Marketplace seller agreement

• FOGGMART having registered office at A-126, Friends enclave, Mundka, New delhi-110041, India and the Seller having particulars in the Commercial Annexure and Seller can be from any area, town or city in India.
• FOGGMART is an online technology platform (Marketplace) accessible through web (www.foggmart.in) / mobile application (FOGGMART) owned and operated by FOGGMART. Subject to the presents here, FOGGMART may allow Sellers to use Marketplace to list and display their product and other data on www.foggmart.in.
• Seller is an Authorised Reseller/Manufacturer of Products sold “under the brand as captured in the seller registration and is desirous of listing, displaying and selling their Products facilitated through Marketplace to such Buyers who visit www.foggmart.in.
• The parties agreeing to consider the foregoing and mutual covenants and agreements, as well as, and intend to be legally bound, as follows:

INTERPRETATION

Any reference herein to any clause or Annexure is to such clause or Annexure to this Agreement unless the context otherwise requires. The headings are inserted for convenience only and shall not affect the interpretation of this Agreement. Unless the context requires otherwise, words importing the singular include the plural and vice versa, and pronouns importing a gender include each of the masculine, feminine and neutral genders. References to the knowledge, information, belief or awareness of any Person shall be deemed to include the knowledge, information, belief or awareness such Person would have if such Person had made due, reasonable, careful and proper inquiries. The words “hereof”, “hereunder” and words of like import, refer to this Agreement and not to any clause or Annexure hereof. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until’ each mean “to and including”. The word "including" and words of similar import when used in this Agreement will mean "including, without limitation," unless otherwise specified. In case of a conflict between the Seller Return and Refund Policy and Foggmart Policies the FOGGMART Policies shall prevail. Recitals form an integral part of this Agreement.

SELLER PRODUCT LISTINGS

1. FOGGMART will allow Seller to list the Products for sale on Marketplace at the Listing Price determined by Seller or the Person authorised by an organization.

2. FOGGMART may implement mechanism to rate and provide feedback regarding Seller and Seller Products on Marketplace and such information be available publicly on Marketplace.

3. Seller shall be solely responsible for the product information, related material Seller Materials, Seller Products and Seller Offer and Sales of Seller Products on the market and shall ensure that during this contract period Seller shall comply with all requirements under all applicant law legislation Is fully compatible with.

4. Seller undertakes that the Seller Materials, Seller Products (including their packaging)

(i) shall not contain any Objectionable Content or any other Content that is not expressly permitted by FOGGMART; and 

(ii) are in compliance with the agreed catalogue and content standards. Seller takes full responsibility for the contents of the packages that it hands over to Logistics Service Providers (LSP) or delivers to Buyers under this Agreement and agrees that FOGGMART shall not be responsible or liable in any manner whatsoever for such contents.

5. Notwithstanding any provision of this Agreement, Seller while listing Seller Product will not provide any information or otherwise seek to list for sale on Marketplace, any Excluded Products, or provide any URL or links to its website or any other website or web page.

ORDER, SALE AND FULFILLMENT

1. For each Seller Product sold on Marketplace, Seller shall be able to see the same on Seller Portal. If FOGGMART believes in its sole discretion that a Seller Transaction represents fraudulent activity or any other reason whatsoever, FOGGMART may (but is not obligated to) prohibit the Seller Transaction without any liability thereof.

2. Seller shall retrieve the Order Information using the functionality enabled for Seller login of Marketplace and agrees not to cancel any Seller Transaction except as may be permitted by FOGGMART or applicable Seller Terms. 

3. Seller agrees and undertakes to comply with the following service levels for order fulfilment of this Agreement and acknowledges that its failure to perform or fulfil any of the service levels or other provisions of this Agreement shall have a bearing on its ranking on Marketplace and entitle FOGGMART without prejudice to any other consequences and rights as may be available to FOGGMART either in this Agreement or the Applicable Law.

4. Seller will hand over the packed Seller Product, packed as per Packing Specifications, to the designated LSP and Seller shall update Seller Portal with relevant shipping information, immediately upon handing over of Seller Products to and FOGGMART may make such information available on Marketplace.

5. Seller shall ensure that it will include within each Seller Product shipment package, the authenticity certificate/warranty card, user manual and invoice. Seller shall not include any of its marketing, promotional materials or any other solicitations or any communications to Buyers including emails confirming orders without prior written approval by FOGGMART.

6. Seller will not substitute any item or product for an order with another item or product. In the event the order is partly delivered or there is missing accessories or freebies, Seller agrees to immediately provide the same to Buyer at Seller’s own cost.

