Retailer T & C
a. This document is an electronic record in terms of Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.
c. Phalin Impex Private Limited (“Company”), are registered under the Indian Companies Act 2103, and having its registered office at Flat No- D, Ground Floor, jj/4A, neelkantha apartment, foyra bhavan, Ashwininagar, Baguiati, Kolkata - 700159, India, where such expression shall, unless repugnant to the context thereof, be deemed to include its respective representatives, administrators, employees, directors, officers, agents and their successors and assigns. The Company conducts its business using the domain name www.Shopnista.com to provide the services as listed below.
d. For the purpose of these Seller Terms (“Terms”), wherever the context so requires,
i. The term ‘You’ & ‘Seller’ shall mean any natural or legal person accessing or using the services provided on the Website to offer for sale or advertise the sale of products including but not limited to Garments, apparels, electronics, appliances and other lifestyle products (“Products”) and related services, and who is competent to enter into binding contracts, as per the provisions of the Indian Contract Act, 1872; and in the case of an entity, the individual acting on its behalf, and who is authorised to act on behalf of the entity and bind the entity to these Terms;
ii. The terms ‘Party’ & ‘Parties’ shall respectively be used to refer to the Seller and the COMPANY individually and collectively, as the context so requires.
iii. The terms ‘Customer’ or ‘Buyer’ or “User” mean any natural or legal person accessing or using the services provided on the Website to buy any of the products or services offered for sale on the website and who is competent to enter into binding contracts, as per the provisions of the Indian Contract Act, 1872; and in the case of an entity, the individual acting on its behalf, and who is authorised to act on behalf of the entity and bind the entity to these Terms.
e. The headings of each section in these Terms are only for the purpose of organizing the various provisions under these Terms in an orderly manner, and shall not be used by either Party to interpret the provisions contained herein in any manner. Further, it is specifically agreed to by the Parties that the headings shall have no legal or contractual value.
f. The use of the Website by the Seller is solely governed by these Terms, and any modifications or amendments made thereto by the COMPANY from time to time, at its sole discretion. Using the platform provided on the Website to sell or advertise the sale of any product or service of the Seller (“Service”), shall be deemed to signify the Seller’s unequivocal acceptance of these Terms, and the Seller expressly agrees to be bound by the same.
g. The Seller unequivocally agrees that these Terms constitute a legally binding agreement between the Seller and the COMPANY, and that the Seller shall be subject to the rules, guidelines, policies, terms, and conditions applicable to any service that is provided by the Website, and that the same shall be deemed to be incorporated into these Terms, and shall be treated as part and parcel of the same. The Seller acknowledges and agrees that no signature or express act is required to make these Terms binding on the Seller, and that the Seller’s act of using the Website or any part of the services therein to sell or advertise the sale of any product or service constitutes the Seller’s full and final acceptance of these Terms.
2. ACCEPTANCE OF TERMS
i. These Terms form an electronic contract that establishes legally binding terms that the Seller must accept to use the Service provided through the Website. These Terms include by reference any other terms disclosed and agreed to by the Seller in the event the Seller purchases or accepts additional features, products or services in addition to the Service, including but not limited to terms governing features, billing, free trials, discounts, promotions, preferential positioning, etc.
ii. The Seller is aware and agrees that the COMPANY reserves the sole and exclusive right to amend or modify these Terms without any prior permission or intimation to the Seller, and the Seller expressly agrees that any such amendments or modifications shall come into effect immediately. The Seller has a duty to periodically check the Terms and stay updated on its requirements. If the Seller continues to use the Website following such a change, the Seller will be deemed to have consented to any and all amendments / modifications made to the Terms. In so far as the Seller complies with these Terms, the Seller is granted a personal, non-exclusive, non-transferable, revocable, limited privilege to access and use the Website to sell and advertise the sale of products and services.
a. The Seller represents and warrants that he/she is competent and eligible to enter into legally binding agreements and that he/she has the requisite authority to bind himself/herself to these Terms, as determined solely by the provisions of the Indian Contract Act, 1872. The Seller may not use the Website if he/she is not competent to contract under the Indian Contract Act, 1872, or is disqualified from doing so by any other applicable law, rule, regulation or judicial verdict currently in force.
b. In the event of the Seller being an entity, the individual acting on the entity's behalf represents and warrants that he/she is authorised to act on behalf of the entity and bind the entity to these Terms, and also that the entity is in compliance with any and all rules, regulation and Statues applicable to it, and that it has all requisite permissions and licenses required for its operations.
c. Furthermore, it is mandatory for Sellers such as Designers/Manufacturers/Brands/Artisans to register themselves on the Website.
