THIS DELIVERY SERVICES AGREEMENT (together
with all appendices, addenda, and schedules attached hereto, this
"Agreement"), is executed at New Delhi effective as of [insert], by and between:
XYZ LIMITED, a company incorporated
and existing under the provisions of Companies Act of 1956 having its
registered office at ___________________________________, (hereinafter
referred to as "Service Provider" which means and include,
unless repugnant to the context or meaning thereof mean and include its
liquidators, successors, subsidiaries, affiliates, receivers and
assigns) of the ONE PART;
And
PQR PRIVATE LIMITED, a company incorporated and existing under the
provisions of Companies Act of 1956 having its registered office at ____________________________,
(hereinafter referred to as "Merchant" which means and
include, unless repugnant to the context or meaning thereof mean and
include its Affiliates, liquidators, successors, receivers and permitted
assigns) of the OTHER PART.
"Service
Provider" and "Merchant" are hereinafter individually
and collectively referred to as "Party " and "Parties"
respectively, as the context may require.
WHEREAS
1.
Merchant is inter alia engaged in the business of retail of
merchandise including but not limited to clothing, footwear, accessories,
jewellery etc., designed or created by various designers. The Merchant conducts
its business in both offline and e-commerce mode. ].
2.
Service Provider is inter-alia
engaged in the business of providing diversified logistics services.
3.
For mutual interest and
benefits, Parties hereto are desirous of recording the terms and conditions of
their understanding, including the scope of the Delivery Services (as defined
in clause 1) to be provided by the Service Provider under this Agreement.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth in
this Agreement and for other good and valuable consideration, the sufficiency
of which is acknowledged by the Parties, the Parties hereby agree as follows:
1.
DEFINITIONS:
Unless
the context otherwise provides or requires, the following words and expressions
used in this Agreement shall have the meaning as provided to them herein below:
a.
'Affiliate' means,
in relation to a Person, any other entity which directly or indirectly Controls,
is controlled by or is under direct or indirect common Control with, that
Person from time to time.
b.
'Business Day' means
a day (other than Sunday, national holidays and bank holidays in the
Territory) on which nationalized banks are generally open in India for the
conduct of banking business and comprising of normal working hours.
c.
'Confidential Information' shall
mean technical, financial and/or commercial information relating to a
Party’s businesses, facilities, products, techniques, solutions, or processes
which is proprietary to a Party, or to its affiliated companies, disclosed or
made available to one Party to by the other Party in any form whatsoever
(including written or verbal disclosure, demonstration, sample, computer
program, document or diagram) and this whether or not marked as
"Confidential". Furthermore, Confidential Information includes such information
that has been made available to either Party by third parties under an
obligation of confidentiality.
d.
'Customer' shall
mean any Person/party/entity who/which is transacts on any platform operated
by the Merchant.
e.
'COD' (Cash on Delivery) means
the cash payment made by the Customer for the purchase of the products
on the platform operated by the Merchant upon delivery of such Shipment/s.
f.
'Delivery and/ or Delivery
Service' means (a) collection of the Shipments by Service Provider
from the location(s) agreed between the Parties; and (b) the delivery of such
Shipments to the Customers at the location designated by the Customer and
taking the receiver’s confirmation signatures of receipt or (c ) any other services
/ products provided by the Service Provider in the course of its business
operations; Delivery or its other grammatical variations shall be
construed accordingly.
g.
'Fees' means
the consideration payable by the Merchant to Service Provider for providing the
Delivery Services as contemplated under this Agreement.
h.
‘Manifest’ means the data
uploaded by the Merchant (in the format shared by the Service Provider)
containing the details of the Shipment for which the Service Provider is to
provide Delivery Services or Cash Pickup Services as the case maybe.
i.
'Person' means
any individual, firm, company, governmental authority, joint venture, partnership,
association or other entity (whether or not having separate legal personality).
j.
'Returns' shall be as defined under the Scope
of Work as set out in Annexure I
k.
‘Reverse Pick-ups’ shall be as defined under the Scope
of Work as set out in Annexure I.
l.
