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Vendor Virtual Space Agreement

                                         

 

This Virtual Space Agreement (the “Agreement”) has been entered between Zingohub Private Limited (hereinafter referred to as “Us” or “We”) and Vendor (hereinafter referred to as “You”).

 

This Agreement shall become binding upon You and Us when You click on the I Agree button.

 

You and Us shall hereinafter jointly be referred to as the “Parties” and individually as the “Party”.

 

RECITALS:

                                                                                       

A.            We have established an online and mobile platform, inter alia, to facilitate and offer deals and products for purchase and sale and a portal for launching virtual stores on the website www.zingohub.com (the “Website”).

 

B.            You desire to obtain virtual space on the Website to showcase the products for pre-order and sale (the “Space”).

 

C.            We wish to provide You with the Space on the Website in accordance with the terms and conditions provided under this Agreement.

 

NOW THEREFORE, the Parties agree as follows:

 

1.             Term

 

1.1.         This Agreement shall come into effect on the day You click on the I Agree button and shall continue to be effective until termination of this Agreement (the “Term”).

 

2.             User

 

2.1.         For the purposes of this Agreement, a “User” shall refer to any person who is a viewer of the Website irrespective of whether such person successfully completes a purchase of any Pre-Order Product or Product. “Product” means any product or item made available for sale and showcased/listed on the Website. “Pre-Order Product” means any product or item showcased/listed on the Website and is subject to the pre-ordering process as more clearly defined in Clause 4 of this Agreement.

 

3.             Space and Use thereof

 

3.1.         We shall provide You with the Space on the Website which shall be used by You to showcase Your Pre-Order Products and Products to Users of the Website and such use shall be in strict compliance with the terms and conditions contained under this Agreement as well as the Terms of Use, Privacy Policy, and any other policy that You shall be made aware of (jointly the “Policies”).

 

3.2.         The Space provided to You by Us will be at a section deemed fit by Us. In the event that You  request Us for a change in the section of the Space, or for any increase in the allotted Space, We may at our sole discretion adhere to such request, however any  change may be subject to an increase in the amount of Fees (defined below) payable to Us, if deemed necessary by Us.

 

3.3.         You shall showcase only the Pre-Order Products and Products as mutually agreed and which may be amended from time to time by the Parties, however the final decision for any additional products to be added shall lie with Us. 

 

3.4.         You shall not be permitted to showcase any products which violate any law or public policy.

 

3.5.         You understand and agree that We are providing the Space on the Website to You to showcase Products and Pre-Order Products on the basis of your representation to Us that the Products or Pre-Order Products or their listing on the Website does not and shall not infringe or violate the rights (including any copyright, trademark or other intellectual property right) of any person. Further, You understand and agree that We are only providing the Space to You, and We are not and shall not be involved or deemed to be involved in the selection, screening, analysis or testing of any Product or Pre-Order Product listed by You on the Space/Website. You agree to defend, indemnify and hold harmless Us against any and all damages, losses, costs and expenses relating to any claim or court proceeding brought against Us alleging infringement of any person’s rights, including without limitation intellectual property rights, in connection with any actual or proposed listing or showcasing of any Products or Pre-Order Products on the Space or Website.

 

3.6.         Without affecting the applicability of Clause 3.5 above, We reserve the right, at our sole discretion, to permit the showcasing or listing on the Space only certain Products or Pre-Order Products intended to be sold by You. You acknowledge and agree that our exercise of discretion towards this end is not to be construed as a screening for any potential infringement of the rights of any third parties as a result of the Products or Pre-Order Products or their showcasing or listing on the Space or Website, and that We may be exercising our discretion to omit the listing or showcasing of any Products or Pre-Order Products based on a technical or similar restriction applicable to Us, the Space or the Website.

 

3.7.         You agree that if You are listing any Products for sale on other online retail / e-commerce websites or platforms, then the price quoted by You for such Product on the Website shall be no greater than the lowest price quoted by You for the same Product on other websites or platforms.