4. CREATION OF AN ACCOUNT
The Seller shall have the option of creating an account as a wholesaler or as a retailer and shall register himself in the appropriate section on the Website and in the event that the Seller wishes to register himself as a Wholesaler and a Retailer then he shall have to register himself in both sections.
In order to use Service, the Seller may first be required to provide certain details to the COMPANY through the Seller panel on the Website, including but not limited to the Seller’s name, address, mobile phone number, email address, photographs, username, password, geographical location, Valid business proof and related documents like PAN ID, TIN no. VAT certificate, to create an account that can subsequently be used to avail of the Service. Further, subsequent to the creation of an account, the Seller shall upload / publish / post pictures and descriptions on the Website of products and services the Seller wishes to sell to the users of the Website. If the Seller chooses to do so, the Seller hereby authorises the COMPANY to access and use any and all such information and material provided, as governed by these Terms. In case the Seller is not able to post/ publish/provide such pictures then the Seller shall allow the agents of the COMPANY to click/prepare such pictures and upload on the Website. The Seller shall cooperate with such agents of the COMPANY in every way to click/prepare the pictures. If seller deals directly with any of our/Shopnista customers we have the right to stop services and close the account of the seller.
If there is a dispute with returned products, seller must send photographs or make Shopnista people to physically inspect the disputed goods, so that Shopnista can track/rectify the mistake and solve the matter fairly
5. TERM AND TERMINATION
These Terms will remain in full force and effect while the Seller avails of the Service and/or is in possession of an active account. The Seller is aware that the COMPANY may terminate or suspend the Seller’s account at any time, without cause or notice, if the COMPANY believes that the Seller has breached the Terms, or for any other reason, in its sole discretion, whether or not such action is instigated by complaints from the users of the Website. The Seller is further aware and expressly agrees that even after the Seller’s account is terminated for any reason, these Terms shall survive such termination, and continue to operate in full force and effect, except for any terms that by their nature expire or are fully satisfied.
6. ACCOUNT SECURITY
The Seller is responsible for maintaining the confidentiality of the Seller's username and password, assigned to the Seller during the registration process, and the Seller is solely responsible for all activities that occur under the Seller’s username and password, including but not limited to listing / delisting of products and services, modifications to prices listed for said products / services and communication with users of the Website. The Seller agrees to immediately notify the COMPANY of any disclosure or unauthorized use of the Seller’s username or password, or any other breach of security with respect to the Seller’s account, and also to ensure that the Seller logs out from the account at the end of each session.
7. ROLE OF THE COMPANY & WEBSITE
a. The Seller acknowledges and agrees that the COMPANY merely provides a platform for the Seller to list products / services for sale to the users of the Website, and collects amounts on behalf of the Seller arising out of the sale of such products/services. The Company shall deduct a certain amount of the transaction as commission for such listing.
b. The Seller is also aware that the COMPANY is engaged in an E-commerce business on the Website as a Seller and maintains its own brand which avails the COMPANY’s Services.
c. The Seller hereby expressly authorises the COMPANY to act as the Seller’s agent for purposes of processing payments, refunds and adjustments for the Seller’s transactions, receiving and holding sales proceeds on the Seller’s behalf, remitting such proceeds to the Seller’s bank account, and paying the COMPANY and its affiliates amounts owed to them by the Seller in accordance with these Terms or other agreements the Seller may have with the COMPANY or its affiliates. Sales proceeds shall mean the gross proceeds from any of the Seller’s transactions, including all shipping and handling, gift wrapping (if offered) and other charges, but excluding any taxes separately stated and charged.