‘Shipment’ means all the
products consolidated, packaged and/ or invoiced together and handed over to
the Service Provider by the Merchant for Delivery.
m.
'Territory' means the region serviced by the
Service Provider.
2.
TERM:
This
Agreement shall be effective on the date of the execution of this Agreement (“Effective
Date”). The Agreement shall be valid, legal and binding from the Effective
Date till [insert end
date], unless terminated earlier by either Party in accordance with this
Agreement.
3.
SCOPE OF DELIVERY SERVICES:
As
set out in Annexure – I ("Scope of Services").
4.
FEES:
The Fees shall be calculated as set out in Annexure II. The Parties mutually agree that:
a.
Base Price - The diesel base price is pegged at [INSERT XX]
INR / L
b.
New Diesel Price - The daily average of diesel prices,
[Insert
Option as applicable[NG1] ] , across the 4 metros [Insert[NG2] metros as applicable] will be considered as the rate of diesel for the month.
c.
For every [INSERT XX
]% (percent/Rs. per litre) increase / decrease in the New Diesel Price from the
Base Price, there will be a corresponding increase / decrease of [Input - Client Level Factor
(refer above)] in the total freight charges. There will be no change to
the freight charges for an increase / decrease of less than [INSERT XX ]% (percent/Rs.
per litre) in the New Diesel Price from the Base Price.
Calculation:
For every change in fuel rate X
corresponding change in freight
= Fuel hike applicable
5.
TERMS OF PAYMENT:
a.
The Service Provider shall issue an
invoice to the Merchant at the beginning of each calendar month for the
Delivery Services that have been rendered during the previous month under the
terms of this Agreement. The Merchant shall make the payment to the Service
Provider within 15 (fifteen) days from the date of submission of the invoice
("Due Date").
b.
Merchant shall raise any dispute in
the invoice within 07 (seven) working days of receipt of invoice ("Dispute
Date") and any disputes raised after the Dispute Date shall be considered
invalid. Notwithstanding anything contained above, the Merchant shall in no
circumstance withhold the undisputed Fees to be paid to the Service Provider on
grounds of any dispute in the invoices. All such disputes if raised within the
Dispute Date shall be mutually resolved by the Parties within 15 (fifteen) working
days and all pending payments by either Party should be settled within 5 (five)
working days of the settlement of the dispute.
c.
If the Merchant fails to make the
payment of undisputed amounts against an invoice for any reason whatsoever, the
Service Provider shall notify the Merchant of such delay/ default and provide
the Merchant 5 additional Business Days to rectify the default. If the default
continues, the Service Provider reserves the right to hold the Shipment of the
Merchant equal to the value of the unpaid undisputed amounts in it’s custody,
suspend all services and lock the Merchant Account in it’s network till all
pending un-disputed amounts are cleared and also reserves the right to
terminate the agreement with immediate effect. In cases where COD is collected
on behalf of the Merchant, the Service Provider will be at liberty to hold the
COD in it’s custody equal to the amounts of undisputed amounts till the time
such amounts are not cleared by the Merchant. All delayed payments of undisputed
invoices will incur a liability amount of 18% p.a from the date of realization
till actual payment.[NM3]
d.
On delivery of the shipment, in case
of any dispute regarding the outer packaging or the delivery, the consignee
will be required to update the same on the POD provided. Any issues pertaining
to the Delivery of the Shipment shall be noted on the POD at the time of
handing over the shipment to the customer. However, it is agreed between the
Parties that the Merchant will not challenge and the Service Provider will not
accept any dispute with regard to lost and/ or damaged Shipment and/ or lost or
damaged POD, initiated by the Merchant post 72 hours of Shipment closure. No
liability will arise on the Service Provider post this 72-hour period.
e.
If the Service Provider is unable to
provide the hard copy of the POD, the Merchant agrees to accept e-pod for the
purpose of invoicing. The
liability of the Service Provider under such indemnity bond shall be limited to
the agreed liability limit only.[NM4]
6.
OBLIGATIONS OF THE MERCHANT
a.
The Merchant shall ensure that the
Manifest shared for initiation of the Delivery Services is correct and complete
in all respects.
b.
