This Merchant Agreement ("Agreement") is entered between Merchant (You or the entity you are representing), and NSI Infinium Global Pvt. Ltd. (trading as Infibeam.com) (hereinafter referred to as "Infibeam"), a website owned by a NSI Infinium Global Private Limited located at Ahmedabad, Gujarat, India.
Term and Termination of Agreement:
The agreement shall be valid and binding on both the parties until it is terminated by either party by giving 30 days prior written notice to the other party without assigning any reason whatsoever for such termination.
Termination for Cause:
Infibeam may terminate this Agreement in case of breach of any of the provisions of this Agreement by the Merchant, if the Merchant does not proceed to cure the breach within ten (10) days after receipt of a written Notice of the breach.
Termination for Bankruptcy, Insolvency, Winding Up, etc:
Either party may terminate this Agreement with immediate effect upon written notice in the event that the other party abandons its responsibilities under this Agreement, becomes bankrupt or insolvent or files any proposal or makes any assignment for the benefit of creditors, or an order is made for its winding up or a receiver is appointed for substantial part of its property
On termination of this Agreement, all outstanding obligations of the parties under the terms of this Agreement shall continue to subsist until the same are fulfilled / realized in totality.
Once commercial terms are mutually agreed by the parties and same will be in writing, signed and sealed by both the parties. The registration shall be considered complete on receipt of 2 copies of which are duly sign and seal and executed by the Merchant. Infibeam will duly execute one copy for merchant record and reference.
Product Listing Fees
Product listing fees will be decided during the final negotiation of the commercial terms. Infibeam may waive off the same at its sole discretion for a particular period. The said particular period will be decided by Infibeam. Further on completion of that particular period and depending upon the performance, the listing fees may be decided from time to time.
Listing fee will be issued in favour of NSI Infinium Global Pvt. Ltd. and sent to the below mentioned address:
Subject: Listing Fees (Your/Company Name)
9th Floor, 'A' Wing Gopal Palace,
Nehrunagar, Ahemdabad � 380 015
Fulfiller ties up with one or more courier agencies for delivery to customer. Fulfiller will be accountable for ensuring delivery to the customer as promised based on their agreement with the courier agency. In cases of Merchant being the fulfiller, the Merchant will not insert any sort of marketing, promotional or any other merchant personalized information with the ordered product; non-compliance of the aforesaid will amount to breach of the agreement and thereby Infibeam may terminate this agreement without any notice.
Merchant will provide frequent price updates (including discount and promotion information) in pre-agreed digital formats (XML, Excel) with sufficient time (can vary from 1 hour to 1 working day based on the catalogue size) for publishing to the Infibeam.com website. Until a new price update is provided to Infibeam.com, Merchant will abide by the earlier price provided.
Changes in the commercial Terms:
The commercial terms shall be subject to change on expiry of every 12 months on mutually agreed terms. If for any reason commercial terms are not revised then in such cases the existing terms shall be applicable unless they are revised.
At all times customer database will remain the sole property of Infibeam. Any customer database shared by Infibeam with the Merchant will be used by the Merchant only for the purpose described in this policy. Use of the customer database for any other purpose will amount to beach of this policy and thereby Infibeam may this agreement without any notice
Content & Images
It shall be the responsibility of Merchant to provide accurate and legitimately acquired or created Catalogue Data to Infibeam for uploading and selling through its website. Merchant will also provide appropriate content in pre-defined Infibeam.com digital formats (XML, Excel) for listing their products on Infibeam.com. If the content is not in suitable format Infibeam & Merchant will work out a separate agreement for the effort involved in digitizing the product information.
