This document is an electronic record in terms of Information Technology Act, 2000 including all its amendments and rules made there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.
This E-Commerce Services Agreement (hereinafter referred to as “Agreement”) is made on the day of your acceptance of this Agreement from your designated electronic mail address or in any other form (physical) or in any electronic record including, if applicable or provided, clicking on the check box or “I Agree” / “Accept” button or by any other means which construe your acceptance of this Agreement (“Execution Date”) by and betweenTrayii Technologies and the Merchant.
The details of which are given by you on the http://e2efunctions.com on which this Agreement appears, a natural or juristic person competent to enter into valid and legally binding contract under applicable Indian laws inter alia, a person of legally sound mind, not adjudicated bankrupt and equal to or more than 18 years of age on the Execution Date. If You are a juristic person then the person accepting this Agreement represents that such person is duly authorized by You to bind You to this Agreement and the designated electronic mail address is valid and subsisting and allotted by You to such person (hereinafter referred to as “Merchant” which expression shall unless repugnant to the context and meaning thereof, include its heirs, legal representatives, successors, liquidators, receivers, administrators and permitted assigns), of One Part;
And , http://e2efunctions.com domain name which is owned by Trayii Technologies a Company incorporated under the provisions of the Indian Companies Act, 1956 and having its registered office at Trayii Technologies 14-37-24/18, 14-33-46 to 14-37-44, American Hospital Area, Visakhapatnam, Andhra Pradesh(hereinafter referred to as “Service Provider” which expression shall unless repugnant to the context and meaning thereof, include its successors, liquidators and assigns), of Other Part.
Merchant and Service Provider shall hereinafter be individually referred to as “Party” and collectively as “Parties”.
Merchant is inter alia engaged in the business of developing and/or manufacturing and/or selling various goods and/or Leasing rental spaces and related services in the Territory (“Business”);
Service Provider is inter alia in the business of developing and operating e-commerce businesses for independent and providing for those entities / persons Service Provider’s proprietary technology, website design and development capabilities, order processing capabilities, customer service capabilities, fulfilment capabilities and centralized inventory, invoicing and payment management to enable those entities / persons to offer e-commerce to their customers and such services include Platform Services (as defined hereunder) and Transaction Support Services (as defined hereunder) (“Service Provider Business”);
Merchant has approached Service Provider to avail Service Provider Business for the purpose of Merchant’s Business and Service Provider has agreed to make available Service Provider Business to Merchant;
Service Provider has made and is in the process of making substantial investment both monetary, knowhow and otherwise to establish its trade name among End customers and Merchants.
Both Service Provider and Merchant recognize that overall success of the Platform and trade names of the Service Provider and its Affiliates depends on the users of the Platform and public in general perceives Platform as a trusted online and electronic marketplace to buy and sell goods and services;
The Parties wish to enter into this Agreement to document and record their mutual understandings and agreements in relation to the terms and conditions on which Service Provider shall make available Service Provider Business to Merchant and Merchant shall avail Service Provider Business;
These recitals shall form part of the Agreement.
Now therefore, in consideration of the mutual promises and other consideration, the sufficiency of this is acknowledged, the Parties, intending to be legally bound, agree as follows:
“Affiliate” shall mean, with respect to each Party, any person or entity directly or indirectly through one or more intermediary Controlling, Controlled by, or under direct or indirect common Control with a Party. “Control”, “Controlled” or “Controlling” shall mean, with respect to any person or entity, any circumstance in which such person or entity is controlled by another person or entity by virtue of the latter person or entity controlling the composition of the board of directors or managers or owning the largest or controlling percentage of the voting securities of such person/entity or otherwise controlling the other.
“Brand” or “Brand Name” shall mean e2efunctions.com and the Merchant or such other successor or replacement brand name / trade mark / service mark as may be decided by the Service Provider upon a prior intimation to the Merchant.
“Confidential Information” means and includes any and all information which is confidential to a Party including any (i) business information and business processes, (ii) any samples, formulations, specifications, data relating to manufacturing and quality control processes and procedures, (iii) advertising and marketing plans, (iv) any past, current or proposed development projects or plans for future development work, (v) technical, marketing, financial and commercial information whether relating to past or current or future, (vi) the commercial and business affairs of a Party, (vi) all customer related information including any rates and discounts and (vii) and with respect to the Service Provider shall include the End Customer Database.