The Merchant shall provide all the
instructions/approvals regarding Delivery and Returns that are required for the
performance of Services as envisaged in this Agreement in a timely manner.
c.
The Merchant shall not book /
handover or allow to be handed over any Shipment which is banned, restricted,
illegal, prohibited, stolen, infringing of any third party rights, hazardous or
dangerous or in breach of any tax laws or contains any cash, jewellery
(excluding artificial jewellery), gold, silver, diamond, platinum, precious
metals, precious stones, currency, bullion, letters and financial and security
instruments (“Notified Goods”) and Service Provider shall not be liable for the
Delivery of any such Shipments. Without prejudice to the generality of the
aforesaid, an indicative list of the banned or prohibited products is given in
Annexure III. In cases where the Merchant is booking/handing over liquids or
chemicals, the Merchant will share with the Service Provider the chemical
compositions of the product along with the concentration of each component.
Additionally, if the Merchant is booking/handing over any hazmat product in the
Shipment, the Merchant will share with the Service Provider the composition and
flammable categorization for each product.
Further, in the event of a breach of the terms of this
clause by the Merchant, the Service Provider shall not be held liable for any
damage or loss, additionally, the Merchant shall indemnify, defend and hold
harmless the Service Provider from and against any claims, demands, actions,
liabilities, costs, interest, damages, penalties and/ or expenses of any nature
whatsoever (including all legal and other costs, charges and expenses) incurred
or suffered by the Service Provider due to such breach on part of the Merchant.
The
Merchant shall also be liable to pay the Service Provider an amount of INR
25,00,000 (Rupees Twenty-Five Lakhs) (“Penalty”) per instance if the Merchant
books/hands over any Shipment containing Notified Goods to the Service Provider
without intimating the Service Provider or by sharing an incorrect/inaccurate
description of such Shipment with the Service Provider. The Service Provider
will have the right to adjust the Penalty against any amount owed to the
Merchant.[NM5]
d.
The Merchant shall ensure that the
packaging of the products is safe, proper and adequate to withstand the normal
transportation and environmental hazards. Notwithstanding anything contained in
this Agreement, the Service Provider shall bear no liability for any product it
deems to have inadequate / improper packaging.
e.
Said To Contain Basis &
Inspection: It is expressly understood by the Parties that all Shipments agreed
to be delivered by the Service Provider are on “SAID TO CONTAIN BASIS” i.e. the
Service Provider shall be under no obligation to verify the description and
contents of the Shipments declared by the Merchant. The Merchant shall
undertake to make proper, true, fair, correct and factual declaration regarding
description and value of Shipments.
f.
Notwithstanding anything contained in this Agreement, the Service
Provider has the right however, not an obligation, to inspect any shipment
consigned by the Merchant to ensure that all the items are capable of carriage
to the destination within the standard operating procedure and handling
methods. At no point in time does the Service Provider take any liability or
warrant that any particular Shipment to be delivered is capable of carriage
without infringing the law of any state of the country from/ to or through
which the Shipment may be carried.
g.
The Merchant shall provide all applicable regulatory/ statutory
approvals, if any, in electronic/ physical format as required by the Service
Provider to perform Services under this Agreement. Service Provider will not be
liable to verify any documentation provided by the Merchant. Liability for
providing the correct and complete documentation will lie solely with the
Merchant.
7.
INSURANCE:
The
Merchant hereby undertakes and agrees that, should it so desire, it shall
insure the products from point of origin to point of final destination at it's
own cost. The Service Provider shall not be liable for insuring the product.
8.
CONFIDENTIALITY:
a.
Both Parties shall keep confidential
(and to ensure that its officers, employees, agents, affiliates and
professional and other advisers keep confidential) any Confidential
Information. Both Parties shall not, and shall procure that none of their
directors, officers, employees, agents, affiliates or professional advisers
shall not, use Confidential Information for any purpose other than for the
provision of Delivery Services and for performance under this Agreement. Notwithstanding anything to the
contrary contained in the Agreement, any information which may be collected
first hand by or is developed or generated by the Service Provider or its
personnel, in the course of providing the delivery, logistics and
transportation services, or may have been derived by the Service Provider for
the limited purpose of optimization, improvement and development of its service
and product offerings in the ordinary course of its business, is proprietary to
the Service Provider and shall be considered as the Confidential Information of
the Service Provider.
b.
