Orgoshops Marketplace Seller Agreement
Orgoshops International Private Limited, a company incorporated under the Companies Act, 1956, having its registered office at 714-A, &Th Floor, Spencer Plaza, Suite No.639, Mount Road, Anna Salai, Chennai 600002 (hereinafter referred to as “Orgoshops”), operates an online Natural Products marketplace with a focus on Herbals and Natural, which is accessible via www.Orgoshops.com as well as on associated mobile applications such as Orgoshops, (collectively, the “Marketplace”).
This Agreement, along with the seller policies on the Marketplace, is an electronic contract recognised under the provisions of the Information Technology Act of 2000 read along with its Rules, and outlines the terms on which a seller will market and sell its products on the Marketplace. You are a reseller/trader/retailer/merchant (hereinafter referred to as the “Seller”) and you acknowledge that your access and use of the Marketplace constitutes an express acceptance of this contract.
AGREED TERMS ARE AS FOLLOWS:
This Agreement shall be effective and continue till such time that it is terminated in accordance with this Agreement.
2. License of Content by the Seller
In order to facilitate Orgoshops to display the Seller’s products on the Marketplace, the Seller hereby grants to Orgoshops, a non-exclusive, irrevocable, royalty free, license to utilize, modify, re-format, reproduce, adopt, incorporate, integrate, publicly display and distribute, create and exploit derivative works of, the Seller’s (and their third party licensor’s, as the case may be) names, trademarks, trade names, service marks, logos, symbols and other identifying marks related to the products uploaded for sale on the Marketplace, including advertising or marketing material through print, electronic (inter alia including online, video and audio) or radio network (the “Content”). The Seller shall ensure that it shall possess adequate licenses and/or permissions to reproduce such Content on the Marketplace.
The Seller represents and warrants to Orgoshops that: (i) it possesses all the requisite rights, licenses and authorizations to grant the license to the Content to Orgoshops; (ii) the Content does not infringe upon the intellectual, proprietary and/or personal rights of any known party; (iii) the usage of the Content is in accordance with applicable laws. Notwithstanding anything contained herein, the Seller shall be solely responsible for the Content.
Orgoshops will not be responsible for any disputes/claims initiated or threatened to be initiated, arising out of any actual or alleged breach and/or misappropriation by or against the Seller of any intellectual property and/or other proprietary rights of any third party concerning the products showcased by the Seller on the Marketplace or on the Content. It is further clarified that the Marketplace functions as an “intermediary” (as defined in the Information Technology Act, 2000), and that Orgoshops shall not be responsible for any Content made available by the Seller on the Marketplace.
Orgoshops may discontinue or remove any of the Content from the Marketplace and terminate/temporarily block the Seller’s access to the Marketplace, at its sole discretion and without any notice.
3. Transactions on the Marketplace Order Processing
Sellers are solely responsible for processing orders received on the Marketplace, including fulfilling orders, and processing cancellation and returns. The Payments and refunds are processed through Orgoshops. Orgoshops and the Marketplace do not offer product or Seller discounts, or any other mechanism of directly or indirectly influencing the price of the products sold on the Marketplace in accordance with applicable laws.
For processing an order, unless otherwise agreed with Orgoshops in a separate addendum document, the Seller shall avail of the “Orgoshops Fulfilled” option on the Marketplace:
Orgoshops shall provide free technology integration with leading logistics service providers (the “Delivery Partner”) through which the Seller can integrate and use any such service for order fulfillment purposes. The Seller shall bear the total cost of logistics, and Orgoshops may only act as an intermediary and liaise between the Seller and the Delivery Partner.
Where an order is fulfilled through one of the Delivery Partners integrated with the Seller through Orgoshops’s technology, the Seller shall fully comply with the process of the Delivery Partner, and where it requires any documentary proof of delivery or return of its product from the Delivery Partner, the Seller shall raise such request in accordance with the Seller Policies (defined below in Clause 5.4).
Upon a valid request for proof of delivery or return within the specified timelines under the Seller Policies, the Delivery Partner shall provide and the Seller shall accept either of the following documents as sufficient documentary evidence of delivery or return of the product:
(i) delivery run sheet of the Delivery Partner used while making the delivery or return; or
(ii) signed statement from the Delivery Partner attesting to the delivery or return of the specific order in question.
