This E-commerce Seller Agreement (“Agreement”) is made and entered into between, Seller as defined in Seller registration form; 

AND

Jaiswal Pharma a sole proprietorship company having its registered office at 13A/4, Ariff road, Muchibazar, Ultadanga Main road, Kolkata-700067  (hereinafter referred to as “Company”), represented by Mr. Raj Gupta of the Second Part.

The above referred Seller and Company are hereinafter collectively referred to as “Parties” and individually as “Party”.

WHEREAS:

1. WHEREAS, Company [and its affiliates] owns and operates an e-commerce business and possess deep experience selling healthcare products to consumers through its multivendor e-commerce platform with url http://www.pharmabag.in (hereinafter referred to as the “E-Commerce Platform”). 

2. WHEREAS, Seller is currently licensed to sell prescription drugs directly to consumers in all states.

3. WHEREAS, the Parties desire to enter into an arrangement whereby Company will use its E-Commerce Platform and expertise to acquire new pharmacy customers as cost-effectively as possible and Seller will use its existing pharmacy infrastructure to ship healthcare related products  (Hereinafter refered to as ‘Products’)to customers acquired by Company.

4. WHEREFORE NOW, in consideration of the mutual covenants and agreements hereinafter set forth, for good and valuable consideration, the receipt and sufficiency of such is hereby acknowledged, and intending to be legally bound hereby, the Parties hereto agree as follows:

NOW THIS AGREEMENT WITNESSETH HEREWITH:

1. Definitions

For the purpose of this Agreement, the following words and phrases shall have the meaning assigned to them under this Article.

1.1. “Company” shall mean Jaiswal Pharma.

1.2. “Customer” shall mean any individual, group of individuals, firm, company or any other entity placing an order for the Products of the Seller through the Online Store.

1.3. “Price” shall mean the cost at which the Products are to be delivered to the Customer inclusive of Shipping charges, if any.

1.4. “Effective Date” shall mean the date on which this Agreement is executed.

1.5. “Form” shall mean Pre-requisite form for Ecommerce Service Agreement to be filled in and executed by the Seller at the time of execution of this Agreement annexed hereto as Annexure “A”.

1.6. “Seller” shall mean the entity incorporated or otherwise more specifically described hereinabove, which sells its products through the Online Store and more particularly described in the attached “Form”.

1.7. “Online Store” shall mean a virtual electronic store created on the online portal for sale of the Seller’s Products either through web site of the Company or any other gadget or instrument displaying the particulars of the Seller’s Products available for sale , or any other means by which the Customer places an Order for the Product of the Seller

1.8. “Order” shall mean an order for purchase of products wherein customer has agreed to purchase the product upon the terms and conditions and at the Price indicated on the online store of the Seller.

1.9. “Products” shall mean items of the Seller put up for sell on the Online Store by the Seller.

1.10 “Price” means the sell price of a product inclusive of delivery charges and applicable taxes.

1.11. “http://www.pharmabag.in” means an online platform owned and operated by the Company that facilitates the shopping transaction between the Seller and the Customer.

1.12. “Shipping Charges” shall mean the logistics/courier/postal charges including all taxes incurred for delivering the product(s) to the Customer.

1.13. “Shipment Cost” shall mean the cost and taxes recovered by the Company from the Seller per order for handling the logistics.

1.14. “Service charge” shall mean the margin per transaction charged by the Company to the Seller at the rates agreed to between the parties, upon the sale of product on online store.

2. Arrangement

2.1. The Company shall offer to the Seller its services for facilitating online sell of the Seller’s product which shall include hosting and technology, customer support, logistics services (if availed by the Seller), payment services and all the other related services to ensure customer satisfaction on behalf of the Seller. For this arrangement, the Seller shall pay service charges as specified under these presents, to the Company for the sell being effected through the Online Store created on the website of the Company.

2.2. Based on mutual discussions, it is agreed by and between the parties hereto that the Seller shall put up for sell its Products on the said Online Store, subject to the terms and conditions hereinafter contained. Seller further agrees and acknowledges that the shopping transaction shall be governed by the “Terms of Use” of E-Commerce Platform (incorporated in this agreement by way of reference and forms part of this Agreement) alongwith this Agreement.