Exceptions from Confidentiality
Obligations:
i.
information which is independently
developed by a Party or acquired from a third party to the extent that it is
acquired otherwise than as a result of a breach of this Clause and with the right
to disclose the same;
ii.
the disclosure of information to the
extent required to be disclosed by any applicable law, any governmental
authority to whose rules, orders or decrees a Party is subject, or other
competent authority;
iii.
information which comes within the
public domain (otherwise than as a result of a breach of this Clause).
c.
If the Agreement terminates, the
disclosing Party may by notice require the recipient Party to promptly destroy
all Confidential Information, except that
Confidential Information may be retained as required under applicable law or for internal audit or fraud prevention and security
purposes.
9.
INDEMNITY:
a.
The Service Provider agrees to indemnify, defend and hold
the Merchant harmless from and against any and all direct and actual claims,
liabilities, losses, costs, or damages arising out of (a) Service
Provider's breach of its obligations hereunder subject to the agreed liability
limit only; (b) services performed by the Service Provider hereunder subject to
the agreed liability limit only and/ or (c) breach of applicable law.[NM6]
b.
The Merchant agrees to indemnify, defend and hold the
Service Provider its directors, officers, employees, representatives and agents harmless
from and against actual claims, demands, actions, liabilities, costs, interest,
damages, penalties and/ or expenses of any nature whatsoever (including all
legal and other costs, charges and expenses) incurred or suffered by the
Service Provider due to any acts or omissions, breach of applicable
law/statutory obligations and/ or customer/ third party claims solely
attributable to the Merchant.
10.
TERMINATION:
a.
Either Party may terminate this Agreement
immediately, if either Party is declared insolvent or bankrupt or is unable to
pay its debts or makes a composition with its creditors or if either Party is
dissolved or wound up compulsorily or if an order made or an effective
resolution is passed for the winding up of such Party.
b.
Either party shall have the right to
terminate this Agreement by giving a thirty (30) days prior written notice of
termination.
c.
In case of non-payment of undisputed
amounts within 45 (Forty-Fsive) days from date of invoice , Service Provider
will be permitted to terminate this Agreement effective immediately.
d.
In case of a force majeure event, if
the affected party is unable to fulfil it’s obligations excluding payment of
the undisputed fees, for a continuous period of 15 days, the affected party
will be in it’s right to terminate this Agreement effective immediately.
e.
In the event of any termination of
this Agreement , Merchant shall promptly and forthwith make payments of all the
undisputed Fees accrued or due to the Service Provider within 15 working days
of such termination.
11.
LIMITATION OF LIABILTY:
a.
Under no circumstances will the
Service Provider or any of its director, officer, employee, agent or contractor
be liable to the Merchant for indirect, incidental, consequential, special or
exemplary losses or damages arising from the Agreement.
b.
The maximum liability of the Service
Provider and the sole and exclusive remedy of the Merchant for the damage or
loss or theft or misappropriation of any Shipment caused due to gross
negligence or wilful misconduct of Service Provider shall be limited to Rupees 2,000/- [AP7] (Two
Thousand only) per Shipment or the value of the Shipment, whichever is lower.
c.
If the Service Provider is unable to
provide the hard copy of the POD, the Merchant agrees to accept e-pod/
indemnity bond for the purpose of invoicing. The
liability of the Service Provider under such indemnity bond shall be limited to
the agreed liability limit only.
d.
The liability of the Service
Provider for any loss or damage to a Shipment for an amount higher than INR 2,000, shall be
limited to providing the Merchant with a Certificate of Fact (‘COF’) to enable
to Merchant to claim the amount from its Insurance provider.
e.
The Service Provider's payment of
the agreed amount as prescribed in the relevant sub-clause and issuance of a
COF to the Merchant, if applicable in terms of the relevant sub- clause, would
be treated as a full and final settlement on part of the Service Provider
towards the Merchant for the corresponding claim. Further, the Merchant
irrevocably agrees that the Service Provider shall have no further liability
towards it in respect to such claims.
f.
