These terms and conditions in relation to the reseller arrangement (the “Terms and Conditions”) shall be applicable to such parties (the “Reseller”) desirous of retailing the products sold to it by of eHomemaker Solutions India Private Limited (“eHomemaker”).
The Reseller hereby agrees to act as a retailer of the products of eHomemaker (the “Products”) on a non-exclusive basis. eHomemaker shall be free to sell its Products to other resellers other than the Reseller. The engagement shall be effective unless terminated by written notice to the other party. eHomemaker hereby agrees that the Reseller may use eHomemaker’s marks subject to these Terms and Conditions and directions issued by eHomemaker from time to time for the sale of the Products. eHomemaker may from time to time frame and notify the Reseller about guidelines relating to the use of the marks and Reseller shall ensure strict compliance with such guidelines as notified from time to time. The Products shall be sold by the Reseller only under the name and/or mark designated by eHomemaker. The Reseller shall not alter, remove or in any way tamper with any name or mark that eHomemaker has, directly or indirectly, placed on Products, and Products to be sold by Reseller shall not bear other trademark, trade name, or other name, word, letters or mark without the prior written approval of eHomemaker. The Reseller shall use eHomemaker’s marks in accordance with the manuals or instructions only for the purpose of and in connection with advertising, publicizing and promoting the sale and distribution of Products. The Reseller shall not use all or any part of marks in any business other than dealing in the Products.
The Reseller shall purchase the Products from eHomemaker at the prices specified in the invoice raised by eHomemaker from time to time (“Purchase Consideration”). The Reseller hereby agrees to sell the Products to the Customers at such price as determined by eHomemaker (“Sale Consideration”), post including the commission that may be payable to the Reseller if the products are sold on livspace.com portal, at such rate that may be mutually agreed upon from time to time (the “Commission”). In case of products sold to Customers from livespace.com portal, subject to applicable laws, the Purchase Consideration payable from Reseller to eHomemaker may be deducted from the Sale Consideration and the net amount, i.e., the Commission and applicable taxes, shall be transferred to the Reseller.
The Reseller, upon receipt of an order for any of the Products from a Customer shall raise a purchase order on eHomemaker (except in case of Products sold to Customers at livspace.com in which case it shall be automatically generated on eHomemaker’s technology platform and a copy of which shall be sent to the Reseller upon their request in writing). Such auto-generated purchase orders shall be deemed to have been authorised by the Reseller in advance and shall not require separate consent/signature or other form of verification from the Reseller. eHomemaker shall thereafter, raise an invoice on the Reseller. The invoice amount/fees for the Products shall be payable by the Reseller within 15 (fifteen) days of receiving the invoice.
Any sales tax, GST or any other indirect taxes leviable on sale of the Products or provision of services covered under these Terms and Conditions shall be the liability of eHomemaker and would be charged to the Reseller. Further, eHomemaker shall be liable for all necessary tax filings and tax compliances applicable under the respective indirect tax legislation on activities covered under these Terms and Conditions. The Reseller shall provide its GST credentials and such other details that may be necessary to enable the generation of e-way bill on their behalf. By agreeing to be a reseller for eHomemaker, the Reseller shall be deemed to have expressly provided its consent for the use of the aforementioned information solely for the purpose of e-way bill generation or such other bills/invoice/challans/receipts that may be required in relation to the sale of the Products and its subsequent transportation to the end Customers of the Reseller.
- eHomemaker will provide the Reseller with sales and technical information for the Products and shall furnish the specifications with regard to the Products as and when required.
- eHomemaker will supply the Products to the Reseller for re-sale in accordance with these Terms and Conditions.
- The Reseller shall be solely responsible for securing any governmental licenses or permits required to perform its obligations in accordance with applicable law. Further, the Reseller shall at all times, comply with applicable law in relation to the performance of its obligations under these Terms and Conditions and further the Reseller undertakes that the execution of and performance of its obligations and responsibilities described in these Terms and Conditions is not in violation of applicable law or of any expressed or implied obligations of the Reseller towards any third parties under any contracts, agreement or understanding binding on it.
