This Seller Agreement (hereinafter referred to as "Agreement") shall be deemed to have been executed between 1) Kestone Integrated Marketing Services, (A Division of CL Educate Limited) having its office address at 3rd Floor, 203, A-18, RAM House, Middle Circle, Connaught Place, New Delhi-110001(hereinafter referred as the "Kestone" which expression shall include its successors and assigns) AND 2) Seller on the date when the Seller has enrolled on the Platform of Kestone, either electronically or manually or physically, and Seller shall be deemed to have read, understood and agreed to the terms and conditions under this Agreement ("Effective Date") at New Delhi.
Both Service Provider and Seller are hereinafter individually referred to as a "Party" and collectively as the "Parties" as the context may require.
i). The Seller is engaged in the business of sale of consumer goods ("Product(s)"), and sells such consumer goods to the general public through online and offline modes. ("Business")
ii). Kestone is engaged in business of creating and developing technology products mainly for virtual experience, and has developed a software named "VOSMOS: MetaCommerce 3D Virtual Store" ("Platform") using its own resources and own IPR (defined below).
iii). Kestone allows the use of said Platform to its various clients who can enrol on the Platform and sell their Products to the end-customers using the technology on the Platform ("Services")
iv). The Seller wishes to and is willing to avail the Services of Kestone and use the said Platform for the purposes of creating a Virtual Store ("Virtual Store(s)") for the sale of its Products to the end-customers.
v). The use of Platform and Services shall enable the Seller's customers to use and experience the 3D virtual shopping of the Products on the Virtual Stores of the Seller, and shall enable the end-customers to buy/purchase the Products with direct payments transacted between Seller and the end-customer. ("Purpose").
vi). The Platform and Services shall be made available by Kestone to the Seller in accordance with the terms and conditions of this Agreement.
vii). Based upon mutual representations and benefits, the Parties have agreed to enter into present Agreement on a non-exclusive basis.
1.1. "Platform" refers to the MetaCommerce 3D Virtual Store platform, including all related tools, technologies, software, and services provided by Company/Vosmos for the creation, management, and operation of virtual storefronts.
1.2. "Seller" means any individual, entity, or organization that has agreed to this Seller Agreement and uses the Platform to create and operate a virtual store.
1.3. "Virtual Store" refers to the 3D digital storefront created and managed by a Seller on the Platform, including all associated digital content, products, and services.
1.4. "User" or "Attendee" or "Buyer" refers to any individual who accesses or interacts with a Virtual Store through the Platform with an intention to purchase.
1.5. "Content" encompasses all types of data, images, text, video, audio, and other materials uploaded, stored, or transmitted by a Seller on the Platform.
1.6. "Payment Gateway" means the electronic payment processing service integrated by a Seller into their Virtual Store for handling transactions.
1.7. "Template" refers to pre-designed layouts and structures provided by the Platform that Sellers can use as a basis for creating their Virtual Stores.
1.8. "Community Guidelines" are the rules and policies set by Company/Vosmos governing the conduct of Sellers and the type of content or products that can be offered through the Platform.
1.9. "Return Policy" refers to the terms under which customers can return purchased products to the Seller, including conditions for acceptance, process of return, and refund mechanisms.
2.1. Kestone shall make available the Platform and Services to the Seller on the payment of amount equivalent to Fifty Nine Dollars ($59) ("Service Fees") payable by Seller at the time of enrolment on the Platform. The Service Fees shall be applicable for a period of days/months/years in a particular package offered on Platform which has been opted by the Seller at the time of enrolment ("Term") from the Effective Date. On expiry of the Term, the Seller can renew the Agreement by paying applicable service fees prevailing at the said time. Non-payment of applicable service fees for renewal shall result in termination of Agreement and all the Services shall be withheld by Kestone.
2.2. On payment of the Service Fees, the Seller shall be granted non-exclusive, non-transferable, revocable license to access and use the Platform.