“Deliverable(s)” shall mean the specific materials, devices, products, services or other deliverables that are provided by Merchant to Service Provider during the course of performing Service Provider Business as per this Agreement and any related document thereto.
“End Customer” shall mean the retail customers to whom Merchant offers to sell goods or services or rent or lease his Premises for specified time period on Daily or hourly basis or whom Merchant receives offers to services like rent or lease through the Platform.
“End Customer Database” shall mean all data / information (as may be updated from time to time) about the persons/ entities including their names, addresses, contact details, queries, orders and other requests made available by such persons / entities on the Platform or otherwise captured by the Platform that shall further include the usage, behaviour, trends and other statistical information / data relating to such persons / entities, who (i) access the Platform or otherwise get invitation to the Platform or correspond with the Platform, (ii) place any order for Products on the Platform, or (iii) send any enquiry/ request with respect to the Platform, and shall include all analysis and records based on such aforementioned information, including the spending and other patterns of such persons/entitles and Products. For the avoidance of doubt, any list, description or other grouping of consumers or customers or any derivative work from End Customer Database shall be deemed to be End Customer Database.
“Intellectual Property” includes ideas, concepts, creations, discoveries, inventions, improvements, know how, trade or business secrets; trademarks, service marks, domain names, designs, utility models, tools, devices, models, methods, patents, copyright (including all copyright in any designs and any moral rights), masks rights, design right, procedures, processes, systems, principles, algorithms, works of authorship, flowcharts, drawings, books, papers, models, sketches, formulas, teaching techniques, electronic codes, proprietary techniques, research projects, and other confidential and proprietary information, computer programming code, databases, software programs, data, documents, instruction manuals, records, memoranda, notes, user guides; in either printed or machine-readable form, whether or not copyrightable or patentable, or any written or verbal instructions or comments. The End Customer Database shall be considered to be the Intellectual Property of the Service Provider.
“Intellectual Property Rights” means and includes (i) all rights, title or interest under any statute or under common law or under customary usage including in any Intellectual Property or any similar right, anywhere in the world, whether negotiable or not and whether registerable or not, (ii) any licenses, permissions and grants in Intellectual Property (iii) applications for any of the foregoing and the right to apply for them in any part of the world and (iv) all extensions and renewals thereto.
“Payment Facilitation Services” shall mean facilitating the receipt of service price (either on the goods purchased or services used or on rental or lease) on the Platform either along with Platform Services or otherwise.
“Platform” shall mean the http://e2efunctions.com with a second level domain name / uniform resource locator (URL) bearing the Brand Name with any top level domain name whether presently available for registration or made available for registration at any future date. “Platform Services” internet based electronic platform in the form of an intermediary to facilitate Sale/Rental/Booking/Lease and purchase of goods and services through Platform.
“Product(s)” shall mean any and all goods and related services of the Merchant for which Service Provider makes available Service Provider Business to the Merchant.
“Service Fees” shall mean the fees for availing either whole or part of the Service Provider Business in accordance with the terms of this Agreement and/or Commercial Terms (the term as defined in the Agreement).
“Service Provider Business” shall have the meaning as set out herein above and shall include Platform, display Merchant’s product information as produced by him, Platform Services, Payment Facilitation Services and Transaction Support Services.
“Service Provider Content” shall mean the Platform, all the pages of the Platform, all the content contained in the Platform (excluding any third party content and advertisements), look and feel of the Platform, any and all information or content owned or controlled (e.g. by license or otherwise) by Service Provider or its Affiliates, including text, images, graphics, photographs, video and audio, and furnished by Service Provider or its Affiliates in connection with Platform Services, Transaction Support Services, Payment Facilitation Services and for the purpose of offering for Sale/Rental/Booking/Lease of Products by the Merchant.
“Term” shall have the meaning as set out hereto.
“Territory” shall mean the entire world.
