This document is an electronic record in terms of Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This document is published in accordance with the provisions of Rule 3 (1) of the Information Technology (Intermediaries guidelines) Rules, 2011 that require publishing the rules and regulations, privacy policy and terms of Use for access or usage of website “www.bhaiyaa.com”website and dhihyperlocal application for mobile and handheld devices.

This agreement (hereinafter referred to as this “Agreement”) executed at the place and on date mentioned in Schedule 1 by and between: Dhi Hyperlocal Private Limited, a company incorporated under the Companies Act, 2013 with CIN U72500TG2021PTC155697 and having its registered office at Module No. B1 & B2, Quadrant No. 2, 6th floor, Cyber Towers, Madhapur, Hyderabad, Telangana – 500 081, India, India (hereinafter referred to as “Service Provider”, which expression shall, unless it be repugnant to the subject or context thereof, be deemed to mean and include its successors and permitted assigns);

    AND

The person mentioned in Schedule 1 (hereinafter referred to as “Merchant” or “Seller”, which expression shall, unless it be repugnant to the subject or context thereof, be deemed to mean and include its successors and permitted assigns). The Service Provider and the Seller are hereinafter, where the context so requires, collectively referred to as “Parties” and individually as “Party”.

    WHEREAS:

• A. The Service Provider owns and operates the [tech store/website] and the corresponding mobile site and mobile application dhihyperlocal (collectively “Store”) to inter alia (a) facilitate opening of a digital store and sale and purchase of goods and services between the merchants and their respective end customers digitally through the Store, (b) provide invoice generation and related services to offline stores onboarded by the Service Provider through the Store; (c) enable customers to make reservations with merchants or other vendors onboarded by the Service Provider through the Store and provide ancillary services in relation to the same; (d) technological services (in the form of record keeping, tallying and settlement) for Merchants who are desirous of providing any benefit plans for their employees and (e) provide services ancillary and complementary to the foregoing services (“Service Provider Business” or “Service(s)”).
• B. The Seller intends to avail the relevant Services from the Service Provider as provided in Schedule I.
• C. The Parties are keen on entering into this Agreement to agree on the terms and conditions for such engagement.

    PARTIES HEREBY AGREE AS FOLLOWS:

• Definitions and Interpretations

  1. Definitions

  “Affiliate” shall mean, any person or entity directly or indirectly Controlled by a person. “Control(led)” shall mean, with respect to any person or entity, any circumstancein which such person or entity is controlled by another person or entity by virtue of the latter person or entity controlling the composition of the board of directors or managers or owning the controlling percentage of the voting securities of such person/entity or otherwise controlling the other.

  “Brand name” shall mean “Dhi Hyperlocal/ Bhaiyaa” or such other successor or replacement brand name / trademark / service mark as may be decided by the Service Provider upon a prior intimation to the Seller.

  “Confidential Information” means and includes any and all information which is confidential to a Party including any (i) business information and business processes, (ii) any samples, formulations, specifications, data relating to manufacturing and quality control processes and procedures, (iii) advertising and marketing plans, (iv) any past, current or proposed development projects or plans for future development work, (v) technical, marketing, financial and commercial information whether relating to past or current or future, (vi) the commercial and business affairs of a Party, (vii) all customer related information including any rates and discounts and (viii) the End Customer Database.

  “End Customer” shall mean the retail customers to whom the Seller/Merchant offers to sell or from whom the Seller/Merchant receives offer to purchase the products and services provided by the Seller through the Store.

  “End Customer Database” shall mean all data / information (as may be updated from time to time) about the persons/ entities including their names, addresses, contact details, queries, orders and other requests made available by such persons / entities on the Store or otherwise captured by the Store that shall further include the usage, behavior, trends and other statistical information / data relating to such persons / entities, who (i) access the Store or otherwise get invitation to the Store or correspond with the Store, (ii) place any order for Products on the Store, or (iii) send any enquiry/ request with respect to the Store, and shall include all analysis and records based on such aforementioned information, including the spending and other patterns of such persons/entitles and Products. For the avoidance of doubt, any list, description or other grouping of consumers or customers or any derivative work from End Customer Database shall be deemed to be End Customer Database.