d. The COMPANY will advertise and promote the Seller’s products on the Website at regular intervals that shall be decided by the COMPANY. The Seller shall be solely responsible for the sale of the products to the buyers during their visit to the Website store and the COMPANY has nothing to do with the same.
e. The Seller shall be solely responsible for payment of any and all taxes on the products or services offered by him/her on the Website, including but not limited to, sales tax and VAT. The Seller shall also be responsible for and agrees to bear, any additional cost associated with successful execution of orders placed on the Website, including but not limited to, packaging, transportation, shipping and handling, wrapping (if offered). The Seller agrees that the Company shall be provided the full commission charges and that Courier charges, Cash on Delivery charges, Payment gateway charges or any other extra charges should be deducted from seller transaction amount prior to providing the commission to the COMPANY.
f. The COMPANY shall make the payment via electronic, Cheque, Cash, wallets or any other mode. The commission shall vary based on the type of Products being sold.
g. The COMPANY shall not be responsible for the provision of original bills to the customers. The Seller hereby agrees that it shall be their liability to provide original copies of bills and invoices.
h. The Seller expressly consents to allowing the COMPANY to retain amounts paid by its users towards products / services purchased from the Seller for a period of 15 to 20 days from the date of payment by the user, to account for any possible claim for a refund by such user, and further consents to the COMPANY adjusting such claimed amounts against amounts payable to the Seller arising from different transactions on the Website, in the event that that consideration for the transaction in question has already been paid to the Seller.
8. INTERACTIONS WITH USERS OF THE WEBSITE
The Seller agrees and acknowledges that the Seller is solely responsible for any and all interactions with Users of the Website. The Seller understands that the COMPANY does not conduct any criminal background checks or screenings on any of its users or Sellers. The Seller is further aware that the COMPANY also does not attempt to verify or validate the information provided by its users. The COMPANY makes no representations or warranties as to the conduct of its users, or their interactions with the Seller. The Seller is solely responsible for any and all interactions with users of the Website, and the Seller expressly agrees and acknowledges that the COMPANY will not be liable for the same in any manner whatsoever. The Seller agrees and acknowledges that Users of the Website may rate the Seller and may also write reviews relating to the Seller and the products / services listed on the Website by the Seller. The Seller is aware that some of these reviews may not be flattering and may affect the future sales of the Seller, however the Seller agrees that the COMPANY will be under no obligation to remove any such negative reviews, although the Seller may appeal to the COMPANY to do the same if the Seller feels that such review is unjustified or made with mala fide intent.
9. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
a. The Seller is aware that the COMPANY owns and retains all proprietary rights in the Website and Service, and in all content, trademarks, trade names, service marks, copyrights and other property rights related thereto. The Website and Service contain the copyrighted material, trademarks, and other proprietary information of the COMPANY and its licensors, and the Seller agrees not to copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible through the Service, without first obtaining the prior written consent of the COMPANY, or if such property is not owned by the COMPANY, the owner of such intellectual property or proprietary rights. The Seller agrees to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
b. The Seller is aware that for the purpose of availing of the Service, the Seller will be required to upload on the Website images and descriptions of all products and services the Seller wishes to sell through the Website. The Seller is further aware that the same will be visible to and accessible by all users of and visitors to the Website, and that the COMPANY has no control over their actions, and will not be liable in any manner should any such user or visitor infringe on the intellectual property of the Seller by accessing / misusing / copying / using / creating derivative works from said product / service listings, and the Seller hereby expressly agrees that the COMPANY shall have absolutely no liability for the same, and further agrees not to involve the COMPANY in any resulting legal proceedings, and expressly agrees to indemnify the COMPANY and reimburse the COMPANY for any expenses incurred in this respect.
c. The Seller expressly agrees and accepts that the intellectual property of the Seller is required to be displayed on the Website in the form of product / service listings, and the Seller does hereby expressly authorise the COMPANY and the Website to use the same in this connection, and also expressly agree to continue to allow the COMPANY to do so, without the COMPANY ever being required to pay any manner of license, fee or amount in this respect, for any such incidental usage. The Seller further agrees and hereby expressly authorises the COMPANY to continue to display said product / service listings of the Seller even after the Seller has stopped producing / supplying the same, and even if the Seller has deleted the account assigned to the Seller and has stopped availing of the Service. If the Seller does not agree to these provisions, then the Seller is not authorised to use the Website or avail of the Service.
