Details
THIS AGREEMENT is made on
Between
(1) whose registered office is at (the Supplier)
(2) whose registered office is at (the Vendor)
Whereas
The Vendor desires to sell and promote the products offered by the Supplier on its Website and agrees to give sales and/or orders relating to the Products (as defined below) to the Supplier pursuant to the terms and conditions set forth in this Agreement. These terms and conditions shall apply to all Orders for Products in response to which the Supplier provides the Products to the Customers of the Vendor to the exclusion of any other terms and conditions.
1. Definitions
In this Agreement:-
"Address” means the address stated on each Order for delivery of the Products to the Customer;
"Business Day" means any day other than a Saturday, Sunday or bank holiday in ;
“Customer” means the customer of the Vendor placing Order on the Website for Products of the Supplier;
“Order” means the Vendor’s customers' purchase order;
“Price” means the price of the Products as charged by the Supplier to the Vendor;
“Products” means the products listed in the Annexure and other products from time to time as agreed between the parties;
"Website" means the website of the Vendor with URL at ; and
“Writing” includes facsimile, transmission, electronic mail and comparable means of communication.
2. Interpretations
2.1 Any reference in this Agreement to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2.2 The headings in this Agreement are for convenience only and shall not affect their interpretation.
2.3 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the Order shall have the same meaning in this Agreement but, if there is any conflict between the provisions of the Order and this Agreement, this Agreement shall prevail.
3. Basis of Purchase
3.1 The Supplier will provide product fulfillment for all sales obtained by the Vendor in relation to the Products of the Supplier as listed in the Annexure (and other products as agreed between the Supplier and the Vendor from time to time).
3.2 The Supplier is not involved in the actual transaction between the Vendor and the Customer. The supplier is not the agent of either the Vendor or the Customer.
3.3 The Order constitutes an offer by the Vendor to purchase the Products for delivery to its Customer subject to this Agreement. Each Order will be deemed accepted by the Supplier subject to clause 3.4 below.
3.4 The Supplier must notify the Vendor within three (3) business days of receipt if an Order is not accepted by Supplier, including any and all terms and conditions as stated on the Order and as stated herein.
3.5 No variation to this Agreement (save for the list of Products in the Annexure, which will be provided by the Supplier from time to time) shall be binding unless agreed in writing between the authorised representatives of the Vendor and the Supplier.
4. Images and Advertising
4.1 The Supplier shall provide images of products to the Vendor to be used on its Website.
4.2 The Supplier retains all rights to all images of products provided and retains the right to prohibit the use of any and all images provided. The Vendor may not use any of the images contained within the provided photos for any other purpose other than to gain sales, which will be given to the Supplier.
4.3 The Vendor must not make any claims regarding the Products other than those described in the approved Product literature, posted by the Supplier's website, or approved in advance in writing by the Supplier.
5. Price, Fees and Charges
5.1 The Supplier will provide Vendor with a detailed listing of all Products along with, but not limited to, the Price it will be charged for each item and any and all other charges which may be due in affiliation with each item.
5.2 Any Price list provided by the Supplier is valid for . No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Vendor in writing during the period.
5.3 The Price of the Products shall be stated in the Order and, unless otherwise so stated, shall be:-
a) of any applicable value added / sales / services tax (which shall be payable by the Vendor subject to receipt of a tax invoices); and
b) inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Products to the Delivery Address and any duties, imposts or levies other than value-added tax.
5.4 The Supplier will also provide Vendor with recommended retail prices for the Products but . The recommended retail price can be changed by the Supplier at any time upon notice.
5.5 The Vendor is responsible for the payment of Price and all fees and charges incurred for eachProduct shipped to the Customer.
5.6 The Drop Shipping Fee is % of Product Price ex VAT.
6. Payment
Time of invoice
6.1 Subject to any special terms agreed in Writing between the Vendor and the Supplier, the Supplier shall be entitled to invoice the Vendor for the price of the Products on or at any time after the date of the Order on a day's cycle.
