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Vendor Agreement

This document is an electronic record in terms of applicable laws of United Arab Emirates including all its amendments and rules made thereunder as applicable from time to time. This electronic record is generated by a computer system and does not require any physical or digital signatures.

This E-Commerce Vendor Services Agreement (hereinafter referred to as “Agreement”) is made on the day of your acceptance of this Agreement from your designated electronic mail address or in any other form of electronic record by clicking on the check box or “I Agree” / “Accept” button or by any other means which construe your acceptance of this Agreement (“Execution Date”) by and between

The Vendor or You, the details of which are given by you on kleyl website on which this Agreement appears, validly incorporated and existingunder the applicable laws (hereinafter referred to as “Vendor” which expression shall unless repugnant to the context and meaning thereof, include its heirs, legal representatives, successors, liquidators, receivers, administrators and permitted assigns), of One Part;

AND

Kleyl LLC, a Company incorporated under the laws of United Arab Emirates and having its registered office at Prime Tower, Al Marasi Drive St.  Business Bay, Dubai - UAE (hereinafter referred to as “Service Provider” which expression shall unless repugnant to the context and meaning thereof, include its successors, liquidators and assigns), of Other Part. Vendor and Service Provider shall hereinafter be individually referred to as “Party” and collectively as “Parties”.

PREAMBLE

Whereas Vendor is inter alia engaged in the business of developing and/or manufacturing and/or selling various goods and related services in the Territory (“Business”);

Whereas Service Provider is inter alia the owner of Kleyl website (“Platform’’)engaged in the business of operating e-commerce business for independent third party retailers and manufacturers and service providers to sell their products and services to the end customers (“Service Provider Business’’ or ‘’Service Provider Platform’’).

Whereas Vendor has approached Service Provider and Service Provider has agreed to make available Service Provider Business to the Vendor

Whereas Service Provider has made and is in the process of making substantial investment in knowhow, manpower and otherwise to establish its Platform amongst the end customers and retailers so as to create a retail image in which goods and services can be purchased;

Whereas both Service Provider and Vendor recognize that overall success of the Platform and respective businesses depends on the users of the Platform and public in general perceives Platform as a trusted online and electronic marketplace to buy goods and services;

Whereas the Parties wish to enter into this Agreement to document and record their mutual understandings and agreements in relation to the terms and conditions on which Service Provider shall make available its Platform to Vendor. These recitals shall form part of the Agreement.

Now therefore, in consideration of the mutual promises and other consideration, the sufficiency of which is acknowledged, the Parties, intending to be legally bound, agree as follows:


1. DEFINITIONS

“Affiliate” shall mean, with respect to each Party, any person or entity directly or indirectly through one or more intermediary Controlling, Controlled by, or under direct or indirect common Control with a Party.

“Brand” or “Brand Name” shall mean “Kleyl”’or such other successor or replacement brand name / trade mark / service mark as may be decided by the Service Provider upon a prior intimation to the Vendor.

“Confidential Information” means and includes any and all information which is confidential to a Party including any

  • business information and business processes,
  • any samples, formulations, specifications, data relating to manufacturing and quality control processes and procedures,
  • advertising and marketing plans,
  • any past, current or proposed development projects or plans for future development work,
  • technical, marketing, financial and commercial information whether relating to past or current or future,
  • the commercial and business affairs of a Party,
  • all customer related information including any ratesand discounts and
  • and with respect to the Service Provider shall include the End Customer Database.

“Deliverable(s)” shall mean the specific materials, devices, products, services or other deliverables that are provided by Vendor to Service Provider during the course of performing Service Provider Business as per this Agreement and any related document thereto.

“End Customer” shall mean the retail customers to whom Vendor offers to sell or sells or from whom Vendor receives offers to purchase the Products through the Platform.

“End Customer Database” shall mean all data / information (as may be updated from time to time) about the persons/ entities including their names, addresses, contact details, queries, orders and other requests made available by such persons / entities on the Platform or otherwise captured by the Platform that shall further include the usage, behaviour, trends and other statistical information / data relating to such persons / entities, who

  • access the Platform or otherwise get invitation to the Platform or correspond with the Platform,
  • place any order for Products on the Platform, or
  • send any enquiry/ request with respect to the Platform, and shall include all analysis and records based on such aforementioned information, including the spending and other patterns of such persons/entitles and Products. For the avoidance of doubt, any list, description or other grouping of consumers or customers or any derivative work from End Customer Database shall be deemed to be End Customer Database.