Prior to commencement, Merchant will provide Infibeam and/or its designated affiliates with required data feeds, which are not restricted to Inventory availability, Product Price, Delivery Estimates and Order acknowledgment. Product information for each product that Merchant wishes to make available for sale on Infibeam.com any and all the Affiliate sites which managed, operated, powered by Infibeam.com will be provided. Thereafter, Merchant will be solely responsible for providing daily updated data feeds and information and will do so using the data feeds in Infibeam.com designated format. Further, Merchant will be solely responsible for all products and services offered or sold to Infibeam or Infibeam customers are so offered and/or sold in compliance with all applicable law
Merchant will provide frequent inventory updates (and information about product discontinuation) in pre-agreed digital formats (XML, Excel) with sufficient time (can vary from 1 hour to 1 working day based on the catalog size) for publishing to the Infibeam.com website. Non-availability of any product will be intimated to Infibeam by the Merchant within 24-48hrs of such non-availability or on receipt of such request from Infibeam.
Fulfiller will provide Order Status Updates on regular basis according to Delivery date selected by the customer. If fulfiller fails to provide Order Update after 24 hours of the dispatch date or query raised by Infibeam.com, then Infibeam.com reserves all rights to take further actions to satisfy the customers.
Fulfiller will provide frequent delivery time updates (and information about order processing) in pre-agreed digital formats (XML, Excel) with sufficient time (can vary from 1 hour to 1 working day based on the catalog size) for publishing to the Infibeam.com website. The Fulfiller agrees to make product available to Infibeam.com (vendor relationship) or customer (fulfiller relationship) within the delivery time as agreed upon either as a whole or at the item level. Fulfiller agrees to abide by this promised delivery time at all times.
Any products that contain manufacturing defects, return of such product shall be accepted by the Merchant on intimation of the same by Infibeam at any give point of time.
Invoicing: Merchant will raise an invoice in the name of "NSI Infinium Global Pvt. Ltd." at the end of the credit period that is mutually agreed by the parties for all ordered successfully fulfilled by the Merchant to Infibeam or Infibeam's customers.
Payments: Infibeam will make payments to the Merchant within 7-10 working days from the date of receipt of the Invoice for all the successfully fulfilled orders by the Merchant in that payment cycle.
Infibeam will be responsible for all customer issues concerning the Infibeam.com Site and orders placed on Infibeam.com Site, and Merchant will refer all customer communications concerning the Infibeam.com site to email@example.com. Merchant will be responsible for all customer issues concerning the digital content provided to Infibeam.com, and Infibeam will refer all customer communications and any delivery issues concerning orders fulfilled by Merchant to Merchant Customer Service.
Consequences for default:
At any given point of time in one payment cycle if it is found by Infibeam that Merchant has defaulted by more than 10% of the orders supplied to Infibeam or Infibeam customers i.e. products are defective, damaged, delayed for any reason whatsoever then in such cases Merchant shall bear all the expenses that are borne by Infibeam or directly by Merchant with regard to refund, replacement, courier costs or any other required to retain the customer. Infibeam will not be liable to make payment for such disputed orders.
Each Party agrees to defend, indemnify and hold harmless the other Party and the officers, directors, agents, affiliates, distributors and employees of such Party from and against any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorney's fees resulting from any breach of any obligation, duty, representation or warranty of this Agreement.
LIMITATION OF LIABILITY.
Each party's liability to the other for any causes whatsoever shall be for direct damages only and shall be limited in the aggregate to the Basic transaction only. This limitation shall apply regardless of the form of action, whether in contract or tort, including negligence, or any other form of action. In no event shall either party be liable to the other party for any damages resulting from loss of data or use, lost revenues, lost profits or special, incidental, indirect on consequential damages
Intellectual Property Rights:
Each Party shall exclusively own its respective trademarks, service marks, copyrights, trade secrets, patents and any other intellectual Property and no party will have any claim or ownership to the Intellectual Property of the other by virtue of this Agreement. Neither party will take any action or make any claim to any intellectual property belonging to the other party, whether during the term or thereafter, which is inconsistent with the terms of this agreement. Further Merchant hereby grants to Infibeam, during the term, a worldwide, non-exclusive, royalty free, revocable rights and license to use, transmit, publicly display on line, store, copy and distribute Merchant's content, service names and other proprietary materials supplied by Merchant as is reasonably necessary to perform its obligations under this Agreement.