3. Consideration and Payment Terms

3.1. The Company shall collect the Payment on behalf of the Seller in respect of the Orders received through Online Store. In consideration of the services rendered under these presents, the Company shall charge the Services charges to the Seller at the rates as decided between the Parties and documented in writing from time to time. The Company shall pay the seller an amount recovered as Price minus the sum of shipping charges, service charges and packaging cost in respect of approved order(s) through the Online Store. The packaging cost will be levied at a rate mutually decided between the parties and documented in written form. The said Shipment cost will be independent of the Quantity shipped for a transaction by a particular customer. 

3.2. In the event any order is reversed due to “Damaged product”, “Quality Issue”, “Expiry Date Passed”, “Not delivered” or “Wrong Item delivered”, Seller agrees that the Company shall levy the Service charges, plus a penalty (upto a maximum limit of Rs 50000/-) and the said charges will be deducted from the amount due and payable to Seller.

3.3. Further Company shall debit the Service charges (upto a maximum of 5% of the total order value ) to the Seller in the event the product cannot be delivered by the Seller due to “out of stock” and in such an event Seller shall be liable to bear all the cost and claims (including cost of legal proceedings, cost of attorneys, claims, etc.) raised against the Company.

3.4. Payment reimbursement of the sell proceeds to Seller shall be done by Company in the following manner:

3.4.1.      Seller shall prepare a consolidated advice list of all orders delivered to the customer, 4 times in a month for every 7 days.

3.4.2.      The Company shall within 7 working days of receipt of advice process the amount due to Seller and dispatch the Cheques / Demand draft favouring the Seller or through  online transfers.

3.4.3.      The Company shall deduct charges as specified above and agreed with the Seller from the total amount collected as Price for the orders received by the Seller through online store.

3.5. Seller agrees to bear all the applicable taxes duties, or other similar payments (including GST) arising out of the sales transaction of the product through the online store. 

4. Obligations of the Seller

        The Seller shall:

4.1. Through the E-Commerce Platform  or/ and Pharmabag app, the registered Seller, shall upload the product details in the following format-

• Product Name

• Company Name

• Chemical Composition

• Category

• Sub-Category

• Total available quantity

• Min order quantity

• Max order quantity

• MRP

• Expiry date

• Expected Delivery Time (in days)

• GST

• Discount type

• Net rate 

• PTR

• Images (optional)

4.2. Seller shall ensure not to upload any description/image/text/graphic that is unlawful, illegal, objectionable, obscene, vulgar, opposed to public policy, prohibited or is in violation of intellectual property rights including but not limited to Trademark and copyright of any third party. Seller shall ensure to upload the product description and image only for the product which is offered for sell through the Online Store and for which the said Online Store is created.

4.3. Seller shall provide full, correct, accurate and true description of the product so as to enable the customers to make an informed decision.

4.4. Seller shall be solely responsible for the quality, quantity, merchantability, guarantee, warranties in respect of the products offered for sell through their online store.

4.5. At all times have access to the Internet and its email account to check the status of approved orders.

 4.6. On receipt of the approved order, Seller shall dispatch / deliver the products within a period not exceeding 48 hours or within the time as specified in the product description on its product details/ inventory

4.7. In respect of the orders for Products placed through the Online Store, Seller shall submit proof of dispatch to the satisfaction of Company within 12 working hours of the request made by Company.

4.8. In the event the products are not accepted by the Buyer due to any wrong / damaged products dispatched, then the same shall be replaced by the Seller at no extra cost to the aggrieved customer. Since the Company is a Facilitator, the Seller hereby authorizes the Company to entertain all claims of return of the Product in the mutual interest of the Seller as well as the Customer.

4.9. Update the Order Status including Airway Bill Number on a daily basis.

4.10.The Seller shall not send any of its promotional or any other information with the Products ordered by the customer and also shall ensure that no material or literature is sent which may be detrimental to the business/commercial interests of the Company.

4.11.The Seller shall dispatch the Products of the same product details, quality and quantity and price as are described and displayed on the product details/ inventory and for which the  Buyer has placed the order.

4.12. Seller shall raise invoice in the name of Jaiswal Pharma. Seller further undertakes and agrees to raise the invoice of an amount equivalent to the amount displayed on E-Commerce Platform or/ and Pharmabag app to the Buyer  and paid by/charged to the Buyer.