 

4.             Pre-Order

 

4.1        Where You intend to showcase certain products on the Website, and such products will be available for sale and delivery to Users in the future, Users may place a pre-order (the “Pre-Order”) for such products and make payment to Us for such products upon placing the Pre-Order. We shall provide You with Space on the Website for the listing of such Pre-Order Products.

 

4.2.       Each Pre-Order Product shall be listed or showcased on the Website for a period of fourteen (14) days (the “Pre-Order Period”) or such longer period as agreed between the Parties commencing from the date on which the Pre-Order Product was first listed/showcased on the Website. At the end of the Pre-Order Period for a given Pre-Order Product, We shall have the right to remove the listing for such Pre-Order Product from the Website without prior notice to You.

 

4.3.       Each Pre-Order Product shall be subject to a minimum order requirement as agreed between the Parties (the “Minimum Pre-Order Quantity”), which would need to be met within the Pre-Order Period only. If the Minimum Pre-Order Quantity for a particular Pre-Order Product is equaled or exceeded on or before the end of the Pre-Order Period, then You shall process delivery of such Pre-Order Product to the Users who have made payment for such Pre-Order Products. If the Minimum Pre-Order Quantity for the particular Pre-Order Product is not met, then We shall process refund of the payments made by the Users who had placed Pre-Orders, and no sale or delivery of the Pre-Order Product shall take place.

 

4.4.       We shall not be liable in any manner to You or any User for failure of any Pre-Order Product from achieving the Minimum Pre-Order Quantity, for any reason whatsoever.

 

 

 

 

 

 

5.             Payment Terms

 

5.1.         In consideration for the Space provided to You, You shall pay Us a fee in the manner described herein below (the “Fees”). All Fees described in this Agreement are exclusive of applicable taxes, including without limitation service tax. For sake of clarity, We shall deduct applicable taxes on the Fees, from the Vendor Price or Payouts, as defined below, payable to You.

 

 

 

5.2.         The Fees with respect to the Products sold through the Website shall be equal to 9% (or such other percentage as determined at our sole discretion and notified in advance to You) of the price at which a Product is sold (the “Selling Price”) to a User  on the Website. The Selling Price will be exclusive of Logistic Charges (as defined below). Further, a fee of Rs. Five (5/- only) shall be charged as closing fees (the “Closing Fees”) to You for each Product sold through the Website. The Closing Fees mentioned above may be waived on a case to case basis at the sole discretion of the Company.  

 

5.3.         The Fees with respect to Pre-Order Products shall be payable only at the end of the Pre-Order Period for such Pre-Order Products, provided that the Minimum Pre-Order Quantity for such Pre-Order Product has been met. Such Fees shall be equal to 9% (or such other percentage as determined at our sole discretion and notified in advance to You) of the total Selling Price received by Us for such Pre-Order Product until the end of the Pre-Order Period.

 

 

5.4.         The Parties hereby agree and understand that when a Product is sold on the Website, the Selling Price will be received by Us. We shall then deduct the Fees and Closing Fees due to Us from the Selling Price and disburse the balance to You (the “Vendor Price”) on a weekly basis on Wednesday, in relation to all Products which have been successfully shipped and delivered to the Users.. The Parties hereby agree and understand that We shall pay the Vendor Price to You only after We have received the Selling Price, in full.

 

5.5.         You agree that “cash on delivery” option shall be provided to all Users who purchase Your Products through the Website. For point of clarification, under such option, the Users who purchase Your Products through the Website shall be entitled to make payment in cash upon receipt of delivery of the purchased Products at such delivery address as specified by the Users who purchase Your Products through the Website. You agree that Vendor Price, as described above, shall be paid to You twenty-one (21) days after We receive confirmation of the Product being delivered to the Users who purchase Your Products using the “cash on delivery” option through the Website.

