Thephantom Codes Private Limited, a company incorporated under the Companies Act, 2013 under the CIN No. U72200DL2016PTC301786 with its registered office at E-46, G/F, Lajpat Nagar III New Delhi 110024 India owns and operates an online marketplace on the website located at the URL ‘www.Neomart.com’ and ‘Neomart’ mobile application which acts as an online platform facilitating different Merchants to sell their Products and enabling different Customers to purchase the Products offered by the Merchants and the Merchant being desirous of using the Online Marketplace o offer and sell various Products to the users of the Online Marketplace and have completed Neomart’s Merchant Registration Form to enroll as a registered Merchant on the Online Marketplace agrees to the following General Conditions of Contract.
The following words and terms, whenever used herein, unless repugnant to the meaning or context thereof, shall have the respective meanings set forth below:
“Agreement” means the Services Agreement entered into between the Service Provider and the Merchant, read with these Conditions of Contract which are incorporated therein by reference;
“Customer” means a user of the Online Marketplace who contracts with the Merchant to purchase Product(s) from the Merchant by placing an order through the Online Marketplace;
“Damages” include claims, demands, actions, suits, losses, costs, charges, fees, expenses, damages and liabilities whatsoever, including reasonable attorneys’ fees and expenses;
“Services” means operation and management of the Online Marketplace to enable the Merchant to display and offer Products for sale on the Online Marketplace;
“Merchant” means a natural person, proprietorship, partnership, company or other entity who has entered into an Agreement with the Service Provider for the sale of their Products through the Online Marketplace;
“Online Marketplace” means the marketplace operated by the Service Provider through its website – “Neomart.com” or the mobile application – “Nukkad Se”;
“Parties” mean the Merchant and the Service Provider collectively, and a Party shall be construed to mean either one of them;
“Products” mean the goods or any other products listed by the Merchant for sale to Customers on the Online Marketplace;
“Sale Price” means, with respect to a Product, the price at which the Merchant lists such Product for sale on the Online Marketplace, not being higher than the maximum retail price for such Product;
“Service Provider” means Thephantom Codes Private Limited, a company incorporated under the Companies Act, 2013 under the CIN No. U72200DL2016PTC301786 with its registered office at E-46, G/F, Lajpat Nagar III New Delhi 110024 India and includes its successors and assigns;
“Services” mean the the Services, but no other services provided by the Service Provider unless specifically agreed to in writing.
Terms defined elsewhere hereunder shall, unless otherwise indicated, have the meaning so ascribed to them.
PRODUCTS AND ORDERS
The Merchant shall provide the Service Provider requisite details of the Products, including without limitation all details statutorily required to be displayed along with an offer for sale of the Products on the Online Marketplace. The Merchant shall ensure that the product listing shall contain all details along with the MRP and list price and confirms and acknowledges that such details shall be in compliance with all applicable laws including but not limited to the Legal Metrology Act. The Merchant acknowledges, agrees and undertakes that he / it will never obliterate, smudge or alter the Maximum Retail Price (MRP) indicated by the manufacturer or the packer or the importer. In the event of Merchant being found in violation of this clause, the Service Provider at its sole discretion may impose penalty as it deems fit.
The specific terms and conditions of each transaction (such as pricing, warranties, delivery, etc.) entered into through the Online Marketplace are established between the Merchant and the Customer. The Online Marketplace is a venue through which the Merchant and the Customer can transact. The Customer decides with whom to do business. All commercial/contractual terms in respect of the Product/Services are offered by Merchant and agreed upon between Merchant and the Customer alone. The commercial/contractual terms in respect of Product include (without limitation) price, shipping costs, payment methods and terms, date, period, and mode of delivery, and warranties, if any. The Service Provider does not determine, advice, have any control, or in any way involve itself in the offering or acceptance of such commercial/contractual terms in respect of Product between Merchants and Customers. Merchant understands, agrees and acknowledges that the Service Provider is an intermediary which facilitates the online transaction for sale of Products between the Merchant and Customer and that there is no privity of contract between the Customer and the Service Provider; and it shall be a bipartite transaction between the Merchant and Customer and as such the Service Provider shall not be a party to the same.
The Parties shall from time to time mutually agree upon the Products that shall be available for sale on the Online Marketplace, provided that the Service Provider shall at its discretion be entitled to remove any Products listed on the Online Marketplace.