Each Party agrees that it will not without the consent of the other, disclose the provisions contained herein to any third party, other than as may be required by law in connection with legal, administrative, or to attorneys, accountants and consultants that have retained to represent them in connection herewith and are bound by this clause.
Representations & Warranties.
Each Party represents and warrants to the other that: (a) it has all right, power, and authority necessary to enter into this Agreement and perform its obligations hereunder; and (b) it will comply with all applicable laws, regulations, orders and other requirements of any governmental authority in its performance of this Agreement.
Neither Party shall be liable for any loss or failure to perform any obligation under this Agreement due to causes beyond its reasonable control provided that the party seeking to rely on this clause has taken reasonable precautions to stop the force majeure event arising. Should such circumstances continue for more than ninety (90) days, then either party may terminate this Agreement.
Any notice or other communication required or permitted to be given between the parties shall be in writing and duly addressed to the signatories through their designation at their address first above mentioned, through E-mail, Registered Post with Acknowledgement Due, Speed Post Due, Courier Service and/or fax or to such other address as may be notified in writing.
Merchant shall not be entitled to assign or transfer all or any of its rights, benefits or remedies under this Agreement at any time and to any other company without the prior written consent of Infibeam. Infibeam may assign any of its responsibilities, rights or benefit to any third party or its affiliates except its payment obligation towards the Merchant.
Any disputes arising out of or in relation to this Agreement, during its subsistence or/and after its termination in any manner whatsoever, including the validity of this Agreement or interpretation or implementation of any provision hereof, shall, unless resolved amicably by and between the Parties hereto, be referred to a panel of three arbitrators and the proceedings shall be adjudicated under the Arbitration and Conciliation Act, 1996 or any re-enactment or modification thereof. Each Party shall appoint an arbitrator and the arbitrators so appointed shall appoint the third arbitrator. Proceedings of such Arbitration shall be held at Ahmadabad and shall be conducted in English language and the Courts at Ahmadabad have jurisdiction
Governing Law & Jurisdiction
This agreement shall be construed in accordance with the laws of India. In respect of all matter/ Disputes arising out of, in connection with or in relation to this agreement, Only competent court at Ahmedabad Gujarat shall have jurisdiction, to exclusion of all the other courts
This agreement shall not be construed as constituting a partnership, agency or a joint venture between the Parties hereof in any manner.
This Agreement (a) represents the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous or contemporaneous oral or written agreements regarding such subject matter, (b) may be amended or modified only by a written instrument signed by a duly authorized agent of each Party, and (c) will be interpreted, construed and enforced in all respects in accordance with the laws, of the laws of India, without reference to its conflicts of law rules.
THIS CLAUSE SHALL BE APPLICABLE TO ANY PERSON, COMPANY, INDIVIDUAL OR ENTITY WHO HAS ENTERED INTO THIS MERCHANT AGREEMENT AND OTHER RELATED SERVICES PROVIDED HEREIN. THE INFORMATION CONTAINED IN THESE TERMS AND CONDITIONS HAVE BEEN PROVIDED SPECIFICALLY FOR THE PURPOSE OF OFFERING THE SERVICES MENTIONED IN THIS MERCHANT AGREEMENT AND THE SAME IS ACKNOWLEDGED AND DULY SIGNED BY MERCHANT. INFIBEAM DOES NOT HAVE ANY METHOD TO ASSESS OR VERIFY THE VERACITY OF INDIVIDUAL'S OR ENTITY'S OR THIRD PARTY'S PRODCUCT AND SERVICES WHICH ARE OFFERED UNDER THIS AGREEMENT. MERCNAHT FURTHER AGREE AND ACKNOWLEDGE THAT MERCHANT ALONE SHALL BE HELD RESPONSIBLE FOR ANY PROFIT OR LOSS INCURRED DURING THE TERM OF THIS AGREEMENT.