The total aggregate liability of the
Service Provider shall be limited to the Fees paid by the Merchant to the
Service Provider during the preceding 1 (one) month.
12. NOTICES AND CONTRACT REPRESENTATIVES:
a.
Any notice provided for in this
Agreement shall be in writing and shall be sent by postage, prepaid registered
post with acknowledgement due or by recognized courier service, email, to the
relevant party at its address set out below:
In
the case of notices to Service Provider:
Legal
Department, XYZ Ltd, Plot 5, Sector 44 Gurgaon – 122002
In
the case of notices to the Merchant:
Address:PQR
PRIVATE LIMITED, Address
b.
All notices shall be deemed to have
been validly given on (i) the Business Day immediately after the date of
transmission, if transmitted by email on the same day; or (ii) in case
sub-clause (i) does not apply, the expiry of 7 (seven) Business Days after
posting, if sent by post.
13. ANTI-BRIBERY AND CORRUPTION COVENANTS:
a.
The Parties represent, warrant and
undertake that:
i.
It has not and shall not offer,
promise, give, encourage, solicit, receive or otherwise engage in acts of
bribery or corruption in relation to this Agreement (including without
limitation any facilitation payment), or to obtain or retain business or any
advantage in business, and has and shall ensure to the fullest extent possible
that its employees and agents and others under its direction or control do not
do so. For the purposes of this clause, it does not matter if the bribery or
corruption is: (i) direct or through a third party; (ii) of a public official
or a private sector person; (iii) financial or in some other form; or (iv)
relates to past, present, or future performance or non-performance of a
function or activity whether in an official capacity or not, and it does not
matter whether or not the person being bribed is to perform the function or
activity to which the bribe relates, or is the person who is to benefit from
the bribe. The Parties shall, immediately upon becoming aware of them, give the
Service Provider all details of any non-compliance with this Clause;
ii.
it shall comply with and not violate
any applicable laws, including any sanction laws including those of India, and
other laws relating to anti-money laundering, anti-bribery and corruption and
other financial crimes;
iii.
it shall ensure the performance of
its obligations under this Agreement are provided in such a way as to enable
the Parties and its group companies to comply with applicable laws;
iv.
neither it nor any of its group
companies, its sub-contractors, or its affiliates is the target or subject of
any sanction laws; and
v.
it shall notify the other Party if
it becomes aware of any breach of any applicable laws, including any sanction
laws, or of any action, investigation or proceeding brought against itself, any
of its group companies, its sub-contractors or its affiliate, relating to any
breach of any applicable law.
b.
Service Provider is committed to
conduct its business ethically and lawfully. Service Provider values its
relationship with the Merchant and expects utmost integrity and transparency in
all the dealings. To that end, Service Provider expects that the Merchant also
values its relations with the Service Provider and will conduct its business
ethically and lawfully. Throughout the term of this Agreement or any other
document/ agreement/ arrangement between the parties, Merchant agrees that
neither it shall offer or give or agree to give to any person/employee of the
Service Provider any gift or consideration of any kind as an inducement or
reward for doing or for bearing to do or for having done or forborne to do any
act in relation to the obtaining or execution of this or any other agreement or
for showing or for bearing to show favour or disfavour to any person with a
view toward securing a favourable treatment.
14. ASSIGNMENT:
No Party shall assign this Agreement or any of its rights
and obligations hereunder, without the prior written consent of the other Party
and any such attempted assignment shall be null and void.
15. DATA PROTECTION:
a.
Parties agree to adhere by the
relevant data protection laws. The Parties agree that by executing this Agreement,
the Merchant gives the Service Provider the right to sub-contract the entire or
part of the services to a third party as per the Agreement requirement. The
Service Provider ensures the Merchant that despite such sub-contracting, The
Service Provider alone will stand liable towards the Merchant for any breach.
The Service Provider will take all steps reasonably necessary to ensure that
Merchant’s data is treated securely and in accordance with the Service Provider
's privacy policy available on the website www.XYZ.com. The Service Provider
always verifies the third-party vendor's security practices and regularly
conducts their security and privacy assessments prior to any form of
engagement.
