HECMO SELLERS BUSINESS SERVICE AGREEMENT
This agreement contains the terms and conditions that govern hecmo sellers access to and use Hecmo seller account between the Seller and Hecmo seller services private limited (“Hecmo”). By registering for or using the services, Seller agrees to be bound by the terms of this agreement, including the service terms and programme policies or use in connection with the hecmo site.
Hecmo Sellers Marketplace Private Limited (“Hecmo”) owns and operates an online marketplace on the website located at the URL "www.hecmo.com" which acts as an online platform facilitating different Sellers to sell their Products and/or Services and enabling different Buyers to purchase the Products and/or Services offered by the Sellers;
Sellers being desirous of using the Platform to offer and sell various Products of the Seller to the users of the Platform and have completed Hecmo Seller Registration Form to enroll as a registered Seller on the Platform; and
1. HECMO SELLERS REGISTRATION
- To begin the Regisration process, Seller must complete the registration alongwith Sellers legal name, address, phone number, e-mail address and applicable tax no, as part of the process. Hecmo may at any time cease providing any or all of the Services at its sole discretion and without notice.
- Use of Hecmo marketplace for the Sale of Products is limited to the Sellers who can lawfully enter into legally binding contract and has completed the registration process and provided relevant details as required by Hecmo.
- Seller shall be responsible for maintaining the confidentiality and security of the Hecmo Seller dashboard and the information provided therein and shall be fully responsible for all activities that occur under Seller’s Panel. Seller shall neither disclose nor part with the Seller Page credentials to anyone for the purpose of managing Seller’s inventory and fulfilling Seller orders. Seller agrees to (a) immediately notify Hecmo of any unauthorized use of Seller’s account information or any other breach of security, and (b) ensure to log out from the Seller Panel at the end of each session. Hecmo shall not be liable for any loss or damage arising from Seller’s failure to comply.
- Hecmo reserves the right to determine the Sellers who may sell on the Platform. Hecmo also reserves the right to suspend access to registered Sellers to the Platform and the Seller Panel, or to terminate such access granted under this Agreement, without assigning any reasons thereto.
Seller agrees to indemnify, defend and hold harmless Hecmo(and our officers, directors, employees, agents and Affiliates) against, any claim, loss, damage, settlement, cost, taxes, expense or other liability (including, without limitation, attorneys' fees) arising from or related to:
- seller actual or alleged breach of any obligations in this Agreement;
- Seller Products (including the offer, sale,, refund, adjustment, or return thereof),
- any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death or property damage related thereto;
- Seller Taxes. Seller will use counsel reasonably satisfactory to Hecmo to defend each indemnified Claim.
If at any time Hecmo determine in our sole discretion that any indemnified Claim might adversely affect Hecmo, Hecmo may take exclusive control of the defence at our expense. Seller may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
3. SELLER OBLIGATIONS
- Seller shall upload the Product listings for the sale of the Products in the appropriate category and shall also be required to provide all required details along with the MRP and sale Price and confirms and acknowledges that such product details shall be in compliance with all the applicable laws including but not limited to the Legal Metrology Act, 2009. The Product description shall not be misleading or in violation of any legal provision and shall describe the actual condition of the Product. If the sold Product does not match the Product description displayed on the Platform, Seller agrees to refund any amounts that Seller may have received from the Buyer and compensate and indemnify Hecmo of any entailing legal consequences or otherwise losses suffered by it.
- Seller shall be solely responsible for ensuring that the Seller Panel is updated and reflects the real-time availability / non-availability of the Products listed on the Platform. Seller shall be required to retain an adequate inventory of the Products listed on the Platform, for successful fulfillment of Orders.
- Seller shall not attempt to sell any products falling in the category of product prohibited for sale in India under any law for the time being in force. Hecmo shall be entitled to block all such products and shall also have the right to suspend or terminate the Seller’s access to the Seller Panel and the Platform and/or terminate this Agreement forthwith.