- The Reseller should use its resources to sell eHomemaker’s Product to end-customers through such medium (including without limitation online websites, brick and mortar stores, etc), as may be approved by eHomemaker (the “Customer”). The Reseller acknowledges that the engagement with the Customer for the sale/ supply of the Products is directly between the Customer and the Reseller. eHomemaker shall provide such assistance as it deems fit for the transportation of the Products to the Customers, depending on the nature of the Products sold. If eHomemaker is arranging for the transportation of the Products to the Customers, then the Reseller shall provide all necessary information that may be required by eHomemaker, including address of the Customer, invoices raised, such information that may be necessary to generate the e-way bills to undertake the transportation (if applicable), etc.
- The Reseller will be responsible for all direct costs of selling the Product.
- The Reseller will re-sell the Product as per performance parameters laid down by eHomemaker and the Reseller will be responsible for accurately conveying those Product related standards and parameters to the Customers.
- The Reseller shall strictly comply with all marketing and performance guidelines as prescribed by eHomemaker from time to time.
- Reseller shall act loyally and faithfully to eHomemaker and work to protect eHomemaker’s interest at all time. The Reseller acknowledges that eHomemaker has made substantial investment towards building its brand image which it has a right to protect. Accordingly, the Reseller shall refrain from all such activities that may injure eHomemaker’s brand.
- Reseller shall not offer any representations and warranties to the Customers with relation to the Product that are not approved or provided by eHomemaker in writing from time to time and shall not offer any additional representations and warranties other than those specifically agreed to and approved by eHomemaker.
- Further, the Reseller hereby covenants and agrees that it shall:at all times conduct its business in the manner that will reflect favourably on the goodwill of eHomemaker;not by itself or with others participate in any illegal, deceptive, misleading or unethical practices including, but not limited to disparagement of the Product or eHomemaker or other practices which may be detrimental to the Product, or eHomemaker; and,use the Marks only for promoting, marketing and reselling the Product strictly as per the guidelines notified by eHomemaker from time to time.
- at all times conduct its business in the manner that will reflect favourably on the goodwill of eHomemaker;
- not by itself or with others participate in any illegal, deceptive, misleading or unethical practices including, but not limited to disparagement of the Product or eHomemaker or other practices which may be detrimental to the Product, or eHomemaker; and,
- use the Marks only for promoting, marketing and reselling the Product strictly as per the guidelines notified by eHomemaker from time to time.
The Reseller shall not during its term as a Reseller (the “Term”) and for a period of 2 (two) years thereafter, directly or indirectly and whether as principal, agent, partner, manager, reseller, distributor, joint venture partner, shareholder, proprietor or otherwise develop, sell, market or promote any product or provide any service or offering that directly or indirectly to compete with or is similar to the Products or any other related offering of eHomemaker. If there are any doubts or disagreements as to whether any such product or service or offering is similar to or competes with the Products or related offerings, the opinion of eHomemaker shall be final and binding on the Reseller.
The Reseller or its affiliates shall not, directly or indirectly, and whether as employee, consultant or fulltime equivalent hire or solicit nor permit its affiliates or contractors to hire or solicit the services of any employee, contractor or consultant of eHomemaker and/or its affiliates (including subsidiaries) during the Term of this arrangement and for a period of 2 (two) years thereafter, without the prior written consent of the eHomemaker.
Reseller acknowledges that, in the course of performance of its obligations and responsibilities under these Terms and Conditions and from time to time, it will have access to or obtain knowledge of trade secrets, Intellectual Property Rights and other Confidential Information of eHomemaker and have dealings with the customers, clients and suppliers/affiliates of eHomemaker. Reseller recognizes that the foregoing covenants in this Clause 5 and the time and other limitations with respect thereto, are reasonable as to duration and subject matter, properly required for the adequate protection of the value, Intellectual Property Rights and goodwill of eHomemaker, and agree that such limitations are reasonable with respect to the business activities under these Terms and Conditions and given the nature of the role of the Reseller and the information and material that Reseller has access to during the Term.
- The Reseller acknowledges that all the Confidential Information of eHomemaker which may come into its possession is and shall remain the property of eHomemaker or its vendors / Customers as the case may be.
