Livysh Seller Agreement
This Seller Agreement (“Agreement”) is made and entered into on _______________ between TakeCare Digital Pvt Ltd, a company having its registered office in Vidyanagar, Hyderabad, Telangana, India (hereinafter referred to as “Company”) of the First Part and ______________________________________________, a company having its office at _____________________________________ , (hereinafter referred to as “Seller”) of the Second Part.
- Company owns and operates the online shopping store “Livysh” (hereinafter referred to as “Website”) currently located at the following URL: https://Livysh.com and also to be deployed as a mobile app namely Livysh for facilitating trading of products by Sellers directly to consumers, delivering products of their own to consumers and offers various services to Sellers and Consumers.
- Seller is engaged in the business of manufacturing and/or sale of ______________ _________________________ and has offered to sell its products through the Website.
- Company and the above referred Seller are hereinafter collectively referred to as “Parties” and individually as “Party”.
NOW THIS AGREEMENT WITNESSETH HEREWITH:
For the purpose of this Agreement, the following words and phrases shall have the meaning assigned to them under this Article.
- “Company” shall mean TakeCare Digital Pvt Ltd.
- “Consumer” shall mean a Website user.
- “Effective Date” shall mean the date on which this Agreement is executed.
- “Form” shall mean Form to be filled in with Seller details and executed by the Seller at the time of execution of this Agreement.
- “Order” shall mean an order for purchase of products wherein Consumer has agreed to purchase the product upon the terms and conditions and at the Price indicated on the Website.
- “Products” shall mean merchandise items of the Seller put up for sale on the Website by the Seller.
- “Listing” shall mean the listing of Product(s) by the Seller on the Website in accordance with this Agreement.
- “Delivery” shall mean delivery of Product(s) by a parcel service, courier, etc., to the Consumer at the address specified by the Consumer.
- “Payment” shall mean the collection of Price from the Consumer using the Payment Gateway on the Website or by using Payment Instruments at the time of delivery of Products or by cash paid at the time of delivery of the Products.
- ‘Payment Gateway’ is the service provided by banks or third party processors to authorize Payments on the Website using a Payment Instrument.
- ‘Payment Instrument’ means the instrument used for making Payments, such as credit card, debit card, bank account or such other lawful instruments of Payment as Company may permit from time to time.
- “Price” means the price of the Products, inclusive of all taxes, Shipping Fee and any other charges payable by the Consumers.
- “Commission Fee” shall mean the charges payable by the Seller to the Company based on the agreed percentage of item price that is dependent on the category and sub-category.
- “Collection Fee” shall mean the transaction charges payable by the Seller to the Company for using the Company’s Payment services including the Payment Gateway usage on the Website or cash on delivery collection.
- “Shipping Fee” shall mean the logistics/courier/postal charges including all taxes incurred for delivering the product(s) to the Consumer.
This Agreement shall commence on the Effective Date i.e. ______________and is valid until _______________, i.e. for a period of three (3) months from the Effective Date. The Agreement can be renewed as may be mutually agreed by the Parties.
The Company offers the following services to the Seller for facilitating online sale of Seller’s Products to Consumers:
- Listing Services
- Live Streaming Services
- Payment Services
- Delivery Services
- Listing Services:
By executing this Agreement, Seller agrees to have itself listed on the Website of the Company.
Seller’s Listing Rights and Obligations:
- Seller shall upload information of the Products that the Seller wishes to list on the Website and sell to the Consumers. Seller shall, at all times, keep updated information about Products on the Website including but not limited to images, Price, descriptions, Product features, stock availability, country of origin of the Product, value addition done in India for the Product, delivery timelines and the Seller’s name.
- Seller agrees to allow the Products to be listed on the Company’s mobile app namely Livysh as and when it goes live.
- The Seller shall only list Products that are available in stock.
- Seller shall not list any Product on the Website that is legally prohibited or restricted for distribution or sale.
- The Products shall be of the same quality as those offered by Seller without using the Website. Seller warrants that all Products shall accurately correspond to their description and Price as viewed on the Website and be fit for use.
- Price Guarantee: The Seller shall guarantee the price shown to the Consumer at the time of placing the order and shall not change the same at the time of execution of the order. It is the Seller’s responsibility to accept any losses arising out of any variation in the Price from that shown.
- Seller shall ensure that any limitations or disclaimers regarding the Products shall be clearly visible to Consumers.
- Seller shall follow the procedures recommended by the Company, the Government of India and the State Government of Telangana from time to time.