- When a Buyer elects to purchase a Product from the Platform, the order so received shall be reflected in the Seller Panel and Seller hereby authorizes Hecmo to receive the payment in respect of the said Order for the Product on behalf of the Seller only in the capacity of an online marketplace. All commercial/contractual terms in respect of the Product/Services are offered by Seller and agreed upon between the Seller and Buyer alone. The commercial/contractual terms in respect of Product/Services include (without limitation) price, shipping costs, payment methods and terms, date, period, and mode of delivery, and warranties and after-sales services related to products and/or services. Hecmo does not determine, advice, have any control, or in any way involve itself in the offering or acceptance of such commercial/contractual terms in respect of Product/Services between Sellers and buyers. Seller understands, agrees and acknowledges that Hecmo is an intermediary which facilitates the online transaction for sale of Products between the Seller and Buyer and that there is no privity of contract between the Buyer and Hecmo; and it shall be a bipartite transaction between the Seller and Buyer and Hecmo shall not be a party to the same.
- For all Orders placed on the Platform, payments shall be collected by Hecmo on behalf of the Seller, in the mode (i.e., payment gateway or cash on delivery) as opted for by the Buyers. Seller hereby authorize Hecmo to process, facilitate, collect and remit payments to Seller, (collected either electronically or through cash on delivery), from the Buyers in respect of sale of the Products through the Platform. Use of the payment facility shall not render Hecmo liable or responsible for breach of representations and warranties, non-provision of after-sales or warranty services or fraud as regards the products and/or services listed on the Platform. Seller also agrees and acknowledges that the payment facility provided by Hecmo is not a financial service but is merely a facilitator/facilitating the service of providing an automated online electronic payment system, using the existing authorized banking infrastructure and credit card payment gateway networks or payment through cash on delivery, for the transactions through the Platform. Further, by providing the payment facility, Hecmo is neither acting as a trustee nor acting in a fiduciary capacity with respect to any transaction on the Platform.
- On the Buyer making the payment of the Selling Price through the payment gateway provided on the Platform or opting for cash on delivery, Seller will be intimated of the same through the Seller Panel. Orders placed by the Buyer will be forwarded to Seller/reflected in the Seller Panel. Seller shall package the Product(s) in accordance with the applicable packaging guidelines including if any issued by Hecmo from time to time and dispatch the Product(s) to the Buyer.
- Seller shall ensure that the purchased Product is dispatched to the Buyer, within Shipment time period stipulated by the Hecmo time to time, along with all the required information, manuals, accessories (where applicable) warranty documents (where applicable) and any other relevant documents, to enable the Buyer to optimally use the Product purchased.
- Issuing correct and complete invoice is the sole and primary responsibility of the Seller. Seller shall issue an Invoice in the name of the Buyer, which Invoice shall be sent to the Buyer along with the Product. Seller shall be responsible to update the Seller Panel to reflect this development.
- Seller shall maintain details of all invoice as per applicable tax laws and shall be solely responsible to maintain proper records of such invoices including but not limited to maintenance of books of accounts in respect of the Transactions through the Platform.
- Seller shall at all times ensure full compliance with the applicable provisions of the Information Technology Act, 2000, Rules and Guidelines framed there under as applicable and amended from time to time, Legal Metrology Act, 2009 related rules and Guidelines and also all applicable domestic laws, rules and regulations, regarding Seller’s listing, and sale of products and/or services through the Platform. Seller shall ensure not to list or engage in any transaction in a Product and/or service, which is expressly prohibited under this Agreement or is unlawful, illegal or prohibited by the provisions of any applicable law or regulations for the time being in force.
- Seller acknowledges, agrees and undertakes that it will never obliterate, smudge or alter the Maximum Retail Price (MRP) indicated by the manufacturer or the packer or the importer. In the event of Seller being found in violation of this clause, Hecmo at its sole discretion may impose penalty to indemnify itself of all the losses, damages, legal risks / costs and Hecmo may further decide to suspend Seller for further business till it pays the so imposed penalty and or damages and Hecmo may also terminate the Agreement in the event of finding second and subsequent such violations on part of Seller. The Seller further agrees and understands that it shall be directly liable to face legal proceeding if any undertaken under any law or under Legal Metrology Act, 2009 and also indemnify Hecmo if it is impleaded in any manner in such proceedings or trials for defaults committed by Seller.
