For the purpose of this Agreement, the following words and phrases shall have the meaning assigned to them under this Article.
1.1. “Company” shall mean Kink Toystore.
1.2. “Customer” shall mean any individual, group of individuals, firm, company or any other entity placing an order for the Products of the Vendor through the Kink Toystore WebSite.
1.3. “Price” shall mean the cost at which the Products are to be delivered to the Customer inclusive of Shipping charges, if any.
1.4. “Effective Date” shall mean the date on which this Agreement is executed.
1.5. “Form” shall mean Form for “Kink Toystore – Vendor Agreement” to be filled in and executed by the Vendor at the time of execution of this Agreement annexed hereto as Annexure “A”.
1.6. “Vendor” shall mean the entity incorporated or otherwise more specifically described hereinabove, which sells its products through the Online Store and more particularly described in the attached “Form”.
1.7. “Online Store” shall mean a virtual electronic store created on the Telebuy Shopping online portal for sale of the Vendor’s Products either through web site of the Company or any other gadget or instrument displaying the particulars of the Vendor’s Products available for sale , or any other means by which the Customer places an order for the Product of the Vendor.
1.8. “Order” shall mean an order for purchase of products wherein customer has agreed to purchase the product upon the terms and conditions and at the Price indicated on the online store of the Vendor.
1.9. “Products” shall mean merchandise items of the Vendor put up for sale on the Online Store by the Vendor.
1.10. “Price” means the sale price of a product inclusive of delivery charges and applicable taxes.
1.11. “Kink Toystore” means an online platform owned and operated by the Company that facilitates the shopping transaction between the Vendor and the Customer.
1.12. “Shipping Charges” shall mean the logistics/courier/postal charges including all taxes incurred for delivering the product(s) to the Customer.
1.13. “Shipment Cost” shall mean the cost and taxes recovered by the Company for and sent to the Vendor per order for handling the logistics.
1.14. “Commission” shall mean the margin per transaction charged by the Company to the Vendor at the rates agreed to between the parties, upon the sale of product on online store.
2.1. The Company shall offer to the Vendor its services for facilitating online sale of the Vendor’s product which shall include hosting and technology, customer support, payment services and all the other related services to ensure customer satisfaction on behalf of the Vendor. For this arrangement, the Vendor shall pay commission as specified under these presents, to the Company for the sale being effected through the Online Store created on the Kink Toystore WebSite of the Company.
3. Consideration and Payment Terms
3.1. The Online store shall be displayed on the Kink Toystore website during the subsistence of this Agreement.
3.2. The Company shall collect the Payment on behalf of the Vendor in respect of the Orders received through Online Store. The Company shall pay the Vendor an amount recovered as Applicable taxes, shipping for the Vendors items and Price minus 10% commission in respect of approved order(s) through the Online Store. The Shipment cost will be independent of the Quantity of items shipped for a transaction by a particular customer. The Vendor handles the Shipment of their own Products and shall only use an approved 3rd party shipping company who employs the use of online tracking which shall be forwarded to Kink Toystore in order to provide it to the customer. Any amount to be paid to the Vendor by the Company shall be paid once per week via PayPal to the Vendors registered PayPal email address.
3.3. In the event any order is reversed due to “Damaged product”, “Quality Issue”, “Not delivered” or “Wrong Item delivered”, Parties agrees that the Vendor shall levy the Service charges, plus a penalty of the service charge of the product and the said charges will be deducted from the amount due and payable to Vendor.
3.4. Further Company shall debit the payment to the Vendor in the event the product cannot be delivered by the Vendor due to “out of stock” and in such an event Vendor shall be liable to bear all the cost and claims (including cost of legal proceedings, cost of attorneys, claims, etc.) raised against the Company.
3.5. Payment reimbursement of the Sale Proceeds to Vendor shall be done by Company in the following manner:
3.5.1. All payments to the Vendor will be made via the Vendors registered PayPal email address.
3.5.2. The Company will pay all the Vendors sales totals minus commissions to the vendor on a once a week basis via the aforementioned method.