- Seller shall not list any counterfeit products on the Website.
- Seller shall submit an undertaking of genuineness of their products and Company shall make this undertaking accessible to the Consumers in the Website as per directives of the Government of India.
- Seller shall be solely responsible for the quality, quantity, implied warranty of merchantability, guarantee, warranties in respect of the products offered for sale through the Website.
- In the event there is any complaint from the Consumer in regards to the Product being fake the Company shall notify the Seller. The Seller shall provide the proof of Product genuineness within forty eight (48) hours failing which the Company may remove such product from the listing on the Website.
- In the event the Consumer does not accept any ordered product due to damage or incorrect product dispatch, then the Seller agrees to replace the same with a good quality, correct product at no extra cost to the Consumer. Seller hereby authorizes the Company to entertain all claims of return of the Product.
- Seller shall ensure not to upload any image/text that is unlawful, illegal, objectionable, obscene and vulgar, prohibited, opposed to public policy or is in violation of intellectual property rights including but not limited to Trademark and copyright of any third party.
- Seller shall be solely responsible for any dispute that may be raised by the Consumer relating to the merchandise and services provided by the Seller.
- The Seller shall at all time during the pendency of this agreement endeavor to protect and promote the interests of the Company and ensure that third parties rights including intellectual property rights are not infringed.
- The Seller shall at all times be responsible for compliance of all applicable laws and regulations including but not limited to Intellectual Property Rights, Local Sales Tax, Central Sales Tax, Goods and Service Tax (GST), Service tax, Value added tax, Standards of Weights & Measures legislation, Sale of Goods Act, Excise and Import duties, Drugs and Cosmetics Act, Drugs and Remedial Magic Act, Code of Advertising Ethics, etc.
- Seller agrees and acknowledges that the Company reserves the right to refuse any Payment from the Consumers and to deactivate the Website for any Consumer, temporarily or permanently, for any reasons including that of fraud, system maintenance, etc.
- Seller shall fulfil all orders for the Products promptly and in accordance with best commercial practices and as per agreed terms.
- Seller agrees and acknowledges that Company shall be free at all times to add, delete or modify any functionalities of the Website, list of Sellers on Website, etc. Further Company shall be entitled to frame from time to time, terms and conditions for registration and usage of Website. However, Company shall notify Seller of the revisions to the terms and conditions for registration and usage of the Website.
- Seller agrees and acknowledges that the company may use review rating mechanisms that allow shoppers to rate the Products and/or Seller’s performance as a seller on the Website and that these ratings & feedback may be made publicly available.
Company’s Listing Rights and Obligations
- Company shall offer the Listing Services to the Seller as per terms of this Agreement but makes no guarantee that the Listing shall be available in any specific or uninterrupted manner for Consumer’s viewing and use.
- For the avoidance of doubt, all contracts to purchase and sell Products shall be directly between Consumer and Seller. Company disclaims any liability or obligation as regards the Products and Seller agrees to indemnify Company against losses arising out of Seller’s non-performance of its obligations to Consumer.
- Seller agrees and acknowledges that the Company, at all times during the continuance of this Agreement, shall have the right to block or delete any text, graphic(s), image(s) uploaded on the Website by the Seller, without any prior intimation to Seller in the event, the said text, image, graphic is found to be in violation of law, breach of any of the terms of this Agreement, terms and conditions of the Website. In such an event, the Company reserves the right to forthwith deactivate/close the account of the Seller without any prior intimation or liability to the Seller.
- While Company shall use its best endeavours to ensure that the services through the Website are provided error free, virus free and uninterrupted, the Company does not warrant the same at all times as there may be technical glitches that are not in control of the Company.
- At any time if the Company believes that the services are being utilized by the Seller or its Consumer in contravention of the terms and provisions of this Agreement, Terms and conditions of use of Website, the Company shall have the right either at its sole discretion or upon the receipt of a request from the legal / statutory authorities or a court order to discontinue/terminate the said service(s) to Consumer or the End user as the case may be, without liability to refund the amount to the Seller to forthwith remove/block the account of the Seller on the Website and furnish such details about the Seller and/or its Consumers upon a request received from the Legal/ Statutory Authorities or under a Court order.
- Live Streaming Services:
- The Company provides live streaming facility through its Website to display and sell the products to multiple customers.
- The Company provides one (1) live streaming event during the period of sixty (60) days free of cost for the sellers. In order to arrange any additional live streaming events during that period of sixty (60) days, the Seller will be charged at a rate mutually agreed between both the parties. The Company reserves the right to allow the additional live streaming events.