“Intellectual Property” includes ideas, concepts, creations, discoveries, inventions, improvements, know how, trade or business secrets; trademarks, service marks, domain names, designs, utility models, tools, devices, models, methods, patents, copyright (including all copyright in any designs and any moral rights), masks rights, design right, procedures, processes, systems, principles, algorithms, works of authorship, flowcharts, drawings, books, papers, models, sketches, formulas, teaching techniques, electronic codes, proprietary techniques, research projects, and other confidential and proprietary information, computer programming code, databases, software programs, data, documents, instruction manuals, records, memoranda, notes, user guides; in either printed or machine-readable form, whether or not copyrightable or patentable, or any written or verbal instructions or comments. The End Customer Database shall be considered to be the Intellectual Property of the Service Provider.

“Intellectual Property Rights” means and includes

  • all rights, title or interest under any statute or under common law or under customary usage including in any Intellectual Property or any similar right, anywhere in the world, whether negotiable or not and whether registerable or not,
  • any licenses, permissions and grants in Intellectual Property
  • applications for any of the foregoing and the right to apply for them in any part of the world and
  • all extensions and renewals thereto.

“Payment Facilitation Services” shall mean facilitating the receipt of Sale Price on the Platform either along with Platform Services or otherwise.

“Platform Services” internet based electronic platform in the form of an intermediary to facilitate sale and purchase of goods and services through Platform.

“Products and Services” shall mean any and all goods and related services of the Vendor for which Service Provider makes available Service Provider Platform to the Vendor.

“Sale Price” shall be the price at which the Product is offered for sale by the Vendor on the Platform by using Platform Services to the End Customer. Parties agree that Sale Price is dynamic and volatile and may vary at different times and points of sale and therefore can be periodically and from time to time changed or revised by the Vendor in accordance with the terms of this Agreement.

“Service Fees” shall mean the fees for availing either whole or part of the Service Provider Business in accordance with the terms of this Agreement and/or Commercial Terms (the term as defined in the Agreement) payable by the Vendor.

“Service Provider Business” shall have the meaning as set out Recital 2 hereinabove and shall includePlatform, Platform Services, Payment Facilitation Services and Transaction Support Services.

“Service Provider Content” shall mean the Platform, all the pages of the Platform, all the content contained in the Platform (excluding any third party content and advertisements), look and feel of the Platform, any and all information or content owned or controlled (e.g. by license or otherwise) by Service Provider or its Affiliates, including text, images, graphics, photographs, video and audio, and furnished by Service Provider or its Affiliates in connection with Platform Services, Transaction Support Services, Payment Facilitation Services and for the purpose of offering for sale of Products by the Merchant.

“Term” shall have the meaning as set out in Section 13.1 hereto.

“Territory” shall mean the countries in which the website shall be accessible.

“Transaction Support Services” shall include services in relation to support the sale of the goods andservices by the Vendorto End Customer which shall include product listings, warehousing services, logistics management services, Payment Facilitation Services, customer support services and any other additional services that may be agreed between the parties.


2. INTERPRETATION

In this Agreement, unless the context otherwise requires:

  • Words importing persons or parties shall include natural person, entity, partnership firm, organization, operation, Company, HUF, voluntary association, LLP, joint venture, trust, limited organization, unlimited organization or any other organization having legal capacity;
  • Words importing the singular shall include the plural and vice versa, where the context so requires;
  • References to any law shall include such law as from time to time enacted, amended, supplemented or re-enacted;
  • Reference to one gender shall include a reference to the other genders;
  • References to the words “include” or “including” shall be construed without limitation;
  • References to this Agreement or any other agreement, deed, instrument or document shall be construed as a reference to this Agreement, such other agreement, deed, instrument or document as the same may from time to time be amended, varied, supplemented or novated in accordance with the terms of this Agreement;
  • The headings and titles in this Agreement are indicative and shall not be deemed part thereof or be taken into consideration in the interpretation or construction of this Agreement;
  • The word ‘written’ shall include writing in electronic form and ‘signed’ shall include electronic signature or any other electronic communication which signifies the sender’s or originator’s intention to be bound by such electronic communication.

3. SERVICES

3.1 Upon Vendor’s request, the Service Provider accepts Vendor’s appointment to make available Service Provider Platform to the Vendor for sale of its Products and Services in accordance with the terms of this Agreement and as further agreed in commercial understanding electronic document or any other similar or analogous electronic or other document (“Commercial Terms”) and in accordance with various Platform rules and policies including privacy policy (“Platform Policies”). The Commercial Terms and Platform Policies are deemed to have been incorporated in this Agreement by way of reference.

3.2 Vendor agrees and acknowledges that Service Provider shall charge Service Fees to provide Service Provider Platform and in the Territory in the manner and for consideration as may be decided between the Parties in the Commercial Terms to this Agreement.


4. ADVERTISING, MARKETING AND SALES PROMOTION

4.1 Service Provider as the proprietor and owner of the Platform and Platform Services and rights holder of the Brand Name may at its sole discretion carry out advertising and marketing activities in relation to promotion of the Platform, Platform Services and Brand Name in any manner and to any extent as may bedeemed fit by the Service Provider and for such purposes may engage in certain sales promotion activities to increase the sales of Products and Services on the Platform.

4.2 Service Provider and Vendor may agree on certain terms on which Vendor shall support such sales and marketing activities of Service Provider including providing discounts on the Products or other free of cost goods and services to the End Customers.

4.3 Vendor agrees and acknowledges that Service Provider shall have the sole right to determine thethe design, look and feel, architecture, layout, positioning and all aspects of the advertisement including listing, positioning, indexing, placement and tiering the Products offered for sale on the Platform by the Vendor and the Vendor shall not question or dispute such exercise of right or discharge of responsibility by the Service Provider.

4.5 Service Provider shall be solely responsible at Service Provider’s sole discretion to sell or license any and all advertising and promotional time and space with respect to Platform including web-pages or such portions of the Platform that contains the details of the Products and Services. Except for the facilitation of payment of sale consideration of the Products and Services through Payment Facilitation Services, Service Provider and/or its Affiliates shall be entitled to retain any and all revenues generated from any sales or licenses of all such advertisements and promotions.

4.6 Service Provider shall reasonably ensure that all advertisement/ promotion activities undertaken by the Service Provider:

  • do not contain any material that, in its knowledge, would infringe or violate any intellectual property rights or any other personal or proprietary right of any person; and
  • are not obscene or libelous; and
  • comply with all applicable laws including standards and rules set forth by the Advertising Standards Council of India or any other relevant government authority.

5. END CUSTOMER DATABASE

5.1 The End Customer Database shall be proprietary to the Service Provider. Service Provider shall alone retain all rights including all Intellectual Property Rights in the End Customer Database and unless specifically agreed to in writing by the Service Provider, no rights in or to the End Customer Database are deemed to have been granted to the Vendor.


6. Ordering, Packaging and Delivery:

A. In the event the delivery is by Vendor directly:

  • i. The Service Provider will enable the End Customers to place orders for the Product(s) and Services, they wish to purchase on Platform.
  • Upon receiving the confirmation of the order from the End Customer, the Service Provider will update the details of the confirmation with delivery details of the order on the internal portal which the Service Provider shall maintain for the Vendor.
  • The Vendor hereby irrevocably confirms that upon receiving the confirmation of the order from the End Customer in respect of any Product or Service, it shall deliver the relevant Product(s) and Services to the End Customer.
  • The Vendor will use packing material mutually agreed with the Service Provider to package the Product.
  • The Vendor with basic Subscriptions must at all times represent themselves under Kleyl and not disclose their identity while communicating with the End Customers as well as the Platform.

B. In the event the delivery is through the Service Provider

  • Before arranging the delivery of the relevant Products to the End Customer on behalf of the Vendor the Service Provider may verify, on behalf of the Vendor, the consignment against the confirmed order placed by the relevant End Customer.
  • Accordingly, all the costs and expenses for the shipment paid by the End Customer shall be received by the Service Provider.
  • vi. For the avoidance of doubt, the Service Providerdisclaims any liability or responsibility, with regards to the defects and deficiencies in the Products and Services provided by the Vendor.

7. CONSIDERATION AND PAYMENT TERMS

7.1 In consideration of the provision of Service Provider Platform, the Vendorshall pay to the Service Provider Service Fees which shall be calculated in the manner as specified in Commercial Terms, that may be mutually agreed between the parties.

7.2 The Service Provider shall pay the Vendor an amount recovered as Sale Price minus the service charges in respect of approved order(s) through the online store. The shipment cost may vary per transaction (by a particular customer). The said shipment cost will be dependent on the Quantity shipped for a transaction by a particular customer. However, in the event, the Vendor handles the shipment of the Products; the Service Provider shall pay to the Vendor an amount recovered as Price minus the service charges along with such other charges as may be applicable.

7.3 Service Provider shall have the right to receive the Services Fees from the amounts due to the Vendor under Payments Facilitation Services. To the extent the Service Provider is unable to receive the Service Fees from the Payment Facilitation Services as aforesaid; the Vendor shall make all payments within ten (10) business days of receipt of the relevant invoice from the Service Provider.

7.4 In the event any order is reversed due to “Damaged product”, “Quality Issue”, Vendor agrees that the Service Provider shall levy the Service charges as agreed in the Commercial Terms and may also provide suspension notice in case of repetitive defaults at its own discretion and for such period as the latter may deem fit.

7.5 Vendor agrees that Service Provider will debit the Service charges as agreed in Commercial Terms to the Vendor in the event the product cannot be delivered by the Vendor due to “out of stock” and in the event of persistent defaults, the Service Provider may provide suspension notice, at its own discretion and for such period as it may deem fit.

7.6 Payment reimbursement of the Sale Proceeds to Vendor shall be done by the Service Provider in the following manner:

7.7 Vendor shall prepare a consolidated advice list of all orders delivered to the End Customer, every 7 days and submit it with invoices via email tothe Service Provider.

7.8 The Service Provider will within 10-15 working days of receipt of advice process the amount due to Vendor and dispatch the Cheques / Online as decided between the Vendor and the Service Provider.

7.9 In the event, the Vendor agrees to the “split payment”, Service Provider shall be entitled to deduct the fee as may be applicable thereto.

7.10 Taxes:

Each Party shall be responsible for any and all taxes on its business, and taxes based on its net income or gross receipts. However, Service Provider shall be entitled to additionally charge service tax or any other indirect or transaction taxes as applicable on one or more of the Service Provider Business and Service Fees.


8. OBLIGATIONS OF SERVICE PROVIDER

8.1 Service Provider shall reasonably maintain the Platform and Platform Services and shall on reasonable efforts basis provide Transaction Support Services and other services comprising Service Provider Business.

8.2 Service Provider shall reasonably maintain the registration of domain name in relation to the Platform during the Term at its own costs free from any and all encumbrances, including encumbrances which may lead toany adverse effect on Service Provider’s registration of the domain name or its use of the Platform.

8.3 In order to process payments made by End Customers and to generally provide Payment Facilitation Services, Service Provider shall reasonably maintain appropriate contracts with payment gateways and shall comply with the applicable laws.

8.4 Service Provider shall ensure that it has or procures adequate technology as necessary to maintain the Platform and perform the Service Provider Business under this Agreement.

8.5 Service Provider, as a part of Transaction Support Services, shall list the Products on the Platform for the Vendorat the Sale Price provided or informed by the Vendor. Service Provider acknowledges that the Sale Price is dynamic and volatile and may vary at different times and points of sale and that the Vendorreserves the right to change or modify the Sale Price of the Product at any time before the same is bought by the End Customer on the Platform.


9. OBLIGATIONS, COVENANTS AND WARRANTIES OF VENDOR

9.1 Vendorshall not use the Service Provider Platform for any purpose other than Vendor’s Business in relation to the Products and Services.

9.2 Vendorshall manage and maintain sufficient inventory of the Products which the Vendoroffers to sell to End Customer on the Platform through Platform Services and shall mandatorily deliver the Products as purchased by the End Customer to the Service Provider within such time as may be prescribed in the Commercial Terms.

9.3 Vendorshall deliver exactly the same Product to the Service Provider for availing Transaction Support Services from Service Provider as it desires to sell to the End Customer.

9.4 Vendorshall offer the Products for sale on the Platform on the Sale Price which shall be inclusive of all taxes, duties, levies, warehousing, packaging, shipping and logistics charges and all other charges as applicable in the city or municipal limits of the End Customer.

9.5 Vendorshall undertake all the necessary after sales services to the End Customer including providing warranty / guarantee / replacement services of the Products, failing which the Service Provider may suspend the Services of the Vendor for such period as it may deem fit

9.6 Vendorshall provide necessary access to the Service Provider to inspect the warehouse, product quality, manufacturing facilities or other facilities and offices of the Vendorin order to ensure Vendoris able to comply with its sales obligations to the End Customer. Vendoracknowledges and agrees that this ingress, regress and inspection rights of the Service Provider is to ensure the goodwill of the Platform, Platform Services and Brand Name and to provide good user experience to the End Customer.

9.7 Vendorshall ensure that Vendoremploys sufficient staff to meet and fulfill the requirements of this Agreement and to sell, deliver and service the Products and Services sold to the End Customers through Platform Services. Vendorshall further ensure that the Vendor’s staff shall participate in the relevant training programs as organized or approved by the Service Provider from time to time.

9.8 Vendorshall not print, emboss or otherwise display any brand name, trade name, and trademark, service mark on the Product, on the packing material and on the invoice other than those displayed while makingthe sale offer on the Platform while packing the products for delivery to Service Provider to avail Transactional Support Services.

9.9 Vendorshall provide series of invoice numbers in relation to the Products and Services sold to the End Customers through Platform Services and agrees that the Service Provider shall provide in the invoice all the necessary details of the taxes, duties and other statutory levies applicable on the sale and delivery of the Products and Services to the End Customer and it shall be the duty and obligation of the Vendorto correctly and timely pay or deposit such taxes etc. to the appropriate government and shall indemnify, defend and hold harmless Service Provider, Service Provider Affiliates and their respective shareholders, directors, officers, employees, contractors and agents in the event Vendordefaults in making the payment of such taxes etc.

9.10 The Products offered to be sold by the Vendor- on the Platform and subsequent delivery of the same shall

  • exactly conform to the specifications, pictures, warranties and representations made by the Vendoron the Platform;
  • shall comply with all the applicable laws including that of the territoryof the Vendor, and the place of final delivery to the End Customer;
  • not infringe any third party’s Intellectual Property Rights anywhere in the world; and
  • not violate any international trade, import and export related laws including parallel imports.

9.11 Vendoragrees and acknowledges that the title in the Products shall only be transferred from Vendorto the End Customer upon payment of the Products and Services by the End Customer. For the avoidance of doubt, the title and risk on the Products for any delivery of Products by Service Provider before the purchase of Products by the End Customer on the Platform shall always remain with the Vendor. The Vendormay in its sole discretion take appropriate insurances to safeguard itself from any loss, breakage, theft or damage of the Products till such time the Products are actually delivered to the Service Provider and Service Provider has acknowledged the receipt of the delivery of such Products. The Vendorshall be the lawful owner or the lawful right holder in the Products offered and/or sold on the Platform to the End Customer and the Products at time of listing of the same on the Platform and for all times thereafter shall be free from any encumbrance, charge, lien or any security or thirdparty interests. Vendorhereby irrevocably and unconditionally waives all its liens whether contractual, statutory, equitable or otherwise including those related to unpaid seller on the Products once the Products havebeen delivered by Vendorto either Service Provider or to the End Customer or to any carrier.

9.12 Vendorshall pass on the full warranty or guarantee on the Products, whether of its own or from the third partymanufacturers suppliers to the End Customer and shall fully support the End Customer to enforce such warranty or guarantee, without any liability to the Service Provider.

9.13 Vendorshall at no point represent or hold itself out as an agent or representative or an Affiliate of the Service Provider. The sale and purchase transaction between Vendorand the End Customer shall be a bi partitecontract between them and Service Provider is merely facilitating the transaction between Vendorand End Customer as an intermediary and a conduit by making available Service Provider Business and Payment Facilitation Services to Vendorand End Customer.

9.14 Vendorshall provide such necessary assistance (at no additional direct cost to Service Provider) as may be required to facilitate Service Provider to carry out its obligations under this Agreement.

9.15 Vendorshall not make any representation or do any act which may be taken to indicate that it has any right,title or interest in or to the Brand Name.

9.16 Vendorshall not do, cause or authorize to be done anything which will or may:

  • impair, damage or be detrimental to the rights, reputation and goodwill associated with the Service Provider, its Affiliates, shareholders or directors and/or the Brand Name;
  • bring the Brand Name or the Platform into disrepute or any claim by third parties; or
  • may jeopardize or invalidate the Brand Name, Platform registration or any rights associated thereto;

9.17 Vendorshall not use or register anywhere in the world, the Brand Name or any other trade mark, trade name or domain name, except as authorized under this Agreement, which, in Service Provider’s reasonable opinion, is identical, improvement over, dilution of, combination involving or confusingly similar to, the Brand Name or, that constitutes any translation thereof into any language.

9.18 Vendorunderstands and acknowledges that the Brand Name and reputation of Service Provider is of utmost importance for its business and that the conduct of Vendorin the performance of this Agreement and otherwise would have material impact and bearing on such Brand Name and reputation of Service Provider. Further Vendorunderstands and acknowledges that the obligations and covenants placed on Vendorin this Section or elsewhere in the Agreement are essential for the maintenance of quality control and protection of Brand Name, and to ensure timely payments to Merchant. Accordingly,Vendoracknowledges that no hardship or onerous obligation is being placed on Vendorunder this Agreement.

9.19 Vendor shall use Best Industry Practise and ensure to deliver the Products from the stores, offices, warehouses with highest quality and without any infestation or risk hazard to its customers.

9.20 In the event, the ordered Product is not available, Vendor agrees to provide an alternative Product by sending a notification to the Service Provider, in order to obtain a confirmation from the End Customer.


10. INTELLECTUAL PROPERTY

10.1 Intellectual Property Rights (‘’IPR”)in Relation To Brand Name

10.1.1 Vendoracknowledges Service Provider’s absolute ownership of, interest in and rights to the Brand Name and the Platform.

10.1.2 Without limitation to the foregoing, Vendor- acknowledges and agrees that all goodwill in or associated with the Brand Name, including any goodwill generated or arising by or through Service Provider’s or Vendor’s activities pursuant to this Agreement shall accrue for the benefit of and shall belong exclusively to the Service Provider.

10.1.3 No right or interest in the Brand Name are granted or deemed to be granted by the Service Provider to the Vendor.

10.2 Service Provider shall retain sole ownership of all the intellectual properties, know how or other proprietaryrights in the Service Provider Content and Service Provider Business and no right or interest is granted or shall be deemed to be granted by Service Provider to the Vendor. To the extent Service Provider Content contains any proprietary content or information of the Vendor , the Vendor- hereby grants a royaltyfree and world-wide license to such content or information including a right to creative derivative product of such content or information.


11. CONFIDENTIALITY

11.1 Each Party may disclose to the other such Confidential Information as may be necessary to further the performance of this Agreement.

11.2 The receiving Party undertakes to the disclosing Party:

  • to keep confidential the disclosing Party’s Confidential Information;
  • not to disclose the Confidential Information in whole or in part to any other person without the disclosing Party’s prior written consent, except to the receiving Party’s employees, agents and subcontractors involved in the performance of this Agreement on a confidential and need to know basis and provided that employees, agents and sub-contractors are bound by written agreements of confidentiality which are at least as stringent as the provisions of this Agreement; and
  • to use the Confidential Information solely in connection with the performance of this Agreement.

11.3 The aforementioned confidentiality obligationsshall not extend to Confidential Information which:

  • has ceased to be confidential without default on the part of the receiving Party;
  • has been received from a third party who did not receive it in confidence;
  • the receiving Party is required by any court, government or other regulatory body to disclose, but only to the extent required by law, provided that the receiving Party gives the disclosing Party written notice as soon as practicable of such requirement and consult in good faith the disclosing party on the content and manner of any disclosure.

11.4 Upon request by the disclosing Party, the receiving Party must deliver to the disclosing Party all documents and other materials in any medium in its possession or control which contain or refer to the disclosing Party’s Confidential Information. If the documents or other materials are not capable of being returned, the receiving Party must destroy and certify the destruction of such documents and materials to the reasonable satisfaction of the Disclosing Party.

11.5 Vendorpersonal / sensitive personal data / information shall be governed by the Privacy Policy of the Platform, which terms (including all amendments, modifications, reinstatements and substitutions) shall be deemed to be incorporated herein by way of reference.

11.6 The aforesaid confidential obligations is to ensure the building of most efficient business relationship between the Parties.


12. INDEMNIFICATION AND LIMITATION OF LIABILITY

12.1 Vendorshall promptly on demand indemnify, defend and hold harmless the Service Provider, its Affiliates and End Customer and their respective officers, directors, proprietors, partners, managers, members, trustees, shareholders, employees and agents (“Indemnified Parties”) for and against all claims, liabilities, costs and expenses (including reasonable attorney’s fees) incurred or to be incurred by the Indemnified Parties that arise out of, in any way relate to, or result from any breach by the Vendorof any of the provisions of this Agreement, or breach of any laws by the Vendor, or negligence, fraud or wilful misconduct of the Vendor or its Affiliates and their respective officers, directors, shareholders, employees, contractors, sub-contractors, agents and personnel.

For the avoidance of doubt, it is further clarified that the right to indemnification in connection with any of the aforesaid claims of cause of action is independent and in addition to other rights and remedies of the Indemnified Person that may be available at law or in equity. Service Provider shall have a lien on the Products and on the consideration received from the End Customer for the sale of Products and Services on the Platform until Vendorhas fully discharged its obligations and liabilities to Indemnified Parties in accordance with this Agreement.

In the event Vendoris unable to indemnify the Indemnified Parties within a reasonable period of time, Service Provider shall be entitled to sell or otherwise dispose of the Products and set off the proceeds out of such sale and disposing off against Indemnified Parties’ indemnification claims and/or if permitted under law or by virtue of any order of any court of law Service Provider shall be entitled to receive the sale consideration from the payment gateway which otherwise would have remitted by such payment gateway to the Vendorand/or set off the amounts received by Service Provider from the End Customer who has availed cash on delivery services.

Vendor shall hold harmless and indemnify the Service Provider any and all claims for damages received from the End Customer or any third party in relation to infringement of IPR, defects and deficiencies in Products and Services, breach of applicable laws and the like. In the event if any claims are raised against the Service Provider, Vendor shall upon receipt of notification from the Service Provider, defend the claims on behalf of the Service Provider, as if the claims were raised against the Vendor itself.

12.2 Service Provider’s Limitation of Liability:

NOTWITHSTANDING ANYTHING CONTRARY CONTAINIED IN THIS AGREEMENT, IN ANY EVENT SERVICE POVIDER AND ITS AFFILIATES SHALL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO THE VENDOROR ANY OTHER PERSON OR ENTITY FOR COST OF COVER OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUES, LOSS PROFIT OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOSS OF ITEMS, LOSS OF BUSINESS OR DATA) ARISING OUT OF OR IN RELATION THIS AGREEMENT.

Service Provider’s entire liability to Vendorunder this Agreement or under any applicable law or equity shall be limited solely to actual and proven direct damages sustained by the Vendoras a result of the gross negligence or wilful misconduct of the Service Provider and its Affiliate and their respective directors, officers, employees and agents in the performance of their respective services and other obligations under this Agreement.

In no event shall the Service Provider be liable, vicariously or otherwise, to the Vendorand its Affiliates or any third party for any losses, damages, liabilities, costs (including reasonable legal costs) and expenses (including taxation) which are in the aggregate in excess of amounts paid by the Vendorto the Service Provider in the immediately preceding one month period under this Agreement towards the service charges.


13. FURTHER REPRESENTATIONS AND WARRANTIES

13.1 In addition to other representations and warranties in this Agreement, each Party represents and warrants as follows:

  • it is a corporation duly organized, validly existing, and in good standing under the laws of its incorporation;
  • execution and performance of this Agreement by such Party and the consummation of the transactions contemplated hereby do not and will not contravene the certificate of incorporation or by-laws of such Party and do not and will not conflict with or result in (a) a breach of or default under any indenture, agreement, judgment, decree, order or ruling to which such Party is a party that would materially adversely affect such Party’s ability to perform its obligations under this Agreement; or (b) a breach of any applicable law in UAE or elsewhere; and
  • it shall comply with all applicable laws in the performance of its obligations and the exercise of its rights under this Agreement.

13.2 EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.

13.3 Service Provider specifically disclaims any and all express or implied warranties with respect to the Platform, Platform Services and Payment Facilitation Services and these are provided on ‘as is’ basis.


14. TERM OF AGREEMENT

14.1 This Agreement shall commence on the Effective Date and shall be valid until termination. (“Term”).

14.2 Either party shall have the right to terminate this Agreement and all then existing Commercial Terms by issuing a 30-day prior notice of termination in writing without any additional obligations or liabilities to each other, without prejudice to the accrued rights and liabilities under the Agreement.

14.3 Either party shall have a right to terminate this Agreement or any Commercial Terms thereto upon any material breach of this Agreement by the other Party provided that where in the reasonable opinion of the non-breaching Party, such breach is capable of cure, the non-breaching Party shall not terminate this Agreement / any Commercial Terms thereto without providing the breaching Party a cure period of [thirty (30) days] to cure such breach and provide the non-breaching Party with necessary documents satisfactorily evidencing cure of such breach.

14.4 Service Provider shall have the right to terminate this Agreement upon occurrence of any insolvency event in relation to Vendor. It is clarified that an insolvency event in relation to Vendorshall be deemed to have occurred upon occurrence of any of the following:

  • Vendorhas ceased to carry on or threatens to cease the Business; or
  • Vendorhas passed an effective resolution or a binding order has been made for its winding up except under a scheme of amalgamation; or
  • Vendorhas become insolvent or has entered into liquidation (unless such liquidation is for the purposes of a fully solvent reorganization); or
  • Vendorhas entered into, or taken steps to enter into, administration, administrative receivership, receivership, a voluntary arrangement, a scheme of arrangement with creditors, any analogous or similar procedure in any jurisdiction or any other form of procedure relating to insolvency, reorganization or dissolution in any jurisdiction, or a petition is presented or other step is taken by any person with a view to any of those things.
  • Vendor supplies sub-standard quality of Goods, which in the opinion of the Service Provider are not acceptable and/or acts in anin-appropriate manner at the time of performance of its duties. In such cases, the decision of the Service Provider, shall be final.
  • Vendor fails to rectify the defects and deficiencies in its performance within 7 days of receiving of notification from the Service Provider.
  • In all events, Service Provider shall be entitled to suspend the Services of the Vendor, with or without prior notice.

15. CONSEQUENCES OF TERMINATION

15.1 Upon expiry or termination of this Agreement all Confidential Information and any other materials which may have been provided by one Party to the other shall be forthwith returned and the returning Party shall certify such return and all copies thereof or any other material or information which cannot be returned,shall be destroyed completely;

15.2 Termination of this Agreement shall not relieve any Party of any of its obligations or liabilities and affect the rights and remedies of a Party, which have accrued prior to the date of termination.

15.3 The provisions of this Agreement contained in Sections 9 (Intellectual Property), 10 (Confidentiality), 11 (Indemnification), 12 (Representations and Warranties), 14 (Consequences of Termination), 15 (GoverningLaw) and 16 (Dispute Resolution), 17.2 (Notices) shall survive the expiry or early termination of thisAgreement.

15.4 Termination of this Agreement shall not affect any obligations or duties of the Vendorand Service Provider towards the End Customer which obligations or duties accrued before the termination of this Agreement.


16. SUBSCRIPTIONS

Terms of various subscriptions shall be made available to the Vendor from time to time and Vendor shall have the right to avail the subscription in accordance with the terms of the subscription


17. GOVERNING LAW and JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of United Arab Emirates.

The courts at Dubai shall have the exclusive jurisdiction in respect of any matter or dispute under or connected with this Agreement, each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on the Vendoranywhere in the world, whether within or without the jurisdiction of any such court including on the designated electronic mail address.


18. SUSPENSION

In the event the Vendor commits a material breach of this Agreement, the Service Provider, shall either, with or without notice, notify the Vendor to rectify such breach. However, if the breach is not remedied within the timeframe provided in the notice, the Service Provider shall suspend the services of the Vendor for such period as it may deem fit.


19. GENERAL CLAUSES

19.1 Independent contractors

The relationship between Parties is on principal to principal basis. Nothing in this Agreement shall be deemed to constitute either Party a partner, joint venture agent or legal representative of the other Party, or to create any fiduciary, employer-employee relationship between the Parties.

19.2 Notices and Correspondences

Notices: Any notice, consent or waiver required or permitted hereunder shall be effective only if it is in writing and shall be deemed received by the Party to which it is sent, upondelivery when delivered by hand OR delivered by email.

19.3 Assignment and Sub-Contracting

Vendor shall not assign any of its rights, obligations or responsibilities under this Agreement without the prior written consent of Service Provider and in absence of such consent any such assignment shall be null and void. All terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and authorized assignees. Vendorunderstands, acknowledges and agrees that Service Provider may sub-contract one or more of the Service Provider Business to any third party including Affiliates.

19.4 Press Releases / Public Statement:

Unless required by law, the Vendorwill not make any public announcement or issue any press release concerning the transactions contemplated by this Agreement without the prior consent of the Service Provider.

19.5 Amendment and evolution of Commercial Terms on periodic basis

Service Provider may amend this Agreement, Commercial Terms and Platform Policies at any time byposting a revised version on the Platform. All updates and amendments may be notified to Vendoron designated electronic mail address.Vendoris advised to regularly check for any amendments or updates to the terms and conditions contained in this Agreement, Commercial Terms and Platform Policies. It is strongly advised that Commercial Terms be checked on daily basis as these evolve on regular basis based on certain criteria. Vendor’s using Platform, Platform Services or Service Provider Business after Service Provider’s amendment to this Agreement, Commercial Terms and Platform Policies shall be deemed to be Vendor’s unconditional and absolute acceptance of such amendments (effective from the date such amendments were made by the Service Provider). If Vendordoes not agree to the change or amendments, Vendorcan cease using the Service Provider Business (except for those Products which have been bought by the End Customers and after delivery) and may terminate this Agreement as provided in Section 13.2.

19.6 Severability

It is the intent of the Parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such provision shall be modified to the extent necessary to render it, as modified, valid and enforceable under applicable laws and such invalidity or unenforceability shall not affect the other provisions of this Agreement.

19.7 Waiver

Except as expressly provided in this Agreement, no waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving such provision. No failure or delay by a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by a Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any preceding or subsequent breach of that or any other provision hereof.

19.8 Further Assurance

Each Party shall co-operate with the other Party and execute and deliver to the other Party such instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, evidence and confirm their rights hereunder and the intended purpose of this Agreement and to ensure the complete and prompt fulfillment, observance and performance of the provisions of this Agreement and generally that full effect is given to the provisions of this Agreement.


20. Force Majeure

Neither Party shall be responsible or liable for any delay or failure to perform its obligations (other than an obligation to make payment) under this Agreement due to unforeseen circumstances or any event which is beyond that Party's reasonable control and without its fault or negligence, but not limited to, acts of God, war, riots, embargoes, strikes, lockouts, acts of any Government authority, delays in obtaining licenses or rejection of applications under the Statutes, failure of telephone connections or power failure, fire or floods.


21. Inconsistency

In case of any discrepancy or inconsistency between the meanings of any translated versions of this Agreement, the meaning of the English Language version shall prevail.


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