These
third parties may have access to Merchant’s information only to perform the
Services on the Service Provider 's behalf and are obligated not to disclose or
use it for any other purpose whatsoever. Also, the Service Provider binds the
third-party vendors in the contract to secure the Merchant’s data by putting
monetary liabilities and surveillance practices.
b.
The Service Provider is conscious of
the information shared with it for the purpose of this Agreement and will only
use the information (a) as per the terms of this agreement; (b) if required
otherwise with regard to the processing procedures and requirements, as per the
privacy policy available at www.XYZ.com.
c.
The Service Provider maintains
administrative, technical and physical safeguards designed to protect the
personal information Merchant provides against accidental, unlawful or
unauthorised destruction, loss, alteration, access, disclosure or use.
Exceptionally if any personal data is present on the package or letter, it may
be visible to unauthorized individuals.
d.
Merchant’s information, including
personal data, may be transferred to and maintained on computers located
outside of Merchant’s state, province, country or other governmental
jurisdiction where the data protection laws may differ than those from your
jurisdiction. No transfer of the Merchant’s personal data will take place to an
organization or a country unless there are adequate controls in place including
the security of Merchant’s data and other personal information.
e.
Merchant acknowledges and agrees that it has taken explicit
consent of the data subjects to share their personal data with the Service
Provider and also on the means and purpose of processing of their personal data
as set out under this Agreement. Seeking such consent of the data subject shall
be the liability of the Merchant alone.
16. INTELLECTUAL PROPERTY:
a.
Parties agree to not breach the
Intellectual Property Rights of either Party. If Parties become aware of any
such possible infringement in the course of this agreement, the Party will
immediately notify the aggrieved party of the same in writing.
b.
Publicity: Neither
Party shall use the name, logo, trademarks or trade names of the other Party
in press releases, promotional material, Stores lists, advertising, marketing,
publicity or business-generating efforts, whether written or oral, without
obtaining the prior written consent of the other Party.
17.
FORCE MAJEURE:
Neither party shall be deemed to be
in material breach of the Agreement, or otherwise be liable to the other, by
reason of any delay in performance or non-performance of any of its obligations
or loss of Shipments, other than the payment of money, under this Agreement,
caused by an event or occurrence beyond its control or remedy (a “Force Majeure
Event”), including, without limitation, Acts of God, natural disasters, acts of
civil or military authority, government priorities, fire, floods, epidemics,
quarantine, energy crises, strikes, lockdown, wars, riots, terrorist acts or
accidents, provided storage charges shall continue to accrue during the
continuation of the Force Majeure Event. Immediately upon discovery of a Force
Majeure Event, the affected Party shall immediately notify the other Party. The
date for performance of any obligation under the Agreement which is delayed by
a Force Majeure Event, shall be suspended for a period equal to the delay
caused by such event. A force majeure event will not absolve the Merchant of
their responsibility towards payments for existing services and/ or services
already rendered till the date of happening of such an event. Further, Parties
agree that during a force majeure event, Service Provider will not incur any penalty/
liability for not meeting the agreed TATs/ SLA[NM8] .
The Service Provider will try and minimize the risk to the Merchant to the
lawful and reasonable extent permissible.
18. SUB-CONTRACTING:
The Parties
agree that by executing this Agreement, the Merchant gives the Service Provider
the right to sub-contract the entire or part of the services under this
Agreement to any of the Service Provider’s subsidiaries and/or affiliates.
19.
DISPUTE RESOLUTION:
All disputes arising out of or in
relation to this Agreement, including any question regarding its existence,
validity or termination, which cannot be amicably resolved by the Parties
within 15 days of being brought to their attention, such 15 (fifteen) day
period is referred to as the "Consultation Period"), and if such
dispute is still not resolved, the dispute shall be settled by arbitration
governed by the provisions of Arbitration and Conciliation Act, 1996. The
Parties mutually agree to appoint a sole arbitrator. The venue/seat of
Arbitration shall be New Delhi and the language of arbitration shall be
English.