7. Title of the Seller Product will transfer from Seller to Buyer immediately the full amount of money to be paid by Buyer has been received by FOGGMART either online or through Cash on Delivery (COD).

8. Seller shall use the packaging material provided by FOGGMART for packaging of shipments of Seller Products as per Packaging Specifications only. Seller shall at all time keep sufficient stocks of the packaging materials to meet the obligations arising under this Agreement and shall ensure that there is no wastage, pilferage or misuse of the packaging material and no part of the printed matter on the packaging material is defaced, tampered, modified or obliterated. Seller shall place orders on FOGGMART for the packaging material required by it and once accepted, FOGGMART will deliver the packaging material as per its delivery terms. FOGGMART reserves the right to charge Seller for the packaging material at any time during the Term of this Agreement as per the mutually agreed terms and perform inspections to monitor usage of packaging material by Seller.

9. Seller undertakes and agrees that it shall not collude with a Buyer or other Sellers or users of the Marketplace, for drawing benefits from various promotional offers including but not limited to discount or cashback through false or fraudulent transaction. If Seller is found involved in such activity, the Seller acknowledges that FOGGMART reserves its right to impose penalty on Seller and recover the money amounting to five times of the benefits so drawn or maximum retail price; whichever is higher.

10. Overdue Orders: FOGGMART, without any liability to compensate Seller, shall have the right to cancel any order if Seller has failed to handover the packed Seller Product to LSP within agreed timelines or FOGGMART understands that Seller Product is not shipped for any reason within the applicable shipping period indicated in the Order Information.

11. Quality of Seller Products: Seller agrees not sell a Seller Product unless the Seller Product is fully fit for its intended use, manufactured and produced as per government Guidelines and is of a style, appearance, quality and consistency that at least meets the standards as shown on the Product Information page. FOGGMART reserves the right (but is not obligated) to perform quality checks before shipment of the Seller Product and approve or disapprove the Seller Product pursuant to such quality checks. FOGGMART will have no liability to compensate Seller for any Seller Products disapproved by FOGGMART following the aforesaid quality checks. Seller will not ship Seller Products which are not in consumable condition, damaged, defective, Excluded Products or of disapproved quality standards.

12. Seller agrees to integrate its Designated Store with the Marketplace for ordering, sale, delivery and return of the Seller Products.

13. With respect to the orders fulfilled through Seller store, Seller shall source, sell, pack and hand over Seller Products at the Seller Stores to Buyers or LSPs in accordance with the terms of the applicable Order Information, Seller Terms, FOGGMART Policies and this Agreement.

14. It is agreed that title to and risk of loss of or damage to the Seller Products that are delivered by Seller to Buyers at Seller Stores. Seller Stores shall pass on delivery of the Seller Product to Buyer. With respect to return of Seller Products to the Seller Stores or other specified and agreed locations title to and risk of loss of or damage to the Seller Products will pass to Seller when delivered by Buyer to Seller at the Seller Stores or other specified and agreed locations. FOGGMART does not hold and will not hold title to, or be deemed to be the owner of, any Seller Products at any time under the terms of this Agreement.

EXCHANGES, RETURNS AND REFUNDS

1. Seller will provide FOGGMART with the Seller Return and Refund Policy and such Seller Return and Refund Policy shall apply to all Seller Products. Seller will be responsible for accepting and processing returns of Seller Products in accordance with this Agreement and the Seller Return and Refund Policy (displayed as part of Product information).

2. FOGGMART will make efforts to ensure that all Seller Products that are returned by a Buyer are dispatched to Seller within the period agreed between FOGGMART and Seller.

3. FOGGMART will determine and calculate the amount of all refunds (including any Taxes to be refunded) for Seller Products returned in accordance with this Agreement and will route all such refunds on behalf of Seller to the Buyer and accordingly debit from the payment to Seller.

4. Buyer Disputes: If Seller delays in resolving Buyer’s complaints or disputes relating to the Seller Products within the period of three days (including failure to perform quality checks of the returned Seller Products), then on the expiry of such period FOGGMART may at its sole discretion decide and remit the refund to Buyer upon receipt of request from Buyer and recover the same from Seller. Seller agrees that it will accept FOGGMART decision to remit the refund to Buyer without any contest or dispute. While arriving at any decision under this clause FOGGMART would use reasonable efforts and opportunity of being heard will be provided to Seller and the Buyer but FOGGMART does not take any responsibility to ascertain the truth of such a claim by Seller or the Buyer.