- While the Company shall use its best endeavours to ensure that the live streaming services are provided error free, virus free and uninterrupted, the Company does not warrant the same at all times as there may be technical glitches that are not in control of the Company.
- While the Company shall use its best endeavours to ensure that the live streaming services are arranged as per scheduled time, the Company does not warrant the same at all times and may be subject to re-scheduling as there may be high volume of events, transactions or technical glitches that are not in control of the Company.
- Payment Services:
- The Company shall collect the Payment on behalf of the Seller against the fulfilment of the orders placed by the Consumer through the Website.
- The Company shall provide the Consumers the option to pay for their orders at the time of placing the order via Payment Gateway or at the time of Delivery of the Products by using Payment Instruments or by paying cash on delivery.
- Seller agrees and acknowledges that Company does not guarantee or make any express or implied warranty with respect to the Payment Gateway or security measures that it may employ from time to time, or other procedures, services, including, without limitation, any warranties on merchantability, satisfactory quality and/or fitness for a particular purpose.
- Delivery Services:
- If the Seller chooses to avail the Company’s Delivery Services, Seller will arrange to keep the ordered Products ready within four (4) hours of order placement. Company will then pick-up the Products from the Seller’s outlet and delivers to the Consumer using its own delivery infrastructure or through tie-ups with third party service providers.
- The Company reserves the right to levy Shipping Fee to the Consumer. The Shipping Fee will be determined based on Order value, Product category, distance, time of the day or other factors as is relevant to the Company’s business and will be indicated to the Consumer on the Website.
- If the Seller chooses to ship the Products on their own without using the Company’s Delivery Services, Seller shall deliver the products within forty (48) hours on receipt of the approved order or within the time specified in the product description on the Website. Seller shall submit proof of dispatch to the satisfaction of Company within forty (48) hours of the request made by Company.
- Seller agrees to update the Order Status including Airway Bill Number on a daily basis to the Company.
- Payment Terms
- In consideration of the services rendered, the Company shall charge Commission Fee, Collection Fee and Shipping fee as applicable, to the Seller at the rates specified by the Company in Appendix A.
- The rates mentioned in the Appendix A are of limited period inaugural promotion. The Company may, at any time, in its sole discretion and without liability, modify or withdraw the promotion or modify the rates mentioned in Appendix A above by providing a 72 hours written notice to you.
- Commission Fee and Collection Fee shall be subject to review on a half yearly basis and may be revised by the Company from time to time based on the volume of the transactions, product categories and any such factors as may be agreed between the Parties.
- Shipping Fee is calculated on actual weight or volumetric weight, whichever is higher. This is to account for items which are lightweight but occupy more shipping space.
Volumetric Weight (kg) = Length (cm) X Breadth (cm) X Height (cm)/5000
- In the event, the company provides special rates to a Seller under this Agreement, the Company shall charge the Commission Fee, Collection Fee and Shipping fee as applicable, to the Seller at the Special rates specified by the Company.
- All applicable taxes, rates and duties arising on account of sale of the Products on the Website will be borne by the Sellers.
- In the event, the Seller uses Company’s Delivery services; the Company shall pay the Seller an amount recovered as Price minus the sum of Commission Fee, Collection Fee, Shipping Fee and applicable service tax on these fees for the approved order(s) received through the Website.
- In the event, the Seller themselves handles the Shipment of the Products; the Company shall pay to the Seller an amount recovered as Price minus the Commission Fee, Collection Fee and applicable service tax on these fees for the approved order(s) received through the Website.
- Any amount to be paid to the Seller by the Company shall be paid net of reversals. The Company shall credit the amount to the Seller’s Account within Ten (10) days from date of delivery of the Products to the Consumers. Company shall make available order wise details of all Product sales on its Website. Seller shall reconcile the details provided on the Website with its own records and bring any discrepancies to Company’s notice within a period of five (5) days of the transaction having occurred. The Company and the Seller shall mutually resolve such discrepancies and in the event that they are accepted, the Company shall account for the same in the succeeding Payment to the Seller.
- In the event any order is reversed due to “Damaged product”, “Quality issue”, “Not delivered” or “Wrong Item delivered”, or in the event the product cannot be delivered by the Seller due to “out of stock”, Seller agrees that the Company shall levy the Commission Fee, Collection Fee, Shipping Fee if applicable, applicable service taxes on these Fees, plus a penalty up to a maximum limit of Rs 300 and the said charges will be deducted from the amount due and payable to Seller. In such an event Seller shall be liable to bear all the cost and claims (including cost of legal proceedings, cost of attorneys, claims, etc.) rose against the Company.