- Non-delivery/return of the Product due to fault of the Seller : Where the Product has not been delivered/ has been returned due to any reason/fault attributable to Seller, then Hecmo shall on behalf of the Seller refund to the Buyer the Selling Price paid by the Buyer to purchase the Product and Seller shall be liable to pay Hecmo and Hecmo shall be entitled to recover from Seller – Hecmo Marketplace Fees, Courier Charges, Charges (if applicable) and Seller Proceeds (where Hecmo has remitted the Seller Proceeds to the Seller) for that Product.
- Non-delivery/return of the Product due to any other reason: Where the Product has not been delivered/ has been returned due to any reason which is not attributable to the Seller, then Hecmo shall on behalf of the Seller refund to the Buyer, the Selling Price paid by the Buyer to purchase the Product and shall cause the Product to be returned to the Seller. Upon confirmation of the return of Product back to Seller in appropriate condition, Hecmo shall recover any proceeds paid to Seller for that Product.
- Seller agrees and acknowledge that Hecmo shall be entitled to recover/adjust any outstanding amount due and payable by Seller to Hecmo under this Agreement from any Seller Proceeds payable to Seller and Seller undertakes not to object to such recovery/adjustment.
- In the event of any default by Seller to deliver the Product to the Courier Partners (and therefore to the Buyer) on time or at all, Seller shall immediately update the Hecmo and send an email to Hecmo informing of such non-delivery and the reasons thereof, immediately on the occurrence of such event. In such events, Hecmo at its discretion might cancel such orders and mark them under Seller cancellation and refund on behalf of the Seller the amount if any paid by the Buyer for that Product.
- Seller hereby agrees to accept all Products (cash on delivery or non-cash on delivery), which are refused/not accepted by the Buyer at the time of delivery.
- The Seller hereby agrees and acknowledges that it shall be liable to pay 100% of the Hecmo Marketplace Fees due towards Hecmo if the Seller could not ship the Product within the Shipment stipulated period.
4. TAX MATTERS
- Seller will be responsible for the collection and payment of any and all of Seller Taxes together with the filing of all relevant returns, such as goods and services tax, cesses or other transaction taxes, and issuing valid invoices/ credit notes/ debit notes where required. Hecmo is not responsible for collecting, remitting or reporting any service tax, goods and services tax or other taxes arising from such sale. Seller are solely responsible for preparing, making and filing any tax audit report and statutory reports and other filings and responding to any tax or financial audits.
- Unless stated otherwise, any and all fees payable by seller pursuant to this Agreement are exclusive of all value added, service, sales, use, goods and services tax and other similar taxes, and seller will pay any taxes that are imposed and payable on such amounts. If Hecmo are required by law or by administration thereof to collect any value added, service, sales, use, goods and services tax or similar taxes from seller, seller will pay such taxes to Hecmo. Seller will provide all necessary information including goods and services tax registered address, registration numbers, invoice mismatch details in a timely manner, to enable Hecmo to provide, report or correct goods and services tax invoices.
- If for any reason, any income tax or withholding tax or tax collection at source or such other taxes under applicable Law are determined to be deducted and deposited on any payments or remittances to seller, Hecmo will have the right to deduct and deposit any such applicable taxes with the appropriate regulatory authority. No claim in respect of the taxes deposited would be made by seller against Hecmo.
- It is seller’s responsibility as a seller on the Hecmo Site to choose the most applicable product tax codes and assign Harmonized System of Nomenclature / Service accounting Code applicable for seller listing, such that the correct tax rate is applied on all listings offered for sale by seller. If Hecmo determine that seller are not in compliance with this section, then Hecmo may suspend the services provided to seller on the Hecmo Site.In case of any discrepancy in the reporting / returns filed by seller and Hecmo, seller agree that seller will resolve such discrepancy immediately and indemnify Hecmo against any tax, interest and penalty payable in this regard.
During the course of seller’s use of the Services, seller may receive information relating to Hecmo or our Affiliates or to the Services that is not known to the general public ("Confidential Information"). Seller agree that:
- all Confidential Information will remain Hecmo's exclusive property;
- seller will use Confidential Information only as is reasonably necessary for seller participation in the Services and ensure that persons who have access to Confidential Information will be made aware of and will comply with the obligations in this provision; and
- seller will not otherwise disclose Confidential Information to any individual, company, or other third party, including any Affiliates. Seller may not issue any press release or make any public statement related to the Services, or use our name, trademarks or logo in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between seller and Hecmo in any way.