20.
GOVERNING LAW AND JURISDICTION:
This Agreement, the construction and
enforcement of its terms and the interpretation of the rights and duties of the
Parties hereto shall be governed by the laws of India and shall be subject to
the jurisdiction of courts in New Delhi. This Agreement is executed in English
language which shall prevail over any translation thereof.
21.
COMPLIANCE WITH LAWS:
Each Party hereto agrees that it
shall comply with all applicable local laws, ordinances and codes correctly in
performing its obligations hereunder.
22.
INSIDER TRADING:
Merchant,
may, during its engagement with the Service Provider, whether before, and/or
after entering into this Agreement, have access to certain Unpublished Price Sensitive Information (“UPSI”)
of the Service Provider. Consequently, the Merchant acknowledges and undertakes
that neither it nor its subsidiaries, affiliates, directors, officers,
employees, lawyers and accountants or other similar connected person (“Merchant’s
Representatives”) shall indulge in any manner of ‘insider trading’
activities and shall further comply with the ‘insider trading code’ and
‘insider trading regulations’ as laid down by the Securities and Exchange Board
of India (including the Securities and Exchange Board of India (Prohibition of
Insider Trading) Regulations, 2015) and Service Provider from time to
time.
Further, the Merchant shall ensure that neither it
nor any of the Merchant’s Representatives shall:
(i) communicate, provide or allow access to any
such UPSI to any person except where such communication is in furtherance of a
legitimate purpose, performance of duties under this Agreement or discharge of
legal obligations; and
(ii) procure from or cause the communication by any
insider of UPSI relating to the Service Provider or its securities listed on
the stock exchanges except in furtherance of a legitimate purposes, performance
of duties under this Agreement or discharge of legal obligations; and
(iii) trade in the securities of the Service
Provider when in possession of UPSI.
Further, in the event of a breach of the terms of
this clause by the Merchant and/or any of the Merchant’s Representatives, the
Merchant shall indemnify, defend and hold harmless the Service Provider from
and against any claims, demands, actions, liabilities, costs, interest,
damages, penalties and/ or expenses of any nature whatsoever (including all
legal and other costs, charges and expenses) incurred or suffered by the
Service Provider and its directors or officers or employees due to such breach
on part of the Merchant and/or the Merchant’s Representatives.
23.
SUCCESSORS:
This Agreement binds the successors
and assigns of the respective Parties with respect to all covenants herein, and
cannot be changed except by written agreement signed by both Parties.
24.
SEVERABILITY:
In the event any one or more of the
provisions of this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable, the remaining provisions of this Agreement shall be
unaffected, and the invalid, illegal or unenforceable provision(s) shall be
replaced by a mutually acceptable provision(s), which being valid, legal and
enforceable, comes closest to the intention of the Parties underlying the
invalid, illegal or unenforceable provision(s).
25.
MODIFICATION, AMENDMENT, SUPPLEMENT OR WAIVER:
No modification, amendment,
supplement to or waiver of this Agreement or any of its provisions shall be
binding upon the Parties hereto unless made in writing and duly signed by both
the Parties.
26.
ENTIRETY OF AGREEMENT:
This Agreement together with all
Recitals, Appendices, Exhibits, Schedules, Attachments and Addenda attached
hereto constitute the entire agreement between the Parties and supersedes all
previous agreements, promises, representations, understandings and
negotiations, whether written or oral, between the Parties with respect to the
subject matter hereof.
27.
RELATIONSHIP OF PARTIES:
Save as
otherwise provided herein, nothing herein contained shall constitute or be
deemed to constitute any agency or partnership between or amongst any of the
Parties to this Agreement and no Party to this Agreement shall therefore act or
hold itself out as agent or partner of any other Party hereto.
[Signature
Page Follows]
Electronic
signatures - The Parties recognize the use of simple electronic
signatures as legally valid and binding for entering into agreements (including
without limitation this Agreement, any Statement of Work or related document),
unless applicable law mandates any other form of execution.
IN
WITNESS WHEREOF, authorized officers of the Parties hereto have duly executed
this Agreement as of the date first above written.