3.1. Service Provider shall be responsible for the following obligation:
a. Technology: The complete technology for the Platform will be developed and provided by Kestone, and Service Provider shall provide necessary support to the Seller, including pre-sales demo, design, etc and post-sales support. Kestone shall further introduce modifications, bug fixes, modifications, enhancements, upgrades, improvements to the Platform to improve customer experience.
b. Service Provider shall be responsible to address and resolve any complaint with respect to the use of the Platform, as forwarded by the Seller within a reasonable timeline.
c. Product security: Kestone shall at all times implement and maintain proper encryption and robust security measures to guard the Seller's data including the customer information.
d. Kestone shall be responsible only for technology involved in the Platform, and shall have no responsibility towards the quality of Products, delivery or return of Products.
e. Kestone shall provide easy shop and return option interface on the Platform, enabling the end-customers to seamlessly shop and return the product(s).
3.2. Seller shall be responsible for the following obligations:
a. Enrolment: The Seller must complete the registration process for any package of its choice alongwith all necessary documents which are prompted for at the time of registration/enrolment. Seller (if an individual) represents and warrants that it is a major in the eyes of applicable law and is legally capable and qualified for entering into an Agreement.
b. Virtual Store Creation: The Seller shall be responsible for creating a 3D Virtual Store using the templates provided on the Platform, upload Product images and descriptions, and integrate a payment gateway of its choice. The Seller shall select a package to suit it's Business and use out of various packages available on the Platform for creation of Virtual Store. The costs of different packages may differ owing to the reasons of different facilities provided under each package.
c. Sales Processing: Seller shall be responsible for processing all sales transactions, including the collection and remittance of applicable taxes to/from end-customers.
d. Payment Gateway: Seller must ensure that its payment gateway is secure and complies with relevant financial regulations. Kestone bears no responsibility for any fault/crash/hack of the payment gateway of the Seller.
e. Compliance with applicable laws: The Seller shall comply with all applicable laws, rules, and regulations in relation to the Product(s) sold on the Platform, and shall be solely responsible for any and all issues/complaints/grievances for its Product(s) being sold to the end-customers, and shall be fully-responsible for any legal consequences, whether initiated by any end-customer or any government or statutory authority. Kestone reserves the right to remove any Product(s) from the Platform if the same is found in violation of any existing laws or under complaints received from end-customers or any governmental authority, including Courts.
f. Product Quality, Delivery, and Returns: Seller shall be solely responsible for the quality, safety, legality, and delivery or returns of the Products to/from the end-customers. Kestone bears no responsibility for quality, safety, legality, and delivery or returns of the Products to/from the end-customers. Seller must provide reasonable customer service for its Products, including handling returns and refunds in a professional manner. When an end-customer initiates a return, the Seller will receive a notification on the Platform, and Seller must decide to accept or reject the return, with a notification to the end-customer. If accepted, Seller must coordinate the return and pick-up of the Product and the refund process. The Seller shall provide very clearly the telecom numbers for customer-care, email addresses and postal address of Seller where the end-customer can lodge/register its complaint in relation to Products or otherwise. Failure to do so shall be ground enough for Kestone to withhold the Services.
g. Community Standards: Seller agrees to adhere with community guidelines of the Kestone issued from time to time and shall adhere to ethical selling practices. These guidelines will include, but not be limited to, honest product representation, adherence to fair pricing policies, and respectful interaction with customers.
h. Prohibited Items: The sale of illegal, harmful, or otherwise prohibited items is strictly forbidden. Non-adherence to the same shall result in revocation of Services under this Agreement without notice.
i. Seller shall be responsible for and bear all the costs incurred in creating Virtual Store on the Platform by use of the photographs/videos or any other expense incurred by Seller for creating such Virtual Store and for uploading the same in the Platform. Except as stipulated under this Agreement, it is clarified that Kestone is only providing the space to the Seller on its Platform for the sale of its Product(s).