  “Intellectual Property” includes ideas, concepts, creations, discoveries, inventions, improvements, know how, trade or business secrets; trademarks, service marks, domain names, designs, utility models, tools, devices, models, methods, patents, copyright (including all copyright in any designs and any moral rights), masks rights, design right, procedures, processes, systems, principles, algorithms, works of authorship, flowcharts, drawings, books, papers, models, sketches, formulas, teaching techniques, electronic codes, proprietary techniques, research projects, and other confidential and proprietary information, computer programming code, databases, software programs, data, documents, instruction manuals, records, memoranda, notes, user guides; in either printed or machine-readable form, whether or not copyrightable or patentable, or any written or verbal instructions or comments. The End Customer Database shall be considered to be the Intellectual Property of the Service Provider; and “Intellectual Property Rights” means all rights, title or interest under any statute or undercommon law or under customary usage including in any Intellectual Property orany similar right,anywherein the world, whether negotiable or not and whether registerable or not.

  "Privacy Policy” shall mean the Privacy Policy of the Service Provider as available on the Store https://www.bhaiyaal.com/privacy-policy, as may be amended by the Service Provider from time to time.

  “Products” shall mean any and all goods and services related to the business of the Seller available on the Store.

  “Service Fees” has the meaning set out in Schedule 3.

  “Services” or “Store Services” has the meaning set out in Recital A.

  “Service Provider Content” shall mean the Store, all the pages of the Store, all the content contained in the Store (excluding any third party content and advertisements), look and feel of the Store, any and all information or content owned or controlled (e.g. by license or otherwise) by Service Provider or its Affiliates, including text, images, graphics, photographs, video and audio, and furnished by Service Provider or its Affiliates in connection with Store Services for the purpose of offering for sale of Products by the Seller.

  “Term” shall have the meaning as set out in Schedule 1.

  2. Interpretations

  In this Agreement, unless the context otherwise requires:

  (i) Words importing persons or parties shall include natural person, entity, partnership firm, organization, operation, company, HUF, voluntary association, LLP, joint venture, trust, limited organization, unlimited organization or any other organization having legal capacity;

  (ii) Words importing the singular shall include the plural and vice versa, where the context so requires;

  (iii) References to any law shall include such law as from time to time enacted, amended,supplemented or re-enacted;

  (iv) References to this Agreement or any other agreement, deed, instrument or document shall be construed as a reference to this Agreement, such other agreement, deed, instrument or document as the same may from time to time be amended, varied, supplemented or novated in accordance with the terms of this Agreement;

  (v) The headings and titles in this Agreement are indicative and shall not be deemed part thereof or be taken into consideration in the interpretation or construction of this Agreement;

  (vi) The word ‘written’ shall include writing in electronic form and ‘signed’ shall include electronic signature or any other electronic communication which signifies the sender’s or originator’s intention to be bound by such electronic communication.

• Services

  1. The Service Provider shall provide Services as provided in Schedule 2.
  2. Additional terms with regards to Services, if any, shall be as provided in Schedule 2.
  3. The terms of service at https://www.Bhaiyaa.com/Terms-conditions and privacy policy at https://www.Bhaiyaa.com/privacy-policy updated from time to time shall be applicable to the provision of the Services by the Service Provider to the Seller.

     Where the Seller avails of Offline Services, the following additional terms shall apply:

  4. Offline Services:

  (i) One of the Services provided by the Service Provider on the Store is enabling generation of invoice and assisting in payment process for purchases made by End Customers in physical stores who have been onboarded by the Service Provider (“Offline Services”).

  (ii) The Seller shall give such assistance to the Service Provider as it may require to generate invoice for the products sold by the Seller. It is hereby clarified that the Service Provider is merely generating the invoice and invoice shall be in the name of the Seller.

  (iii) The Service Provider shall not be responsible to the End Customer for the products sold by the Seller.

  (iv) The Service Provider is not a payment gateway or payment aggregator and payment by the End Customer for the products will be undertaken through the platform of the payment processing partner engaged by the Service Provider and the Service Provider shall not be responsible or liable for the same in any manner whatsoever.

  Where the Seller avails of Reservation Services, the following additional terms shall apply:
  5. Reservation Services:

  (i) One of the Services provided by the Service Provider through the Store is to allow the End Customers to avail reservation services by Merchants onboarded by the Service Provider on the Store and assisting the users in making payments through third party payment processors and from time to time, availing discounts, offers or benefits with such Merchants (“Reservation Services”).

  (ii) The Seller shall provide such assistance and such information that the Service Provider may require to provide the Reservation Services.

  (iii) The Seller shall ensure that it provides true, complete and accurate information regarding the reservation options. The Service Provider shall not be liable for the completeness or accuracy of the information.