4.13. The Seller shall not offer any Products for sale on E-Commerce Platform  or/ and Pharmabag app, which are prohibited for sale, dangerous, against the public policy, banned, unlawful, illegal or prohibited under the Indian laws.

4.14. The Seller shall ensure that they own all the legal rights in the Products that are offered for sale on E-Commerce Platform or/ and Pharmabag app

4.15. The Seller shall pass on the legal title, rights and ownership in the Products sold to the Buyer.

4.16. Seller shall be solely responsible for any dispute that may be raised by theBuyer relating to the goods, merchandise and services provided by the Seller.

4.17. The Seller shall at all time during the pendency of this agreement endeavor to protect and promote the interests of Pharmabag and ensure that third parties rights including intellectual property rights are not infringed.

4.18. The Seller shall at all times be responsible for compliance of all applicable laws and regulations.

5. Warranties, Representations and Undertakings of the Seller

         The Seller warrants and represents that

5.1. They have the right and full authority to enter into this Agreement with the Pharmabag

5.2. All their obligations under this Agreement are legal, valid and binding obligations enforceable in law.

5.3. There are no proceedings pending, which may have a material adverse effect on their ability to perform and meet their obligations under this Agreement;

5.4. That they are an authorized business establishment and hold all the requisite permissions, authorities, approvals and sanctions to conduct their business and to enter into an arrangement with Jaiswal Pharma. They shall at all times ensure compliance with all the requirements applicable to their business and for the purposes of this arrangement. They confirm that they have paid and shall continue to discharge all their obligations towards statutory authorities.

5.5. That they have adequate rights under relevant laws including but not limited to various Intellectual Property Legislation(s) to enter into this Agreement with Jaiswal Pharma and perform the obligations contained herein and that it has not violated/ infringed any intellectual property rights of any third party. That they shall provide Jaiswal Pharma With copies of any document required by Jaiswal Pharma for the purposes of this performance of its obligations under this arrangement within 24 hours of getting a written notice from the Jaiswal Pharma.

5.6. That the complete product responsibility and liability shall solely vest with Seller and that the Seller shall be solely responsible to the customer for the sale of the Product by Seller including but not limited to its delivery to the Buyer and that Seller shall not raise any claim on the Company in this regard.

5.7. Seller agrees and undertakes not to upload any text, images, graphics (for description and display of product on the online store) that is vulgar, obnoxious, inaccurate, false, incorrect, misleading, intimidating, against the public policy.

5.8. That Seller shall not draw the invoice / bill directly in the name of the Customer.

6. Company reserves the right:

6.1. Seller agrees and acknowledges that Jaiswal Pharma, at all times during the continuance of this Agreement, shall have the right to remove/block/delete any text, graphic, image(s) uploaded on the online store by the Seller without any prior intimation to Seller in the event the said text, image, graphic is found to be in violation of law, breach of any of the terms of this Agreement, terms and conditions of Company Website. In such an event, Jaiswal Pharma reserves the right to forthwith remove/close the online store of the Seller without any prior intimation or liability to the Seller.

6.2. Jaiswal Pharma reserves the right to provide and display appropriate disclaimers and terms of use on Company’s portal.

6.3. At any time if  Jaiswal Pharma believes that the services are being utilized by the Seller or its Buyer in contravention of the terms and provisions of this Agreement, Terms and conditions of use of Pharmabag, Jaiswal Pharma  shall have the right either at its sole discretion or upon the receipt of a request from the legal / statutory authorities or a court order to discontinue/terminate the said service(s) to Seller or Buyer as the case may be, without liability to refund the amount to the Seller to forthwith remove/block/close the online store of the Seller and furnish such details about the Seller and/or its customers upon a request received from the Legal/ Statutory Authorities or under a Court order.

7. Indemnity

7.1.The Seller indemnifies and shall hold indemnified the Company, its directors, officers, employees, representatives, agents from and against all losses, damages, claims, suits, legal proceedings and otherwise howsoever arising from or in connection with any claim including but not limited to claim for any infringement of any intellectual property rights or any other rights of any third party or of law, concerning quality, quantity and any claim in relation to the Seller’s product, the breach of any of the Seller’s warranties, representations or undertakings or in relation to the non-fulfillment of any of its obligations under this Agreement or arising out of the Seller infringing any applicable laws, regulations including but not limited to Intellectual Property Rights, GST, Service tax, the Standards of Weights & Measures legislation, Excise and Import duties, etc . For the purpose of this clause reference to the Company shall also include the Mobile Operators and such other agencies through whom the Company shall make the Online Store available to the Customers.