3.6. Vendor agrees to bear all responsibility regarding the applicable taxes, duties, or other similar payments (including VAT) arising out of the sales transaction of the product through the online store and Kink Toystore shall not be responsible to collect, report, or remit any taxes arising from any transaction.
4. Obligations of the Vendor
The Vendor shall:
4.1. Through the interface provided by the Company on the creation on Online Store of Vendor, shall upload the product description, images, disclaimer, delivery time lines, price and such other details for the products to be displayed and offered for sale through the Kink Toystore WebSite.
4.2. Vendor shall ensure not to upload any description/image/text/graphic that is unlawful, illegal, objectionable, obscene, vulgar, opposed to public policy, prohibited or is in violation of intellectual property rights including but not limited to Trademark and copyright of any third party. Vendor shall ensure to upload the product description and image only for the product which is offered for sale through the Online Store and for which the said Online Store is created.
4.3. Vendor shall provide full, correct, accurate and true description of the product so as to enable the customers to make an informed decision.
4.4. Vendor shall be solely responsible for the quality, quantity, merchantability, guarantee, warranties in respect of the products offered for sale through their online store.
4.5. At all times have access to the Internet and its email account to check the status of approved orders,
4.6. On receipt of the approved order, Vendor shall dispatch / deliver the products within a period not exceeding 48 hours or within the time as specified in the product description on its online store.
4.7. In respect of the orders for Products placed through the Online Store, Vendor shall submit proof of dispatch in the form of a licensed 3rd party courier delivery service online tracking number to the satisfaction of Company within 48 hours so that the Company may then forward it onto the customer.
4.8. In the event the products are not accepted by the Customer due to any wrong / damaged products dispatched, then the same shall be replaced by the Vendor at no extra cost to the aggrieved customer. Since the Company is a Facilitator, the Vendor hereby authorizes the Company to entertain all claims of return of the Product in the mutual interest of the Vendor as well as the Customer.
4.9. Update the Order Status on a daily basis,
4.10. The Vendor shall not send any of its promotional or any other information with the Products ordered by the customer and also shall ensure that no material or literature is sent which may be detrimental to the business/commercial interests of the Company,
4.11. The Vendor shall dispatch the Products of same description, quality and quantity and price as are described and displayed on the Online Store and for which the Customer has placed the order.
4.12. Vendor shall raise invoice in the name of Customer. Vendor further undertakes and agrees to raise the invoice of an amount equivalent to the amount displayed on the online store to the customer and paid by/charged to the customer.
4.13. The Vendor shall not 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 laws. Vendor is also responsible for making sure the country of destination has no laws governing the delivery of said product.
4.14. The Vendor shall ensure that they own all the legal rights in the Products that are offered for sale on the Online Store.
4.15. The Vendor shall pass on the legal title, rights and ownership in the Products sold to the Customer.
4.16. Vendor shall be solely responsible for any dispute that may be raised by the customer relating to the goods, merchandise and services provided by the Vendor.
4.17. The Vendor shall at all time during the pendency of this agreement endeavor to protect and promote the interests of the Company and ensure that third parties rights including intellectual property rights are not infringed.
4.18. The Vendor shall at all times be responsible for compliance of all applicable laws and regulations including but not limited to Intellectual Property Rights, Local Sales Tax, Federal Sales tax, Value added tax, Standards of Weights & Measures legislation, Sale of Goods Act, Excise and Import duties , Code of Advertising Ethics, etc.
5. Warranties, Representations and Undertakings of the Vendor
The Vendor warrants and represents that
5.1. They have the right and full authority to enter into this Agreement with the Company.
5.2. All their obligations under this Agreement are legal, valid and binding obligations enforceable in law.
5.3. There are no proceedings pending, which may have a material adverse effect on their ability to perform and meet their obligations under this Agreement;
5.4. That they are an authorized business establishment and hold all the requisite permissions, authorities, approvals and sanctions to conduct their business and to enter into an arrangement with the Company. They shall at all times ensure compliance with all the requirements applicable to their business and for the purposes of this arrangement including but not limited to Intellectual Property Rights, Sales Tax, Federal Sales Tax, Service tax, Standards of Weights & Measures legislation, Sale of Goods Act, Value added tax, Excise and Import duties, etc. They confirm that they have paid and shall continue to discharge all their obligations towards statutory authorities.