5. Loss in Transit: In case of loss of Seller Product after delivery to LSP but before the delivery to Buyer, FOGGMART shall make a claim to LSP or the transit insurance service provider and shall treat Seller as the beneficiary for the recoveries from LSP or transit insurance service provider. However, irrespective of claim processing by FOGGMART with LSP or insurance service provider, FOGGMART will settle the seller payment in a month’s time.

INVOICING BY SELLER 

1. Seller shall create invoices and shipping labels for Seller Transactions through the Transaction Processing Service using the functionality enabled for Seller Account. Seller will invoice the Listing Price of the Seller Product sold to Buyer as adjusted for any discounts offered to Buyer. GST/ SGST/ CGST will be charged as per Applicable Law on the adjusted Listing Price. If FOGGMART at its sole discretion decides to charge Shipping Charges and COD charges from the Buyer, Seller shall print the invoice in this regard and send the same with Seller Product to the Buyer.

2. All discounts offered during the Term of this Agreement will be borne by Seller. If FOGGMART offers any additional discounts over the Listing Price, FOGGMART shall obtain prior approval from Seller or the Person authorised by. However, where additional discount is offered by FOGGMART or not, FOGGMART will be entitled for the FOGGMART Fees as mentioned in the Commercial Annexure as agreed in this regard.

3. Seller agrees to use the invoice and label format provided to Seller through the functionality of the Seller Account. The invoice will be placed and sent with the Seller Product shipment package prior to handing over Seller Products to the LSP or Buyer in connection with each Buyer order.

PROBLEMS WITH SELLER PRODUCTS

Seller agrees and acknowledges that it will be solely responsible for any sale of Seller Product to Buyer that is not in accordance with the order of Buyer or FOGGMART Policies. Seller further warrants to resolve all Buyer service issues in connection with such sale or delivery of Seller Products.

EQUALITY WITH SELLER SALES CHANNELS

Seller will ensure there is equality between the offerings (e.g., listing price and other terms including but not limited to the discounts, minimum price, warranties, return and refund policies, after sales service etc. regarding the sale of the same Seller Product) by Seller on other ecommerce platform and offerings on Marketplace.

COLLECTION OF PAYMENT-BY PAYMENT GATEWAYS AND PAYMENT TO SELLER

1. FOGGMART will collect the payment for Seller Products through payment gateways aggregators or on its own. Seller authorises the Payment Gateway for processing payments, refunds and adjustments for Seller Transactions, receiving and holding Sales Proceeds on Seller’s behalf and remitting entire Sales Proceeds to FOGGMART bank account.

2. Seller agrees that as a security measure or in compliance with Applicable Law or any reason thereof, FOGGMART or the Payment Gateway shall have the right (but not obligation) to impose limits or restrictions on transaction at Marketplace. Neither FOGGMART nor Payment Gateway will be liable to Seller in case of any transaction failure to meet regulatory requirements or due to any technology failure or limitations of technology being used.

3. If FOGGMART or the Payment Gateway reasonably conclude based on the available information that Seller's actions or performance may result in Buyer disputes, charge backs or other claims, then FOGGMART may, in its sole discretion, may delay initiating remittances related to such dispute and withhold corresponding payments that are otherwise due to until the completion of investigation regarding any Seller actions or performance without any further liability.

4. FOGGMART will remit to Seller the Sales Proceeds collected by FOGGMART in respect of Seller Products delivered to Buyers, every Fifteen days (or on the next Business Day if the scheduled payment date falls on a non-Business Day) for the successful Seller Transaction held during the preceding Fifteen days after deducting FOGGMART Fees, Charges for shipping services and other amounts covered, reversals because of return of Seller Product, refund to the Buyer and any other amounts due to FOGGMART. All payments to seller will be subject to the deduction of tax at source under Applicable Law. For avoidance of doubt, it is clarified that FOGGMART will not be obligated to pay to Seller any amount pertaining to Seller Products that have been initiated for return by Buyer.

5. FOGGMART reserves the right to withhold the Sales Proceeds or any portion of the Sales Proceeds in a reserve account pertaining to the disputes with Buyers or third parties arising out of any default or defect in services of Seller or the Seller Product.

6. In case of Return/ Refund due to the fault of Seller as referred to FOGGMART shall be entitled for the amount covered.

7. Seller agrees and warrants that Seller will deposit the correct amount of TDS with the Government authorities within time prescribed under the law. FOGGMART, on receipt of proof of deposit of TDS by Seller, will pay the corresponding amount to Seller within fifteen days.