- The obligations under this Clause shall survive the termination of this Agreement.
6. RELATIONSHIP OF PARTIES
Seller and Hecmo are independent contractors, and nothing in this Agreement will be construed to create a partnership, joint venture, association of persons, agency, franchise, sales representative, or employment relationship between seller and Hecmo. Seller will have no authority to make or accept any offers or representations on our behalf. Seller will not make any statement, whether on seller site or otherwise, that would contradict anything in this section. This Agreement will not create an exclusive relationship between Hecmo and the Seller.
7. INTELLECTUAL PROPERTY RIGHTS
- Seller agree that the brands/logos, trademarks, etc., belonging to Hecmo are the exclusive property of the Hecmo and cannot in any circumstances be used, or copied, or altered in any manner which is identical/ similar the brands/logos/trademarks of Hecmo without being specifically authorized in writing by Hecmo. Seller recognizes and confirms that Hecmo has the exclusive right to supervise, allow and reject the contents of the Platform. Hecmo shall not be liable for contents and images shared, uploaded or displayed on the Platform by the Seller regarding the Seller’s Products and all consequent liability will be borne by the Seller only.
- Seller hereby grants to Hecmo the right to display/delist the Products (as updated or to be updated by Seller on the Seller Panel at any/all times) along with the related logo and/or trademark and/or brand name, etc., of the Products for marketing/selling through the Platform.
- Seller grants Hecmo a royalty-free, non-exclusive, worldwide, irrevocable right and licence during the Term and for as long thereafter as seller are permitted to grant the said licence under applicable Law to use, reproduce, perform, display, distribute, adapt, modify, re-format, create and exploit derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Seller Materials,; provided, however, that Hecmo will not alter any of Seller Trademarks from the form provided by seller (except to re-size trademarks to the extent necessary for presentation) and will comply with seller removal requests as to specific uses of Seller Trademarks provided further, however, that nothing in this Agreement will prevent or impair our right to use Seller Materials without seller consent to the extent that such use is allowable without a licence from seller or seller Affiliates under applicable Law.
8. LIMITATION OF LIABILITY
To the greatest extent permissible under law, hecmo shall not be liable for any special, indirect or consequential loss or damage, loss of profits, business, revenue and/or goodwill. Notwithstanding anything to the contrary, the maximum aggregate liability of hecmo and its affiliates under this agreement or otherwise, for any and all causes whatsoever, and regardless of the form of action (whether liability arises due to negligence or other tort, breach of contract, violation of statute, misrepresentation or for any other reason), shall at all times be limited to rupees three thousand five hundred (Rs.3500) only.
9. TERMINATION AND CONSEQUENCES OF TERMINATION
The term of this Agreement will start on the date of completion of registration by the seller and continue until terminated by Hecmo or as provided below (the "Term"). Hecmo may terminate or suspend this Agreement or any Service immediately in its sole discretion by notice to the seller for any reason at any time. Seller may terminate this Agreement or any Service for any reason at any time by the means then specified by Hecmo therefore. Termination or suspension of a Service will not terminate or suspend any other Service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except such term that survive according to the applicable Service Terms will also survive termination.
This Agreement may be terminated by Hecmo, with immediate effect:
- if Seller is in breach of any of its obligations, gross violation of terms, found/suspected to be involved in any malpractice as explained herein above or in any other form of abuse, found in breach of representations or warranties, or any other material terms as contained in this Agreement and/or any of the Hecmo Policies;
- if a petition for relief under any bankruptcy or insolvency is filed by or against Seller or Seller makes an assignment for the benefit of the creditors, or a receiver or an administrative receiver or administrator is appointed.
Hecmo also has the right to suspend Seller’s access to the Seller Panel (instead of terminating the Agreement) for any period of time (during which time period Seller shall not be permitted to sell Seller’s Products on the Platform) on the occurrence of any of the termination triggers specified or without any reason.
Notwithstanding anything contained under this Agreement, Hecmo may terminate this Agreement for convenience upon serving advance written notice of fifteen(15) days to the Seller.