Product quality and invoicing of orders
The Seller shall ensure that all its products which are offered for sale on and sold to the customers on the Marketplace are: (i) manufactured, processed, packaged, stored and distributed in accordance with all applicable laws, including but not limited to the Legal Metrology Act, 2009 and the rules framed thereunder; (ii) of high/superior quality (including quality standards prescribed by Orgoshops from time-to-time); (iii) not damaged, imperfect, sub-standard and/or defective; and (iv) meeting the specifications or expectations by the customer. The Seller shall be solely responsible for any and all liabilities arising out of the breach of the provisions of this Clause 3.2.1.
The Seller shall ensure that the products are properly packed to prevent damage during delivery, and shall use the packaging materials specified by Orgoshops for packaging of the products for delivery to the end-customers.
The Seller shall ensure that its products reach the customers without any damage and the Seller shall be solely responsible for rectifying any product which is damaged, at no additional cost, including for all defects, returns and losses in connection therewith.
The Seller shall send an invoice to the customer as part of the package containing the product, in the format provided by Orgoshops in the Seller Policies (defined in Clause 5.4 below).
4. Payment for Products; Fees to Orgoshops
Terms & Conditions for Payment: The Seller agrees to the terms and conditions specified in the terms and conditions of payments to sellers set out in the Seller Policies (“Payment Terms”) for payment towards products sold on the Marketplace;
Fees to Orgoshops: In consideration for the Seller gaining access to the Marketplace to market their products, Orgoshops shall be entitled to receive the fees, as specified in the Payment Terms, from the Seller.
Debit Rights: The Seller agrees that, in the event there is any amount due from the Seller to Orgoshops, Orgoshops has the right, at any time and at its sole discretion, to debit such amount from the payables to the Seller, across all accounts that the Seller may maintain on the Marketplace.
Withholding Rights:The Seller agrees and authorizes Orgoshops to take the following actions
Orgoshops may, at its sole discretion and at any time, provided that notice of such withholding is given to the Seller, hold back a portion of the sale proceeds of the Seller as a separate reserve (“Reserve”). The quantum of the Reserve will be determined by Orgoshops and the Reserve shall be used for solely to settle the future claims of customers in the event of non-fulfilment of delivery to the customers of the Sellers products, keeping in mind the period for refunds and chargebacks.
Orgoshops may, where a Seller has, based on available data and in the sole discretion of Orgoshops, taken any actions that may result in customer disputes, courier disputes, chargebacks or other claims in connection with the Marketplace (“Issue”), (i) suspend the Seller on the Marketplace, and (ii) delay all or any part of the payments owing to the Seller, for a period of ninety (90) days OR until the resolution of the Issue, whichever is earlier
5. Seller Acknowledgments, Representations and Covenants
The Seller represents and warrants that it is a duly organized business entity in full compliance with applicable laws, it has all the powers and authority required to enter into this agreement, and that it has obtained all necessary registrations, permits,
consents and licenses in order to carry on its business and sell products on the Marketplace.
The Seller shall provide, immediately on request, Orgoshops with all such documents and registrations as required under the applicable laws for the conduct of its business on the Marketplace, and for the logistics support provided by Orgoshops.
The Seller shall not, either directly or indirectly, divert customers to other portals or avenues of business. Seller acknowledges that customers transacting with the Seller are common customers of both the Seller as well as the Marketplace.
The Seller agrees and acknowledges that it shall be governed by, and that it has read and understood the commercials incorporated within, all the seller related policies which are published on the Marketplace (the “Seller Policies”), the link to which has been set out in Schedule I below. The Seller further confirms that the Seller Policies form an integral part of this Agreement and govern the relationship and all transactions between the Seller and Orgoshops. The Seller also agrees that Orgoshops may, at its sole discretion, add to, update and amend the Seller Policies at any time, for which due notice shall be provided to the Seller, and the Seller shall comply with the terms of the updated Seller Policies.
The Seller acknowledges that Orgoshops reserves the right to select the products or services to be displayed by the Seller on the Marketplace and decide, at its sole discretion, which information pertaining to such products or services to display to users on the Marketplace. Orgoshops also reserves the right to determine the Sellers who may sell on the Marketplace.
The Seller agrees and acknowledges that Orgoshops shall have the sole right for the design, look and feel, architecture, layout, positioning and all aspects of the Marketplace including listing, positioning, indexing, placement of the products offered for sale on the Marketplace by the Seller and the Seller shall not question or dispute such exercise of right or discharge of responsibility by Orgoshops.
The Seller agrees to mandatorily process and ship all orders as per the fulfillment policy set out in the Seller Policies. Further, the Seller shall provide all requisite entry forms and other documents required for any interstate shipping, and the Seller shall be liable for all cases where the products were shipped with incorrect documentation are impounded.