 

5.6.         The Parties hereby agree and understand that the Selling Price for a Pre-Order Product will be received by Us, as and when a User places a Pre-Order and makes payment thereto. At the end of the Pre-Order Period and provided the Minimum Pre-Order Quantity has been met, We shall deduct the Fees as described in Clause 5.2 above from the total Selling Price received, and disburse the remaining to You (the “Payout”) within 7days from the end of the Pre-Order Period. In the event that the Minimum Pre-Order Quantity is not met, then We shall initiate processing of refunds to all Users who had made payments for the Pre-Order Product. In such an event, neither We nor You shall have any payment obligations to each other.

 

 

5.7.         In the event of a successful sale of a Product or Pre-Order Product (which has been delivered to Users following the achievement of the Minimum Pre-Order Quantity) which is subsequently returned or replaced by a User  for reasons including, but not limited to, the Product or Pre-Order Product, as the case may be being faulty, defective or misleading in nature from what was advertised by You, We shall not be liable to refund the Fees for such Product or Pre-Order Product, as the case may be to You. In the event a User returns or seeks replacement of a Product or Pre-Order Product as the case may be, as described above, then You shall be solely responsible for all costs and fees related to such return or replacement. Further, We may withhold such costs and/or fees from subsequent amounts payable to your payouts, should We choose to facilitate the return of the Product or Pre-Order Product.

 

5.8.         The Parties hereby agree that We shall not be liable in any manner for a delay caused in disbursement of Payouts and/or Vendor Price to You by financial institutions.

 

5.9.         The Parties understand and agree that the payment mechanism used by Us is PayU (as made available by PayU Payments Private Limited) for settling and collecting payments. We may, at our sole discretion change the payment mechanism used. In the event of such a change, You will be notified of the same within seven (7) days of such change.

 

6.             Shipping

 

6.1.         In the event of a successful sale of a Product or Pre-Order Product, You shall be obliged to deliver the Product or Pre-Order Product to the User who has purchased such Product or Pre-Order Product. Refusal or failure by You to ship and deliver such Product or Pre-Order Product shall be considered as a material breach by You of this Agreement, and We shall retain the right to terminate this Agreement in accordance with Clause 13.1.2 below.

 

6.2.         In order to facilitate shipping and delivery of Products and Pre-Order Products sold on the Website, We have engaged Shipdesk Solutions Pvt. Ltd. as our logistics partner (the “Logistics Partner”). You may  use  the Logistics Partner or any other logistics operator of your choice to coordinate deliveries on behalf of yourself. However, You agree that in the case of Products which are sold under the “cash on delivery” option, You shall ship the product for delivery only through the Logistics Partner. The charges of the Logistics Partner or your chosen logistics operator (the “Logistic Charges”) may be borne by You or charged to the User  of the Product or Pre-Order Product. You further agree that We shall levy a fee of Rupees Fifty (Rs. 50/- only) on You for every Product sold under the “cash on delivery” option, over and above the Logistic Charges as defined above. In the event that the Logistic Charges are charged to the User  of the Product or Pre-Order Product., You shall under no circumstance charge or represent to charge any amount towards shipping charges to a User.

 

6.3.         We may, for  such period of time, decide at our sole discretion (the “Promotion Period”) to absorb the Logistic Charges to the extent of Rupees 80. In such an event You shall not charge the  User any amount towards shipping and delivery of the Product or Pre-Order Product to the extent borne by Us. In the event that We wish to end this Promotion Period or waive the Promotion Period at our sole discretion in relation to You, We will provide You with sufficient notice of the same.

 

7.             Product Photography

 

7.1.         We may provide You with product photography services (the “Photography Services”) which will assist You in photography of the Products and Pre-Order Products to be showcased on the Website in a manner which shall be aimed at increasing the appeal of the Products and Pre-Order Products.