  (iv) The Service Provider is not providing any guarantee that the End Customer making the reservation is eligible to avail of the services provided by the Seller or that it is a genuine reservation and the Seller shall not have any claim against the Service Provider in relation to the same.

  (v) If the Seller is providing any offers or benefits with such reservation, the Seller shall inform the same to the Service Provider.

  Where the Seller avails of Tech Services, the following additional terms shall apply:

  6. Technical Support Services:

  (i) One of the Services provided by the Service Provider on the Platform is providing technical support for entities (“Tech Service Customers”) that are desirous of providing any benefit plans for their employees or other individuals (“Beneficiaries”) (“Tech Services”).

  (ii) Tech Service Customers may operate any benefit plans for the Beneficiaries, including through coming up with payment mechanisms whereby the Beneficiaries may buy products or avail services from the Seller, if the Tech Service Customer has identified the Seller to provide their products/ services to the Beneficiaries.

  (iii) As part of the Tech Services, the Service Provider shall keep digital records of the benefits availed by the Beneficiaries from the Seller. The Seller and the Tech Service Customers shall enter into agreement with respect to the manner in which the payment for such services shall be settled.

  (iv) The Service Provider shall act on the sole instructions of the Tech Service Customers with respect to the details of the benefits that will be available to each Beneficiary. The Seller shall not have any claim against the Service Provider in this regard. The Seller shall not refuse providing products or services to the Beneficiaries if they display the adequate credentials or evidence to avail such services.

  (v) The Seller acknowledges that the Service Provider is not a bank or a financial institution and is not providing any financial services and the settlement of payment shall be done between the Seller and Tech Service Customer.

• Fees and Payments

  1. In consideration for the Services provided by the Service Provider, the Seller shall pay the Service Provider, the Service Fees on such terms as provided in Schedule 3.
  2. Fees for any additional services availed by the Seller from the Service Provider shall be as mutually agreed by the Parties prior to undertaking such additional services.
  3. For Merchant falling under the applicability of GST laws and are dealing into taxable services (other than categories covered under Section 9 (5) or are, suppliers of nonexempted goods hereby undertakes to remit applicable GST to the appropriate GST jurisdiction of the applicable taxing authority within the time specified in the GST Law in force at the time of issuance of the invoice. Further the Merchant, shall be entitled to make TDS deduction in accordance with applicable law and shall provide the necessary tax deduction certificates to the Service Provider, for the transactions between Service Provider and the Merchant.
  4. Merchant acknowledges and agrees that it would adhere to the applicable Goods and Services Tax (GST) laws including but not limited to CGST and SGST and applicable Rules that may be monitored by the taxation authorities and any defaults may result in blacklisting or special scrutiny of either of the Parties. Accordingly, in the event of continuing defaults from Merchant, which results in any kind of adverse actions against Service Provider including special scrutiny of the books of accounts of Service Provider or upon any non-compliance with the applicable GST laws, the Service Provider shall have the right to immediately terminate this Agreement for violation of law committed by Service Provider and the breach of this Agreement.
  5. Further the Merchants who does not fall under the category of section 9(5) of CGST Act 2017 and are not solely dealing with the exempted goods under GST laws, shall mandatorily, have to get the GST registration done and submit taxes to the government, either through itself or taking the GST compliance support from the third-party consultant approved by the Service Provider, for the Merchant to avail the Services provided by the Service Provider under this agreement. Wherein the said third-party consultant will provide the following GST compliances support to the Merchant: 1) applying for the GST registration 2) filing applicable returns 3) payment of taxes; such support shall be provided for the Merchant for a period mutually agreed between the parties and at the cost agreed between the parties.
  6. Provided that it is further clarified that in the event that the Service Provider incurs any penalties or other regulatory liabilities, due to any act or omission including but not limited to providing incomplete details in the invoice, delay in GST payment to the Govt. beyond the stipulated time period due to any delay from the Merchant’s end, all such losses and interest thereon would be paid by the Merchant and Service Provider shall not be liable for the same. Merchant shall be required to indemnify and hold harmless Service Provider, its promoters, officers, directors, employees, affiliates, agents, sub-contractors and other representatives from any losses, claims, demands, liabilities, suits, proceedings, penalties, costs or expenses of any kind (including, attorneys’ fees and expenses) on account of violation of applicable tax laws by the Merchant (including but not limited to non-filing of the requisite forms with the tax authorities to claim tax credit etc.). In-case of any Liquidated Damages / penalty to be levied by the Service Provider under this Agreement, then such liquidated damages / penalty amount will be excluding GST and GST will levied additionally on the liquidated damages / penalty amount.
  7. Each Party shall be responsible for any and all taxes on its business, and taxes based on its net income or gross receipts. However, Service Provider shall be entitled to additionally charge goods and service tax or any other indirect or transaction taxes as applicable on one or more of the Services.
  8. Parties agree that the commercial terms provided in Schedule 3 are dynamic in nature and will evolve or vary as the operating, promotional, marketing and business environment of the Service Provider or user behavior on the Store changes and evolves and therefore the commercial terms will be adjusted or revised from time to time or sometime occasionally or frequently by the Service Provider as necessary or appropriate during the Term of the Agreement to accurately reflect the evolution of the aforesaid environment and conditions, by mutual consent of the Parties.