7.2. This article shall survive the termination or expiration of this Agreement.

8. Company not Liable

8.1. http://www.pharmabag.in/ or/ and Pharmabag app enables Seller to offer the Seller’s products for sale through the said Online Store. This representation is the essence of the Contract.

8.2. The Company shall under no circumstances be liable or responsible for any loss, injury or damage to the Seller, or any other party whomsoever, arising on account of any transaction under this Agreement or as a result of the Products being in any way damaged, defective, in unfit condition, infringing/ violating any laws / regulations /intellectual property rights of any third party. 

Seller agrees and acknowledges that:

8.3. Seller shall be solely liable for any claims, damages, allegation arising out of the Products offered for sale through its online store (including but not limited to quality, quantity, price, merchantability, use for a particular purpose, or any other related claim) and shall hold the Company harmless and indemnified against all such claims and damages.

8.4. Further the Company shall not be liable for any claims, damages arising out of any negligence, misconduct or misrepresentation by the Seller or any of its representatives.

8.5. The Seller hereby agrees, confirms and acknowledges that the Product is owned by the Seller and that the Company is merely a facilitator for sale of the Seller’s Product, hence the Company is not responsible/ liable for the Product, its function and condition manufacturing and selling and financial obligations, warranties, guarantees whatsoever. The Company reserves its right to state appropriate Disclaimers on its website/ online store.

9. Term, Termination and effects of Termination

          9.1. Term:

The Term of this Agreement shall commence on the date of execution of the contract and shall continue  unless terminated with a written notice of 1 month.  

9.2. This Agreement may be terminated by the Company in  the event:

9.2.1. Seller commits a material breach of any representation, obligations, covenant, warranty or term of this agreement and the same is not rectified within 30 days after written notice given by the Company.

9.2.2. If a Petition for insolvency is filed against the Seller.

9.2.3. If the Seller is in infringement of the third party rights including intellectual property rights.

9.2.4. This Agreement may be terminated by either party giving the other 30 days written notice.

        9.3. Effect of Termination:

In the event of termination/expiry of this Agreement, the Company shall remove the Links and shall discontinue display of the Products on Online store with immediate effect.

Company shall not be liable for any loss or damages (direct, indirect or inconsequential)incurred by the Seller by virtue of termination of this agreement.

During the period under notice both the parties shall be bound to perform its obligations incurred under this agreement and this sub-clause shall survive the termination of this agreement.

         10. Special Terms and Conditions:

1. Company will not take any damage or expired goods, nor be liable for it.

2. Company shall  not be  liable for efficacy, or quality of the products, as Company is  neither manufactures, nor direct purchaser.

3. Freight charges of goods associated with Sellers’s products will be borne by the Seller.

4.  Any damage in transportation will not be borne by the company.

5. Any goods being uploaded on the pharmabag website or app and sold by Seller, its originality and efficacy, is Seller’s responsibility, Company shall not be liable in any way.

6. All the products uploaded to sell on the platform by the seller,  should be purchased by the Seller from an authorised stockist only, or Seller should be stockists of the company, either way, keep CNF bill copy of the product, with matching batch and quantity.

7. Any return of goods due to wrong information provided on the e-commerce platform or mobile app of pharmabag, by the seller -wrong batch,Mrp or rate, seller is liable to bear all the cost of return.

8. Seller needs to check and put the expiry of the product,seller has to  bill an accurate batch, while billing, check quantity, as any issues or difficulty or return due to above, the cost and legal consequences to be borne by Seller.

9. Packing must be done properly,it is advisable to use bubble wraps, cellophane, new & correct size corrugated boxes for packing of products, take extra care for blister pack medicines and syrups, tubes, bottles, dispenser products, pack only in bubble wrap.

10. No liability will be taken by company, for any damage of products if not packed accordingly.

11. Goods damaged in transportation/ rain/ natural calamities, will be the whole and sole responsibility of the Seller.

12. It is advisable to both sellers and buyers that packing while despatch and opening while receiving of all packages, to be compulsorily done under a CCTV surveillance, for better problem solving, Company will only believe in what it sees. No grievances without CCTV recording will be entertained.

