for the purposes of this Agreement, shall mean a customer on the Website who places an Order on the Seller for one or more products.
shall mean a binding purchase commitment placed by a Buyer by issuing the PO to the Seller for final purchase of one or more products directly from the Seller.
shall mean and only include the virtual platform managed by ShopMate through the Website, which is hosted and managed by ShopMate and available to various channels including of SMS, internet, mail order/catalogue, Application etc.
, instances of the same and/ or such other website that is designated as the website for the purposes of this Agreement.
means collectively your Order and this OSA.
means the fees applicable Renewal Term Fees.
(vii) "Intellectual Property Right"
means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, and any applications or right to apply for registration therefore, internet domain names, logos, designs, slogans, and general intangibles of like nature, computer software programs or applications, tangible or intangible proprietary information, know- how, proprietary processes, formulae, algorithms, or any other intellectual property right, whether registered or unregistered, and whether first created before or after the Order Date.
(viii) "Order Date"
means the date on which you place an Order.
means a combination of the following elements provided by ShopMate to Buyers on a subscription basis as a named package:
(i) electronic functionality accessible via the Internet and any related incidental software components, and
(ii) Subscription Services.
(x) "Subscription Term"
means the time period during which the Buyer may access the applicable Solution.
(xi) "Registered User"
means an individual to whom Buyer grants access to use the applicable Solution pursuant to their Order, which may not include any employee, agent or representative of ShopMate.
defines any entity registered with ShopMate for selling its good or services through the platform or otherwise any person offering goods or services through the platform of SHOPMATE.
means partners who are in to the business of supplying goods and services in different categories.
(xiv) "Usage Limits"
means limit to place orders via Subscription platform.
2. SOLUTION USE:
(a) During the Subscription Term, subject to the terms and conditions of the Agreement and payment of fees as and when due, for the Solution to which the buyer subscribes, ShopMate hereby:
(i) The subscription agreement shall only be entered into by persons who are permitted to enter into a contract in accordance with the Indian Contract Act, 1872. Persons who are incompetent to contract as per the Indian Contract Act, 1872, including minors, un-discharged insolvents or other persons as laid down in the Act shall not be eligible to subscribe for the services of the website nor should use the website.
(ii) Grants Buyer a non-exclusive, non- transferable right to allow Registered User to access the associated Solution solely for support of Buyer’s internal business operations, and
(iii) Shall provide the Subscription Services included in the applicable Solution. Registered User account cannot be shared or used by more than one individual. Buyer shall be solely responsible for connection of Buyer’s computers to a telecommunications service that provides Internet access in a secure manner. The Buyer shall comply with the Usage Limits and use restrictions stated in the Agreement.
(iv) The Buyer shall solely be responsible for maintaining confidentiality of name and password and shall be responsibility of the Buyer and all content shared, displayed or exchanged through the said registration shall be sole responsibility of the buyer.
(b) All rights, which are not expressly granted to the Buyer, are hereby reserved by ShopMate, and the Buyer shall not violate ShopMate’s Intellectual Property Rights.
(c) As between the parties, ShopMate retains all right, title, and interest to all Intellectual Property Rights in: (i) Solution; (ii) ShopMate Confidential Information, and, (iii) any modifications to, copies of, or derivatives of any of the foregoing items listed in (i) through (ii). Buyer shall comply with the terms and use restrictions stated in this Agreement, and shall be responsible for the compliance of its Registered Users with the terms and use restrictions stated in this Agreement. The rights to use the Solution are also conditioned upon Buyer's payment of all Fees.
(d) Under the term of the Subscription, Buyer can utilize the solution and place their enquiries to get quotations from the suppliers. ShopMate will provide all value added services to the Buyer under the terms of the subscription by which ShopMate will provide free consultation to the Buyer, in order to narrow down the requirement with suitable options and negotiate on behalf of buyer with the suppliers and do its best efforts to meet the expectation of Buyer.
(e) If a purchase order is required, Buyer shall ensure that its purchase order is sufficient to cover all fees in the Order, any variable fee that becomes due under the Order, and all applicable taxes. Buyer will specify terms of a purchase order as per the mutual agreement with Supplier.
(f) Buyer agrees to pay all fees and expenses payable hereunder from Buyer’s location specified in the Order. Buyer shall pay all fees and expenses via electronic funds transfer / via cheque directly to Supplier’s designated account which will be shared by Supplier on finalization of the respective quotation.