4.1. The Seller understands and agrees that any trademark/s, logo/s, trade name/s or identifying slogans of Kestone, copyrights, patents, process developments, Platform know-how, engineering or reverse engineering of technology used in Platform, or any other confidential information relating to Platform which are the property of Service Provider (hereinafter collectively referred to as "IPR"), cannot be used by the Seller, its employees, agents, if any, for any purpose which is not authorized by Service Provider in writing and shall always be used as per directions issued in writing by Service Provider from time to time. However, it is clarified that the Seller shall have the limited right to use the IPR of Service Provider for the limited purposes of fulfilling the intent and performance of this Agreement free of charge during the term of this Agreement.
4.2. The Seller shall own and retain all rights to its content uploaded on the Platform, but grants to Kestone a limited license to use the content or information uploaded on the Platform for limited purpose for operating the Platform and for any other matter closely connected with the Services under this Agreement.
4.3. The Seller agrees that Kestone may use its name, trademark or tradename for purposes of advertisements of Platform.
4.4. The Seller agrees that the Products or any other content uploaded on the Platform does not infringe any third-party intellectual property rights. Kestone reserves the right to remove any Product or content if any complaint of infringement of intellectual property rights is received by it.
4.5. The Parties shall not publish, nor cause to be published any advertisement or make any representations oral or written which might confuse, mislead or deceive the public which are detrimental to the trademarks or intellectual/proprietary rights or the reputation of the other Party.
4.6. In relation to any software, or Platform information or process information, if any, supplied by Service Provider to Seller, the Seller expressly acknowledges that all intellectual property rights in such software are and shall remain the property of Service Provider. Furthermore, the Seller agrees that, at Kestone's cost, it will take all reasonable steps which are necessary to protect these intellectual property rights and to comply with all applicable laws and such requirements in this regard as Service Provider may from time to time share in writing and in advance. If any IPR infringement or any possible infringement by any third party comes to the knowledge of Seller, the Seller shall inform Kestone as soon as practicable.
4.7. It is agreed and acknowledged by the Seller that Kestone is owner of Platform and the technology used in it, and the Seller shall never challenge the same and shall never stake any claim over the same. Seller further agrees and acknowledges that it will not make any modifications or amendment or improvements in the Platform or its technology and neither shall create any software which is same or similar to Platform during the subsistence of this Agreement, or five years after the expiry or termination of this Agreement.
4.8. With the termination of the Agreement, all the rights of Seller to use the Platform shall stand automatically terminated, and Seller shall not be entitled to use the Platform or associated IPR.
5.1. Parties agrees and undertakes to maintain the confidentiality of the Confidential Information concerning each other. Further, the Seller shall not (except as otherwise permitted in this Agreement) disclose, and shall ensure that their directors, officers, managers, employees (including those on secondment), legal, financial and professional advisors and bankers (collectively, the "Representatives") to whom the Confidential Information is made available on a need to know basis do not disclose, to any third party any such Confidential Information of Service Provider without the prior written consent of Service Provider. The Seller shall be responsible for all acts or omissions of its Representatives with respect to Kestone's Confidential Information.
5.2. Confidential Information shall not, however, include any information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party, or (b) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party.
5.3. The receiving Party will notify the disclosing Party immediately upon discovery of any unauthorized use or disclosure of the disclosing Party's Confidential Information or any other breach of this Clause of the Agreement. The receiving Party will cooperate with the disclosing Party in every reasonable way to help the disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use.
5.4. The Seller acknowledges and agrees that grave and irreparable damage may be caused and/or incurred by Service Provider if the obligations of the Seller pertaining to Kestone's Confidential Information are breached by the Seller.
5.5. This Clause shall survive termination of this Agreement.
6.1. Each Party hereby warrants and represents to the other Parties that:
a. It is incorporated / established and validly existing under the laws of its place of incorporation / establishment, and has the right, consent, authorizations, licenses, permissions, or approvals to enter into this Agreement.
b. It has the power, right and authority and has taken all actions necessary to execute and deliver and to exercise its rights and perform its obligations under this Agreement and other agreement, order and/or document to be executed pursuant to this Agreement.
c. It shall ensure compliance with applicable law, including data privacy legislations at all times.