• Payment Processing & Logistics

  1. The Seller hereby agrees and acknowledges that the Service Provider shall, through third party service providers, facilitate payment processing on the Store through multiple partners, including but not limited to banks, payment gateways, payment aggregators, credit cards or any other wallet mechanism; it being clarified that the Service Provider is not a payment aggregator or payment gateway and enters into agreements with payment service providers for facilitating payments. As mutually agreed between the Seller and the Service Provider, such options shall be made available to the Seller on the Store. With respect to payments, such additional terms as applicable basis the agreements entered into between the Service Provider and payment facilitators shall apply to this Agreement. The Seller acknowledges that the Service Provider may be provided compensation in any form (including fees, commission) for such payment services and waives any rights, claims or interest over such compensation received by the Service Provider. The Seller further agrees that it shall co-operate fully with the Service Provider or such provider of services to enter into appropriate documentation and comply with the applicable regulations, terms and conditions for availing such payment services. Any breach of such agreement entered into with third parties for payment procession shall be considered to be a breach of this Agreement.
  2. The Seller hereby agrees and acknowledges that the Service Provider shall, through third party service providers, facilitate logistic services on the Store through multiple partners; it being clarified that the Service Provider is not a logistic service provider or in the business of logistics and enters into agreements with logistic service providers for facilitating the delivery of goods. As mutually agreed between the Seller and the Service Provider, such options shall be made available to the Seller on the Store. With respect to logistic services, such additional terms as applicable basis the agreements entered into between the Service Provider and logistic service providers shall apply to this Agreement. The Seller acknowledges that the Service Provider may be provided compensation in any form (including fees, commission) for such logistic services and waives any rights, claims or interest over such compensation received by the Service Provider. The Seller further agrees that it shall co-operate fully with the Service Provider or such provider of logistic services to enter into appropriate documentation and comply with the applicable regulations, terms and conditions for availing such logistic services. Any breach of such agreement entered into with third parties for logistic services shall be considered to be a breach of this Agreement.
  3. The Seller further agrees that in cases where any Products are delivered/provided under a cash on delivery ("COD") model, the Service Provider may come in possession of the cash paid by the End Customers (either directly or through banking channels). Notwithstanding anything to the contrary: (A) the Seller authorizes Service Provider to collect and receive the amounts received from the End Customers (through its logistics partners) on Seller's behalf in relation to all the COD orders; and (B) the Seller and the Managed Service Provider agree, acknowledge and confirm that: (i) Service Provider is the duly appointed agent of the Seller for the purpose of collection of amounts pertaining to COD shipments including without limitation for the purposes of the Payment and Settlement Systems Act, 2007 and the Service Provider shall be considered as the duly appointed agent of the Seller for this purpose for all past, current and future COD shipments; and (ii) Service Provider shall not have any title to the goods for which the COD amount will be collected. However, Service Provider shall not be held liable in case the COD amount has been delayed or misplaced by the logistics partner. The Seller shall seek its claim, loss or any damages suffered from the logistics partner directly, and in no way shall recover from Service Provider or hold the Managed Service Provider liable for the same.

• Representations and Covenants

  1. Representations and Covenants of the Seller:

  (i) Seller shall not use the Service Provider’s Store for any purpose other than Seller’s business.

  (ii) Seller shall list the business on the Store on the price which shall be inclusive of all taxes, duties, levies, warehousing, packaging, shipping and logistics charges and all other charges as applicable in the city or municipal limits of the End Customer. The sale price shall be in compliance with all applicable laws and shall not be more than the maximum retail price printed on the products.

  (iii) Seller shall ensure that the details about the Products offered by the Seller such as the country of origin, name and details of importer (where the Product is imported), the expiry date of the Products (where applicable) and including such other details which enable the End Customer to make an informed decision, are set out along with the details and photographs of the Product (where applicable).