- The Confidential Information may be disclosed only to employees, consultants and client only on a need to know basis. Prior to such disclosure appropriate confidential agreements shall have been executed by such employees, consultants and client with the Reseller.
- The Reseller shall not at any time without the consent of the eHomemaker misappropriate, copy or take extracts of/from any Confidential Information.
- The Reseller shall not at any time disclose any Confidential Information of the eHomemaker to any person:to gain directly or indirectly any improper advantage to itself or to any other person; and/orto injure or cause loss either intentionally or unintentionally, directly or indirectly to the Reseller.
- to gain directly or indirectly any improper advantage to itself or to any other person; and/or
- to injure or cause loss either intentionally or unintentionally, directly or indirectly to the Reseller.
- This Clause shall survive the termination of this arrangement and Confidential Information shall remain and be considered as confidential for at least 5 (five) years following such termination.
- Nothing in these Terms and Conditions shall prevent either Party from disclosing Confidential Information to any court or regulatory authority pursuant to a notice of disclosure. Provided prior to such disclosure, such Party shall make commercially reasonable efforts to permit the discloser to oppose such disclosure.
All Intellectual Property Rights in the Products and the Marks (and all parts thereof) will remain vested in eHomemaker (or its relevant licensors). Reseller acknowledges and agrees that it shall not acquire or claim any title to any of eHomemaker's (or eHomemaker's licensors) Intellectual Property Rights and further agrees that it will not at any time do or omit to do anything which is likely to prejudice eHomemaker's (or its licensors') ownership of such Intellectual Property Rights. Reseller further agrees not to remove, suppress or modify in any way any proprietary marketing, including any trademark or copyright notice on or in any materials in respect of which eHomemaker owns the Intellectual Property Rights.
All accretions to the Marks arising on account of this arrangement shall be solely to the benefit of eHomemaker and Reseller shall not be entitled to any fees or contribution in relation to the same.
- eHomemaker will indemnify the Reseller against any claims raised as a direct result of eHomemaker not meeting pre-agreed Product warranty related claims from any Customers.
- Each Party shall defend, hold harmless and indemnify the other Party, its affiliates and its personnel from and against any and all losses, claims, liabilities, costs and expenses (including taxes, fees, fines, penalties, interest, reasonable expenses of investigation and legal fees and disbursements) as incurred arising out of, or relating to any breach of the representations and warranties and/or obligations made in accordance with these Terms and Conditions or for any damages suffered by the other Party on account of any misrepresentation, breach of any terms of these Terms and Conditions by a Party or its personnel while reselling the Product.
- Notwithstanding the generality of the above, neither Party shall be entitled to any indirect, special or consequential damages including in relation to any loss of potential opportunity. Further, except for breach of obligations relating to confidentiality and claims relating to misrepresentations to clients and Customers by the Reseller, the liability of each Party for all claims shall be limited to the aggregate amount of monies paid by the Reseller to eHomemaker during the 3 year period prior to such claim.
Representations and Warranties
The Reseller represents and warrants to eHomemaker that;
- It has adequate resources and personnel to sell, distribute, market and promote the Product;
- It will not hold itself to be the owner or producer of any of the Products;
- It shall not tamper with any of the Products in any manner whatsoever;
- No event has occurred that, at or prior to the date hereof, would have a material adverse impact on the business, operation or condition (financial or otherwise) of the Reseller.
Stocking of Product
eHomemaker shall operate such number of warehouses required to carry stocks of the Products. All costs relating to procurement and packaging of the Products will be borne by the eHomemaker.
eHomemaker shall maintain at its expense the necessary insurance policies required to cover the risk of loss or damage to the Products that are stored in the warehouse of eHomemaker.
Delivery of Products
- It is clarified that eHomemaker shall be responsible for delivering the Products to the Reseller. Subject to the mutual agreement/arrangement between the parties, eHomemaker may also arrange for the transportation of the Products directly to the Customers.
- eHomemaker shall provide the Reseller with, in relation to the Products, all documentation, drawings for Products’ installation and relevant information and the Reseller shall be responsible for the direct translation of the safety regulation/instruction in relation to the Products.