10. SERVICES LISTED BY THE SELLER ON THE WEBSITE
a. The Seller expressly agrees that the Seller shall honour any and all orders successfully placed, whether or not paid for in advance, and shall directly deliver the service within the timeline mentioned on the website to the address provided by the Customer, while placing an order on the website. The Seller shall ensure that the service delivered to a Customer shall conform with the service description/ photographs/quality assurance as displayed on the Website. The Seller agrees that in the event of non-conformance, the Website shall not be responsible or liable in any manner and agrees to indemnify and hold the website, its officers, agents and employees harmless from any loss, claim or dispute that may arise from the non-conformance of the service to the description, quality or photographs on the Website.
b. The delivery shall be done via the third party logistics party or a courier partner or the same can also be done by the Seller itself.
c. The Seller shall not be authorised to subsequently refuse delivery of services purchased, or increase the cost thereof for any reason whatsoever. The Seller further agrees to honour any and all orders placed by users of the Website even if such order has been placed against an item listed at an incorrect price, and even if the Seller is no longer in possession of such item. In the event that the Seller is unable to deliver a service, the Seller does hereby expressly agree to compensate the COMPANY with an amount that may extend to 3 (three) times the listed value of the service in question.
d. The Seller shall abide by the Cancellation Policy of the website and have a similar policy of its own, while catering to the orders placed by Customers through the Website. For any returns or exchanges, Customers shall be made aware that the Seller’s policy regarding returns or exchanges shall apply. The Website shall not be involved or responsible for such requests or transactions.
e. The Seller acknowledges and agrees to be solely responsible for the content and information posted, uploaded, published, linked to, transmitted, recorded, displayed or otherwise made available (“Post”) on the Website or transmitted to other users, including but not limited to item listings on the Website and communication with users of the Website, whether publicly posted or privately transmitted. The Seller may not Post as part of the Service, or transmit to the COMPANY or to any user of the Website, any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material, or any material that infringes or violates another person’s rights (including intellectual property rights, and rights of privacy and publicity). The Seller represents and warrants that (i) all information that the Seller submits upon creation of the account is accurate and truthful, and that the Seller will promptly update any information that subsequently becomes inaccurate, incomplete, misleading or false and (ii) the Seller has the right to Post the information / material on the Website and grant the licenses set forth below; and (iii) that the Seller is the owner of all intellectual property associated with products / services listed by the Seller on the Website, and that the Seller has the right to list such products and services for sale.
f. The Seller understands and agrees that the COMPANY may, but is not obligated to, monitor or review any content the Seller Posts as part of the Service. The COMPANY may delete any content, in whole or in part, that in the sole judgment of the COMPANY violates these Terms or may harm the reputation of the Website, Service or COMPANY, or may offend, injure or be prejudicial to the interests of any of its users.
g. By Posting information / content as part of the Service, the Seller automatically grants to the COMPANY, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, transferable, sub-licensable, fully paid-up, worldwide right and license to (i) use, copy, store, perform, display, reproduce, record, play, adapt, modify and distribute the content, (ii) prepare derivative works of the content or incorporate the content into other works, and (iii) grant and authorize sublicenses of the foregoing in any media now known or hereafter created. The Seller represents and warrants that any Posting and use of the Seller content by the COMPANY will not infringe or violate the rights of any third party, and hereby expressly agrees to indemnify the COMPANY against the same.
