licensed or protected materials, copyrighted software unauthorised copies of software, video games and other licensed or protected materials, including original equipment manufacturer or bundled software (xi) counterfeit, fake, refurbished, grey market and unauthorised goods (xii) cable descramblers and black boxes devices intended to obtain cable and satellite signals for free (xiii) replicas or imitations of designer goods; items without a celebrity endorsement that would normally require such an association; fake autographs, counterfeit stamps, and other potentially unauthorised goods (xiv) hacking and cracking materials manuals, how-to guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property illegal goods materials, products, or information promoting illegal goods or enabling illegal acts (xv) weapons firearms, ammunition, knives, brass knuckles, gun parts, and other armaments (xvi) any product or service, which is prohibited by Applicable Law or not in compliance with Applicable Laws (xvii) any other types of products as per the sole discretion of DIPL.
- "Governmental Authority" means any government, regulatory authority, governmental department, agency, commission, board, tribunal or court or other law, rule or regulation-making entity having or purporting to have jurisdiction on behalf of India or any state or any municipality, district or other subdivision thereof and etc., including any office or body exercising any powers of discharging any functions under constitution, statutory or delegated legislation or under delegated executive powers in any relevant jurisdiction.
- “Intellectual Property Right” means any patent, copyright, moral right, trademark, service marks, logos, commercial names, logo identity, logo guidelines, domain names, patents, designs, business processes, semiconductor topography rights or industrial property, know how, software, programs, process, source code, concept, idea, systems, process flow, inventions, formulae, confidential or secret processes, trade secrets, any other protected rights or assets and any other intellectual property right arising under any Applicable Laws and all ancillary and related right, including all rights of registration and renewal and causes for action for violation, misappropriation or infringement of any of the foregoing.
- “Listing Price” means the total amount payable or paid for a Seller Product after the Seller discounts but excluding any amount charged by Marketplace.
- “LSP” means logistics service providers or Indian postal department or representatives assigned by DIPL.
- “Marketplace” means that website or mobile site or a mobile application, the home page of which is identified by the URL www.dilocious.com, and any successor or replacement website. For the avoidance of doubt, “Marketplace” does not include any other websites or mobile sites maintained by or for DIPL or its Affiliates, or any websites or mobile sites that may be linked to or from Marketplace.
- “Objectionable Content” means information or content that (a) belongs to another person and to which the user does not have any right to; (b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; (c) harm minors in any way; (d) infringes any patent, trademark, copyright or other proprietary rights; (e) violates any law for the time being in force; (f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; (g) impersonate another person; (h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
- “Order Information” means, with respect to any Seller Product sold on Marketplace, the following information: the name of the customer, customer email addresses, the name of the recipient, the shipping address, the quantity to be shipped, and any special comments included by DIPL in its discretion.
- “Packing Specifications” means the DIPL guidelines, specifications including modifications thereof for using DIPL provided packaging material used as outer sleeve for packing of Seller Products.
- “Party” means each contracting party is referred as Party and collectively as Parties and includes their respective successors and permitted assigns.
- “Payment Date” means the due date for making payment to Seller as per clause 8.
- “Payment Gateway” has the meaning set forth in clause 8 of this Agreement.
- “Person” shall mean any individual, partnership, corporation, Governmental Authority, trust, trustee, unincorporated organisation and the heirs, executors, administrators or other legal representatives of any individual.
- “Product Information” means, with respect to each Seller Product, the following (including to the extent expressly required under DIPL Policies): (i) description; (ii) Stock Keeping Unit (SKU) and other identifying information as DIPL may reasonably request; (iii) information regarding in-stock status and availability, shipping limitations or requirements, and Shipment Information (in each case, in accordance with any categorisations prescribed by DIPL from time to time); (iv) categorisation within each DIPL product category and browse structure are prescribed by DIPL from time to time; (v) digitised image that accurately depicts only the Seller Product and does not include any additional logos, text or other markings; (vi) Listing Price; (viii) any text, disclaimers, warning, notices, labels, or other Content required by Applicable Law to be displayed in connection with the offer, merchandising, advertising or sale of the Seller Product; (ix) brand; (x) model; (xi) product dimension; (xii) weight; (xiii) a delimited list of technical specifications; (xiv) SKU and UPC numbers (and other identifying information as DIPL may reasonably request) for accessories related to the Seller Product that are available with the Seller Product; and (xv) any other information requested by DIPL or required by Applicable Law.
- “Sales Proceeds” means amount collected by DIPL or its LSPs against Seller Transaction (excluding all Shipping Charges), including any Taxes separately stated and charged.
- “Seller Portal” means the interface for the Seller on Marketplace and Seller Account” has the meaning set forth in clause 3 of this Agreement.
- “Seller Materials” means all Seller trademarks, tag lines, punch line, Seller Content, Product Information, information, data, materials, and other items provided or made available by Seller to DIPL or its Affiliates or Service Providers.
- “Seller Product” means products listed by the Seller; whereas Seller is the Authorised Seller of such products under the brand name owned by the Seller or the Seller has the right to use such trademarks belonging to any third party or Seller has the right to sell such product.
- “Seller Return and Refund Policy” means the policies of Seller for return of the Seller Products to Seller and refunds of payment for the returned Seller Products provided by Seller to DIPL and displayed on Marketplace.
- “Seller Sales Channels” means the Seller stores, websites or any other mode through which Seller is or will be selling its Seller Product either directly by the Seller or any by a person authorized by the Seller or by a person executing sale on behalf of Seller.
- “Seller Terms” means all applicable Seller terms to source, sell, fulfil ship and deliver Seller Products provided by Seller and displayed on Marketplace including Seller Return and Refund Policy provided to DIPL and commensurate to the terms and conditions of this Agreement.
- “Seller Transaction” means any sale of a Seller Product on Marketplace.
- “Service Providers” means any Third Party who is responsible for providing products or services to DIPL.
- “Settlement Period” means each of the periods described in clause 8.
- “Shipment Information” means, with respect to any Seller Product, the estimated or promised shipment and delivery date, shipment and order status and tracking of Seller Products.
- “Shipping Charges” shall mean the logistics, courier, postal charges to be charged from the Buyer for shipping and delivering the Seller Product to Buyer.
- “Storefront or Online Store” means a virtual electronic store created on Marketplace or its microsite for the sale of Seller Products through the Marketplace.
- “DIPL Branding Guidelines” means the DIPL branding guidelines a copy of which already provide to the Seller and includes any modification or substitution of the branding guidelines.
- “Code of Conduct” means the Code of Conduct a copy of which already provide to the Seller and includes any modification or substitution of the code of conduct.
- “DIPL Connected Property” means any website or other service, feature or online presence through which Marketplace and products or services available on Marketplace are offered, merchandised, advertised, syndicated or described.
- “DIPL Fee” means the amounts payable by Seller to DIPL as set forth in the Commercial Annexure for using Marketplace or any other services.
“DIPL Policies” means policies issued by DIPL, terms or conditions published on Marketplace or shared with Seller and modifications thereof.
- Commercial Annexure
- No on-boarding charges, No registration fees.
- DIPL fee/commission/convenience fee will be charged as agreed mutually between the seller and DIPL, payable by seller to DIPL on fulfilment of each order generated on the marketplace
- NO RETURNS are accepted from the customer. Returns and replacements are provided in case of expired or wrong product delivered (Seller needs to pay shipping charges).
- Cancellation term: 10% of order value in case of late dispatch or not dispatch due to out of stock/discontinue of product without any written communication via registered email (Dispatch time - 2 working days).