“Transaction Support Services” shall include services in relation to support the Sale/Rental/Booking/Lease of the goods and services by the Merchant to End Customer which shall include product listings, warehousing services, logistics management services, Payment Facilitation Services, customer support services and any other additional services that may be agreed between the parties.
In this Agreement, unless the context otherwise requires:
Words importing persons or parties shall include natural person, entity, partnership firm, organization, operation, Company, HUF, voluntary association, LLP, joint venture, trust, limited organization, unlimited organization or any other organization having legal capacity;
Words importing the singular shall include the plural and vice versa, where the context so requires;
References to any law shall include such law as from time to time enacted, amended, supplemented or re-enacted;
Reference to one gender shall include a reference to the other genders;
References to the words “include” or “including” shall be construed without limitation;
References to this Agreement or any other agreement, deed, instrument or document shall be construed as a reference to this Agreement , such other agreement, deed, instrument or document as the same may from time to time be amended, varied, supplemented or novated in accordance with the terms of this Agreement;
The headings and titles in this Agreement are indicative and shall not be deemed part thereof or be taken into consideration in the interpretation or construction of this Agreement;
The word ‘written’ shall include writing in electronic form and ‘signed’ shall include electronic signature or any other electronic communication which signifies the sender’s or originator’s intention to be bound by such electronic communication.
Merchant agrees and acknowledges that Service Provider provide the platform for the agreeable service charges which are accepted by Merchant and service provider. Service Provider Business and the Territory in any manner and for any consideration as may be decided by Service Provider in its sole and absolute discretion.
Service Provider in its sole and absolute discretion may refuse to provide any one or more of the Service Provider Business including Platform, Platform Services, Payment Facilitation Services and/or Transaction Support Services for any reason whatsoever and especially if providing such Service Provider Business to the Merchant can be detrimental to the reputation, goodwill and competitiveness of Service Provider or could cause any breach of any contractual commitments of the Service Provider and cause Service Provider to breach any applicable laws.
In the event of any conflict or inconsistency between the terms of this Agreement and the terms of any Commercial Terms thereto, the terms of this Agreement shall prevail to the extent of such conflict or inconsistency.
Service Provider as the proprietor and owner of the Platform and Platform Services and rights holder of the Brand Name may at its sole discretion carry out advertising and marketing activities in relation to promotion of the Platform, Platform Services and Brand Name in any manner and to any extent as may be deemed fit by the Service Provider and for such purposes may engage in certain Sale/Rental/Booking/Lease promotion activities to increase the Sale/Rental/Booking/Lease of Products on the Platform. Service Provider and Merchant may agree on certain terms on which Merchant shall support such Sale/Rental/Booking/Lease and marketing activities of Service Provider including providing discounts on the Products or other free of cost goods and services to the End Customers.
Service Provider may at its sole and absolute discretion on reasonable commercial efforts basis market, promote or advertise the services made available by Merchant on the Platform in compliance with this Agreement.
Where Merchant believes or is notified by other entity including any third party manufacturers of the Products that any promotion plan/ activity undertaken by Service Provider is against any applicable law or in breach of any contractual obligation of Merchant or such third party manufacturer (in both cases supported by a written legal opinion from a reputed advocate), Merchant shall intimate the same to Service Provider and upon such intimation, Service Provider shall within reasonable time cease such plan/ activities.
Merchant agrees and acknowledges that Service Provider shall have the sole right (as to between Service Provider and Merchant) for the design, look and feel, architecture, layout, positioning and all aspects of the Platform including listing, positioning, indexing, placement and tiering the Products offered for Sale/Rental/Booking/Lease on the Platform by the Merchant and the Merchant shall not question or dispute such exercise of right or discharge of responsibility by the Service Provider.
Service Provider shall be solely responsible at Service Provider’s sole discretion to sell or license any and all advertising and promotional time and space with respect to Platform including web-pages or such portions of the Platform that contains the details of the Products. The advertisement and promotions on any part of the Platform may include video advertising, display/banner/text advertisements, including but not limited to medium rectangle, leader-board, roadblock, hyperlink, page branding, framing, widgets, pop-ups, pop-under, network advertisements (for the sake of example, Google AdSense) available on the Platform. Service Provider shall have the sole right and discretion to decide the style, placement and format of the advertisement and promotion and the price and/or any other consideration, if any, for the Sale/Rental/Booking/Lease and license of such advertisement and promotion. Except for the facilitation of payment of Sale/Rental/Booking/Lease consideration of the Product through Payment Facilitation Services, Service Provider and/or its Affiliates shall be entitled to retain any and all revenues generated from any Sale/Rental/Booking/Lease or licenses of all such advertisements and promotions.