It is expressly agreed that the Service Provider shall not be responsible for claims made by Customers in respect of the Products, whether relating to their quality or description or otherwise including without limitation on account of unavailability, inaccurate product information or descriptions, delay or damage in transit etc.
The Parties agree that the Merchant shall solely be responsible for delivery of all Products ordered through the Online Marketplace (including risks associated therewith) and assumes full and sole responsibility of ensuring that the delivery is duly made in the manner required.
The Merchant undertakes that no Product(s) shall consist of any illegal goods, including, but not limited to contraband / counterfeit products etc and the Merchant shall not attempt to sell any products falling in the category of product prohibited for sale in India under any law for the time being in force. The Service Provider shall be entitled to block all such products and shall also have the right to suspend or terminate the Merchant’s access to the Online Marketplace and/or terminate this agreement forthwith.
The Merchant may have his own return policy and the same will be clearly stated and made known to the Customer before the Customer places an order on the Online Marketplace. The Service Provider does not provide any refund or returns policy to the Customer on behalf of the Merchant.
2.8 The Service Provider reserves the right to determine the Merchants who may sell on the Online Marketplace. The Service Provider also reserves the right to suspend access to registered Merchants to the Online Marketplace, or to terminate such access granted under these General Conditions of Contract, without assigning any reasons thereto. The Service Provider also reserves the right to select/delist the Products displayed/offered for sale or to be displayed/ offered for sale on the Online Marketplace.
FEES, CREDIT AND PAYMENTS
Payments of Sale Price by the Customer shall be initially collected by the Merchant themselves through cash on delivery model. In the later stages, the Service Provider may offer additional services relating to payments and at that time collect payments by Customers as advances on behalf of the Merchant through a payment gateway selected by the Customer. The Merchant acknowledges that any such payment collection by the Service Provider shall neither be a banking service nor a financial service but merely a facilitation service. Further, by providing the payment facility, the Service Provider is neither acting as a trustee nor acting in a fiduciary capacity with respect to any transaction on the Online Marketplace. Advanced Sale Price collected by the Service Provider shall be settled with the Merchant within timelines that are mutually agreed subject to deductions, if any.
The Merchant agrees to pay to the Service Provider a monthly subscription fee (“Service Fee”) for the Services at the rate stipulated in the Agreement for use of the Online Marketplace and for listing /sale of its products on the through the Online Marketplace.
The Merchant agrees that all Products sold by it through the Online Marketplace shall be evidenced by invoices in the name of the relevant Customer.
The Merchant further agrees and acknowledges that the Service Provider may levy a transaction based fee calculated on the rate to be mutually agreed between the Merchant and the Service Provider for each order placed by a Customer on the Merchant through the Online Marketplace. In such a case, the Service Provider shall submit an invoice for the Service Fee payable, on a periodic basis, and the Merchant shall pay the corresponding invoice value within such number of days from receipt of such invoice, as is set out in the Agreement along with further payment and credit terms.
Where any Service Fee due to the Service Provider pursuant to the Agreement, or other amounts are otherwise payable to the Service Provider by the Merchant, the Service Provider may deduct such amounts from payments required to be made by it, provided that the Service Provider shall provide the Merchant the details of such deductions.
Payments made by the Merchant to the Service Provider shall be subject to statutory deductions of tax at source.
The Merchant shall be responsible for all taxes, duties, fees, or any other charges of any nature (including, but not limited to value added taxes, sales tax, goods and services tax, octroi, entry tax, local body tax and all items of withholding, penalty, assessment thereto) imposed by any governmental body in relation to the sale of Products.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Party hereby represents and warrants to the other that the Agreement is valid and legally binding upon it and enforceable in accordance with its terms and such Party has the requisite power and authority to execute and deliver the Agreement and all agreements, documents and writings executed pursuant hereto.
The Merchant further represents, warrants and covenants to the Service Provider, as set out in Annexure B hereof.
The Service Provider does not warrant that the Online Marketplace will be available on an uninterrupted or error-free basis, or that it shall be accessible by users for any specified periods of time (number of days in week/month/year). The Merchant acknowledges that the Online Marketplace may have interruptions on account of maintenance, technical outages or similar constraints not within the control of the Service Provider.