- The title in the Products shall be deemed to have been passed on to the Reseller upon delivery of the Products by eHomemaker at the agreed location of the Reseller and upon such delivery, all risks and responsibility in respect to such Products shall, subject to these Terms and Conditions, be borne by the Reseller.
Warranty on Products
- eHomemaker hereby agrees to provide warranties in relation to the Products as originally provided by the manufacturer of the products. It is hereby clarified that in the event there is found to be a defect in any of the spare parts of the Products eHomemaker shall provide additional warranty to the Reseller for such period as provided by the manufacturer from the date of replacement of such spare parts. It is clarified that the additional warranty shall be provided only with respect to the defective spare parts and not with respect to any other parts of the Products. The decision on what shall be construed as a ‘spare part’ for the purpose of this Clause by eHomemaker shall be final, which shall not be unreasonably restricted.
- Labour and replacement charge, of the warranted parts shall be free of cost during the Warranty Period.
- The aforementioned warranty and additional warranty from eHomemaker shall be void if:the Products are repaired, disassembled to any extent or changed by any person other than a technician expressly authorized by eHomemaker and contracted by, or through, eHomemaker;any failure attributable to software, tooling, accessories or ancillary equipment not sold by the eHomemaker;the Products or any part thereof has been used in any manner other than as specified under the documentation, if any provided by eHomemaker;the defect has been caused to the Products as a result of wear and tear in normal course of usage; orany defect caused as a result of any fault, negligence or wilful misconduct of the Reseller including its employees, consultants or any third party outside the control of the eHomemaker.
- the Products are repaired, disassembled to any extent or changed by any person other than a technician expressly authorized by eHomemaker and contracted by, or through, eHomemaker;
- any failure attributable to software, tooling, accessories or ancillary equipment not sold by the eHomemaker;
- the Products or any part thereof has been used in any manner other than as specified under the documentation, if any provided by eHomemaker;
- the defect has been caused to the Products as a result of wear and tear in normal course of usage; or
- any defect caused as a result of any fault, negligence or wilful misconduct of the Reseller including its employees, consultants or any third party outside the control of the eHomemaker.
- The Reseller hereby acknowledges and agrees that any act of the Reseller (including without limitation any act by its employees and/or representatives) compromising the Products safety will cause the immediate suspension of the warranty for the Products at issue.
- Where eHomemaker requests the Reseller or the Reseller requests eHomemaker for any resources, inter alia, space at any facilities, manpower for operations or delivery vehicles, Parties agrees to provide such resources to each other chargeable at market rates (on an arm’s length basis).
- Except as specified in these Terms and Conditions, neither party makes any warranty in connection with the subject matter of this arrangement. Each Party hereby disclaims any and all implied warranties, including without limitation all implied warranties of merchantability and fitness for a particular purpose.
Returns and Damages
- In the event that the Customer claims that the Product supplied by eHomemaker fails to conform to the requirements of the Customer as agreed between the Reseller and eHomemaker (and consequently the Reseller and the Customer), the Reseller shall return to eHomemaker the non-conforming Product received from the Customer along with written instructions from the Customer, at the Reseller’s expense.
- If the Reseller wishes to return a Product to eHomemaker upon the Customer’s request, the Reseller shall within a period of 3 (three) days from the receipt of the Products from the Customer return such Product along with the Customer’s requirements to eHomemaker to a location as agreed to between the Parties. Any Product returned to eHomemaker by the Reseller as authorized under these Terms and Conditions shall be (i) packed in its original packing material, and (ii) include any documentation or information requested by the Customer and the Reseller. eHomemaker may refuse to accept returns of any Product not packed and shipped as provided in these Terms and Conditions.
- Any Product-related inquiries from Customers/consumers, residing in India shall be handled by Reseller. The Reseller may outsource the handling of such product related inquiries from any other third party with the consent of eHomemaker.
- Each Party shall, without prejudice to any other rights available in law, have the right to damages for any deficiencies as set forth in the Product.