CHARGES AND COSTS

1. FOGGMART Fees: With respect to each Seller Transaction, Seller will pay FOGGMART the fees at the applicable percentage, more specifically covered under the Commercial Annexure, plus GST. Prior to each Payment Date, FOGGMART will raise an invoice towards the FOGGMART Fees (plus GST as per the prevailing rates) due to FOGGMART for the relevant Settlement Period. 

2. Return/ Refund due to the fault of Seller: In case of returns/ refunds occasioned due to any reason attributable to the Seller, FOGGMART shall be entitled to deduct the logistics cost and payment gateway charges, on actuals, incurred by FOGGMART on such returns/ refunds from the payment to seller.

PROPRIETARY RIGHTS AND LICENSES

1. Reservation of Rights

1. Both Parties agree that the brands/logos, trademarks, etc., belonging to each Party are the exclusive property of the respective Party and cannot in any circumstances be used, or copied, or altered in any manner which is identical/ similar the brands/ logos/ trademarks of the other Party without being specifically authorized in writing by that other Party. 

2. Seller acknowledges that, FOGGMART possesses and reserves all right, title and interest in and to the Intellectual Property Rights in the trademarks and any other intellectual property, know-how developed or provided by FOGGMART or its Service Providers during performance of the services under this Agreement and except as may expressly be set forth in this Agreement, no title to or ownership of any of FOGGMART IPR is transferred or licensed to Seller or any other Person pursuant to this Agreement. FOGGMART IPR will own the internet presence developed over time on the world-wide web of the seller including seller domain by offering the online services of the seller.

2. Content and Trademark License

1. Seller will ensure that during the term of this Agreement FOGGMART and FOGGMART’S Affiliates have a royalty-free, non-exclusive right and license to use, reproduce, perform, display on Marketplace and on FOGGMART Connected Properties (e.g., Facebook account of FOGGMART or twitter handle of FOGGMART etc.), and in advertising and other marketing communications promoting Marketplace that consist of text/ logo/ other derivative work.

2. Notwithstanding the foregoing, nothing in this Agreement will be construed as restricting FOGGMART from using any Seller trademarks in a manner permitted under Applicable Law without a license from Seller such as fair use or referential use, or valid license from a third party. All goodwill arising out of use of Seller trademarks by FOGGMART will inure solely to the benefit of Seller.

PROMOTION AND MARKETING 

FOGGMART may undertake merchandising, promotion and digital marketing of FOGGMART Marketplace and Seller’s Online Store including Seller Products as solely determined by FOGGMART including via the FOGGMART Connected Properties or any other functions, features, advertising, or programs on or in connection with Marketplace. Seller acknowledges that FOGGMART will have complete rights of approval and ownership over the creative content, themes, sales literature, copy and layout of all advertising and promotional materials and programs, trade materials, business cards, invoices, stationery and other printed matter relating to such merchandising, promotion and marketing activities. Depending on mutual agreement between the Parties, FOGGMART reserves the right to charge a fee from Seller for its promotion and marketing of the Storefront and Seller Products.

TAXES

1. Seller will, at its own expense, obtain all permits and licenses required to operate its business in accordance with Applicable Law, and will pay and discharge all applicable taxes levies and assessments which may be due for selling or offering of the Seller Products for sale on Marketplace. It is Seller's responsibility to determine the States in which it has an obligation to collect and remit any kind of taxes including GST/CGST/SGST and other levies by Governmental Authority. FOGGMART will remit the Taxes collected from Buyer directly to Seller and Seller will be solely responsible for remitting the Tax to the applicable Governmental Authority. If a Governmental Authority requires FOGGMART to pay any of Seller's Taxes, Seller will promptly reimburse FOGGMART for the amounts, fines and penalties paid and agrees to defend, indemnify and hold FOGGMART harmless from and against all liabilities incurred or suffered by or assessed against FOGGMART because of Seller’s failure to remit or pay timely such Taxes to the appropriate Governmental Authority.

2. Seller acknowledges and agrees that while Service Providers may take the Tax related data (Tax Data) from the Seller Portal, Seller acknowledges and agrees that FOGGMART and its Service Providers do not provide Tax advice, and that Seller is solely responsible for determining the applicability and accuracy of any Tax Data. As a condition of receiving the Tax data, Seller agrees to fully and forever waive any liabilities against FOGGMART and the Service Provider arising from Seller's use of and reliance on such Tax Data and further agrees to defend, indemnify and hold FOGGMART and its Service Provider harmless from liabilities arising from such use or reliance.