For: XYZ LIMITED For: PQR
PRIVATE LIMITED
Authorized Signatory:
Authorized Signatory:
Name:
Name:
Designation: Designation:
DATED:
DATED:
ANNEXURE I: SCOPE OF WORK
1.
Forward
Delivery of the Shipments
a.
The
Service Provider will pick up and deliver from regions within its Territory,
the Shipments on any Business Day as required by the Merchant.
b.
The
Service Provider will make 3 (three) attempts to deliver the Shipments to the
Customers as per the information shared in the Manifest except where the
address provided is wrong or in circumstance where the Customer cancels the
order placed. In such circumstances, the Service Provider shall inform the
Merchant of the same and initiate Returns within 24 hours of the same.
2.
Returns/RTO of
the Shipments
Shipments which are not
accepted by the Customer for any reason whatsoever will be returned to the
Merchant at the location(s) as specified by the Merchant. The Merchant shall
specify such location(s) for each and every Shipment in the manifest, which has
the details of the Shipments that are being handed over for Forward Delivery.
3.
Reverse
Pickups
a.
The
Service Provider will make 2 (two) attempts to pick up the Shipments from the
Customers at the location specified by the Merchant from the date of initiation
of such request.
b.
The
Service Provider shall seal the package provided by the Customer at the time of
pickup in front of the customer. The sole responsibility of the contents of the
packed consignment shall lie with the end Customer.
4.
PODs
a.
It
is understood that at the time of delivering the Shipments in case of Forward
Delivery, Returns and/ or Reverse Pickups, the Service Provider shall obtain
the signature of the Customer or his representative on a document which is
referred to as a Proof of Delivery ("POD"). The Service
Provider will not bear any liability on the Shipment once the same has been
delivered to the Customer. The Service Provider shall make available to the
Merchant, any POD’s as maybe required by the Merchant if such request is raised
within 15 (fifteen) days of the date of delivery of the Shipment. The Service
Provider will be under no obligation to provide proof of delivery of the
Shipments beyond such period.
b.
Further,
in the event the Merchant instructs the Service Provider to deliver a
Shipment(s) to a Customer on a COD basis, the Service Provider will
simultaneously with such delivery of the Shipment(s) to the Customer collect
cash (only in Indian Rupees) of a value specified in the relevant invoice
issued by the Merchant to the Customer. Such cash will be held by the Service
Provider as a limited agent of the Merchant and in trust for the Merchant and
will be transferred by Service Provider to the bank account designated by the
Merchant within Seven (7) Business Days after the day of collection of the cash
subject to clause 5.4.
5.
Demurrage
All Shipments picked up
by the Service Provider from the Customers will be returned to the Merchant at
the location(s) as specified by the Merchant in the manifest uploaded by the Merchant
at the time of initiation of such pickup. In case of non-acceptance of such
Shipments by the Merchant except for reasons such as damage of the product
where such damage is attributable solely to the Service Provider, the Service
Provider reserves the right to levy suitable demurrage charges for extended
storage of such Shipments for any period exceeding 7 (seven) days from
initiation of the return of Shipments and up to 45 (Forty-Five) days from such
date.
Annexure II:
Fees
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ANNEXURE III: LIST OF BANNED OR
PROHIBITED PRODUCTS
Dangerous Products
Oil-based paint and thinners (flammable
liquids)
Industrial solvents
Insecticides, garden chemicals (fertilizers,
poisons)
Lithium batteries
Magnetized materials
Machinery (chain saws, outboard engines
containing fuel or that have contained fuel)
Fuel for camp stoves, lanterns, torches or
heating elements
Automobile batteries
Infectious substances
Any compound, liquid or gas that has toxic
characteristics
Bleach
Flammable adhesives
Arms and ammunitions
Dry ice (Carbon Dioxide, Solid)
Pressurized Containers
Narcotic Substances
Restricted Items
Precious stones, gems, and jewellery
Uncrossed (bearer) drafts / cheque, currency,
and coins
Poison
Firearms, explosives, and military equipment.
Hazardous and radioactive material
Foodstuff and liquor
Any pornographic material
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