Time of payment
6.2 The Vendor shall pay the price of the Products (less any discount to which the Vendor is entitled, but without any other deduction in respect of any counterclaim or by way of set-off or otherwise) in cleared funds within days of the date of the Supplier's invoice. Receipts for payment will be issued only upon request.
Unpaid Sums
6.3 Products will not be shipped until the payment is received by the Supplier from the previous payment cycle. If any sums are unpaid by the Vendor after the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled :
(a) to charge the Vendor interest (both before and after any judgment) on the amount unpaid, at the rate of 2 per cent per annum above 's Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); and
(b) if such sums remain unpaid within 30 days of the Supplier calling upon the Vendor to remedy its failure to pay, to terminate the Agreement or suspend any further deliveries to the Vendor or suspend the Vendor from the Supplier's dropshipping program.
Sales and Tax
6.4 Vendor agrees that it is the sole responsibility of Vendor to collect, report and remit all taxes to the correct tax authority for all business transactions, sales or revenue stemming from the sales of the Supplier’s products. Vendor further agrees that Supplier is not obligated to determine whether a sales tax applies and is not responsible to collect, report or remit any tax information arising from any transaction involving the images or photos provided.
7. Delivery
7.1 Subject to Clause 6, the Products shall be delivered to the Address shown in the Order on the date or within business days of the Order, during the usual business hours.
7.2 Time for delivery shall not be of the essence of the Agreement unless previously agreed by the Supplier in Writing. The Products may be delivered by the Supplier in advance of the quoted delivery date.
7.3 The Products shall be marked in accordance with any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
8. Quality
8.1 The Supplier shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Vendor.
8.2 The Supplier shall maintain main quality, specification control, testing and inspection procedures ("Procedures") to enable the Supplier to consistently comply with its obligations under each Order and this Agreement.
9. Returned Products
9.1 All Products shipped to the Customer by the Supplier are to be new and first quality.
9.2 The Supplier will provide a -day return policy during which a Customer may return a Product that is undamaged, unworn, with tags still attached (at their own expense or on expense of Vendor). The Supplier will also provide a return/refund policy for any damaged or defective Products as long as any claims are placed within the agreed-upon days of the Product being received. The Supplier will not provide any policy for any claims placed on a Product after days of being received.
9.3 The Customer shall not be obliged to return to the Supplier any packaging or packing materials for the return of Products.
9.4 No returns or credit requests will be accepted after days of the Order date.
9.5 Cancellation requests must be e-mailed and the response must state “Cancelled”. If a cancelled order is shipped in error, the Vendor is responsible to contact its Customer, and have the shipment returned to the Supplier. Before credit can be given, proof of cancellation must be produced and product returned.
10. Risk and Property
10.1 Risk of damage to or loss of the Products shall pass to the Customer:
(a) in the case of Products to be picked up at the Supplier's premises, at the time when the Products are handed to the Customer or its carrier; or
(b) in the case of Products to be delivered otherwise than at the Supplier's premises, at the time of delivery or, if the Vendor / Customer has provided a bad Address, the time when the Supplier has tendered delivery of the Products.
10.2 The property in the Products shall pass to the Customer upon delivery, unless payment for the
Products have been agreed to be made prior to delivery, when it shall pass to the Vendor once payment has been made and the Products have been appropriated.
10.3 Supplier will charge the Vendor any and all fees associated with a bad Address provided. If the apartment/suite number is not included or a bad postal code is provided and reshipping is required, there will be a re-shipping charge equal to the original shipping charge added to the Vendor’s account. There will be a % restocking fee for all Products returned to the Supplier because of a bad address being supplied.
11. Assignment and Subcontracting
Neither party shall be entitled to assign the Agreement or subcontract any part of it without the prior written consent of the other party.