(g) Upon request by ShopMate, Buyer shall provide ShopMate with original or certified copies of all receipts or other evidence of tax payments made relating to this Agreement, within the time periods as required by applicable law. Buyer and ShopMate shall cooperate in obtaining any favorable tax treatment for the parties with respect to amounts payable under this Agreement.
(h) If the Buyer increases the Usage Limits, there will be a corresponding increase in the Fees for the Subscription, which shall be duly informed to the buyer. However a reduction in usage by Buyer shall not reduce the Usage Limit or the Fees. Usage Limit has been defined as per the Subscription plan in Annexure.
(i) At the end of the Subscription term, ShopMate has the discretion to allow/not allow any carry forward for unused Usage to the next time period.
(j) SHOPMATE under no circumstance warrants as to the specifics of any products on its platform that the buyer obtains through the bids with respect to quality, genuineness, safety, salability and its value. The same are at the sole discretion and understanding between the buyer and the seller.
(k) All commercial terms would have to be settled and decided upon by the buyer and the seller. Commercial terms would mean and include but not limited to price, payment methods, delivery date, mode of delivery, shipping costs, warranties of the product, after sales services, repair or replacement issues amongst others.
(l) It is pertinent to state here that ShopMate at no point of time holds any right, title or interest in the said products that are sold through its platform.
(m) Buyer can also register their regular suppliers under ShopMate Subscription Platform with the help of support team and can ask for them to bid against the quotations along with other ShopMate Suppliers to get more competitive prices.
3. GENERAL TERMS & CONDITIONS:
a. Affiliate Use. No representative of Buyer's affiliate and/or subsidiary may access the applicable Solution unless authorized in the Order or in writing by ShopMate.
b. Registered User. Registered user will be the Buyer's authorized person designated to submit enquiries, to negotiate and place the order by uploading PO. Registered User will be the "Buyer's Authorized Person" to operate the solution & to receive official notices of updates and changes to elements of the applicable Solution under this Agreement, and respond to other questions that may arise regarding Buyer’s usage of the applicable Solution. Buyer shall notify ShopMate to change the person assigned to this role.
c. Email-ID and Password. User may get registered with the Solution by creating their account with ShopMate. ShopMate's team will verify the account and activate the user for access to the applicable Solution, with an administrative role. Buyer may create additional account with different Email-ID and password & notify ShopMate to activate and assign access with a default administrative role.
d. Personal Data. When Buyer uses the Solution, the data that Buyer enters is processed and stored on ShopMate's servers. Depending on the location of the Registered Users, the data may cross geographic and/or country borders in route to the servers ("Routing"). If a Registered User or Buyer elects to enter personal contact details into the Solution (such as name, email address, or otherwise), Buyer must inform Registered Users of the potential Routing and obtain any required consent.
e. Through this platform, ShopMate acts exclusively as an information intermediary between buyers and sellers of goods and services. As an intermediary, ShopMate makes no warranty, express or implied, for any of the supplied equipment's merchantability and /or fitness and / or quality for a particular purpose.
f. All buyers who are exposed to Sellers through this platform must exercise normal commercial and legal caution in mutual dealing. ShopMate accepts no responsibility for any fraud committed by any of the parties.
g. This platform acts as a space for buyers to procure goods/services through reverse auction, and for suppliers to bid on buyer’s requirement. ShopMate is not involved in the actual transaction between buyers and sellers. However ShopMate will undertake its best efforts to finalize the orders from the relevant suppliers, however ShopMate will have no control over the quality, safety or legality of the goods/services procured through the reverse auction conducted on this site.
h. ShopMate is not responsible for failure to execute a bid, for errors relating to the execution of a bid, or for any technical problem, which may hinder the efficiency of a bid. ShopMate is not responsible for any e-mail transmission times or delays.
i. In no event shall ShopMate be liable for any damages, whatsoever, and ShopMate shall not be held liable for any direct/indirect, consequential, or incidental damages, or damages for profits, loss of revenues, or loss of use, arising out of or related to the auction web presence or the information contained in it, whether such damages arise in negligence or otherwise.
j. The buyer by usage of the website and sending e-mails or other communication through electronic form agrees and warrants that the same would be treated as electronic records and also agrees to receive and recognize communications from ShopMate through the same form and recognize them as electronic records, not limiting to other forms of communication.
4. FINANCIAL TERMS:
a. The Buyer, will have to purchase the subscription by paying the fees structure defined as per commercial specifications attached herewith as Annexure Solution Subscription is renewable every year as per the Subscription Term defined at the time of payment. Authorized Registered Users can use the Solution and place their enquiries and POs if they have subscribed for the Subscription.
b. All commercial transactions against any Order / PO will be done directly between Buyers and Suppliers. There is no separate transaction fee or commission charged by ShopMate if Buyer has taken the Subscription Solution from ShopMate. The price of the products mentioned in the Quotations by Suppliers shall be inclusive of all taxes. Buyer agrees and acknowledges that it will be responsible for payment of all applicable GST and any other statutory dues as applicable under the transaction.
c. Buyer shall release the payment to Supplier as per the payment terms mutually agreed at the time of negotiation between both of them. Buyer shall make the payment directly to Supplier by way of account payee cheque / RTGS / NEFT / Online as decided mutually.
d. It is hereby agreed between the Parties that in the event the Supplier cannot make the product to be dispatched to the Buyer within the stipulated time period as per the Order / PO mentioned in point no 3b, ShopMate will not be held responsible to compensate the Buyer and will not be liable to bear any losses as per this Agreement.
5. REFUND POLICY:
a. ShopMate shall make its best efforts as per industry standards, in providing a safe trading environment and to safeguard the interests and rights of both Suppliers and Buyers.
b. In the event of any dispute, which may arise during the course of buying goods and services through the platform, the same may be resolved amicably between the Buyer and Seller in these terms and conditions, or any specific agreement between Buyer and Seller. If the same remains unresolved for a period of 90 days, then the parties are required to take appropriate legal action against the other party as per the applicable Indian Laws.
Rules related to Delivery and Refund:
a. Supplier is required to send the shipment at the address specified by the Buyer. If there is no address specified, then the Seller will make best efforts to obtain the address from the Buyer. If there is no contact established then the seller is required to send the shipment at the address of the buyer available on the website or in the Purchase Order.
b. Supplier will remain responsible for the products till the time the products got delivered to the Buyer.
c. Buyer has the right to cancel the order at no cost, if the Seller has not commenced the Shipment. However, order would not be cancelled if the Seller proves that the shipment is commenced. Further, the buyer has no right to cancel the order in the event the Seller has already started processing the order if the order requires specific manufacturing, printing, etc. If the Seller has started the process for manufacturing the order of the buyer then Buyer will not be able to cancel the order.
d. If the goods/services are not in conformity with the order placed, the Buyer has a right to refuse to take the delivery of such goods/services without bearing any cost. In such events, Seller will bear all the charges related to the shipment and delivery.
e. If the goods/services whose nature is that the genuineness of the same might not be determined at the time of their delivery then the Buyer has the right to inspect the goods/services within 72 hours of their delivery. If the goods/services are not as were committed by the Seller, then buyer has the right to intimate the Seller, and the Seller will have to resolve the case. Even the shipment charges will be borne by Seller itself. In the event, the buyer has made the advance payment to the seller, before receiving the shipment, then the Seller is required to refund the payment to the Buyer within 72 hours from the receipt of the intimation letter from the Buyer, as mentioned aforesaid. Buyer is required to send this intimation mail/notice to ShopMate simultaneously.
6. ORDER MANAGEMENT:
a) ShopMate solely reserves the right to select the products to be displayed on its Platform. ShopMate solely also reserves the right to determine the Suppliers who may participate on the Platform /Bidding.
b) ShopMate shall facilitate the platform for Buyers to place the enquiries and Orders for the products displayed/not displayed only in the capacity of the entity that provides an access to platform.
c) ShopMate shall provide the necessary backend services like infrastructure, call support etc., for capturing the Enquiries / Order details placed on the Buyers. All negotiations / PO generation/ Payment Transfer to be executed directly between Buyers & Suppliers. As a value addition, ShopMate will separately inform the Buyer (if required) regarding the modalities involved to reach out to the Suppliers, which will be either through e-mail or by way of direct access via arranging a Conference Call. Buyer agrees that ShopMate will not be liable for any loss or damages incurred owing to any delay in dispatching the details of the Orders to the Buyer.
d) On receipt of the Order/ PO from Buyer, the Buyer may contact the Suppliers directly for the payment & delivery modalities. In case the products cannot be shipped in the time period conveyed to the Buyer, Supplier will immediately inform Buyer of the same, along with the expected time of dispatch.
e) That the Buyer indemnifies ShopMate in the event of any third party claims that may be made against ShopMate on account of any action and/ or in-action on the part of the Buyer.
7. LOGISTICS AND CONSUMER RIGHTS AND CONSULTING SERVICES:
a. The Solution is a hosted Internet based service that Buyer may only access remotely.
b. The ownership of the products will be transferred to the Buyer after it is either picked up by the Buyer or is successfully delivered at the destination provided by the Buyer, until which the ownership of the product shall lie with Supplier only. The Supplier will ensure that the product will be strongly packed so that it is not damaged in transit when dispatched through the courier or any surface mode of transportation. Any damage in transit on account of inadequate/unsuitable packing will be to the account of the Supplier.
c. Supplier will offer standard manufacturers or seller warranty actually associated with the products. However, the Parties agree that repair, replacement or 100% (one hundred percent) refund of money will be given to the Buyer against manufacturing defect or damage as per the standard return and refund policies defined by Supplier. The Supplier shall issue a suitable, duly stamped, manufacturer’s warranty card to the Buyer with the product at the time of dispatch of the products, if applicable.
d. The Parties also agree and acknowledge that the primary and sole responsibility for redressal of Buyer complaints will rest solely with the Buyer at all times.
8. INTELLECTUAL PROPERTY RIGHTS:
a. The Buyer recognizes and confirms that ShopMate has the exclusive right to manage the contents of the Website/ Platform. All such content including the products logos and trademarks shall be the Intellectual Property Rights of ShopMate.
b. Except as agreed by the Parties, the confidential data will be the property of ShopMate, and the Buyer will not use or distribute it in any form or means and shall keep it confidential at all times. The Buyer agrees and promises to keep confidential all information received by it from ShopMate in relation to this agreement, except for usage as per the permissions granted under this agreement. Confidential information would include but not be limited to images, figures, data, customer details, market information, product information, all information shared, all work products and documents related thereto, the contents of ShopMate's website "www.shopmate.com" or any other information which is treated as confidential by ShopMate, and any other information received or to be received by the buyer.
9. TERMS AND TERMINATION:
a. Renewal Term(s). At the end of the initial Subscription Term (and each period of renewal thereafter as applicable), unless a party gives Written Notice of non-renewal at least thirty (30) days in advance of the end of such Subscription Term, such subscription shall automatically renew for additional consecutive terms of either 12 months or a period equal in duration to the initial Subscription Term (whichever is greater)("Renewal Term"), and Buyer shall pay ShopMate the applicable then-current standard Renewal Term Fees (excluding any special promotional fees) for each such Renewal Term as per the package selected in Annexure. The Renewal Term Fees for the applicable Renewal Term shall be due on the first day of the Renewal Term.
b. Termination for Breach. A party ("Terminating Party") may provide a Written Notice of default to the other party ("Terminated Party") to either terminate this Agreement or suspend access to the Solution: (a) if the Terminated Party has materially breached this Agreement, and the Terminated Party does not cure such material breach within thirty (90) calendar days after its receipt of Written Notice of such breach; or (b) immediately following the failure to resolve within a reasonable period of time. Otherwise either party may terminate this agreement by giving 90 days prior written notice to each other.
c. Termination for Bankruptcy/ Insolvency. Upon expiration or termination of this Agreement, all of your access rights to use the Solutions, and all other rights, services as set forth in this Agreement shall cease immediately (except for those rights, and obligations that are expressly stated to survive termination of this Agreement).
d. In case of termination of the agreement, fees for the subscription tenure will be charged on prorata basis considering both tenure and Usage Limit:
1. In case the Average Usage is higher in the consumed months, refunded amount will be calculated on the basis of total Usage. For example in the case of Platinum Plan as per Annexure I, if a corporate is willing to terminate after first 6 months of utilization while PO generated (total usage) of 6 CR which is above the average, refunded amount will be calculated on the basis of pending Usage Limit.
2. In case the Average Usage is lower in the consumed months, refunded amount will be calculated on the basis of pending months from the yearly subscription plan. For example in the case of Platinum Plan as per Annexure I, if a corporate is willing to terminate after first 6 months of utilization while PO generated (total usage) of 1 CR which is lower the average, refunded amount will be calculated on the basis of pending unconsumed months.
In both the above cases, 90 days prior written notice is required and this tenure will be considered and valid for billing at the time of final amount calculation, which is going to be refunded to the buyer.
e. During the Subscription Term of this contract, Buyer will not be approaching those Suppliers to take direct quotations, which have been registered via ShopMate for generating vendor code in Buyer’s database. In case of such occurrence, Order value will be considered under Subscription platform Usage Limits.
10. REPRESENTAION AND WARRANTIES:
a. Buyer shall, at all times and to the complete satisfaction of ShopMate and without demur indemnify and hold ShopMate harmless for any and all claims, demands, lawful action suits or proceedings, liabilities, losses, costs, expenses (including legal fees) or damages asserted against ShopMate by Supplier or any third party arising out of Buyer’s actions or omissions in connection with the sale of Buyer’s products and their performance during the period of this arrangement and for the products sold, even after the termination of this arrangement.
b. Buyer represents and warrants that it is a legal entity engaged in a legitimate and lawful commercial enterprise & activity, having all regulatory approvals required to run the similar business under the law of the land and to do regular compliances with applicable provisions of laws.
c. The Parties agree and acknowledge that: (a) ShopMate shall at no point of time have any right, title or interest in the products supplied to Buyer, (b) all transactions relating to the products shall be directly between the Buyer and the Supplier, (c) ShopMate only manages a Platform that enables sale and purchase of products between the Buyer and the Suppliers.
If any dispute arises between the Parties hereto during the subsistence of this agreement or thereafter, in connection with or arising out of this agreement, the dispute shall be referred to arbitration under the Indian Arbitration and Conciliation Act, 1996, by a panel of 3 (three) arbitrators. Each Party will appoint 1 (one) arbitrator and the 2 (two) arbitrators so appointed will appoint the third or the presiding arbitrator. Arbitration shall be held at New Delhi, India. The proceedings of arbitration shall be in the English language. The arbitrator’s award shall be final and binding on the Parties. It is further agreed that the arbitration clause shall survive and be enforceable even upon expiry of this agreement by efflux of time or by termination of the same by either of the parties. Buyer can communicate with ShopMate on the official email Id email@example.com
and / or with authorized representative.
(i) No Conflicts -
Each Party represents to the other that it has the authority to enter into this Agreement.
(ii) Assignment -
This Agreement and the rights granted under it shall not be assigned or transferred by either Party without the written consent of the other Party. In case of any assignment without prior approval either party may terminate this agreement with immediate effect.
(iii) Entire Agreement and Modification -
This Agreement constitutes the complete and exclusive understanding between the Parties and it may be amended only by a written agreement signed by each of the Parties.
(iv) Waiver -
If one Party fails to enforce any provision of this Agreement; it shall not be precluded from enforcing the same provision at another time.
(v) Notices -
All notices, requests and demands, and other communications required or permitted under this Agreement shall be in writing and either delivered personally or sent to the official address of the Party through recognized courier service or e-mail. Party may change its address by delivering notice of such change of address to the other Party.
(vi) Severability -
In the event that a court or other tribunal of competent jurisdiction holds any provision of this Agreement to be unenforceable, such provision shall be deemed modified to the minimum extent necessary to render the provision enforceable in a manner that most closely represents the original intent of the Parties. In such event, the remaining terms and conditions of this Agreement will remain in full force and effect and enforceable.
Few important Terms & Conditions for Buyers:
1. Shop Mate Pvt. Ltd.
shall not be responsible for the quality of services provided to Buyers, and the same shall be the sole responsibility of the Suppliers.
2. Suppliers cannot demand any additional amount or increase the price of the product without informing Shop Mate Pvt Ltd.
3. Buyer will need to specify the delivery terms in advance and to be printed in PO.
4. PO issued by Buyers cannot be cancelled, or transferred, except force majeure conditions and ShopMate bears no liability in any of such circumstances.
5. Delivery date of the products / Services will be mutually decided byetween Buyers & Suppliers and shall be mentioned in PO.
6. Buyers cannot combine 2 PO's in one without prior intimation to ShopMate.
7. Neither Shop Mate Pvt Ltd nor the Buyer is responsible for lost or stolen products during in transit.
8. The issuing of payments is at the sole discretion of the Buyer.
9. In case of any issue arises with regards to the product quality, ShopMate will be doing its sincere efforts to sort the issue by arranging the call / meeting between buyers and suppliers. In case if the issue still persists, ShopMate recommends and encourages for third party review / testing as decided mutually by both the parties.
10. Any issue with regards to product quality / warranty to be managed by Suppliers only.
11. Because of external / environmental factors, supply of goods may get affected which will be communicated by the suppliers if applicable on case-to-case basis.