6.2. In addition to the above, Kestone hereby represents and warrants to the Seller that:
a. It has full rights and authority with respect to the Platform including the intellectual property to the technology used, and the same shall not infringe the intellectual property rights, right of privacy or any other rights whatsoever of any third party.
The term of this Agreement shall commence from the Effective Date of this Agreement and shall be valid for a period of days/months/years in a particular package offered on Platform which has been opted by the Seller at the time of enrolment, unless terminated earlier by either Party in accordance with the terms of this Agreement.
9.1. Either Party may terminate this Agreement with a prior written notice of ninety (90) days sent to other Party.
9.2. Kestone may terminate this Agreement during the Term upon the occurrence of one or more of the following events:
a. If the Seller commits a material breach of any of its obligations under this Agreement, and fails to remedy the same within fifteen (15) days from the date written notice is sent to Seller requiring that such breach be remedied. If the breach is not remedies, Kestone shall without any further notice, disconnect the use of Services and Platform for the Seller.
b. If the Seller becomes insolvent or incapable of performing its duties under this Agreement; or
c. Upon mutual consent of the Parties.
9.3. Upon termination of this Agreement in accordance with this Clause, the Parties shall:
a. Immediately discontinue the use and display of the Platform and use of the associated IPR in any form.
b. Cease immediately the use of Confidential Information (including copies thereof) of other Party;
c. Not modify, translate, adopt immediately any other trademark similar to the trademarks of the other Party; and
d. Except as otherwise indicated herein, pay all amounts due to the other Party under this Agreement, if any, accrued immediately prior to termination of the Agreement.
9.4. Termination of this Agreement shall not release either Party from its general and payment obligations, which have accrued till such date of termination, except as otherwise indicated herein.
9.5. Kestone reserves the right to keep displaying the Virtual Store of the Seller on the Platform for a period of maximum of two (2) years even after termination, but without any facility to transact or sell the Products. The said display may be solely for the purposes of enabling the end-customer to view customer-care number or email address or postal address of the Seller in relation to the Products sold by Seller on Platform. Kestone shall have the right to remove the said display anytime before the expiry for said two year period, without notice to the Seller.
10.1. Seller hereby agrees to indemnify, keep indemnified and hold the Kestone and each of its directors, officers, employees, agents and representatives harmless from and against all direct and actual losses incurred or suffered by Kestone and each of its directors, officers, employees, agents and representatives in any manner directly arising out of (i) breach of the obligations and/or covenants by the Seller Party under this Agreement; (ii) breach of applicable laws, gross negligence, fraud of willful misconduct by the Seller; or (iii) violation of intellectual property rights by Seller of any third party.
10.2. The Seller hereby further agrees to indemnify, keep indemnified and hold Kestone and its directors, officers, employees, agents and representatives harmless from and against all losses incurred or suffered by Kestone and each of its directors, officers, employees, agents and representatives in any manner relating to:
a. Any claim by a customer with regard to the Product or Platform;
b. Any misrepresentation about the nature, usage, warranty of the Product;
c. Any action by a customer against the Seller in relation to the Product and its use; and
d. Fraud or anything done or omitted to be done through negligence, default or misconduct on the part of the Seller or its officers, directors, employees, representatives or agents.
10.3. Disputes between Seller and End-Customers: Kestone shall not liable for any disputes between Seller and the end-customer(s) arising out of sale, purchase, quality, quantity, delivery or return of the Product(s). The dispute shall be individually managed and resolved by the Seller at its own costs and expense. If at any time, Kestone is made a party in any dispute before any Court or forum, the Seller shall take all possible steps to remove the name of Kestone from the array of parties, and shall bear all expenses incurred by Kestone in defending or prosecuting the dispute arising out of any transaction between Seller and the end-customer. If any costs or fines are imposed on Kestone by any Court or governmental authority in relation to the Product(s) sold by the Seller, the Seller shall indemnify and make good for all such losses, costs or fines imposed on Kestone, without protest.