  (iv) Seller shall ensure that all information pertaining to the Products listed on the Store (including description, images, delivery and shipment, terms of exchange, returns & refund, costs of return shipping in a clear and accessible manner for the Products) are accurate. All such description and content regarding the Products shall correspond directly with the appearance, nature, quality, purpose and other general features of such good or service.

  (v) Seller shall not, for the Products offered through the Store, refuse to take back the Products or refuse to refund consideration, if such Products are defective, deficient or spurious or if the Products are not of the characteristics or features as provided for by the Seller, or if such Products are delivered late form the stated delivery schedule, except for delays due to reasons provided under Clause 12.11 (Force Majeure). All such refunds shall be made within a reasonable period of time or as prescribed under applicable laws.

  (vi) Seller agrees and acknowledges that the title in the Products shall only be transferred from Seller to the End Customer upon delivery of the Products to the End Customer and at no point shall the Service Provider hold any title, rights or claims over the Products, other than as agreed herein. The Seller shall be the lawful owner or the lawful right holder in the Products offered and/or sold on the Store to the End Customer and the Products at time of listing of the same on the Store and for all times thereafter shall be free from any encumbrance, charge, lien or any security or third-party interests. The Seller further agrees and confirms that the Service Provider shall not be responsible, in any manner whatsoever, for any defects, deficiencies, concerns or issues in the Products listed on the Store by the Seller, and it shall not, expressly or implicitly, by words of action, indicate otherwise to any Person, including its End Customers. The Seller shall solely be responsible for complaints or warranty related issues pertaining to the Products.

  (vii) Seller shall provide such necessary assistance (at no additional cost to Service Provider) as may be required to facilitate Service Provider to carry out its obligations under this Agreement.

  (viii) Seller shall not make any representation or do any act which may be taken to indicate that it has any right, title or interest in or to the Brand Name.

  (ix) Seller shall not do, cause or authorize to be done anything which will or may: (i) impair, damage or be detrimental to the rights, reputation and goodwill associated with the Service Provider, its Affiliates, shareholders or directors and/or the Brand Name; (ii) bring the Brand Name or the Store into disrepute or any claim by third parties; or (iii) jeopardize or invalidate the Brand Name, Store registration or any rights associated thereto;

  (x) Seller hereby agrees and acknowledges that the Store and / or the Service Provider has not and shall not conduct any verification of the specifications or details of the Products and has no liability towards the same.

  (xi) Seller understands and acknowledges that the Brand Name and reputation of Service Provider is of utmost importance for its business and that the conduct of Seller in the performance of this Agreement and otherwise would have material impact and bearing on such Brand Name and reputation of Service Provider. Further Seller understands and acknowledges that the obligations and covenants placed on Seller in this Section or elsewhere in the Agreement are essential for the maintenance of quality control and protection of Brand Name, and to ensure timely payments to Seller. Accordingly, Seller acknowledges that no hardship or onerous obligation is being placed on Seller under this Agreement.

  (xii) Seller hereby agrees and confirms that they shall not, in any manner, introduce or upload any viruses, malwares or bugs onto the Store while uploading their data with respect to Products or inventory. In case any such virus, malware or bug is uploaded on to the Store by or through a Seller’s systems, any loss or liability borne by the Service Provider to rectify the same shall be borne by the Seller. Furthermore, the Seller’s agrees to get its systems audited at regular intervals to be compliant with the specifications and requirements of the Store.

  (xiii) Seller covenants and agrees that they shall not falsely represent itself as a consumer or an End Customer and post reviews about Products or misrepresent the quality or features of the Products.

  (xiv) Seller covenants and agrees that in the event of the non-functioning or unavailability of the Store, the Service Provider shall not be subject to any penalties or liabilities arising from such non-functionality or unavailability.

  (xv) Seller hereby agrees that the Service Provider may require any information from the Seller to comply with applicable laws, and the Seller agrees that it shall provide all information and support as may be necessary in this regard.

  (xvi) Seller shall provide all such information as may be required to be disclosed by the Service Provider under applicable laws, including without limitation, the Consumer Protection (E-commerce) Rules, 2020 (“E-Commerce Rules”).

  (xvii) The Seller shall not adopt any unfair trade practice.

  (xviii)Seller shall appoint a grievance officer as required under the E- Commerce Rules and comply with all obligations of sellers under the E- Commerce Rules.