On termination of this Agreement:
- Hecmo will, with immediate effect, block Seller’s access to the Platform and consequently, Seller shall not be able to offer any Products to the Buyers thereafter and shall not have the right to re-register himself /itself as a Seller on the Platform at any time after such termination, unless Hecmo , in its discretion, permits such re-registration;.
- Seller shall return to Hecmo all the confidential information of Hecmo and all other properties and materials belonging to Hecmo . Where the confidential information cannot be returned in material form, Seller shall destroy all of Hecmo ’s confidential information and shall provide Hecmo with a certificate of destruction with respect to the same.
It is agreed that such provisions and obligations which, by their very nature, survive the termination of this Agreement, shall continue to be binding on the Seller.
On the termination of the Agreement, Seller will be entitled to only the Seller Proceeds which have become due to Seller on account of any purchase of the Products, made through the Platform, prior to the date of termination of this Agreement. Hecmo shall be entitled to adjust any monies, due from Seller to Hecmo till the date of termination, from the Seller Proceeds payable to Seller on termination.
Without prejudice to the foregoing, the termination of this Agreement pursuant to any of the provisions contained herein above shall not limit or otherwise affect any other remedy (including a claim for damages), which either Party may have, arising out of the event which gave rise to the right of termination.
10. GENERAL TERMS
- DISPUTE RESOLUTION: This Agreement and any disputes arising hereunder shall be determined in accordance with the laws of India. 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 courts of New Delhi, India, shall have exclusive jurisdiction in connection with this Agreement.
- FORCE MAJEURE: Hecmo shall not be liable for failure to perform its obligations due to Force Majeure circumstances including but not limited to floods, natural disasters, war, act of terror, political unrests, technical snags, act of God, change of laws or any circumstance beyond the reasonable control of Parties (“Force Majeure Event”).
- NOTICES: to be served by email or post to the Seller from the side of Hecmo
- ASSIGNMENT: Seller shall not have the right to assign this Agreement without the prior written consent of Hecmo . Hecmo shall always retain the right to assign the services provided by it under this Agreement for such remaining period of the Agreement, to any of its chosen subsidiaries, affiliates, associates and there would be no new agreement between the new acquirer and Seller for the services provided by Hecmo under this Agreement. Hecmo shall however intimate the same to the Seller either through a notice on Platform, by email or send a written notice of the above to Seller. This Agreement shall apply to and bind any successor or permitted assigns of the Parties hereto.
- MODIFICATION: Shall be effective or binding upon intimation from the side of Hecmo.
- ENTIRE AGREEMENT: This Agreement, including Annexures and T & C added from time to time, shall constitute entire and final agreement between Seller and Hecmo with respect to the subject matter covered herein.
- SURVIVAL: Any and all obligations under this Agreement which, by their very nature should reasonably survive the termination or expiration of this Agreement, will so survive.
- SEVERABILITY: If any part or any provision of this Agreement is or becomes illegal, invalid or unenforceable, that part or provision of the agreement will not affect the validity or enforceability of the remaining provisions of this Agreement.
- NON-WAIVER: No waiver, by either party, of any provision of this Agreement shall, in any event, become effective unless the same is in writing and such waiver shall be effective only in the specific instance described and for the purpose that the waiver is given.
- AMENDMENT: Hecmo may amend the terms and conditions of this Agreement including the Commercial Term Segment and the Hecmo Policies at any time in its sole discretion by intimating Seller by way of notification on the Seller Panel and/or by sending an email to the email ID provided in the Seller Registration Form. It is Seller’s responsibility to review amendment notifications from time to time. Seller will be deemed to have accepted such amendments, if Seller continues to access the Platform/Seller Panel after the amendments are notified by Hecmo . If any terms of this agreement conflict with any other document/electronic record, the terms and conditions of this agreement shall prevail until further change/modifications are notified by Hecmo.
- COMMUNICATION: Seller gives explicitly consent and allows Hecmo to send the messages/ communication on email or mobile from time to time.
- AGREEMENT: Seller hereby agrees and undertakes that Seller is legally entitled and eligible to enter into this Agreement (if executed through electronic means) and further agrees and undertakes to be bound by and abide by this Agreement and the person accepting this Agreement by and on behalf of the Seller is authorised representative of the Seller and is entitled and is legally authorised to bind the Seller on whose behalf this Agreement is being accepted.