Notwithstanding any other provisions of this Agreement:
a. In no event, shall Kestone be liable to the Seller and/or any third party for any claims, losses, costs or damages arising out of or in connection with the Platform;
b. In no event, shall Kestone be liable to Seller or any third party claiming against or through Seller for a monetary amount greater than the amount paid by the Seller to Kestone for the package opted by the Seller.
c. Neither Party shall be liable to the other Party for any loss of profit, production, anticipated savings, goodwill or business opportunities or any type of indirect, incidental, economic, compensatory, punitive, exemplary or consequential losses arising out of performance or non-performance of its obligations under this Agreement.
During the term of this Agreement and for a period of two (2) years thereafter, the Seller shall not, nor shall it attempt to either directly or indirectly solicit, induce, recruit or encourage any of the personnel, employees, representatives, agents, consultants or any other persons of Kestone for its own benefit of for the benefit of another person.
Neither Party shall be liable for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by a Force Majeure Event, provided that the Party experiencing the failure or delay promptly notifies the other Party of the delay or its failure to perform any or all of its obligations under this Agreement during any period in which such performance is delayed or rendered impractical or impossible occasioned by or caused due to events which are beyond the reasonable control of Parties such as acts of god which includes natural calamities, fires, floods and droughts; wars, riots, insurrection, acts of the public enemy, terrorism, pandemic or epidemic etc ("Force Majeure Event"); provided, however, that in the event a Force Majeure Event persists for ninety (90) days or more, either Party shall have the right, but not the obligation, to terminate this Agreement.
14.1. The Agreement shall be governed by the laws of Republic of India, and subject to Clause below, the courts of New Delhi shall have exclusive jurisdiction.
14.2. Any dispute connected with formation, performance, interpretation, nullification, termination, or invalidation of this Agreement or arising therefrom or related thereto in any manner whatsoever shall be resolved by mutual discussion or conciliation between the Parties. If the dispute is not settled between the Parties within ninety (90) days, it shall be referred to a sole arbitrator to be mutually appointed by both the Parties. The arbitration will be conducted in accordance with the provision set forth in the Indian Arbitration and Conciliation Act, 1996. The seat and venue for holding such arbitration proceedings shall be New Delhi. Arbitration shall be conducted in English language. The decision of the arbitrator shall be final and binding upon both the Parties. The cost of arbitration and fees of arbitrator shall be borne by Parties equally, subject to final outcome of such arbitration or as directed by arbitrator in award.
14.1. Relationship of the Parties: Nothing contained in this Agreement creates a joint venture, principal-and-agent, or any similar relationship between the Parties. This Agreement is personal to the Parties herein. Neither Party shall directly or indirectly assign this Agreement, or the rights or duties created by this Agreement, without the prior written approval of the other Party.
14.2. Notices: All notices and other communications hereunder shall be in writing by electronic mail or courier or registered post acknowledgement due at the details specified herein:
Kestone Integrated Marketing Services
(A Division of CL Educate Limited)
3rd Floor, 203, A-18, RAM House, Middle Circle, Connaught Place, New Delhi-110001
Seller: [Details provided at the time of enrolment on the Platform along with all other
Know-Your-Customer documents]
14.2. Modification, Survival, Severability, Waiver: This Agreement may be altered or modified by Kestone anytime, and Seller shall be bound my new terms and conditions. Any and all obligations under this Agreement which, by their very nature, should survive the termination of this Agreement, will so survive. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement shall continue in full force and effect. Waiver by either Party of any breach of any provision of this Agreement shall not be taken or held to be a waiver of any further breach of the same provision.
14.3. Entire Agreement: This Agreement shall constitute the complete and exclusive understanding and agreement of the Parties and shall supersede all prior understandings and agreements, whether written or oral, with respect to the subject matter herein.