 

7.2.         We may, for a period of time decided at our sole discretion (the “Gratis Period”), not charge You for the Photography Services. Post the Gratis Period, which We shall immediately notify to You, the Parties may mutually decide the consideration to be paid to Us by You in the event that You wish to avail the Photography Services.

 

7.3.         The Parties hereby understand and agree that We make no express or implied representation or warranty with respect to appeal of the Products or Pre-Order Products sought to be achieved under the Photography Services.

 

8.             Use of Logo and Trademarks

 

8.1.         You hereby grant permission to Us to use all your logos and trademarks, logos and trademarks of the Products and Pre-Order Products in order for the same to be displayed on the Website during the Term of this Agreement.

 

8.2.         You shall be responsible to ensure that you have all the necessary rights, title and/or licenses related to the logos and trademarks of the Products and Pre-Order Products in order for them to be displayed on the Website.

 

8.3.         In the event that You are required to incur any expenditure in order to obtain rights, title and/or licenses as contemplated in Clause 8.2, You shall be solely responsible to incur all costs in this regard.

 

9.             Representations and Warranties

 

9.1.         You shall comply with all applicable laws;

 

9.2.         You shall not make any representations or assurances, related to Us, to any third party unless specifically approved in writing by Us;

 

9.3.         You  have  obtained all necessary rights, title and licenses for the logos and trademarks of the Products and Pre-Order Products which would permit the display of the logos and trademarks on the Website;

 

9.4.         You and/or the Products and/or the Pre-Order Products shall not infringe any intellectual property of any third party; and

 

9.5.         You shall not sub-contract or assign any of your duties, obligations or rights under this Agreement to any third party.

 

 

 

 

10.          Confidentiality

 

10.1.       You agree to keep confidential, the terms of this Agreement and all our technical, product, business, financial, and other information regarding the present, future business and software programs, details of our customers, employees, investors, contractors, vendors and suppliers (the “Confidential Information”), including but not limited to programming techniques and methods, research and development, computer programs, documentation, marketing plans, customer identity, and business methods. Without limiting the generality of the foregoing, Confidential Information includes all information and materials disclosed orally or in any other form, regarding our software products or software product development including, but not limited to, the configuration techniques, data classification techniques, user interface, applications programming interfaces, data modeling and management techniques, data structures, and other information of or relating to our software products or derived from testing or other use thereof.

 

10.2.       You shall at all times protect and safeguard the Confidential Information and agree not to disclose, give, transmit or otherwise convey any Confidential Information, in whole or in part, to any other party.

 

10.3.       You shall not in any manner use any Confidential Information that you have access to under this Agreement for any matters outside the scope of this Agreement.

 

10.4.       You agree that you will not use any Confidential Information for your own purpose or for the benefit of any third party and shall honor our copyrights and other intellectual property rights and will not copy, duplicate, or in any manner reproduce any such copyrighted materials.

 

10.5.       Upon our request or upon earlier termination of this Agreement, You shall promptly deliver to Us any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof) that are in your possession or control.

 

10.6.       You shall be liable for any unauthorized disclosure made by yourself, your employees, contractors, consultants and partners, of any Confidential Information or any information denoted by Us to be confidential in nature.

 

10.7.       The provisions of this Clause 10 shall survive the termination of this Agreement.

 

11.          Indemnity

 

11.1.       You agree to defend, indemnify, and hold harmless Us, and our directors, officers, employees, representatives, and agents (the “Indemnified Party”) from and against any and all claims, actions, demands, legal proceedings, liabilities, damages, losses, judgments, authorized settlements, costs or expenses, including without limitation reasonable attorneys’ fees, (the “Damages”) arising out of or in connection with any alleged or actual:

 

11.1.1.    Use of the Space by You;

 

11.1.2.   Infringement of any third party intellectual property rights by You;

 

11.1.3.   Violation of applicable law or public policy by You;

 

11.1.4.   Violation of any of our Policies by You;

 

11.1.5.   Claim arising out of the breach of your representations or confidentiality obligations under this Agreement; and

 

11.1.6.   Claim by any User related to You and or the Products and/or the Pre-Order Products.

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12.          Liability

 

12.1.       Our aggregate liability under this Agreement, whether direct or consequential under any circumstances, shall be limited to the Fees paid by You to Us.