The Merchant hereby agrees to indemnify and hold harmless the Service Provider, its affiliates and their respective officers, directors, agents, employees and representatives, from and against any and all Damages arising directly or indirectly as a result of or in connection with (a) the sale of Products to Customers, or contents or quality issues relating to the Products or delay or failure to deliver any Products; (b) any injury or damage to any person, occurring in relation to or in any way connected with any Product(s); (c) the Merchant’s failure to comply with, or an alleged contravention of, any applicable laws; (d) a breach or alleged breach by the Merchant of the Agreement.
The obligations in this Clause 5 shall remain in full force and effect notwithstanding any termination of the Agreement.
No Party shall be liable to the other if, and to the extent, that the performance or delay in performance of any of its obligations under the Agreement is prevented, restricted, delayed or interfered with due to circumstances beyond the reasonable control of such Party, including but not limited to fire, flood, explosion, epidemic, act of God, war, riot, strike or lockout. The Party so affected shall use its commercially reasonable efforts to remove the cause of non-performance, and the Parties shall resume performance hereunder forthwith when such cause is removed.
LIMITATION OF LIABILITY
The Service Provider shall not be liable for any damage or loss to the Merchant on account of orders placed or Products sold through the Online Marketplace, provided that the Service Provider shall be responsible for damage caused in the course of provision of the Delivery Services.
Without prejudice to the generality of the aforesaid, the Parties agree that no liability in excess of the value of Service Fee paid in the calendar month immediately preceding the date on which the first claim arose shall be attributable to the Service Provider.
Notwithstanding anything to the contrary, neither Party shall be liable to the other Party for any indirect, consequential, special, exemplary or punitive damages, or any damages for business interruption, lost profits, lost revenue or lost business arising from the Agreement.
Each Party acknowledges that during the existence of the Agreement, it will have access to confidential information of the other Party and/or its affiliates. The Parties undertake to keep confidential all data and other confidential information supplied to it by the other Party pursuant to the Agreement and agree that it may not sell, divulge or otherwise make that information available to any third parties or use the same in any manner for personal or commercial benefit.
The Agreement, and the terms thereof, shall also be considered to be confidential and shall not be disclosed to any person without the prior written consent of the Service Provider.
The obligations in this Clause 9 shall remain in full force and effect notwithstanding any termination of the Agreement.
INTELLECTUAL PROPERTY RIGHTS
The ownership of the Online Marketplace and all proprietary content thereon shall at all times vest with the Service Provider.
Nothing contained in the Agreement may be construed as a right granted to the Merchant, limited or otherwise, to use any trademark, logo or other intellectual property of the Service Provider or any of its affiliates at any time. The Merchant agrees that it may not, at any time, use any intellectual property of the Service Provider in any manner without the prior written consent of the Service Provider.
The Merchant undertakes not to sell, or offer for sale, on the Online Marketplace any Product which may infringe any patent, trademark, copyright or other proprietary rights/intellectual property of any third party, or may give rise to a cause of action/claim for passing off.
The Agreement shall remain in force from the date of execution hereof until terminated in accordance with the terms hereof.
Either Party may, at any time, terminate the Agreement by giving 30 (thirty) days prior written notice thereof to the other Party without assigning any reason for such termination.
The Service Provider shall have the right to terminate the Agreement forthwith on account of any breach by the Merchant of any representation or warranty, or non-fulfilment of or failure to perform any covenant or obligation or agreement or undertaking contained in the Agreement.
As a consequence of a termination of the Agreement or issuance of a notice for such termination:
all the outstanding payments payable under the Agreement shall be settled by the Parties forthwith, and in any event no later than 2 (two) business days of the date of termination; and
the Service Provider may immediately remove from the Online Marketplace all Products placed thereon for sale by the Merchant.
Provisions and obligations of the Parties under the Agreement which, by their very nature, survive the termination of the Agreement, shall continue to be binding on the Parties.
The Agreement, and the rights, benefits, liabilities and obligations hereunder, may not be assigned or transferred by the Merchant, whether by operation of law or otherwise, without the written consent of the Service Provider. The Service Provider shall have the right to assign and/or transfer its rights, benefits, liabilities and obligations hereunder without the requirement of consent of any person.
In case of any dispute, controversy or difference between the Parties arising out of or in relation to the Agreement including without limitation as to the validity, interpretation, termination, construction, performance, enforcement or alleged breach of the Agreement (“Dispute”), the provisions of this Clause 13 shall apply.