5.5. That they have adequate rights under relevant laws including but not limited to various Intellectual Property Legislation(s) to enter into this Agreement with the Company and perform the obligations contained herein and that it has not violated/ infringed any intellectual property rights of any third party
5.6. That they shall provide the Company with copies of any document required by the Company for the purposes of this performance of its obligations under this arrangement within 24 hours of getting a written notice from the Company.
5.7. That the complete product responsibility and liability shall solely rest with Vendor and that the Vendor shall be solely responsible to the customer for the sale of the Product by Vendor including but not limited to its delivery to the Customer and that Vendor shall not raise any claim on the Company in this regard.
5.8. Vendor agrees and undertakes not to upload any text, images, graphics (for description and display of product on the online store) that is vulgar, obnoxious, inaccurate, false, incorrect, misleading, intimidating, against the public policy.
5.9. Vendor shall pay the Company a commission charge as specified by the Company on every transaction it enables and that Vendor shall provide all completed transaction details to the Company for record keeping and reconciliation.
5.10. That Vendor shall draw the invoice / bill directly in the name of the Customer.
5.11. Vendor shall prior to release of any promotion/advertisement material seek prior written approval for the same from the Company, in so far as the same relates to services offered pursuant to the terms of this Agreement.
6. Company reserves the right:
6.1. Vendor agrees and acknowledges that the Company, 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 Vendor without any prior intimation to Vendor 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 Kink Toystore WebSite. In such an event, the Company reserve the right to forthwith remove/close the online store of the Vendor without any prior intimation or liability to the Vendor.
6.3. At any time if the Company believes that the services are being utilized by the Vendor or its Customer in contravention of the terms and provisions of this Agreement, Terms and conditions of use of Kink Toystore WebSite, the Company 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, without liability to refund the amount to the Vendor to forthwith remove/block/close the online store of the Vendor and furnish such details about the Vendor and/or its customers upon a request received from the Legal/ Statutory Authorities or under a Court order.
7.1. The Vendor indemnifies and shall hold indemnified the Company, its directors, 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 Vendor’s product, the breach of any of the Vendor’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 Vendor infringing any applicable laws, regulations including but not limited to Intellectual Property Rights, Local Sales Tax, Federal Sales Tax, Service tax, Value Added tax, The Standards of Weights & Measures legislation, Excise and Import duties, etc . For the purpose of this clause reference to the Company shall also include the Mobile Operators and such other agencies through whom the Company shall make the Online Store available to the Customers.
7.2. The Company agrees to indemnify and to keep indemnified the Vendor in respect of all claims losses and expenses (including the cost of litigation if any) arising out of any breach or default part of the Company to perform its obligations under this Agreement.
7.3. This article shall survive the termination or expiration of this Agreement.
8. Company not Liable
8.1. The Company on the basis of representation by the Vendor has created the online store of the Vendor on Kink Toystore WebSite portal to enable Vendor to offer the Vendor’s products for sale through the said Online Store. This representation is the essence of the Contract.
8.2. The Company shall under no circumstances be liable or responsible for any loss, injury or damage to the Vendor, 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. Vendor agrees and acknowledges that
8.3. Vendor shall be solely liable for any claims, damages, allegation arising out of the Products offered for sale through its online store (including but not limited to quality, quantity, price, merchantability, use for a particular purpose, or any other related claim) and shall hold the Company harmless and indemnified against all such claims and damages.
8.4. Further the Company shall not be liable for any claims, damages arising out of any negligence, misconduct or misrepresentation by the Vendor or any of its representatives.