 

13.          Termination

 

13.1.       This Agreement may be terminated in the following circumstances:

 

13.1.1.   Upon provision of written notice of at least thirty (30) days or any other time period as per mutual agreement, by either Party to the other;

 

13.1.2.   Where either Party is in breach of any of the provisions of this Agreement, the breaching Party shall make best efforts to resolve the breach within thirty (30) days of receiving notice of the said breach. If the breach cannot be resolved within the said period of thirty (30) days the non-breaching Party shall have the right to terminate this Agreement with immediate effect. In the event that the breaching Party is You,  We shall have the right to suspend your use of the Space till the breach is resolved;

 

13.1.3.   At our sole discretion, with immediate effect for which We shall not be bound to provide any reason to You.

 

14.          Jurisdiction and Applicable Law

 

14.1.       This Agreement shall be governed by and construed in accordance with the laws of India.

 

14.2.       Subject to Clause 14 hereinbelow, the courts in Bangalore shall have exclusive jurisdiction over any dispute arising out of or in connection with this Agreement.

 

15.          Arbitration

 

15.1.       In the event of any dispute, the Parties shall, at first instance, attempt to amicably resolve the same.

 

15.2.       In the event of the inability of the Parties to amicably resolve any disputes arising under this Agreement within fifteen (15) days of such dispute being referred for amicable resolution, such disputes shall be resolved through arbitration in accordance with the Arbitration and Conciliation Act, 1996.

 

15.3.       All expenses of the arbitration shall be borne equally by the Parties, subject to any determination of costs that the arbitral panel may order. The verdict of the arbitration shall be final and binding upon the Parties. The place of arbitration shall be Bangalore and all arbitration proceedings shall be conducted exclusively in the English language.

 

15.4.       Each Party shall continue to perform its obligations under this Agreement, pending final resolution of any dispute. However, We shall have the right to suspend your use of the Space where such use is detrimental to law, public policy or any of our Policies.

 

16.          General

 

16.1.       In the event that any part of this Agreement is rendered or declared invalid by a court of competent jurisdiction, such invalidation of such part or portion of this Agreement should not invalidate the remaining portions thereof, and they shall remain in full force and effect. It is further agreed that if part of the Agreement is determined invalid, either Party may open negotiations solely with respect to a substitute for such clause or portion, within seven (7) days after a ruling has been made.

 

16.2.       Neither Party shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other Party, and any attempted unpermitted assignment shall be null and void.

 

16.3.       No amendment, modification, replacement, termination or cancellation of any provision of this Agreement will be valid, unless the same is in writing and signed by the Parties. No waiver by any Party of any default, misrepresentation, or breach hereof, whether intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation, or breach hereunder or affect in any way any rights arising because of any prior or subsequent such occurrence.

 

16.4.       All notices, requests, demands, claims and other communications hereunder will be in writing.  Any notice, request, demand, claim or other communication hereunder will be deemed duly given if (and received three (3) business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below:

 

To Us,

 

ZingoHub Pvt. Ltd.

#6, 80 Feet Road, 2nd Floor, Koramangala 4th Block, Bangalore 560 034

Karnataka, India

 

To You, to the address specified by You in the form provided by Us at  https://www.zingohub.com/umicrosite/vendor/register/.

 

 

16.5.       Nothing in this Agreement shall be construed in any manner to create a principal and agent relationship or an employer employee relationship between the Parties. It is expressly understood that the Parties are contractors independent of one another, and that neither has the authority to bind the other to any third party or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both Parties hereto.