13. Company, can anyday ask for original CNF invoice of the product sold by Seller on the platform.

14. All the payments and remittances will be managed by the Company, it will, accept advance payments and impart payments from the sellers, depending on the condition.

15. For buyers, their remittance would be done, according to the condition discussed at the time of on boiarding.

         10. Arbitration

10.1. Any dispute arising out of or related to or connected with any provisions under this Agreement shall be referred to the arbitration of a single arbitrator to be appointed jointly by the parties.

10.2. The arbitration shall be conducted in Kolkata in accordance with the Arbitration and Conciliation Act of 1996 or any modification or re-enactment for the time being in force.

10.3. The language of arbitration shall be English. The arbitration shall be held at Kolkata, India.

10.4. The award of the arbitrator or arbitrators as the case may be shall be final and binding on the parties.

11. Jurisdiction and Governing law

11.1. The obligations, performance, interpretation and contents shall be governed by Indian law.

11.2. Subject to the provisions of negotiation and arbitration each Party irrevocably and unconditionally submits to the jurisdiction of Courts at Kolkata.

12. Notices

All notices and other communication under this Agreement shall be in writing and in English and either delivered by hand or sent by telex, fax or courier in each case to the addresses set out at the beginning of this Agreement.

13. Intellectual Property Rights

It is expressly agreed and clarified that, except as specified agreed in this Agreement, each Party shall retain all right, title and interest in their respective trademarks and logos and that nothing contained in this Agreement, nor the use of the trademark / logos on the publicity, advertising, promotional or other material in relation to the Services shall be construed as giving to any Party any right, title or interest of any nature whatsoever to any of the other Party’s trademarks and / or logos.

14. Entire Agreement

This Agreement embodies the entire agreement and understanding of the Parties and supersedes any and all other prior and contemporaneous agreements, arrangements and understandings (whether written or oral) between the Parties with respect to its subject matter.

15. Assignment

Neither this Agreement nor any part of it is assignable, transferable, sub-licensable, subcontractable or conveyable by Seller, either by operation of law or otherwise, without the express, prior, written consent of the Company signed by an authorized representative of such Party.

16.  Confidentiality:

Seller agrees and undertakes to maintain the confidentiality of the information and user/customer data disclosed, generated or made available to Seller under this Agreement.

The said information shall not be used by the Seller for any purpose other than for the performance of its obligations under this Agreement. Seller agrees that the unauthorized disclosure or use of such Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, Seller agrees that the Company shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining breach of this Agreement and/or disclosure of the Confidential Information. Company shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.

17. Limitation of liability:

Under no circumstances, except in case of breach of contract, will either party be liable to the other party for lost profits, or for any indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this Agreement, regardless of the type of claim and even if that party has been advised of the possibility of such damages, such as, but not limited to loss of revenue or anticipated profits or loss business, unless such loss or damages is proven by the aggrieved party to have been deliberately caused by the other party.

18. Relationship of Parties

Nothing in this Agreement will be construed as creating a relationship of partnership, joint venture, agency or employment between the Parties. The Company shall not be responsible for the acts or omissions of the Seller, and Seller shall not represent neither has, any power or authority to speak for, represent, bind or assume any obligation on behalf of the Company.

19. Waiver and Amendment

19.1. No waiver of any breach of any provision of this Agreement constitutes a waiver of any prior, concurrent or subsequent breach of the same or any other provisions, and will not be effective unless made in writing and signed by an authorised representative of the waiving Party.

19.2. Except as expressly set out in this Agreement, no amendment is binding on the Parties unless it is in writing and signed by a duly authorized representative of each of the Parties.

20. Force Majeure

Neither Party shall be responsible or liable for any delay or failure to perform its obligations (other than an obligation to make payment) under this Agreement due to unforeseen circumstances or any event which is beyond that Party's reasonable control and without its fault or negligence, but not limited to, acts of God, war, riots, embargoes, strikes, lockouts, acts of any Government authority, delays in obtaining licenses or rejection of applications under the Statutes, failure of telephone connections or power failure, fire or floods.

This Agreement may be executed in two (2) counterparts, each of which shall be deemed an original and which shall together constitute one Agreement.

In witness whereof the Company has accepted the terms of this agreement in principle and the Seller on clicking on the agree button does hereto give its acceptance to the contents of this agreement.