If the Parties are unable to resolve a Dispute amicably within 15 (fifteen) days of commencement of discussions and negotiations pertaining to a Dispute, or such other extended time as may be mutually agreed between the Parties, the Dispute shall be referred for final and binding arbitration.
The arbitration proceedings shall be held in Delhi, in accordance with the Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof for the time being in force by a sole arbitrator appointed mutually appointed by the Parties. The language for arbitration shall be English. The sole arbitrator shall have the right to decide on the costs of arbitration proceedings and his/her order shall be binding on all Parties in all respects.
GOVERNING LAW AND JURISDICTION
The Agreement will be governed by and construed in accordance with the laws of India, without regard to principles of conflicts of law of India or any other jurisdiction and the courts in Delhi shall have exclusive jurisdiction over matters relating to or arising from the Agreement.
No variation or amendment to the Agreement shall be effective unless made in writing and signed by a duly authorised representative of each Party.
The Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one instrument.
No provisions of the Agreement shall be interpreted in favour of, or against, any Party, by reason of the extent to which such Party or its counsel participated in the drafting hereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof.
If any provision of the Agreement becomes or is held to be invalid, ineffective, or unenforceable, all other provisions hereof shall remain in full force and effect. The Parties shall in good faith agree to an amendment or replacement of such invalid, ineffective or unenforceable provision which amendment/replacement shall fulfil as far as possible the purpose and intent of the invalid, ineffective or unenforceable provision.
The Parties are independent contracting parties and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. The Agreement will not be construed to create or imply any partnership, agency or joint venture.
No delay or omission on the part of any Party in exercising any right, power, or remedy, provided by law or under the Agreement shall impair such right, power or remedy or operate as a waiver thereof.
The single or partial exercise of any right power or remedy provided by law or under the Agreement shall not preclude any other or further exercise thereof or the exercise of any other right power or remedy except where expressly stated therein.
No right or remedy made available to the Parties under or pursuant to the Agreement is intended to be exclusive of any other right or remedy provided to such Party or available under applicable law, or in equity or under contract or otherwise.
The Agreement (including the preamble, recitals and Annexures thereof and Schedule hereof, each of which are incorporated herein by reference), as amended from time to time, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, among the parties with respect to such subject matter.
In order to give full effect to the terms of the Agreement, the Parties respectively undertake to promptly do such acts and execute and deliver to each other such further instruments, agreements, contracts, deeds and other related documents as may be required of them.
SCHEDULE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MERCHANT
The Merchant hereby agrees and undertakes that it shall not provide any information or data to the Service Provider in relation to the Products (including text descriptions, graphics or pictures relating to the Products provided for uploading on the Online Marketplace) that:
belongs to another person and to which the Merchant does not have any right;
is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
harms minors in any way;
infringes any patent, trademark, copyright or other proprietary rights/intellectual property;
violates any law for the time being in force;
deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
impersonates another person;
contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation; or
is misleading or known to be false in any way.
The Merchant undertakes to comply with all applicable laws, rules and regulations and shall timely obtain, maintain and renew any and all permits, certificates and licenses necessary for the proper conduct of its business and the performance of its obligations under the Agreement. The Merchant shall be duly registered with the FSSAI as a Food Retailer, as applicable. The Merchant agrees and undertakes that it shall not describe itself as an agent or representative of the Service Provider.
The Merchant agrees to attend to, and resolve, all Customer queries, requests and/or complaints with regard to Products within a reasonable period of time, not exceeding 7 (seven) days from the date of receipt of the query/request/complaint.
The Merchant agrees to maintain records of all Products sold by it to Customers, and also all returns, refunds, etc., as may be required for audit and regulatory purposes and for the provision of efficient and speedy customer service by the Service Provider.
The Merchant shall be responsible, and solely liable, to Customers for all representations or warranties with respect to the quality and description of the Products as provided by it and set out on the Online Marketplace.
The Merchant understands and confirms that selling fake, duplicate, spurious, counterfeit, damaged, defective, refurbished or previously owned Products through the Online Marketplace is not permitted and will cause great prejudice and harm to the reputation and goodwill of the Service Provider and also cause loss to the Customers, and accordingly undertakes not to sell any such Product(s).