  (xix) If any products or services provided by the Sellers requires any registration by regulatory authorities, the responsibility to avail such registration and ensure their validity shall be on the Seller.

  (xx) Seller covenants and agrees that the Seller shall be bound by the Privacy Policy, which terms (including all amendments, modifications, reinstatements and substitutions) shall be deemed to be incorporated herein by way of reference.

  (xxi) Seller shall solely take all decisions with respect to loyalty programs, discounts, and coupons to be provided to the End Customers. The Service Provider explicitly disclaims any involvement in the decision-making process regarding these offerings.

  2. Representations and Warranties of the Service Provider:

  (i) Service Provider shall reasonably maintain the Store and Store Services and shall on reasonable efforts basis provide Services to the Seller, including any additional services that the Parties may mutually agree upon from time to time.

  (ii) Service Provider shall reasonably maintain the registration of domain name in relation to the Store during the Term at its own costs free from any and all encumbrances, including encumbrances which may lead to any adverse effect on Service Provider’s registration of the domain name or its use of the Store.

  (iii) Service Provider shall ensure that it has or procures adequate technology as necessary to maintain the Store and perform the Services under this Agreement.

  3. In addition to the above, each Party represents and warrants as follows:

  (i) it is a person, duly organized, validly existing, and in good standing under the laws of its incorporation (if applicable) or under any applicable law as may be applicable to the person.

  (ii) execution and performance of this Agreement by such Party and the consummation of the transactions contemplated hereby do not and will not contravene with the constitutional documents of the Parties.

  (iii) it shall comply with all applicable laws in the performance of its obligations and the exercise of its rights under this Agreement.

• Intellectual Property

  1. Intellectual Property Rights in relation to Brand Name and Store:

  (i) Seller acknowledges Service Provider’s absolute ownership of interest in and rights to the Brand Name and the Store.

  (ii) Without limitation to the foregoing, Seller acknowledges and agrees that all goodwill in or associated with the Brand Name and/or the Store, including any goodwill generated or arising by or through Service Provider’s or Seller’s activities pursuant to this Agreement shall accrue for the benefit of and shall belong exclusively to the Service Provider.

  (iii) No right or interest in the Brand Name and/or the Store are granted or deemed to be granted by the Service Provider to the Seller.

  2. Service Provider shall retain sole ownership of all the intellectual properties, know how or other proprietary rights in the Service Provider Content and Service Provider Business and no right or interest is granted or shall be deemed to be granted by Service Provider to the Seller. To the extent Service Provider Content contains any proprietary content or information of the Seller, the Seller hereby grants a royalty free and world-wide license to such content or information including a right to creative derivative product of such content or information.

• End Customer Database

  1. According to applicable laws in relation to data privacy and protection (including the Digital Personal Data Protection Act, 2023 and applicable rules ("Privacy Laws")), the Service Provider may collect the data (including personal data) of the End Customer with the consent of the End Customer. The Service Provider shall notify the End Customer about (i) the collection of personal data and purpose of such collection, (ii) the End Customers’ rights under the Privacy Laws including with regards to withdrawal of consent through its privacy policy
  2. The End Customer Database shall be proprietary to the Service Provider. Service Provider shall alone retain all rights including all Intellectual Property Rights in the End Customer Database and unless specifically agreed to in writing by the Service Provider, no rights in or to the End Customer Database are deemed to have been granted to the Seller. To the extent Seller derives any rights in the End Customer Database by virtue of it undertaking the Seller Business the Seller shall hold such rights in trust for Service Provider and the Seller shall do and undertake all such acts to exclusively assign such rights in the End Customer Database to the Service Provider. The Seller further agrees that (a) all the End Customer Database shall be treated as Confidential Information of the Service Provider for the purposes of this Agreement; and (b) Service Provider being the owner and proprietor of the End Customer Database shall be entitled to use, store and exploit the same in any manner as may be deem fit by the Service Provider and in accordance with Privacy Policy
  3. The Merchant represents and warrants to the Service Provider that if the Merchant provides any personal data regarding its employees or any other person to the Service Provider, in relation to the Services to be provided by the Service Provider, the Merchant shall ensure that the consents from such persons is obtained under applicable laws for provision of Services and for sharing the data with the Service Provider. The Merchant shall ensure compliance with all applicable data privacy laws in relation to such data.