8.5. The Vendor hereby agrees, confirms and acknowledges that the Product is owned by the Vendor and that the Company is merely a facilitator for sale of the Vendor’s Product, hence the Company is not responsible / liable for the Product, its design, its function and condition manufacturing and selling and financial obligations, warranties, guarantees whatsoever. The Company reserves its right to state appropriate Disclaimers on its website / online store.
9. Term, Termination and effects of Termination
The Term of this Agreement shall commence on the date of execution of the contract and shall continue for a period of 12 months unless terminated earlier. The Agreement may be extended for such further period as may be mutually agreed by and between the parties hereto in writing to this effect.
9.2. This Agreement may be terminated by the Company in the event:
9.2.1. Vendor fails to make payment of the agreed amount, by giving 48 hours written notice,
9.2.2. Vendor commits a material breach of any representation, obligations, covenant, warranty or term of this agreement and the same is not rectified within 30 days after written notice given by the Company.
9.2.3. If a Petition for insolvency is filed against the Vendor.
9.2.4. If the Vendor is in infringement of the third party rights including intellectual property rights.
9.2.5. This Agreement may be terminated by either party giving the other 30 days written notice.
9.3. Effect of Termination:
In the event of termination/expiry of this Agreement, the Company shall remove the Links and shall discontinue display of the Products on Online store with immediate effect. Company shall not be liable for any loss or damages (direct, indirect or inconsequential) incurred by the Vendor by virtue of termination of this agreement.
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.
10.1. Any dispute arising out of or related to or connected with any provisions under this Agreement shall be referred to the arbitration of a single arbitrator to be appointed jointly by the parties.
10.2. The arbitration shall be conducted in Ontario in accordance with the Ontario Arbitration Act of 1991 or any modification or re-enactment for the time being in force.
10.3. The language of arbitration shall be English. The arbitration shall be held at Ontario Canada.
10.4. The award of the arbitrator or arbitrators as the case may be shall be final and binding on the parties.
11. Jurisdiction and Governing law
11.1. The obligations, performance, interpretation and contents shall be governed by Canadian law.
11.2. Subject to the provisions of negotiation and arbitration each Party irrevocably and unconditionally submits to the jurisdiction of Courts at Ontario Canada .
All notices and other communication under this Agreement shall be in writing and in English and either delivered by hand or sent by email, telex, fax or courier in each case to the addresses set out at the beginning of this Agreement.
13. Intellectual Property Rights
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
This Agreement embodies the entire agreement and understanding of the Parties and supersedes any and all other prior and contemporaneous agreements, arrangements and understandings (whether written or oral) between the Parties with respect to its subject matter.
Neither this Agreement nor any part of it is assignable, transferable, sub-licensable, subcontractable or conveyable by Vendor, either by operation of law or otherwise, without the express, prior, written consent of the Company signed by an authorized representative of such Party.
Vendor agrees and undertakes to maintain the confidentiality of the information and user/customer data disclosed, generated or made available to Vendor under this Agreement.
The said information shall not be used by the Vendor for any purpose other than for the performance of its obligations under this Agreement. Vendor 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, Vendor agrees that the Company shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining breach of this Agreement and/or disclosure of the Confidential Information. Company shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
17. Limitation of liability:
Under no circumstances, except in case of breach of contract, will either party be liable to the other party for lost profits, or for any indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this Agreement, regardless of the type of claim and even if that party 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 aggrieved party to have been deliberately caused by the other party.
18. Relationship of Parties
Nothing in this Agreement will be construed as creating a relationship of partnership, joint venture, agency or employment between the Parties. The Company shall not be responsible for the acts or omissions of the Vendor, and Vendor shall not represent neither has, any power or authority to speak for, represent, bind or assume any obligation on behalf of the Company.
19. Waiver and Amendment
19.1. 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 authorized representative of the waiving Party.
19.2. 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.
20. Force Majeure
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.
This Agreement may be executed in two (2) counterparts, each of which shall be deemed an original and which shall together constitute one Agreement.
In witness whereof the parties have hereto caused their respective Signatures and Company seal to be affixed the day and year first hereinabove mentioned.