Service Provider shall reasonably ensure that all advertisement/ promotion activities undertaken by the Service Provider
I. do not contain any material that, in its knowledge, would infringe or violate any intellectual property rights or any other personal or proprietary right of any person; and
II. are not obscene or libellous; and
III. comply with all applicable laws including standards and rules set forth by the Advertising Standards Council of India or any other relevant government authority.
The End Customer Database shall be proprietary to the Service Provider. Service Provider shall alone retain all rights including all Intellectual Property Rights in the End Customer Database and unless specifically agreed to in writing by the Service Provider, no rights in or to the End Customer Database are deemed to have been granted to the Merchant. To the extent Merchant derives any rights in the End Customer Database by virtue of it undertaking the Merchant Business the Merchant shall hold such rights in trust for Service Provider and the Merchant shall do and undertake all such acts to exclusively assign such rights in the End Customer Database to the Service Provider. The Merchant further agrees that all the End Customer Database shall be treated as Confidential Information of the Service Provider for the purposes of this Agreement;
1. Payment to be made by merchant
In consideration of the provision of Service Provider Business by the Service Provider, which shall be calculated in the manner as specified in the Commercial Terms. Service Fees for any additional services shall be as set out in the Commercial Terms. Parties agree that the details of terms memorialized by the Commercial Terms are dynamic in nature and will evolve or vary as the operating, promotional, marketing and business environment of the Service Provider or user behaviour on the Platform changes and evolves and therefore the Commercial Terms will be adjusted or revised from time to time or sometime occasionally or frequently by the Parties as necessary or appropriate during the Term of the Agreement to accurately reflect the evolution of the aforesaid environment and conditions. Such revisions would be with the mutual consent of the Parties which consent can be oral, written or implied. For any oral consent, Service Provider may on reasonable basis confirm such oral consent within reasonable time from such consent and through written records including through electronic communications.
2. Payment Terms
Service Provider shall have the right to receive the Services Fees from the amounts due to the Merchant under Payments Facilitation Services. To the extent the Service Provider is unable to receive the Service Fees from the Payment Facilitation Services as aforesaid; the Merchant shall make all payments within ten or as your wish business days of receipt of the relevant invoice from the Service Provider. Service Provider shall be entitled to make any deduction or withholding in accordance with applicable agreement.
Each Party shall be responsible for any and all taxes on its business, and taxes based on its net income or gross receipts. However, Service Provider shall be entitled to additionally charge service tax or any other indirect or transaction taxes as applicable on one or more of the Service Provider Business and Service Fees. Service Provider shall be entitled to make any deduction or withholding in accordance with applicable agreement.
i. Merchant acknowledges Service Provider’s absolute ownership of, interest in and rights to the Brand Name and the Platform.
ii. Without limitation to the foregoing, Merchant acknowledges and agrees that all goodwill in or associated with the Brand Name, including any goodwill generated or arising by or through Service Provider’s or Merchant’s activities pursuant to this Agreement shall accrue for the benefit of and shall belong exclusively to the Service Provider.
iii. No right or interest in the Brand Name are granted or deemed to be granted by the Service Provider to the Merchant.
I. has ceased to be confidential without default on the part of the receiving Party;
II. has been received from a third party who did not receive it in confidence;
In addition to other representations and warranties in this Agreement, each Party represents and warrants as follows: (i) it is a corporation duly organized, validly existing, and in good standing under the laws of its incorporation; (ii) execution and performance of this Agreement by such Party and the consummation of the transactions contemplated hereby do not and will not contravene the certificate of incorporation or by-laws of such Party and do not and will not conflict with or result in
(a) a breach of or default under any indenture, agreement, judgment, decree, order or ruling to which such Party is a party that would materially adversely affect such Party’s ability to perform its obligations under this Agreement; or (b) a breach of any applicable law; and (c) it shall comply with all applicable laws in the performance of its obligations and the exercise of its rights under this Agreement.
EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
Service Provider specifically disclaims any and all express or implied warranties with respect to the Platform, Platform Services and Payment Facilitation Services and these are provided on ‘as is’ basis.
This Agreement shall commence on the Effective Date and shall be valid until termination.
Either party shall have the right to terminate this Agreement and all then existing Commercial Terms with prior 30days notice from Merchant to Service provider.
Merchant(s) are liable to share all their booked and available dates of their Merchant rental space for 365 calendar days ahead from this agreement acceptance date and until termination.
Upon expiry or termination of this Agreement all Confidential Information and any other materials which may have been provided by one Party to the other shall be forthwith returned and the returning Party shall certify such return and all copies thereof or any other material or information which cannot be returned, shall be destroyed completely;
Termination of this Agreement shall not relieve any Party of any of its obligations or liabilities and affect the rights and remedies of a Party, which have accrued prior to the date of termination.
The provisions of this Agreement contained in Sections 9 (Intellectual Property), 10 (Confidentiality), 11 (Indemnification), 12 (Representations and Warranties), 14 (Consequences of Termination), 15 (Governing Law) and 16 (Dispute Resolution), 17.2 (Notices) shall survive the expiry or early termination of this Agreement.
Termination of this Agreement shall not affect any obligations or duties of the Merchant and Service Provider towards the End Customer which obligations or duties accrued before the termination of this Agreement.
This Agreement shall be governed by the laws of India without giving effect to its principles of conflict of laws. Subject to the provisions of Section 16 (Dispute Resolution); the courts at Mumbai shall have the exclusive jurisdiction in respect of any matter or dispute under or connected with this Agreement, each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts there from) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on the Merchant anywhere in the world, whether within or without the jurisdiction of any such court including on the designated electronic mail address.
You and Company shall not accept this Agreement and use the Platform if You and Company does not wish to submit to the aforesaid applicable laws and jurisdiction.
Any dispute which arises between the Parties shall be attempted to be resolved by good faith discussions between the Parties.
Where the Parties are unable to resolve such disputes by good faith discussions within a period of thirty (30) business days from the date of a written notice by either Party notifying existence of such dispute, either Party shall be free to refer the dispute to arbitration in accordance with this Section. This Agreement and the rights and obligations of the Parties shall remain in full force and effect pending the award in such arbitration proceeding.
The arbitration shall be governed by the Arbitration and Conciliation Act, 1996 (as applicable in India) for the time being in force, and/or any statutory modification or re-enactment thereof.
The place and seat of arbitration shall be Visakhapatnam, A.P and the language of the arbitration shall be English.
The arbitration shall be conducted by three (3) arbitrators. Each Party shall appoint one arbitrator each and the two appointed arbitrators shall appoint a presiding arbitrator. In case the Parties fail to appoint their respective arbitrators within thirty (30) days from the submission of dispute for settlement through arbitration in accordance with Section 16.2 above, or the two appointed arbitrators fail to appoint the presiding arbitrator with thirty (30) days from the date of appointment of the later of the first two arbitrators, a sole arbitrator shall be appointed in accordance with the Indian Arbitration and Conciliation Act, 1996 by the appropriate court of law.
The award rendered shall be in writing and shall set out the facts of the dispute and the reasons for the arbitrator’s decision. The award shall apportion the costs of the arbitration as the arbitrator deems fair.
Notwithstanding anything contained in this Agreement, both Parties agree and acknowledges that the covenants and obligations with respect to the matters covered by this Agreement and set forth herein relate to special, unique and extraordinary matters, and that a violation of any of the terms of such covenants and obligations will cause irreparable loss and injury to the aggrieved Party. Therefore notwithstanding the provisions of this Agreement, either Party shall be entitled to approach any appropriate forums for obtaining an injunction, restraining order or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate.
Service of notice for Dispute Resolution and for purposes other than those which are required under Information Technology Act, 2000 to be given only to the Grievance Officer shall not be valid.
Merchant Service Provider