h. The Seller may not Post, upload, display or otherwise make available content that:
i. promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
ii. advocates harassment or intimidation of another person;
iii. requests money from, or is intended to otherwise defraud, other users of the Service;
iv. involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming” (or “spamming”, “phishing”, “trolling” or similar activities);
v. promotes information that is false or misleading, or promotes illegal activities or conduct that is defamatory, libellous or otherwise objectionable;
vi. promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
vii. contains video, audio photographs, or images of another person without his or her permission (or in the case of a minor, the minor’s legal guardian);
viii. contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
ix. provides material that exploits people in a sexual, violent or other illegal manner, or solicits personal information from anyone under the age of 18;
x. provides instructional information about illegal activities such as making or buying illegal weapons or drugs, violating someone’s privacy, or providing, disseminating or creating computer viruses;
xi. contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices;
xii. impersonates, or otherwise misrepresents affiliation, connection or association with, any person or entity;
xiii. provides information or data the Seller do not have a right to make available under law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information);
xiv. disrupts the normal flow of dialogue, causes a screen to “scroll” faster than other users are able to type, or otherwise negatively affects other users’ ability to engage in real time exchanges;
xv. solicits passwords or personal identifying information for commercial or unlawful purposes from other users or disseminates another person’s personal information without his or her permission; and
xvi. publicises or promotes commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
i. The COMPANY reserves the right, in its sole discretion, to investigate and take any legal action against any Seller who violates this provision, including removing the offending item listing / content from the Service and terminating or suspending the account of such Seller.
j. The Seller’s use of the Service, including all content Posted by the Seller through the Service, must comply with all applicable laws and regulations. The Seller agrees and acknowledges that the COMPANY may access, preserve and disclose the Seller account information and content if required to do so by law, or if it in good faith believes that such access, preservation or disclosure is reasonably necessary, to: (i) comply with any legal process; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; (iv) respond to the Seller’s requests for customer service, or allow the Seller to use the Service in the future; or (v) protect the rights, property or personal safety of the COMPANY or any other person.
k. The Seller agrees that any content the Seller Posts on the Service may be viewed by other users, and may be viewed by any person visiting or participating in the Service, and that the COMPANY shall in no way deemed to be responsible or liable for the actions of such individuals, and the Seller does hereby expressly agree to the same.
11. PROHIBITED ACTIVITIES
The COMPANY reserves the right to investigate, suspend and/or terminate the Seller account if the Seller has misused the Service or behaved in a manner the COMPANY regards as inappropriate or unlawful, including actions or communications that occur off the Service, but involve users of the Service or information obtained through the Service. The following is a non exclusive list of actions and activities that the Seller is not permitted to engage in while availing of the Service:
a. impersonate any person or entity;
b. solicit money from any user(s) in excess of amounts already paid / agreed to be paid by users, or in excess of amounts listed on Website for the product / service in question;
c. Offer money to any user, for any reason whatsoever without the express knowledge and consent of the COMPANY;
d. post any content that is prohibited by these Terms or any applicable law currently in force;
e. stalk or otherwise harass any person;
f. express or imply that any statements the Seller makes are endorsed by the COMPANY without the COMPANY’s specific prior written consent;
g. use the Service in an illegal manner or to commit an illegal act;
h. access the Service in a jurisdiction in which it is illegal or unauthorized;
i. ask or use users to conceal the identity, source, or destination of any illegally gained money or products;
j. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
k. collect usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Service;
l. interfere with or disrupt the Service or the servers or networks connected to the Service;
m. email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
n. forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted to or through the Service (either directly or indirectly through use of third party software);
o. “frame” or “mirror” any part of the Service, without the COMPANY's prior written authorization;
p. use meta tags or code or other devices containing any reference to the COMPANY or the Service (or any trademark, trade name, service mark, logo or slogan of the COMPANY) to direct any person to any other website for any purpose;
q. modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service any software used on or for the Service, or cause others to do so;
r. post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any content or information obtained from the Service other than solely in connection with the Seller use of the Service in accordance with these Terms;
12. CUSTOMER SERVICE
The COMPANY may provide assistance and guidance through its customer care representatives. When communicating with the COMPANY’s customer care representatives, the Seller agrees to not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, and to not otherwise behave inappropriately. If the COMPANY is of the impression that the Seller’s behaviour towards any of its customer care representatives or other employees is at any time threatening or offensive as described hereinabove, the COMPANY reserves the right to immediately terminate the Seller’s account.