12. Warranty
12.1 The Supplier warrants and represents that (subject to the other provisions of these conditions) upon delivery, and for a period of months from the date of delivery, the Products shall:
a) be of satisfactory quality;
b) comply with the specifications and any technical standards (including quality assurance specifications and description particulars) and other requirements provided by the Vendor;
c) not infringe any person’s Intellectual Property Rights or other rights.
12.2 The Supplier warrants and represents to the Vendor on acceptance of each Order and at all material times that:
a) it has the capacity to enter into this Agreement and each Order on its own behalf and on behalf of its affiliates (as applicable under these this Agreement) and has the right and authority to sell the Products to the Vendor in ;
b) it has complied with all applicable regulations or other legal, ethical requirements concerning the manufacture, packaging and delivery of the Products including, but not limited to, all the applicable safety, environments, humanitarian and export regulations of and ; and
c) it has the right to sell the Products free from all encumbrances and that the Customer will enjoy quiet possession of the Products.
13. Exclusion from Liability
13.1 The Warranty is subject to the following conditions:
(a) the Supplier shall be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Vendor;
(b) the Supplier shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Supplier's instructions (whether oral or in writing), misuse or alteration or repair of the Products without the Supplier's approval;
(ᴄ) where any valid claim is made by the Vendor hereunder, the Supplier shall, repair or replace the defective Products, free of charge, or refund to the Vendor the price of the defective Products, but the Supplier shall have no further liability to the Vendor in respect of such claim.
13.2 No officer or employee of the Supplier shall be liable to the Vendor in any circumstances for any loss, expense or damage of any kind (direct, indirect, financial or consequential and whether arising from negligence or otherwise) arising from any act or omission of his during the performance of his employment or other duties.
13.3 The Supplier is in no way responsible or liable for the success of the Vendor’s website, the accuracy, or legality of its content and operation. Further, the Vendor has independently evaluated the desirability of participating in the Supplier’s Dropshipping Program and is not relying on any representation, guarantee or statement other than set forth in this Agreement.
13.4 The Supplier is not responsible for any payment problems between the Vendor and the Customer.
14. Intellectual Property
14.1 All copyright, patent, trade secret and other proprietary and intellectual property rights in the
Products, and information which the Supplier may provide to the Vendor or its agents in relation to the Products, shall (as between the parties) at all times remain vested in the Supplier or the manufacturer of the Products, and the Vendor shall not acquire any intellectual property rights or licence relating to the Products and may not copy or imitate the Products.
14.2 If any claim is made against the Vendor that the Products infringe (or that their use or resale infringes) the patent, copyright, design, trademark or other industrial or intellectual property rights of any other person, the Supplier shall indemnify the Vendor against any liability incurred by the Vendor (including associated expenses reasonably incurred) in connection with the claim, provided that:
(a) the Supplier is given control of any proceedings or negotiations in connection with any such claim;
(b) the Vendor shall give the Supplier all reasonable assistance for the purposes of any such proceedings or negotiations;
(ᴄ) except pursuant to a final award, the Vendor shall not pay or accept any such claim or compromise any such proceedings without the consent of the Supplier (which shall not be unreasonably withheld); and
(d) the Vendor shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Vendor may have in relation to such infringement, and this indemnity shall not apply to the extent that the Vendor recovers any sums under any such policy or cover (which the Vendor shall use its best endeavours to do).
14.3 Products bearing any registered or unregistered trademarks or any other marks, brands, logos or designs owned by or licensed to the Vendor (“Vendor Branding") must only be sold to the Vendor's Customers. Where Products have been rejected or not taken up by the Vendor, the Supplier must obtain the prior written consent of the Vendor to sell such Products to a third party. Consent may be given on any terms specified by the Vendor. If such consent is given, then the Supplier must remove art Vendor Branding and all references to the Vendor's trademarks including swing tickets, tags, badges and all other labels from those Products before they are offered for sale to a third party.
15. Termination
15.1 The Vendor and the Supplier agree that the term of the Agreement shall commence on its above written effective date and shall continue for as long thereafter as it is mutually agreed between Vendor and Supplier.