- Company shall charge a Commission Fee of _______ % of item price to the Seller for the agreed _________________________________________ category.
- The Company shall charge a Collection Fee of 3% of item price to the Seller.
- In the event the Seller uses Company’s Delivery services, Company shall charge a Shipping Fee to the Seller at the rates specified by the Company in Appendix A.
- Terms and Conditions:
- Warranties, Representations and Undertakings:
Each Party represents and warrants to the other Party that:
- It has the right and full authority to enter into this Agreement.
- It is an authorized business establishment and hold all the requisite permissions, authorities, approvals and sanctions to conduct their business
- All their obligations under this Agreement are legal, valid and binding obligations enforceable in law.
- Right of Service: Company reserves the right to offer its services to the Seller.
- Non-Exclusivity: The Listing on the Website shall be on a non-exclusive basis in that Company shall have the right to list other Sellers offering Products similar to the Products of the Seller. Similarly, the Seller shall be free to sell the Products in their own outlets or list their Products for sale with any other listing service.
- Website Maintenance: Company shall endeavour to make the Website and Payment Gateway available at all times except during routine maintenance, updates, upgrades, etc., on the Website (referred to as ‘Website Maintenance’). In the event of any interruptions to the Website as part of the Website Maintenance, Company shall endeavour to ensure that the Listing and Payment Services and Payment Gateway are made available for utilisation as soon as may be possible. Company shall not be liable for any losses, damages or expenses incurred by the Consumer or the Seller in respect of any interruption in the use of the Website due to the Website Maintenance or otherwise. Company shall be entitled but not obliged, to make changes, enhancements, and/or modifications to the Website from time to time including, without limitation, the development of updates, patches, upgrades and/or the procurement of new software, integrations and/or reporting tools.
- Intellectual Property Rights:
- Intellectual Property Rights mean (a) all inventions, all patents, patent applications, and patent disclosures relating thereto, (b) all trademarks, service marks, trade dress, logos, trade names, domain names and corporate names, and including all goodwill associated therewith, and all applications, registrations, and renewals connected therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all trade secrets and confidential business information (f) all other proprietary rights and (g) all copies and tangible embodiments thereof.
- Company is and continues to be the sole and absolute owner of the Intellectual Property Rights in the Website, as well as other materials used in their design and development, including but not limited to the computer software, data, information, processes and design. The Seller shall not have any right, title or interest in the same. The Seller shall also not be entitled to require the Company to provide the source or object code of any software or any other Intellectual Property Rights of the Company.
- Seller shall be deemed to have granted the Company a non-exclusive, non-transferable, royalty free license to use the name and logos of Seller and its Products on the Website. Seller shall continue to be the owner of its trademarks and its Products displayed on the Website.
- Right of Termination: Either Party is free to terminate the Agreement by giving thirty (30) days’ prior written notice to the other Party, addressed to their registered offices or the addresses mentioned in this Agreement. This Agreement shall stand immediately terminated upon written notice by a Party, if (a) such Party determines that the other Party has committed a material breach of its obligations under this Agreement which is not remediated within thirty (30) days from the date of written notice by such Party requiring the other Party in breach to remediate such breach; and (b) if the other Party is unable to pay its debts, or has filed in a court of law an application for winding up.
Upon termination, (a) the Parties shall pay/receive all accrued amounts till the date of termination; (b) the Company shall discontinue Listing the Seller’s Products on its Website; (c) Company shall not be liable for any loss or damages (direct, indirect or inconsequential) incurred by the Seller by virtue of termination of this agreement.; (d) each Party shall return all property of the other including any confidential information, and shall certify that no confidential information has been retained by it; and (e) all vested interests of the Parties and obligations that are meant to survive termination shall so survive. It is further agreed by and between the Parties that any dispute that may arise in the course of this Agreement shall not suspend the work that has already begun.
- Confidentiality and Consumer personal data: Both Parties agree that all information and data and all matters thereof learned by either Party in the course of this Agreement, terms of this Agreement or any information, data and/or matters contained in documents and/or materials to which you have gained access to, during the Agreement, or any aspect whatsoever of either Party’s operations shall be kept and shall be maintained as strictly confidential; and as such shall not be used, disclosed or made available to the other Party. Seller agrees to keep Consumer personal data confidential at all times and shall not use such data in any way inconsistent with applicable law.