13. MODIFICATIONS TO SERVICE
The COMPANY reserves the right at any time to modify or discontinue, temporarily or permanently, the Website or Service (or any part thereof) with or without notice. The Seller agrees and acknowledges that the COMPANY shall not be liable to the Seller or to any third party for any modification, suspension or discontinuance of the Service, even if the same should lead to loss of profits, damage, injury, etc to the Seller. To protect the integrity of the Service, the COMPANY reserves the right to block Sellers from certain IP addresses from accessing the Service, at any time and in its sole discretion.
14. IPR POLICY
a. The Seller may not list for sale, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limitation to the foregoing, if the Seller or any third party believes that his/her work has been copied and posted on the Service in a way that constitutes infringement of his/her intellectual property, he/she is required to contact the COMPANY and provide the COMPANY with the following information:
i. an electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property;
ii. a description of the work that the individual claims has been infringed;
iii. a description of where such material is located on the Service (and such description must be reasonably sufficient to enable the COMPANY to find the alleged infringing material, such as a URL, user profile, etc.);
iv. the individual’s address, telephone number and email address;
v. a written statement by the individual that the individual has a good faith belief that the disputed use is not authorized by the owner of the intellectual property; and
vi. a statement by the individual, made under penalty of perjury, that the above information supplied is accurate, and that the individual is the owner or authorized to act on the owner's behalf;
b. Notice of claims of misuse and infringement must be provided to the COMPANY’s grievance officer.
c. The COMPANY reserves the right to terminate the accounts of any Sellers found to have misused / infringed the intellectual property of another person/entity, in its sole discretion. The Seller is aware that the Seller may also face civil and criminal charges in the event of such misuse / infringement.
a. The Seller acknowledges and agrees that neither the COMPANY nor its affiliates or third party partners are responsible for, and shall not be deemed to have any liability - directly or indirectly, any loss or damage, including personal injury or death, as a result of or alleged to be the result of:
i. any Customer placing a false order on the Website, blocking a service or related product on the website or refusing delivery of a successfully placed order;
ii. any user of the Website demanding a refund, whether or not due to a defect in the product or service;
iii. any damage caused to the service and related products during delivery or storage, whether or not such damage is attributable to the COMPANY;
iv. any theft of the product(s) of the Seller, whether or not the COMPANY was in possession of the product at the time of such theft;
v. any fire, flood, earthquake or other event beyond human control that causes damage to the products of the Seller, whether or not the COMPANY is in any way attributable to such damage, and whether or not the COMPANY had been advised of such risk;
vi. any infringement / misuse of the intellectual property of the Seller by any visitor or user of the Website;
vii. any incorrectness or inaccuracy in the Seller’s account or item listings, whether or not directly attributable to the COMPANY or the users of the Website or any of the equipment or programming associated with or utilized in the Service;
viii. the timeliness, deletion or removal, incorrect delivery or failure to store any item listing, content, communications or personalization settings;
ix. the conduct, whether online or offline, of any user;
x. any error, omission or defect in, interruption, deletion, alteration, delay in operation or transmission, theft or destruction of, or unauthorized access to, any information / material of the Seller;
xi. any problems, failure or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to the Seller’s or any other individual or entity’s computer(s) or device(s) related to or resulting from participating or downloading materials in connection with the internet and/or in connection with the Website / Service;
xii. Any loss, damage or injury whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, caused due to or alleged to be caused due to the actions or inactions of the COMPANY, or any of its employees/personnel, or any unrelated third party, and the Seller hereby expressly acknowledges and agrees that the COMPANY has no responsibility or control over the same, and shall not be deemed liable in any manner whatsoever.
b. The Seller is aware and acknowledges that to the maximum extent allowed by applicable laws, the COMPANY provides the Service on an “as is” and “as available” basis, and grants no warranties of any kind, whether express, implied, statutory or otherwise with respect to the Service (including all content contained therein), including (without limitation) any implied warranties of satisfactory quality, merchantability, fitness for a particular purpose or non-infringement. The COMPANY does not represent or warrant that the Service will be uninterrupted or error free, secure or that any defects or errors in the Service will be corrected.
c. The Seller is further aware and acknowledges that any material downloaded or otherwise obtained through the use of the Service is accessed by the Seller at his/her own discretion and risk, and the Seller will be solely responsible for and does hereby waive any and all claims and causes of action with respect to any damage to the Seller’s device, computer system, internet access, download or display device, or loss or corruption of data that results or may result from the download of any such material.
d. The COMPANY may make third party opinions, advice, statements, offers, or other third party information or content available through the Service. The Seller is aware that all such third party content is the responsibility of the respective authors thereof, and the COMPANY does not make any warranties or guarantees with respect to the same. The Seller is further aware that the COMPANY does not: (i) guarantee the accuracy, completeness, or usefulness of any third party content provided through the Service, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears in the Service. The Seller agrees and acknowledges that under no circumstances will the COMPANY or its affiliates be responsible or liable for any loss or damage resulting from the user reliance on information or other content available through the Website, or transmitted to or by any users.
a. The Seller is aware that the Service may contain or provide advertisements and/or promotions offered by third parties and links to other websites or resources. The Seller acknowledges and agrees that the COMPANY is not responsible for the availability of such external websites or resources, and that the COMPANY does not endorse and is not responsible or liable for any content, information, statements, advertising, goods or services, or other materials on or available from such websites or resources. Seller correspondence or business dealings with, or participation in promotions of, third parties found in or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between the Seller and such third party. The Seller further acknowledges and agrees that the COMPANY shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, information, statements, advertising, goods or services or other materials available on or through any such website or resource.
b. The Seller further agrees that in the event of the Seller providing the users of the Website with a link to a Website owned / operated by the Seller, the Seller shall be solely liable for the same, and hereby agrees to indemnify and keep indemnified the COMPANY from the claims of any individual with regard to the same. Further, the Seller shall not be authorised to provide the users of the Website with a link to any website or domain wherein products and services are being sold, whether or not such website is owned / operated by the Seller, and whether or not such website is in competition with the Website, at the sole discretion of the COMPANY.
17. LIMITATION OF LIABILITY
a. To the fullest extent allowed by applicable law, in no event will the COMPANY, its affiliates, business partners, licensors or service providers be liable to the Seller or any third person for any indirect, reliance, consequential, exemplary, incidental, special or punitive damages, including, without limitation, loss of profits, loss of goodwill, damages for loss, corruption or breaches of data or programs, service interruptions and procurement of substitute services, even if the COMPANY has been advised of the possibility of such damages notwithstanding anything to the contrary contained herein, the COMPANY's liability to the Seller for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid, if any, by the Seller to the COMPANY for the Service while the Seller maintains an account. The Seller agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within One (1) year after such claim or cause of action arose or be forever barred.
b. The Parties expressly agree that in the event of any statute, rule, regulation or amendment coming into force that would result in the COMPANY / Website incurring any form of liability whatsoever, these Terms shall stand terminated one (1) day before the coming into effect of such statute, rule, regulation or amendment, and the Seller shall be prohibited from accessing the Website and availing of the Service beyond such date.
18. DISPUTE RESOLUTION AND JURISDICTION
It is expressly agreed to by the Parties hereto that the formation, interpretation and performance of the Terms and any disputes arising herefrom will be resolved through a two-step Alternate Dispute Resolution (“ADR”) mechanism.
a. Mediation: In case of any dispute between the parties, the Parties will attempt to resolve the same amicably amongst themselves, to the mutual satisfaction of both Parties. In the event that the Parties are unable to reach such an amicable solution within thirty (30) days of one Party communicating the existence of a dispute to the other Party, the dispute will be resolved by arbitration, as detailed hereinbelow;
b. Arbitration. In the event that the Parties are unable to amicably resolve a dispute by mediation, said dispute will be referred to arbitration by a sole arbitrator to be appointed by the COMPANY, and the award passed by such sole arbitrator will be valid and binding on both Parties. The Parties shall bear their own costs for the proceedings, although the sole arbitrator may, in his/her sole discretion, direct either Party to bear the entire cost of the proceedings. The arbitration shall be conducted in English, and the seat of Arbitration shall be [under Company Registered office jurisdiction].
The Parties expressly agree that the Terms and any other agreements entered into between the Parties are governed by the laws, rules and regulations of India, and that the Courts at [under Company Registered office jurisdiction], India shall have exclusive jurisdiction over any disputes arising between the Parties.
19. INDEMNITY BY THE SELLER
a. The Seller hereby expressly agrees to defend, indemnify and hold harmless the Website and the COMPANY, its employees, directors, officers, agents and their successors and assigns and against any and all claims, liabilities, damages, losses, costs and expenses, including legal fees, caused by or arising out of any and all claims of any individual against the Seller, including without limitation the non-fulfilment of any of the obligations or commitments of the Seller under the Terms, or arising out of the Seller’s infringement of any applicable laws, rules and regulations, including but not limited to infringement of intellectual property rights, payment of statutory dues and taxes, claims of libel, defamation, violation of rights of privacy or publicity, loss of service by other Sellers, or the infringement of any other rights of a third party.
b. In no event shall the COMPANY be liable to compensate the Seller or any third party for any special, incidental, indirect, consequential or punitive damages whatsoever, whether or not foreseeable, and whether or not the COMPANY had been advised of the possibility of such damages, or based on any theory of liability, including breach of contract or warranty, negligence or other tortuous action, or any other claim arising out of or in connection with the Seller’s use of or access to the Website, the Service, and any transaction involving a user of the Website and products / services listed by the Seller. The COMPANY reserves the right to assume exclusive control of its defence, and of any matter otherwise subject to indemnification by the Seller, in which event the Seller will fully cooperate with the COMPANY in connection therewith, and hereby expressly agrees to bear the cost thereof.
c. The limitations and exclusions in this section apply to the maximum extent permitted by applicable law, and the Parties expressly agree that in the event of any statute, rule, regulation or amendment coming into force that would result in the COMPANY incurring any form of liability whatsoever, these Terms shall stand terminated one (1) day before the coming into effect of such statute, rule, regulation or amendment, and the Seller shall be prohibited from accessing the Website and availing of the Service beyond such date.
Any and all communication relating to any dispute or grievance experienced by the Seller may be communicated to the COMPANY by the Seller reducing the same to writing, and sending the same to the registered office of the COMPANY by Registered Post Acknowledgement Due / Speed Post Acknowledgement Due (RPAD / SPAD).
21. MISCELLANEOUS PROVISIONS
a. Entire Agreement: These Terms, read with any specific guidelines or rules that are separately posted for particular services or offers in the Service, comprises the entire agreement between the Seller and the COMPANY regarding the Seller’s use of the Website and the Service. If any provision of these Terms is held invalid by any court or governmental authority of requisite jurisdiction, the remainder of these Terms shall continue in full force and effect and the Parties shall attempt to give full effect to their original intention.
b. Waiver: The failure of either Party at any time to require performance of any provision of these Terms shall in no manner affect such Party's right at a later time to enforce the same. No waiver by either Party of any breach of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such breach, or a waiver of any other breach of these Terms.
c. Severability: If any provision/clause of these Terms is held to be invalid, illegal or unenforceable by any court or authority of competent jurisdiction, the validity, legality and enforceability of the remaining provisions/clauses of these Terms shall in no way be affected or impaired thereby, and each such provision/clause of these Terms shall be valid and enforceable to the fullest extent permitted by law. In such case, these Terms shall be reformed to the minimum extent necessary to correct any invalidity, illegality or unenforceability, while preserving to the maximum extent the original rights, intentions and commercial expectations of the Parties hereto, as expressed herein.
d. Non-Transferability: The Seller agrees that the Seller’s account is non-transferable and all of the Seller’s rights to the profile or contents within the account shall terminate upon the Seller’s death or termination of the Seller’s access to the Service.
e. Relationship between the Parties: The Seller is aware and agrees that no agency, partnership, joint venture or employment is created as a result of these Terms, and the Seller may not make any representations or bind the COMPANY in any manner.