Immediate Termination. this arrangement may be terminated at any time effective immediately upon written notice by eHomemaker to the Reseller in any of the following events:
- Insolvency, dissolution or commencement of liquidation of the Reseller, filing of a bankruptcy or corporate reorganization petition by or against Reseller, appointment of any receiver, trustee or custodian for Reseller or its business, or an assignment by Reseller for the benefit of creditors;
- Any act of the Reseller which will negatively affect the eHomemaker brand image or any breach of the confidentiality provisions of these Terms and Conditions.
- Any misrepresentation on behalf of eHomemaker by the Reseller.
- An untrue report of sales number of units of Products which was caused by Reseller’s mala fide intention;
Notwithstanding anything to the contrary stated in these Terms and Conditions, the Parties will be entitled to mutually terminate this arrangement between eHomemaker and the Reseller by way of issue of 30 (thirty) days prior written notice to the other Party. This arrangement will stand terminated upon expiry of the said notice period and the Parties will be entitled to terminate the arrangement under this Clause without assigning any reason for such termination.
Consequences of Termination
- Upon termination of this arrangement, Reseller undertakes to transfer the entire Customer base in relation to the Products (i.e. Customers as on date of termination notice and any newly acquired Customers during termination notice period) to one of the resellers appointed by eHomemaker at such point of time. Parties hereby agree that, upon completion of such transfer of Customer base and conclusion of termination of this arrangement, eHomemaker or such newly appointed reseller pay to the Reseller all amounts due and payable to the Reseller (which shall include receivables from the Customers). This amount will be paid to the Reseller post the acquisition and on receipt of revenues from the Customers. Following the acquisition, all the Customer contracts will be novated in favour of the newly appointed reseller.
- Further, termination by the Reseller shall also be subject to all the Confidential Information and Intellectual Property Rights of eHomemaker is duly handed over to the eHomemaker or its affiliates and Reseller having paid the entire amount due to the eHomemaker.
- At all times during the Term of the arrangement and even after termination, the Reseller will uphold the brand name and reputation of eHomemaker in the market and with the Customers. Termination of the contract will not give just cause for any dilution of this requirement.
- Termination of this arrangement shall not affect the vested rights of the eHomemaker.
- Notwithstanding termination Reseller would continue to be liable for all its acts, performance or non-performance during the Term of this arrangement.
If either Party fails to exercise a right or remedy that it has or which arises in relation to an incident in connection with this arrangement either immediately or at all, such failure shall not prevent that party from exercising that right or remedy subsequently in respect of that or any other incident. Notwithstanding, anything contained in this Clause, the Reseller shall not be entitled to any compensation or indemnity (whether for loss of reseller rights, goodwill or otherwise) as a result of the termination of this arrangement. Subject to the terms of this arrangement, upon termination of this arrangement the Reseller shall immediately cease to re-sell the Product and shall not thereafter hold itself out as having any links with eHomemaker.
Governing Law and Jurisdiction
These Terms and Conditions shall be governed by and construed in accordance with the laws of India. Subject to Clause "Dispute Resolution" below, the courts in Bangalore shall have exclusive jurisdiction on the matters arising from or in connection with this arrangement and these Terms and Conditions.
Notwithstanding anything contained in these Terms and Conditions to the contrary, the parties to this arrangement hereby agree that they intend to discharge their obligations in utmost good faith. The parties therefore agree that they will, at all times, act in good faith, and make all attempts to resolve all differences, howsoever arising out of or in connection with this arrangement amicably at the first instance. In case the amicable settlement does not resolve the dispute within 30 (thirty) calendar days, it shall be referred to arbitration in accordance with the Arbitration and Conciliation Act, 1996 by a sole arbitrator jointly appointed by the Parties. The language of the arbitration shall be English and the seat of arbitration will be Bangalore. The arbitrators shall be entitled to award costs of the arbitration. Subject to the aforesaid, each Party to the arbitration shall bear its own expense in relation thereto, including but not limited to such Party’s attorneys’ fees and the expenses and fees of the arbitrator shall be borne equally by the parties to the dispute. The decision/award of the arbitrator shall be final/conclusive and binding on the Parties.