The Seller agrees and acknowledges that Orgoshops shall have the right to carry out periodic quality checks on the products sold by the Seller on the Marketplace, inter alia entailing opening and inspection of the sealed packaging of the Seller’s products or visiting the Seller’s warehouses for inspection of the products on sale on the Marketplace. Such inspections or quality checks shall, however, not dilute Seller’s sole liability for the products being sold.
The Seller shall accept return and RTO products when delivered to their premises by the logistics service provider. Costs of returns shall be borne by the Sellers in terms of fulfillment policies set out in the Seller Policies. Further, the Seller shall comply with the logistics service provider when asked to certify the pick-up or return of the product.
All disputes arising between the Parties out of or in connection with this Agreement and the transactions on the Marketplace shall be governed by the Seller Policies, and the Seller shall raise disputes solely through the designated channels and within the timelines specified in therein.
The Seller understands that Orgoshops may testing the bank account details furnished by the Seller by making a payment of Re.1 (Rupee One only). In such cases, the Seller shall promptly acknowledge the receipt of the said amount to Orgoshops to enable Orgoshops to make subsequent payments to the Seller’s bank account.
Not with standing anything contained herein, for the purposes of and/or in connection with this Agreement, Orgoshops has the right to communicate in any and all modes, including without limitation, mobile, landline, WhatsApp, email and any other electronic mode or otherwise, now existing or hereinafter developed. The Seller consents to the mode of communications adopted by Orgoshops and shall, in all circumstances, send an acknowledgement of receipt of each communication to Orgoshops.
The Seller acknowledges and agrees that Orgoshops may suspend the Seller’s account and terminate/temporarily block its access to the Marketplace, if the Seller provides improper documents in connection with transactions contemplated under this Agreement, or provides any information which is untrue, inaccurate, not current, or incomplete or for any other reasons as found appropriate by Orgoshops.
The Seller acknowledges and agrees that Orgoshops does not allow sellers to create multiple accounts on the Marketplace and the Seller shall not, either directly or indirectly create multiple accounts on the Marketplace.
The Seller acknowledges and agrees that Orgoshops reserves the right to amend, change and/or modify any clauses of this Agreement at any time and such changes and amendments will override the understanding between the Parties, including any hard copy of the Agreement executed between Parties. The Seller further acknowledges and agrees that it is the Seller’s responsibility to review the revised Agreement on the Marketplace periodically for updates and changes. Any usage and/or continued usage of the Marketplace after the posting of the revised Agreement, including the Seller Policies shall amount to acceptance by the Seller of the revised terms of the Agreement.
The Seller covenants that the sale on any cosmetics on the Marketplace is in compliance with all applicable laws including but not limited to the provisions of the
(i) Drugs and Cosmetics Act, 1940 and the rules framed thereunder; and (ii) the Pharmacy Act, 1948 and the rules framed thereunder. Particularly, Seller shall not sell prescription medicines or magic remedies through the Marketplace.
The Seller shall be solely responsible for providing information relating to the items or services proposed to be sold by it from time to time on the Marketplace. In this connection, the Seller undertakes that all such information shall be accurate and complete in all respects. The Seller shall not exaggerate or over emphasize the attributes of such items or services so as to mislead the customers or other users on the Marketplace in any manner.
The Seller shall not engage in advertising or solicitation of other sellers on the Marketplace to buy or sell any products or services, including but not limited to products or services related to what is displayed on the Marketplace.
The Seller shall be solely responsible for obtaining any transit insurance on the goods sold on the Marketplace, and Orgoshops shall not liable in this regard.
6. Tax Matters
The Seller shall be solely responsible for the collection and payment of any and all duties and taxes etc. on the products they sell on the Marketplace, as well as for filing all relevant returns with governmental authorities, such as service tax, VAT/CST and issuing VAT/CST invoices/credit memos where required. Orgoshops does not undertake any liability for the collection, remittance or reporting of any tax or regulatory payment incumbent on the Seller arising from a sale on the Marketplace.
Unless stated otherwise, any and all fees payable by the Seller under this Agreement are exclusive of all taxes, and the Seller will pay all taxes that are imposed and payable on such amounts. The Seller shall also make due payments to Orgoshops where the latter is required by law to collect any tax from the Sellers on the Marketplace.
All payments by Orgoshops to the Seller shall be subject to any applicable withholding taxes under the applicable law. If for any reason, any income tax or withholding tax is required to be deducted and deposited on any payments or remittances to the Seller, Orgoshops will have the right to comply with the appropriate regulatory authority, and no claim in respect of the taxes deposited shall be made by the Seller against Orgoshops.