- Indemnification: In the event Seller agrees to use Company’s Delivery Services, Company shall be responsible for the safe delivery of the Products. Company shall indemnify and keep indemnified the Seller from and against any and all claims, suits, actions, demands or proceedings and all related damages, losses, liabilities, cost and expenses (including but not limited to reasonable lawyers’ fees) arising out of or relating to any delay in Delivery or damage to the Products from the time of order pick-up till the time of Delivery of Products directly attributable to the acts of omission or commission or negligence, dishonesty or misconduct of its personnel. All liability that may arise out of death, injury or accident to any personnel of Company while delivering the Seller’s Products which may arise out of and in the course of their duties, to the extent not attributable to the Products being delivered, shall also be borne and paid by the Company and the Seller shall not be liable to pay any damages or compensation or amount to any such persons or anyone claiming through or under them or to third parties.
Seller hereby agrees to indemnify Company, its directors and officers from and against any and all claims, suits, actions, demands or proceedings and all related damages, losses, liabilities, cost and expenses (including but not limited to reasonable lawyers’ fees) arising out of or relating to (a) delay or failure to keep the Product ready for Delivery by the Company; (b) any health complaints by Consumers arising directly or indirectly from the Products; (c) failure to dispatch the Product of the promised description, Price, quality, quantity or packaging or wrongful dispatch of product not meeting the description of the Product in question; (d) any inaccuracies or misrepresentations with respect to the Products on the Website; (e) any claim for infringement of any intellectual property rights; (f) any loss arising on account of failure by the Seller to pay applicable Local Sales Tax, Central Sales Tax, Service tax, Value Added tax, The Standards of Weights & Measures legislation, Excise and Import duties, etc. (g) any breach by Seller of its obligations under this Agreement; or (h) violation or breach by Seller of any law, rules or regulations.
- Limitation of Liability: Under no circumstances, except in case of breach of contract and to the maximum permitted by law, will either party be liable to the other party for lost profits, or for any indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this Agreement, regardless of the type of claim and even if that party has been advised of the possibility of such damages, such as, but not limited to loss of revenue or anticipated profits or loss business, unless such loss or damages is proven by the aggrieved party to have been deliberately caused by the other party. Notwithstanding anything contained in this Agreement, the liability of the Company shall in no event exceed 25% of the Price of the Product in question.
- Force Majeure: Either Party may suspend their work in whole or in part in the event of a Force Majeure event, including but not limited to war, strike, theft, sabotage, acts of any Government authority, change of law, any act of God, or any other event beyond the reasonable control of such Party. On the occurrence of a Force Majeure event, the Party affected by the Force Majeure shall immediately notify the other Party of the same and the expected duration of such condition. It is expressly agreed that neither Party shall be liable for any default, delay or lapse occurring due to reasons of Force Majeure. In the event that the Force Majeure event continues for a period exceeding 2 (two) months, the Party unaffected by the Force Majeure event may terminate this Agreement by written notice to the other Party.
- Dispute Resolution: This Agreement shall be governed by the laws of India. In the event of any dispute, the Parties will resort to arbitration in accordance with the Arbitration and Conciliation Act, 1996. The Parties shall refer such disputes to a sole mutually appointed arbitrator based in Hyderabad and the venue for resolving disputes will be at Hyderabad. Subject to the foregoing, the courts of Hyderabad, India shall have exclusive jurisdiction in respect of any dispute between the Parties under this Agreement.
- Notice: Any notice or other communication to be given under this Agreement shall be in writing and shall be served by personal delivery or by facsimile or by prepaid registered post or by courier to the addresses of the Parties specified in this Agreement or as are notified by either Party to the other from time to time. Any notice or communication given under this Agreement shall be deemed to be served/ received by the other Party within forty eight (48) hours of posting, or immediately upon personal delivery or faxing if the transmission report indicates that the fax transmission was successful on address in the recitals.
- Severability: If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity shall remain in full force and effect. The Parties shall nevertheless be bound to negotiate and settle an alternate clause that shall be as close to the intent of the original clause and which shall nonetheless be valid and enforceable.
- Entire Agreement: This Agreement constitutes the entire understanding of the Parties with respect to the subject-matter hereof. There are no promises, covenants, undertakings other than those set forth herein. Any modification or amendment to this Agreement shall not be valid unless set forth in writing and signed by duly authorized representatives of both the Parties.
This Agreement may be executed in two (2) counterparts, each of which shall be deemed an original and which shall together constitute one Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
For TakeCare Digital: For ______________________:
Designation: Director Designation:
Company Seal: Company Seal: