- (Please read carefully the following terms of this Agreement. If you do not agree with these terms, you should not use the Website and you will not have access the Portal. Your electronic acceptance of this Agreement is the same as delivering to us a valid, written paper agreement accepting the terms of this Agreement.)
- (This document is an electronic record in terms of Information Technology Act, 2000 including all its amendments and rules made thereunder as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures. A print version of the Agreement is located here and we strongly recommend you keep a print out of this version for your records.)
- This E-Commerce 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 including, if applicable or provided, 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:
- USER a natural or juristic person competent to enter into valid and legally binding contract under applicable Indian laws inter alia, a person of legally sound mind, not adjudicated bankrupt and equal to or more than 18 years of age on the Execution Date. If You are a juristic person then the person accepting this Agreement represents that such person is duly authorized by You to bind You to this Agreement and the designated electronic mail address is valid and subsisting and allotted by You to such person (hereinafter referred to as “Merchant” 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
- HOTSHELF India Private Limited, a Company incorporated under the provisions of the Indian Companies Act, 1956 and having its registered office at E-243, Phase-8 B, Sector 90, Industrial Focal Point, Near Ajit Samachar, Mohali, Punjab, 160 062, India (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.
- AND WHEREAS the terms of the agreement have been reduced in writing NOW THIS AGREEMENT WITNESSES AS UNDER
1.Definitions
- 1.1 "Access Device" means any device allowing you to use or access the E-Portal Services including, but not limited to, personal computers and hand-held web-enabled devices.
- 1.2 "Account" means any account you have with HOTSHELF to which you request access through the Web Services.
- 1.3 “Appropriate Government” means that any government who has specifically been authorized to grant permissions/license under the concerned statute or law for the time being enforce
- 1.4 "Electronic Instruction" means any instruction regarding an Account or E-Portal Services that is transmitted through an Access Device and has been identified under the law.
- 1.5 "E-Portal Services" means any products or services, including access to Accounts, that are available through those portions of our Web Services that require a User ID and Password, and such products or services may change from time to time.
- 1.6 "Password" means your E-Portal Services personal password initially assigned to you in connection with the E-Portal Services, as it may be amended by you from time to time.
- 1.7 “User” means any person who has registered himself as a registered user in the web services of the company. The service provider HOTSHELF may notify the charges for utilizing the web-services to the user from time to time and the user undertakes to make such payment for his sanction to use the web-services.
- 1.8 “Permissions” means all permission/ Licences required under any law for the time being in force.
- 1.9 "Web Site" means all web-pages and files posted by HOTSHELF under the domains www.hotshelf.com/in/co.in/net/org/co.uk/info, as may be amended from time to time by HOTSHELF.
- 1.10 “Web Services” A web service is a software system designed to support interoperable machine-to-machine interaction over a network. It has an interface described in a machine-processable format in conjunction with other web-related standards. It is a standardized way of integrating Web-based applications.
- 1.11 Web Service Provider is inter alia in the business of developing and operating e-commerce businesses for independent third party retailers and manufacturers and providing for those entities / persons Service Provider’s proprietary technology, website design and development capabilities, order processing capabilities, customer service capabilities, fulfillment capabilities and centralized inventory, invoicing and payment management to enable those entities / persons to offer e-commerce to their customers and such services include Platform Services (as defined hereunder) and Transaction Support Services (as defined hereunder) (“Service Provider Business”);
- 1.12 "you" or "your" means the User accessing and using the Web Services and includes any individual, corporation, partnership or other body corporate on whose behalf such User is accessing and using the E-Portal Services
- 1.13 "Common View" means the ability to view (and, if applicable transact business on) accounts of multiple business entities or individuals at the same time using the same User ID and Password.
- 1.14 “User information” is information transferred across the functional interface between user and the Web service provider which generally includes user overhead information, information recorded during registration as user, password, transaction history etc.
- 1.15 "User ID" means the unique user-number identifier used by you to access the E-Portal Services.
- 1.16 “Market Practice” means “practice” includes any practice relating to the carrying on of any trade online by a person/ user/enterprise online through the company’s Web-services.
- 1.17 “Jurisdiction” means a territory within which a court or government agency may properly exercise its power.
- 1.18 “Term” means a term for which the contract is legally valid.
- 1.19 “Indemnify” means that the vendor-user takes on the obligation to pay for any loss or damage that has been or might be incurred by firm towards any third person-user.
- 1.20 “Trading” means simply buying and selling of products through the company’s Web Services.
- 1.21 “Privileged User” means a privileged user, by definition, is a user who, by virtue of function, and/or seniority or category, has been allocated special facilities within the computer system by the company, which are significantly greater than those available to the users.
- 1.22 “Convenience Fee” A charge assessed by a payee when a User pays with a Credit Card rather than by Automated Clearing House (ACH) transfer. Convenience Fee can be a fixed amount or 2% of the transaction amount and must be disclosed to the User in advance.
- 1.23 “Confidential Information” means and includes any and all information which is confidential to a Party including any (i) business information and business processes, (ii) any samples, formulations, specifications, data relating to manufacturing and quality control processes and procedures, (iii) advertising and marketing plans, (iv) any past, current or proposed development projects or plans for future development work, (v) technical, marketing, financial and commercial information whether relating to past or current or future, (vi) the commercial and business affairs of a Party, (vi) all customer related information including any rates and discounts and (vii) and with respect to the Service Provider shall include the User Database
- 1.24 “Deliverable(s)” shall mean the specific materials, devices, products, services or other deliverables that are provided by Selling User to End User during the course of performing Service Provider Business as per this Agreement and any related document thereto.
- 1.25 “End Customer” shall mean the End User to whom Selling User offers to sell or sells or from whom Selling User receives offers to purchase the Products through the Web Service.
- 1.26 “Sale Price” shall be the price at which the Product is offered for sale by the Selling User on the Portal by using Web 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 Selling User in accordance with the terms of this Agreement.
1. Commencement, Term, Renewal
- 1.1 The date of execution of this agreement shall be the date on which the Users register itself as with the portal and shall remain valid and binding till the time the User has a valid license/permission or etc. from the appropriate authority to buy or sell the products. As soon as the permission or license obtained by the User expires, he will not be entitled to trade in restricted commodities. All additional renewals/ modifications of the agreement shall be express and updated on the registered user account. No oral agreement shall be binding on either of the party.
1.2. General Terms.
-
This Agreement governs the use of the Web Services, regardless of the technology used to access the Website or the Portal and the services available through the Website and the Portal by the User. This Agreement supplements, and must be read together with, any other existing and future agreements that you have with us and any additional terms, conditions or disclaimers provided on the Website and the Portal. If there is a conflict between a term in this Agreement and any other agreement or terms with us, the later shall apply to the extent necessary to resolve the conflict. The interpretation in case of any conflict will be as decided by the owner of the portal.
2. Marketing Tools/Support, Sales Promotion, Products, Availability of products etc.
- 2.1 HOTSHELF as the proprietor and owner of the Web 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 Web Services and Brand Name in any manner and to any extent as may be deemed fit by HOTSHELF and for such purposes may engage in certain sales promotion activities to increase the sales of Products on the Platform. HOTSHELF and Selling User may agree on certain terms on which Selling User shall support such sales and marketing activities of HOTSHELF including providing discounts on the Products or other free of cost goods and services to the End Customers.
- 2.2 HOTSHELF may at its sole and absolute discretion on reasonable commercial efforts basis market, promote or advertise the Products made available for sale by Selling User on the Portal in compliance with this Agreement.
- 2.3 Where Selling User believes or is notified by other entity including any third party manufacturers of the Products that any promotion plan/ activity undertaken by HOTSHELF is against any law or in breach of any contractual obligation of Selling User or such third party manufacturer (in both cases supported by a written legal opinion from a reputed advocate), Selling User shall intimate the same to HOTSHELF and upon such intimation, HOTSHELF shall within reasonable time cease such plan/ activities.
- 2.4 Selling User agrees and acknowledges that Service Provider shall have the sole right (as to between HOTSHELF and Selling User) for the design, look and feel, architecture, layout, positioning and all aspects of the Portal including listing, positioning, indexing, placement and tiering the Products offered for sale on the Portal by the Selling User and the Selling User shall not question or dispute such exercise of right or discharge of responsibility by the HOTSHELF.
- 2.5 HOTSHELF 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 webpages or such portions of the Platform that contains the details of the Products. The advertisement and promotions on any part of the Platform may include video advertising, display/banner/text advertisements, including but not limited to medium rectangle, leader-board, roadblock, hyperlink, page branding, framing, widgets, pop-ups, pop-under, network advertisements (for the sake of example, Google AdSense) available on the Platform. Service Provider shall have the sole right and discretion to decide the style, placement and format of the advertisement and promotion and the price and/or any other consideration, if any, for the sale and license of such advertisement and promotion. Except for the facilitation of payment of sale consideration of the Product 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.
- 2.6 Service Provider shall reasonably ensure that all advertisement/ promotion activities undertaken by the Service Provider:
-
- (i) 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
- (ii) are not obscene or libelous; and
- (iii) comply with all applicable laws including standards and rules set forth by the Advertising Standards Council of India or any other relevant government authority.
- 2.7 The User shall not sell any product without an existing availability of the products in its inventory along with detailed specifications like combination, date of expiry, quantity etc. as may be required of the product. Order once placed by the User shall have to be honoured by the Selling User at all costs. Breach of the condition may empower the Web Service provider to terminate the permissions of the Selling User to use the Web Services and the service provider may impose any such cost or penalty that may be sufficient to settle all claims made against the User committing the material breach.
3. Fee/Commissions etc
- 3.1 HOTSHELF shall charge a Usage Fee for providing web services to the User which the user agrees to pay from time to time as may be notified by HOTSHELF. The usage fee on all such sale transactions that are made made/generated using the Web Services shall be @ 10% of the value of sales made shall be paid by the User to the Web Service provider. HOTSHELF shall have a right to vary, increase or decrease the user Fee and the user accepts the same to be final and binding between them.
- 3.2 HOTSHELF shall charge a Commission on all such sale transactions that are made made/generated using the Web Services at the rates as specified in the schedule attached with the terms and conditions on the value of the product sale and the same shall be paid by the Users to the Web Service provider. HOTSHELF can increase or decrease the rate of commission which is payable by the User from time to time. The details of commissions to be paid product category wise is specified in Schedule A to this agreement. The schedule can be amended/ modify any rate of commission in respect of any or all products. Any amendment to such schedule will be express and at the discretion of the Company alone. The said schedule is to be treated as part and parcel of the agreement and the user agrees to abide by the same .
-
3.3 In case of mala-fide or wrongful practices adopted by the users, resulting in dispute or fraud of a transaction, the erring User shall be liable to forfeit 3% commission and also pay penal charges as may be determined by HOTSHELF from time to time. A fixed commission/ handling charges of 3% of the sales value from both the Selling User as well as Buying User shall be charged by HOTSHELF.
- 3.4 It is expressly agreed by the parties hereto that HOTSHELF shall debit the amount of commission from the remittance to the Selling User at the time of releasing of funds against the said transaction to the said user.
-
3.5 HOTSHELF may recover any amount which is found due and payable by the User to HOTSHELF after the reconciliation of accounts and when the account is found due. HOTSHELF will endeavor to perform reconciliation of accounts/orders every 90 days.
4. Display, Order, Handling, Delivery etc.
-
4.1 Orders for the product shall be received using the website www.hothself.com and the HOTSHELF Application and User shall verify the updated statement itself.
-
4.1. HOTSHELF in its sole and absolute discretion may refuse to provide any one or more of the Web Services through the portal for any reason whatsoever and especially if providing such Web Services to the Selling User can be detrimental to the reputation, goodwill and competitiveness of HOTSHELF or could cause any breach of any contractual commitments of HOTSHELF and cause Service Provider to breach any applicable laws.
-
4.2 The User shall upon receipt of the order from the Firm immediately arrange the handing over of the products to the designated logistic service as early as possible.
The Selling User shall ensure that the Product shall be packed as per the nature of contents of the Product and packing of cold chain product shall be ensured as per cold chain maintenance. The Selling User shall, within 2 hours of the dispatch of the product by it, update the tracking details alongwith the web link to trace the consignment on the Portal of HOTSHELF for a period of _______months.
-
4.3 The Selling User shall ensure that the products are ready for dispatch as per the specifications published on the Web portal and there is no variation whatsoever. The necessary guarantee/ warranty shall be provided by the Selling User or respective Manufacturer to the Customer.
- 4.3.1 The Selling User shall 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 making the sale offer on the Platform while packing the products for delivery to Service Provider to avail Transactional Support Services.
- 4.3.2 The Selling User shall provide the details of the mandatory declarations as specified under Rule 6(1) of the Legal Metrology (Packaged Commodities) Amendment Rules, 2017, to the Service Provider which is required to display such mandatory declarations on the digital and electronic network used for e-commerce transactions i.e. the Platform.
- 4.3.3 The Selling User agrees and confirms that the Merchant shall ensure due compliance and shall at all times be compliant with the provisions of the Legal Metrology Act, 2009 and the rules and regulations thereunder.
-
4.4. The Selling User shall undertake to replace the defective products supplied to the customer at its own cost and shall not hold HOTSHELF responsible in any manner whatsoever.
-
4.5 The Selling User may, at its discretion arrange to lift the defective products from the customer however the Selling User will still be liable to replace the defective product. Any charges incurred by HOTSHELF for lifting and forwarding such defective goods shall be on account of the Selling User. The Selling User shall make good such charges to HOTSHELF upon receipt of invoice/debit note. No request for any adjustment from future payables to the Selling User from HOTSHELF will be made however, HOTSHELF is at its liberty to deduct such amount from future payables of fresh Orders. Such deductions shall not be treated as practice and/or precedent. For avoidance of doubts it is clarified that defective would mean and include but is not limited to wrong product, packing damage, date of product expired, Pre-clinical safety evaluation, grant COPP by the Central Drug Standard Control Organisation etc. and any other shortcoming which the customer may point out. The Selling User hereby authorizes HOTSHELF to entertain all claims of return of the Product in the mutual interest of the Selling User as well as the Customer.
- 4.6The buyer user shall inform the portal firm in case of any defect or if the product delivered to the buyer/user is not in conformity with the order placed by him on the portal not more than 24 hrs of the delivery of the product.
5. Covenants of User
-
The Selling User hereby covenants with HOTSHELF as under:
-
5.1 To deliver the product of the Ordered specifications/description only including quantity and quality prescribed in the Order and there should be no instance of wrong item being delivered and/or quality issue and/or issue of Non delivery. Further, the Selling User shall maintain adequate stock/inventory of the items at all times. That no product shall be listed for sale without availability of Stocks. The breach of this condition shall result in deactivation of the account of the User. HOTSHELF shall also recover damages from the User as may be determined by HOTSHELF and the user agrees to pay the same to HOTSHELF within a period of 7 days failing which HOTSHELF shall debit the damages from the financial account of the user with HOTSHELF. In case of recovery of money in excess of the amount available in the user’s financial account HOTSHELF shall initiate legal proceedings against the User and the User shall be liable to pay interest @ 3% per month compounded monthly.
-
5.2 Not to send any kind of promotion material or any such material, which is, derogatory to and/or adverse to the interests financial or otherwise of HOTSHELF, to the customer either along with the products supplied or in any manner whatsoever. The Selling User shall not disclose the contact details including the name, address, phone number, e-mail address etc. or any other made on the web portal of HOTSHELF.
-
5.3 Not to do any act/deal in a thing / products/goods/services which are either banned/prohibited by law or violates any of the intellectual property right of any party in respect of such product.
-
5.4 The User declares that it has all rights and authorisations in respect of intellectual property rights of third parties and is authorised to sale/provide/licence such products to the customer. The copy of such authorization shall be provided on demand without failure and/or protest.
-
5.5 The User agrees to indemnify and keep indemnified HOTSHELF from all claims/losses (including advocate fee for defending/prosecuting any case) that may arise against HOTSHELF due to acts/omission on the part of the User. HOTSHELF is at its liberty debit the damages from the financial account of the user with HOTSHELF. Such deductions shall not be treated as practice and/or precedent.
-
5.6 To provide to HOTSHELF, for the purpose of the creation/display on website of Firm, the product description, images, disclaimer, delivery time lines (in consultation with the firm/portal), price and such other details for the products to be displayed and offered for sale.
-
5.7 To ensure and not to provide any description/image/text/graphic which is unlawful, illegal, intimidating, obnoxious, objectionable, obscene, vulgar, opposed to public policy, prohibited by law or morality or is in violation of intellectual property rights including but not limited to Trademark and copyright of any third party or of inaccurate, false, incorrect, misleading description or is surrogatory in nature. Further it will forward the product description and image only for the product which is offered for sale through the portal of HOTSHELF. The User agrees that in case there is violation of this covenant, it shall do and cause to be done all such acts as are necessary to prevent disrepute being caused to HOTSHELF.
-
5.8 To provide full, correct, accurate and true description of the product so as to enable the customers to make an informed decision. The Selling User agrees not to provide any such description/information regarding the product which amounts to misrepresentation to the customer.
-
5.9 To be solely responsible for the quality, quantity, merchantability, guarantee, warranties in respect of the products offered for sale through portal of HOTSHELF.
-
5.10 At all times shall have access to the Internet and its email account to check the status of approved orders and will ensure prompt deliveries within the time frame mentioned herein before in the agreement.
-
5.11 Provide information about the Status of Order from the time of receipt of Order till the delivery of the product to the buyer on the listing Id of the product sold through the web-services.
-
5.12 To raise an invoice as well as receipt of payment in the name of Customer for an amount equivalent to the amount displayed as Selling price on the online store to the customer and paid by/charged to the customer.
-
5.13 Not to offer any Products for Sale on the Online Store, which are prohibited for sale, dangerous, against the public policy, banned, unlawful, illegal or prohibited under the Indian laws.
-
5.14 To provide satisfactory proof about the ownership/licences of all the legal rights in the Products that are offered for sale on the Online Store as and when demanded by HOTSHELF.
-
5.15 To pass on the legal title, rights and ownership in the Products sold to the Customer.
-
5.16 To be solely responsible for any dispute that may be raised by the customer relating to the goods, merchandise and services provided by the Selling User. No claim of whatsoever nature will be raised on HOTSHELF.
-
5.17 The Selling User shall at all time during the pendency of this agreement endeavor to protect and promote the interests of HOTSHELF and ensure that third parties rights including intellectual property rights are not infringed.
-
5.18 The User shall at all times be responsible for compliance of all applicable laws and regulations including but not limited to Intellectual Property Rights, Goods and Services Act, Local Sales Tax, Central Sales Tax, Service tax, Value added tax, Standards of Weights & Measures legislation, Sale of Goods Act, Excise and Import duties, Drugs and Cosmetics Act, Drugs and Remedial Magic Act, Code of Advertising Ethics, etc. Further, the User shall also be responsible for compliance of all laws and regulations implemented by the State Governments within their territory, permitting or restricting the sales of specific products.
-
5.19 To provide to HOTSHELF copies of any document required by HOTSHELF for the purposes of performance of its obligations under this agreement within 48 hours of getting a written notice from HOTSHELF.
-
5.20 To seek advance written approval from the Firm, prior to release of any promotion/advertisement material, in so far as the same relates to services offered pursuant to the terms of this Agreement.
-
6. Warranties, Representations and Undertakings of the User
-
The User warrants and represents as under:
-
6.1 The signatory/acceptance of the present agreement is having the right and full authority to enter into this Agreement with HOTSHELF and the agreement so executed is binding in nature.
-
6.2 All obligations narrated under this Agreement are legal, valid, binding and enforceable in law against User.
-
6.3 There are no proceedings pending against the User, which may have a material adverse effect on its ability to perform and meet the obligations under this Agreement;
-
6.4 That it is an authorized business establishment and holds all the requisite permissions, authorities, approvals and sanctions to conduct its business and to enter into present agreement with HOTSHELF.
-
6.5 It shall, at all times ensure compliance with all the requirements applicable to its business and for the purposes of this agreement including but not limited to Intellectual Property Rights, Sales Tax, Central Sales Tax, Service tax, Standards of Weights & Measures legislation, Sale of Goods Act, Value added tax, Excise and Import duties, Goods and Services Act etc. It further declares and confirm that it has paid and shall continue to discharge all its obligations towards statutory authorities.
-
6.6 That it has adequate rights under relevant laws including but not limited to various Intellectual Property Legislation(s) to enter into this Agreement with HOTSHELF and perform the obligations contained herein and that it has not violated/ infringed any intellectual property rights of any third party.
-
6.7 It shall maintain details of all transaction and mark as complete / incomplete as the case may be and shall provide the same to HOTSHELF upon demand.
-
7) Rights of Firm:
-
7.1 User agrees and acknowledges that HOTSHELF, at all times during the continuance of this Agreement, shall have the right to remove/block/delete any text, graphic, image(s) uploaded on the online store by the User without any prior intimation to User in the event the said text, image, graphic is found to be in violation of law, breach of any of the terms of this Agreement, terms and conditions of www.hotshelf.com Portal Website. In such an event, HOTSHELF reserves the right to forthwith remove/close the online store of the Selling User without any prior intimation or liability to the Selling User.
-
7.2 Appropriate disclaimers and terms of use on HOTSHELF Shopping portal shall be placed by HOTSHELF on its websites and will be updated from time to time.
-
7.3 At any time if HOTSHELF believes that the services are being utilized by the User or its Customer in contravention of the terms and provisions of this Agreement, Terms and conditions of use of _______ trading, HOTSHELF shall have the right either at its sole discretion or upon the receipt of a request from the legal / statutory authorities or a court order to discontinue/terminate the said service(s) to Customer or the End user as the case may be, forthwith remove/block/close the online store of the Selling User and furnish such details about the Selling User and/or its customers upon a request received from the Legal/ Statutory Authorities or under a Court order.
-
8 Indemnity
-
8.1 The Selling User indemnifies and shall hold indemnified HOTSHELF, its partners, officers, employees, representatives, agents from and against all losses, damages, claims, suits, legal proceedings and otherwise howsoever arising from or in connection with any claim including but not limited to claim for any infringement of any intellectual property rights or any other rights of any third party or of law, concerning quality, quantity and any claim in relation to the Selling User’s product, the breach of any of the Selling User’s warranties, representations or undertakings or in relation to the non-fulfillment of any of its obligations under this Agreement or arising out of the Selling User infringing any applicable laws, regulations including but not limited to Intellectual Property Rights, Local Sales Tax, Central Sales Tax, Service tax, Value Added tax, The Standards of Weights & Measures legislation, Excise and Import duties, Goods and Services Tax etc . For the purpose of this clause reference to HOTSHELF shall also include the Mobile Operators and such other agencies through whom HOTSHELF shall make the Online Store available to the Customers.
-
-
8.2 This article shall survive the termination or expiration of this Agreement.
-
8.3 That in case of report or the detection of Fraud, HOTSHELF shall have the option to report the matter to the police or government agency and also to appoint an independent specialized agency. The User committing fraud shall be bound to pay all the costs incurred by HOTSHELF in fraud detection and damages to HOTSHELF on account of fraud committed by the User. HOTSHELF is at its liberty debit the damages from the financial account of the user with HOTSHELF.
-
9 Limitation of Liability
-
9.1 HOTSHELF on the basis of representation by the Selling User is marketing the products of the Selling User on the trading portal www.hotshelf.com to enable Selling User to offer the its products for sale through the said online trading portal. This representation is the essence of the Contract. It is expressly agreed by the vendor that HOTSHELF shall under no circumstances be liable or responsible for any loss, injury or damage to the User, customer or any other party whomsoever, arising on account of any transaction under this Agreement or as a result of the Products being in any way damaged, defective, in unfit condition, infringing/ violating any laws/ regulations/ intellectual property rights of any third party. The Selling User agrees and acknowledges that it shall be solely liable for any claims, damages, allegation arising out of the Products offered for sale through online Trading portal www.hotshelf.com (including but not limited to quality, quantity, price, merchantability, use for a particular purpose, or any other related claim) and shall hold HOTSHELF harmless and indemnified against all such claims and damages. Further HOTSHELF shall not be liable for any claims, damages arising out of any negligence, misconduct or misrepresentation by the Selling User or any of its representatives.
-
9.2 HOTSHELF under no circumstances will be liable to the User for loss and/or anticipated loss of profits, or for any direct or indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this Agreement, regardless of the type of claim and even if the User has been advised of the possibility of such damages, such as, but not limited to loss of revenue or anticipated profits or loss business, unless such loss or damages is proven by the User to have been deliberately caused by HOTSHELF.
-
10 Termination and effects of Termination
-
10.1 This Agreement may be terminated and the account of the User shall also be de-activated by HOTSHELF forthwith in the event as mentioned below:
-
10.1.1 In case Selling User fails to make payment of the sum demanded after it has been served a 48 hours written notice by E-mail, fax or by any other mode by HOTSHELF;
-
10.1.2 User commits a material breach of any representation, obligations, covenant, warranty or term of this agreement and the same is not cured within 30 days after written notice given by HOTSHELF.
-
10.1.3 If a Petition for insolvency is filed against the User.
-
10.1.4 If the User is in infringement of the any third party rights not only limited to intellectual property rights, etc.
-
10.2. This agreement may be terminated by HOTSHELF at any time without assigning any reason whatsoever.
-
10.3 Effect of Termination:
-
10.3.1 In the event of termination/expiry of this Agreement, the Firm shall remove the Links and shall discontinue display of the Products on online Trading portal HOTSHELF with immediate effect.
-
10.3.2 HOTSHELF shall not be liable for any loss or damages (direct, indirect or inconsequential) incurred by the User by virtue of termination of this agreement.
-
10.3.3 During the period under notice both the parties shall be bound to perform its obligations incurred under this agreement and this sub-clause shall survive the termination of this agreement.
-
10.3.4 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.
-
10.4 Breach and Damages:
In the event of failure to perform the conditions or the terms of the contract/ agreement by the Vendor/ selling/ buyer user in that eventuality the firm/portal will be at liberty to withhold the future payments and will have all rights to block the account of the erring vendor/ selling user.
-
In the event, where the firm/portal fails to comply the terms of the contract the user/vendor/buyer will be at liberty to approach for arbitration as per clause 11.4.
-
10.4.1 liquidated damages.
In the event the users are not able to comply with the terms and the conditions of this contract they shall pay additional 5% of the amount involved in the transaction to the firm portal as liquidated damages with in 10 days of issuance of demand notice.
-
10.4.2 Damages in furtherance of liquidated damages
In the event where the liquidated damaged were claimed by HOTSHELF in relation to such transactions or if any other damages have been suffered by HOTSHELF consequent to the said transaction, such as loss of business, loss of reputation etc, then the user, shall have to pay such damages suffered by the firm alongwith penal interest @ 3% per month. HOTSHELF is at its liberty debit the damages from the financial account of the user with HOTSHELF.
-
11. Jurisdiction, governing law and ex-parte Orders
-
11.1 This agreement is subject to exclusive jurisdiction of competent Courts of law at Chandigarh only and no other court shall have the Jurisdiction to entertain any subject matter of the dispute.
-
11.2 The laws of Republic of India, as are in force, shall be applicable to present agreement.
-
11.3 The Firm is entitled to obtain ex-parte ad- interim injunction orders restraining the Vendor to prevent any loss/anticipated loss either in material terms or in terms of intellectual property or causing damage/loss/harm to reputation/goodwill of the Firm by the Vendor, its representatives, associates or assigns.
-
11.4 ARBITRATION CLAUSE:
Any disputes or claim relating in any way to your use any web services, or to any purchase, sales or services through HOTSHELF will be resolved by binding arbitration, rather in any court, except that you may assert claims in small claims court if your claims qualify. The Arbitration and Conciliation Act, 1996 (Amended up to date) and Arbitration law shall apply to this Agreement.
There is no judge or jury in arbitration and court of review in arbitration is limited. However, an arbitrator can award on an individual basis the same damages and a relief as a court (Including Injunctive or Declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceedings, the user must make a written request for arbitration with a description of the claim/s to HOTSHELF, to be sent at the registered address. The arbitration will be conducted as per the Rules Of Domestic Commercial Arbitration And Conciliation (As amended on and with effect from 1st April, 2016), by an Arbitration commissioner appointed by HOTSHELF and payment of filing administration and Aribitration Commissioner fees would be settled by HOTSHELF. HOTSHELF shall reimburse all the said fees for claims totaling less than Rs.____________/- unless the Arbitration Commissioner determines the claims are frivolous. Likewise, HOTSHELF will not seek counsel fees and costs in arbitration unless the Arbitration Commissioner determines the claims are frivolous. The user may choose to have the arbitration proceeding conducted by way of telephone, video conferencing, based on written submissions or by personal appearance in a mutually agreed location.
The user agrees that any dispute resolution proceedings will be conducted on an individual basis and not in a class, consolidated or representative action.
-
12. Notices
-
12.1 All notices and other communication under this Agreement shall be in writing, in English language and shall be caused to be delivered by hand or sent by telex, fax, email or courier in each case to registered address of the User in the data base of HOTSHELF.
-
13. Intellectual Property Rights
-
13.1 The User expressly authorises HOTSHELF to use its trade marks/copy rights/ designs /logos and other intellectual property owned and/or licensed by it for the purpose of reproduction on the website or portal and at such other places as HOTSHELF may deem necessary. It is expressly agreed and clarified that, except as specified agreed in this Agreement, each Party shall retain all right, title and interest in their respective trademarks and logos and that nothing contained in this Agreement, nor the use of the trademark / logos on the publicity, advertising, promotional or other material in relation to the services shall be construed as giving to any Party any right, title or interest of any nature whatsoever to any of the other Party’s trademarks and / or logos.
-
14 Entire Agreement
-
14.1 This Agreement embodies the entire agreement and understanding of the Parties and supersedes any and all other prior and contemporaneous agreements, correspondence, arrangements and understandings (whether written or oral) between the Parties with respect to its subject matter.
-
15 Assignment
-
15.1 Neither this Agreement nor any part of it is assignable, transferable, sub-licensable, sub-contractable or conveyable by User, either by operation of law or otherwise, without the express, prior, written consent of HOTSHELF signed by an authorized representative of such Party. HOTSHELF is at liberty to refuse such consent.
-
16 Confidentiality:
-
16.1 The contents of the agreement and any information passed on by HOTSHELF to the User is highly confidential in nature and the User agrees and undertakes to maintain the confidentiality of the information and user/customer data disclosed, generated or made available to User under this Agreement. The said information shall not be used by the User or its agents, servants, representatives or any person acting through or claiming through the User for any purpose other than for the performance of its obligations under this Agreement. The User agrees that the unauthorized disclosure or use of such information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, User agrees that HOTSHELF shall have the right to obtain an immediate injunction from any court of law ensuing breach of this Agreement and/or disclosure of the Confidential Information. HOTSHELF shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
-
16.2 The aforementioned confidentiality obligations shall not extend to Confidential Information which:
-
(i) has ceased to be confidential without default on the part of the receiving Party;
-
(ii) has been received from a third party who did not receive it in confidence;
-
(iii) 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.
-
17 Relationship of Parties
-
17.1 Nothing in this Agreement will be construed as creating a relationship of partnership, joint venture, agency or employment between the Parties. HOTSHELF shall not be responsible for the acts or omissions of the User and User shall not represent HOTSHELF, neither has, any power or authority to speak for, represent, bind or assume any obligation on behalf of HOTSHELF.
-
18 Waiver and Amendment
-
18.1 No waiver of any breach of any provision of this Agreement constitutes a waiver of any prior, concurrent or subsequent breach of the same or any other provisions, and will not be effective unless made in writing and signed by an authorised representative of the waiving Party.
-
18.2 Except as expressly set out in this Agreement, no amendment is binding on the Parties unless it is in writing and signed by a duly authorized representative of each of the Parties.
-
19 Force Majeure
-
19.1 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.
-
20. 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.
-