The Seller acknowledges that at all times during the term of the Agreement and thereafter, to hold in strictest confidence, and not to use, except to the extent necessary to perform its obligations to Orgoshops under the Agreement, and not to disclose to any person, firm, corporation or other entity, without written authorization from Orgoshops in each instance, any confidential information, trade secrets, customer data including any personal information relating to customers on Orgoshops, any commercial/financial terms, communication or transactional data between Orgoshops and the Seller, that is obtained, accessed or created during the term of the Agreement, until such confidential information becomes publicly and widely known and made generally available through no wrongful act of the Seller or of others who were under confidentiality obligations as to the item or items involved. The Seller further agrees not to make copies of such confidential information except as authorized by Orgoshops.
8. Assignment of Inventions
The Seller agrees and acknowledges Orgoshops as being the sole and complete owner of all processes, methods, systems, improvements et cetera developed during the course of the relationship under this Agreement, even if the originator/implementer of such new processes, improvements (et cetera) is the Seller. The Seller hereby assigns full ownership rights by means of this Agreement for due consideration, the receipt and sufficiency of which is hereby acknowledged.
The Seller hereby indemnifies and agrees to keep indemnified and hold harmless Orgoshops, from and against all losses, expenses, claims, damages, liabilities, penalties, judgments, costs, expenses (including without limitation reasonable legal costs), charges, actions, proceedings and demands (“Losses”) brought against or suffered by Orgoshops or any of its officers, directors, employees or agents, resulting from, arising out of or relating to: (i) a breach or non-performance by the Seller of any of its representations, warranties, covenants and/or assurances contained herein; (ii) failure by the Seller to perform any of its obligations contained herein; (iii) a breach or non-performance by the Seller of applicable laws; (iv) claims made by third parties, including the customers of the Seller against Orgoshops in connection with any act or omission attributable to the Seller; and/or (v) any willful misconduct or negligent acts by the Seller or any of its officers, directors, employees or agents.
In addition to the above, the Seller hereby agrees to indemnify, defend and hold harmless Orgoshops, its affiliates, and their respective officers, directors, employees, representatives and agents against any claim, Loss, damage, settlement, cost, expense or other liability (including, without limitation, attorneys’ fees) arising from or related to: (i) the offer, sale, performance and fulfillment of obligations by the Seller;
(ii) any personal injury, death or property damage related thereto; and (iii) taxes and related obligations attributable to the Seller.
10. Limitation of Liability
Notwithstanding anything stated elsewhere, in no event shall any Orgoshops be liable to the Seller for any indirect, incidental, consequential, special, exemplary or other damages, including but not limited to loss of profits, loss of data, business interruption and the like, suffered by the other or any third party under or in pursuance of the terms hereof, howsoever arising, whether under contract, tort or otherwise, even if advised about the possibility of the same.
Orgoshops provides all services under this Agreement relating to the Marketplace on a completely “as is” basis without any representations, warranties, assurances or promises of any kind. In no event shall Orgoshops’s liability for any losses in connection with this Agreement exceed the fees specified in the Payment Terms and actually paid by the Seller to Orgoshops over the immediately preceding 1 (one) month period, regardless of whether such liability arises from a claim based upon contract, warranty, tort or otherwise.
The Seller specifically acknowledges and agrees that Orgoshops is not involved in transactions between the Seller and its customers and for all disputes arising between them, the Seller shall ensure that the customers shall, forever release Orgoshops, its affiliates, officers, directors, agents and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Orgoshops shall not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events or other matters beyond their reasonable control including force majeure events.
11. DISCLAIMER OF WARRANTIES
It is hereby expressly provided that Orgoshops does not warrant that the Marketplace (including all content, software, functions, materials and information available or provided therein) and the services provided thereto, will meet the Seller’s requirements or be available in a timely, secure, uninterrupted or error free manner, and Orgoshops shall not be held 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.
The Marketplace and related services are provided on an “as is” basis and Orgoshops specifically disclaims all warranties and indemnities, express, implied or statutory.
The Seller expressly agrees that Orgoshops makes no representations, warranties and promises, express or implied, regarding: (i) the success of the objectives intended to be achieved by the Seller pursuant to this Agreement; and (ii) the sale of its products displayed on the Marketplace.