15.2 If the Vendor or the Supplier is not satisfied with the terms of this Agreement, and the results thereof, either party may terminate this Agreement by providing thirty (30) days written notice to the other aforementioned party.
15.3 On termination of this Agreement for any reason:
(a) the Supplier shall fulfil all Orders obtained by the Vendor prior to the termination (subject to Clause6); and
(b) the Vendor shall pay the Supplier on demand for all Products supplied by the Supplier to the Vendor's customers and any related fees and charges prior to termination.
16. Force Majeure
16.1 In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 16.2) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.
16.2 Sub-clause 16.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.
16.3 Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.
16.4 If and when the period of such incapacity exceeds 3 months then this Agreement shall automatically terminate unless the parties first agree otherwise in writing.
17. Notices
17.1 Any notice or other formal communication to be given under this Agreement shall be in writing and signed by or on behalf of the party giving it. It shall be:
(a) sent by e-mail with receipt set out in clause 17.2; or
(b) delivered by hand or sent by prepaid recorded delivery, special delivery or registered post to the relevant address in clause 17.2
In each case, it shall be marked for the attention of the relevant party set out in clause 17.2 (or as otherwise notified from time to time under this Agreement). Any notice so served by hand, e-
mail, fax or post shall be deemed to have been duly given:
a. in the case of delivery by hand, when delivered;
b. in the case of fax or electronic mail on a Business Day prior to 5.00 pm, at the time of receipt;
c. in the case of prepaid recorded delivery, special delivery or registered post, at 10am on the second Business Day following the date of posting
provided that in each case where delivery by hand or by fax occurs after 5pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9am on the next following Business Day. References to time in this clause are to local time in the country of the addressee.
Address of notices
17.2 The addresses of the parties for the purpose of clause 17.1 are:
(a) Supplier:
Address:
e-mail address:
For the attention of:
(b) Vendor:
Address:
e-mail address:
For the attention of:
English language
17.3 All notices or formal communications under or in connection with this Agreement shall be in the English language or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail.
18. Insurance
18.1 The Supplier will take out and maintain an annual General and Products Liability policy of insurance (including coverage for ait warranties in respect of the Products under these this Agreement) fully indemnifying the Supplier against liability for property damage, personal injury or death arising directly or indirectly out of Products manufactured, distributed or sold by it with an annual cover of not less than in the aggregate.
18.2 The Supplier agrees to make Vendor an additional insured on a primary, non-contributory basis under its liability insurance policy under the Supplier’s endorsement provisions. Supplier agrees that if it does not have a Supplier’s endorsement under its liability policy, Supplier will obtain such an endorsement and shall provide written verification that Vendor is an additional insured, when required by Vendor, and shall provide Vendor a complete copy of the policy and all endorsements upon request. Supplier further agrees that the failure to name Vendor as an additional insured due to intent, negligence, or inadvertence of the employees or agents of the vendor, including but not limited to the liability insurance carrier or insurance broker, does not relieve the Supplier or its liability carrier of its duty to indemnify Vendor on a primary, non-contributory basis against any claims, damages, and/or expenses as described under these terms and conditions. These insurance requirements (and indemnification of Vendor) shall also apply to any Supplier sponsored services, including but not limited to, Supplier product demonstrations, either conducted by Supplier, its agents or a third party, prizes, giveaways, or similar contests, and celebrity appearances. Supplier also agrees to claim all liability and responsibility of
product sold to Vendor for the life of the product, including but not limited to Product owned by a Customer whom purchased the product from Vendor.
18.3 Where the Supplier is not the manufacturer of the Products, the Supplier must also ensure that the manufacturer of the Products has the insurance cover set out above.
18.4 The Supplier must provide to the Vendor, at the same time as it returns this signed Agreement, a
certificate of currency in respect of the insurance referred to above confirming that the Insurance is in force. In addition, the Supplier must immediately provide a new certificate of currency to the Vendor upon the expiry of any previously provided certificate of currency.