• Advertising, Marketing and Sales Promotion

  1. Service Provider as the proprietor and owner of the Store and Store Services and rights holder of the Brand Name may at its sole discretion carry out advertising and marketing activities in relation to promotion of the Store, Store Services and Brand Name in any manner and to any extent as may be deemed fit by the Service Provider and for such purposes may engage in certain sales promotion activities to increase the sales of Products on the Store. Service Provider and Seller may agree on certain terms on which Seller shall support such sales and marketing activities of Service Provider including providing discounts on the Products or other free of cost goods and services to the End Customers.
  2. Service Provider may at its sole and absolute discretion on reasonable commercial efforts basis market, promote or advertise the Products made available for sale by Seller on the Store in compliance with this Agreement.
  3. Seller agrees and acknowledges that Service Provider shall have the sole right (as to between Service Provider and Seller) for the design, look and feel, architecture, layout, positioning and all aspects of the Store including listing, positioning, indexing, placement and tiering the Products offered for sale on the Store by the Seller and the Seller shall not question or dispute such exercise of right or discharge of responsibility by the Service Provider.
  4. Service Provider shall be solely responsible at Service Provider’s sole discretion to sell or license any and all advertising and promotional time and space with respect to Store including webpages or such portions of the Store that contains the details of the Products. Service Provider shall have the sole right and discretion to decide the style, placement and format of the advertisement and promotion and the price and/or any other consideration, if any, for the sale and license of such advertisement and promotion. Service Provider shall be entitled to retain any and all revenues generated from any sales or licenses of all such advertisements and promotions.
  5. Service Provider shall reasonably ensure that all advertisement/ promotion activities undertaken by the Service Provider: (i) do not contain any material that, in its knowledge, would infringe or violate any intellectual property rights or any other personal or proprietary right of any person; and (ii) are not obscene or libelous; and (iii) comply with all applicable laws including standards and rules set forth by the Advertising Standards Council of India or any other relevant government authority.

• Indemnification

  Seller shall promptly on demand indemnify, defend and hold harmless the Service Provider, its Affiliates and End Customer and their respective officers, directors, proprietors, partners, managers, members, trustees, shareholders, employees and agents (“Indemnified Parties”) for and against all claims, liabilities, costs and expenses (including reasonable attorney’s fees) incurred or to be incurred by the Indemnified Parties that arise out of, in any way relate to, or result from any breach by the Seller of any of the provisions of this Agreement, or breach of any laws by the Seller, or negligence, fraud or wilful misconduct of the Seller or its Affiliates and their respective officers, directors, shareholders, employees, contractors, sub-contractors, agents and personnel. For the avoidance of doubt, it is further clarified that the right to indemnification in connection with any of the aforesaid claims of cause of action is independent and in addition to other rights and remedies of the Indemnified Person that may be available at law or in equity.

• Limitation of Liability

  Notwithstanding, anything contrary contained in this Agreement, in any event, the Service Provider and its Affiliates shall not be liable whether in contract, warranty, tort including, but not limited to negligence, product liability or otherwise, to the Seller or any other person or entity for cost of cover or for any indirect, incidental, special, consequential, punitive or exemplary damages (including damages for loss of revenues, loss profit or anticipated profits, loss of goodwill, loss of business or data) arising out of or in relation to the Store or any covenant under this Agreement. In no event shall the Service Provider be liable, vicariously or otherwise, to the Seller and its Affiliates or any third party for any losses, damages, liabilities, costs (including reasonable legal costs) and expenses (including taxation).

• Term and Termination

  1. This Agreement shall commence on the Effective Date and continue till terminated as per mutual consent of the Parties, in writing.
  2. Termination:

  (i) Service Provider shall have the right to terminate this Agreement by issuing a 7 day prior notice of termination in writing without any additional obligations or liabilities to the Seller.

  (ii) Either party shall have a right to terminate this Agreement thereto upon any material breach of this Agreement by the other Party provided that where in the reasonable opinion of the non breaching Party, such breach is capable of cure, the non-breaching Party shall not terminate this Agreement without providing the breaching Party a cure period of (30) thirty days to cure such breach and provide the non-breaching Party with necessary documents satisfactorily evidencing cure of such breach.

  3. Consequences of Termination:

  (i) Upon expiry or termination of this Agreement all Confidential Information and any other materials which may have been provided by one Party to the other shall be forthwith returned and the returning Party shall certify such return and all copies thereof or any other material or information which cannot be returned, shall be destroyed completely;

  (ii) Termination of this Agreement shall not relieve any Party of any of its obligations or liabilities and affect the rights and remedies of a Party, which have accrued prior to the date of termination.