Orgoshops shall at its sole discretion have the right to terminate this Agreement or suspend its services under the terms of this Agreement, at any time, in the event the Seller: (a) fails to perform any of the obligations imposed upon it under the terms of this Agreement, so as to be in default hereunder, provided however that Orgoshops at its sole discretion may provide the Seller 7 (seven) days from the date of receipt of notice by the Seller from Orgoshops in this regard, to cure such default to the satisfaction of Orgoshops; (b) becomes or is declared insolvent, or files an application to be adjudged as bankrupt; (c) admits in writing its inability to pay its debts as they mature; (d) makes an assignment for the benefit of its creditors; (e) ceases to function as a going concern or to conduct its operations in the normal course of business, or (f) Seller (either through itself, or through/along with its associates or group companies) exceeds, or potentially reaches the point of exceeding, 25% of sales undertaken on the Marketplace.
The Seller may terminate this Agreement at any time by providing notice of thirty (30) days in the method prescribed in the Seller Policies. The Seller shall continue to be liable for any obligations that had arisen prior to the date of termination.
Notwithstanding anything contained in this Agreement, Orgoshops retains the right to forthwith remove the Seller and all Content listings, or any other content, information and other Seller generated materials from the Marketplace, and to immediately halt any transaction, and prevent or restrict access to the Marketplace, for any reason whatsoever, including but not limited to: (i) the failure of the Seller to comply with its obligations under Clause 3.2.1 above, (ii) if there is an increased rate of return of products and/or complaints against the Seller, (iii) the uploading of inaccurate listings by a Seller, and the sale of any unlawful items, or items otherwise prohibited by the applicable Seller Policies.
13. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION
All questions concerning the construction, validity and interpretation of this Agreement will be governed by the laws of India.
Subject to the provisions of Clause 13.3 below, the courts at Bengaluru, India shall have exclusive jurisdiction over all matters arising out of or in connection with this Agreement.
In the event a dispute, difference, claim or controversy arises in connection with this Agreement, the Parties shall attempt in the first instance to resolve such dispute through discussions/consultations. If the dispute is not resolved through discussions within 15 (fifteen) days from the date of commencement of discussions or such longer period as the Parties may mutually agree, the dispute shall be finally resolved by arbitration in accordance with the Arbitration and Conciliation Act, 1996 by a sole arbitrator mutually appointed by the Parties, failing which by an arbitral tribunal consisting of 3 (Three) arbitrators (the “Arbitration Tribunal”). The decision of the Arbitration Tribunal shall be final and binding on the Parties. The Seller and Orgoshops shall each appoint 1 (one) arbitrator. The 2 (two) arbitrators so appointed shall appoint the third arbitrator. The place of arbitration shall be Bengaluru, India. All arbitration proceedings shall be conducted in the English language. Nothing set out in this Clause shall preclude either Party from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same.
14. MISCELLANEOUS PROVISIONS
Relationship between the Parties: It is clearly understood and accepted by the Parties that this Agreement and the contract between the Parties evidenced by it are on a “principal to principal” basis.
Non-Disparagement: The Seller shall not, either directly or indirectly, make any statement or allegation to any third party, nor make any public announcement, press release, public speech or permit press interviews, or post any statement on any social media or other electronic media, which expressly or impliedly has the effect of disparaging Orgoshops, its affiliates, their businesses, products and services or injuring or harming the business reputation of Orgoshops or do any act that will be prejudicial to the interests of Orgoshops.
Subject to Orgoshops’s right to send notices and communications in a mode it determines, all notices from Orgoshops will be sent by e-mail to the registered e-mail address of the Seller maintained in our records. The Seller will monitor his or her e-mail messages frequently to ensure awareness of any notices sent by Orgoshops, and shall provide Orgoshops with fourteen (14) days notice for any change in such email address, failing which Orgoshops shall not be liable for any consequence arising out of the non-receipt of such notice.
Any communication from the Seller, including notices of disputes, shall be deemed to be received by Orgoshops only when made in accordance with the applicable Seller Policies and transmitted through the seller support channels provided to the Seller on the Marketplace.
Assignment: This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors. The Seller shall not assign and transfer any of its rights and/or obligations hereunder or otherwise deal with this Agreement, without the prior written consent of Orgoshops and any attempt to do so shall be void.
Complete Agreement: This Agreement, which incorporates the Seller Policies which Orgoshops may update from time to time, constitutes and contains the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all previous communications, negotiations, commitments, either oral or written between the Parties in respect of the subject matter hereof.
Conflict. In the event of any conflict between the terms of this Agreement and the provisions of the Seller Policies, the provisions of the Seller Policies shall prevail and have primacy over the terms set out herein.
Severability. If any part or provision of this Agreement is found invalid or unenforceable to any extent for any reason under law, the remainder of this Agreement shall not be affected thereby, and each of those remaining provisions shall be valid and enforceable to the fullest extent permitted by law.
All the Seller Policies, as may be amended by Orgoshops from time to time, are available on the seller panel account of each Seller.