18.5 The Supplier is responsible for insuring the Products against theft, loss and damage until the property in the Products has passed to the Vendor.
19. Confidentiality
19.1 During the course of business between Vendor and Supplier, one party may make available confidential information concerning itself to the other party. The parties agree that the confidential information will be used solely for the purpose of conducting business between the Supplier and the Vendor. The parties must not disclose or distribute any confidential information to any competitor of the other party or to any other third party without the express written consent of the other party.
19.2 The Supplier's confidential information includes but not limited to inventory levels, product features and pricing and anticipated new products, sales practices. All images of all products supplied by
Supplier, including images on Supplier’s web site are the exclusive property of Supplier. The Vendor may use these images only in connection with the sale of Supplier’s products and only in compliance with any policies or terms stated by the Supplier. No other use or distribution is permitted, and Vendor may not use Supplier’s images in connection with the sale of products from any person or entity other than the Supplier.
19.3 The Supplier retains the right to terminate Vendor’s permission to use these images at any time and for any reason. Prices and product availability are subject to change without notice. The Supplier cannot be responsible for typographical errors in the catalogue. By placing an order, the Vendor accepts all Supplier’s terms and policies set forth in this Agreement.
19.4 The Vendor's confidential information includes but not limited to the Vendor's financial, technological (including designs, specifications, samples, know-how, materials, processes and other technical information), strategic or business information (including customer details) concerning its Website and business. In particular, the parties must ensure that all electronic communications are kept secure so as to prevent unauthorised access.
19.5 The parties otherwise agree not to disclose any of the terms of these this Agreement except to the extent that:
(a) disclosure is necessary to comply with these this Agreement or any other agreement between the Supplier and the Vendor,
(b) the disclosure is required by law or rules of any stock exchange; or
(ᴄ) the information is in the public domain other than through a breach of this Agreement.
19.6 The Vendor shall treat as confidential all technical or creative know-how, information, samples, models, designs or drawings relating to the Products or their development or creation which the Supplier may make available to it (the Confidential Information) and shall not without the prior written consent of the Supplier:
(a) exploit any part of the Confidential Information save as is reasonably necessary to enable it to use the Products; or
(b) disclose (save as requested by a court of law) any part of the Confidential Information other than to its employees or customers (or potential customers) who need to know the Confidential Information for the purpose of using the Products provided that:
(i) such person is made aware prior to the disclosure of the proprietary and confidential nature of theConfidential Information; and
(ii) such person owes an express duty of confidence to the Vendor.
19.7 The provisions of Clause 19 shall survive any termination of this Agreement.
19.8 Where one party believes that it is required by law to disclose any of the terms of an Order or this Agreement or any other confidential information of the other party, the party must immediately notify the other party in writing and provide assistance as reasonably required by the other party if the other party wishes to defend or resist that requirement.
20. Waiver
No waiver by the Vendor of any breach of the Agreement by the Supplier shall be considered as a waiver of any subsequent breach of the same or any other provision.
21. Severance
If any provisions of this Agreement are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provisions in question shall not be affected thereby.
22. No rights for Third Parties
A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Ordinance to enforce any of its terms.
23. Dispute Resolution
23.1 If any dispute, controversy or claim between the parties arises out of or in connection with this Agreement, they shall use all reasonable endeavours to resolve the matter amicably. If one party gives the other notice that a material dispute has arisen and the parties are unable to resolve the dispute within a period of thirty (30) days of service of the notice, then the dispute shall be referred to the respective Chairmen / Chief Executives of the parties. Neither party shall resort to dispute resolution below against the other under this Agreement until thirty (30) days after the referral. This shall not affect a party's right, where appropriate, to seek an immediate remedy for an injunction, specific performance or similar court order to enforce the obligations of the other party.
23.2
24. Counterparts
This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument.
As witness this Agreement has been executed by or on behalf of the parties the day and year first before written.
Annexure - List of Products under this Agreement