  (iii) The provisions of this Agreement contained in Sections 6 (Intellectual Property), 9 (Indemnification), 5 (Representations and Covenants), 11.3 (Consequences of Termination), 12.1 (Jurisdiction) and 12.2 (Dispute Resolution), 12.3 (Notices) shall survive the expiry or early termination of this Agreement.

  (iv) Termination of this Agreement shall not affect any obligations or duties of the Seller and Service Provider towards the End Customer which obligations or duties accrued before the termination of this Agreement.

• Miscellaneous

  1. Jurisdiction: This Agreement shall be governed by the laws of India. Subject to the provisions of Section 12.2 (Dispute Resolution); the courts at Hyderabad shall have the exclusive jurisdiction in respect of any matter or dispute under or connected with this Agreement.

  2. Dispute Resolution

     Any disputes shall first be resolved by reference to arbitration. The arbitration shall be governed by the Arbitration and Conciliation Act, 1996 (as applicable in India) for the time being in force, and/or any statutory modification or re- enactment thereof. The place and seat of arbitration shall be Hyderabad and the language of the arbitration shall be English. The award rendered shall be in writing and shall set out the facts of the dispute and the reasons for the arbitrator’s decision. The award shall apportion the costs of the arbitration as the arbitrator deems fair.

  3. Notices: As set out in Schedule 1.
  4. Assignment

  (i) Seller shall not assign any of its rights, obligations or responsibilities under this Agreement without the prior written consent of Service Provider.

  (ii) The Seller understands, acknowledges and agrees that Service Provider may sub-contract one or more of the Services to any third party including its Affiliates.

  5. Independent Contractors: The relationship between Parties is on principal-to- principal basis. Nothing in this Agreement shall be deemed to constitute either Party a partner, joint venture agent or legal representative of the other Party, or to create any fiduciary, employer-employee relationship between the Parties.
  6. Amendment and evolution of commercial terms on periodical basis: Service Provider may amend this Agreement at any time. All updates and amendments may be notified to Seller on designated electronic mail address. Seller is advised to regularly check for any amendments or updates to the terms and conditions contained in this Agreement, commercial terms and Store policies. It is strongly advised that commercial terms be checked on daily basis as these evolve on regular basis based on certain criteria. Seller’s using Store, Store Services or Service Provider Business after Service Provider’s amendment to this Agreement, commercial terms and Store Policies shall be deemed to be Seller’s unconditional and absolute acceptance of such amendments (effective from the date such amendments were made by the Service Provider). If Seller does not agree to the change or amendments, Seller can cease using the Service Provider Business (except for those Products which have been bought by the End Customers) and may terminate this Agreement as provided in Section 12.2.
  7. Severability: It is the intent of the Parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such provision shall be modified to the extent necessary to render it, as modified, valid and enforceable under applicable laws and such invalidity or unenforceability shall not affect the other provisions of this Agreement.
  8. Waiver: Except as expressly provided in this Agreement, no waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving such provision. No failure or delay by a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by a Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any preceding or subsequent breach of that or any other provision hereof.
  9. Further Assurance: Each Party shall co-operate with the other Party and execute and deliver to the other Party such instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, evidence and confirm their rights hereunder and the intended purpose of this Agreement and to ensure the complete and prompt fulfilment, observance and performance of the provisions of this Agreement and generally that full effect is given to the provisions of this Agreement.
  10. Independent Rights: Each of the rights of the Parties hereto under this Agreement are independent, cumulative and without prejudice to all other rights available to them, and the exercise or non-exercise of any such right shall not prejudice or constitute a waiver of any other right of the Party, whether under this Agreement or otherwise.
  11. Force Majeure: Neither Party shall be responsible or liable for any delay or failure to perform its obligations (other than the obligation of the Seller to pay the Service Provider) under this Agreement due to unforeseen circumstances or any event which is beyond the Party’s reasonable control and without its fault or negligence, but not limited to, acts of god, war, riots embargoes, strike, lockouts, acts of any government authority, power grid failure, fire or floods, pandemic.

• Grievance Officer

  In accordance with Information Technology Act, 2000 and the rules made thereunder, the name and contact details of the Grievance Officer currently is Sunil Shrivatsav with address at Module No. B1 & B2, Quadrant No. 2, 6th floor, Cyber Towers, Madhapur, Hyderabad, Telangana – 500081 with email ID: expert@opendhi.com. Any change shall be communicated on the Store. Service of notice for Dispute Resolution and for purposes other than those which are required under Information Technology Act, 2000 to be given only to the Grievance Officer shall not be valid.