THIS AGREEMENT (the “Agreement”) is entered BY AND BETWEEN:
MOJOTRACK, a partnership firm duly incorporated under the laws of India and represented by its one of the partners [Jyant Kumar Singh, Kamleshwar Singh, Pradeep Pati Tripathi], having its registered office at 109, Nemai Chatterjee Road, Netaji Subhas Nagar south, Ghola Bazar, Kolkata, North 24 Parganas, West Bengal, 700111 (hereinafter referred to as the “Firm”, which expression shall unless repugnant to the context or meaning hereof be deemed to mean and include its successors and permitted assigns);
The Second Party, accepting the agreement (hereinafter referred to as the “Seller”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to include its successors and permitted assigns).
For the purposes of this Agreement, the Firm and the Seller shall singularly be known as a “Party” and collectively be known as the “Parties” as the context may require.
- The Firm is a partnership inter alia engaged in the business of running and operating digital platforms at http://mojotrack.com and mobile apps, that serve as an e-commerce platform for affinity based merchandise;
- The Seller is interalia engaged in business of social media content creation
- The Seller has approached the Firm for launching the brand as mentioned in the form (A Social Media Handle owned by the Seller on one the social networking platforms ) (hereinafter referred to as the “Brand”). The Brand will have the products inspired by the content which the Seller publishes (“Products”) on the Firm’s mobile app and website mojotrack.com (“Website”), and selling its Products to any user of the Website who places an order on the Website to purchase the Products listed therein (“Customer”); and
- The Firm has agreed to list the Products of the Seller on the Website and the Seller has agreed to register itself as “seller” on the Website, in accordance with terms and conditions as agreed hereunder.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows:
- PAN Card;
- GST Certificate (if applicable) ; and
- Cancelled cheque.
- The Seller shall, as expeditiously as possible, provide any and or all information that may be requested or required by the Firm to register Seller on the Website.
- It shall be the sole liability and responsibility of the Seller to ensure that all or any information provided at the time of registration is true and correct. The Firm shall not in any way be held responsible for any incorrect or untrue information provided by the Seller at the time of registration. It is clarified that if in case of any incorrect or untrue information furnished by the Seller, the Firm shall reserve right to deny or revoke the registration at any time in its sole discretion.
- Listing Guidelines
- The Seller represents and undertakes that it shall not provide any design or item or link or post any related material that (a) infringes any third party Intellectual Property rights such as copyright, patent, trademark, service mark, trade secret and/or other proprietary rights, rights of publicity and/ or privacy; or (b) constitutes libel or slander or is otherwise defamatory; or (c) is counterfeited, illegal, stolen, or fraudulent; or (d) is abusive or inappropriate (sexually or otherwise). The Seller shall be solely responsible for any legal action brought by a third party in case of any violation of the listing guidelines. Further, the Seller shall at all times during the duration of the Agreement keep the Firm fully indemnified and hold harmless for or against any third party actions brought against the Firm due to breach of any of the foregoing conditions.
- The Firm shall be responsible to ensure real time availability of Products listed on the Website, subject to scheduled maintenance or technical downtime of the Website.
- The Firm shall have the right to determine the content, appearance, design, logo, functionality and all other aspects of the Website and the services related to it (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Website and the services and any element, aspect, portion or feature thereof, from time to time), and to delay or suspend listing of, or to refuse to list, or to de-list, or to require the Seller not to list, any or all products at its sole discretion.
- It is herein agreed to by the Parties that at the time of delivery, if the Product delivered to the Customer is found to be of a quality inferior to that of the sample, the Firm shall be solely responsible to refund any amount that it may have received from the Customer.
- Cancellation Policy
- The Firm reserves the right to cancel the orders from the Customers where:
- the Product is no longer available with the Firm or temporarily out of stock;
- limitations on quantities available for purchase;
- inaccuracies or errors in Product or pricing information;
- inaccurate or incomplete address;
- non-serviceable locations; or
- any other reason beyond reasonable control of the Firm.
- The Firm, at its sole discretion, reserves the right to cancel any orders if any of the aforementioned situations warrant cancellation of the same. The Firm shall notify the Customer and the Seller of any such cancellation specifying the reasons for the same.
- Order Management Policy
- On receipt of the Order from the Customer, the Firm shall make the necessary Product ready for dispatch within the timeline as indicated by the Firm for dispatch of such Product while listing the Product (“Dispatch Time”).
- The Order shall be delivered by the Firm using a delivery partner (as decided and chosen by the Firm) to the Customer’s desired point of delivery.
- It is herein clarified that once the Order has been handed over to the delivery partner; the Firm shall not be liable or responsible for any delay in delivery of the Order to the Customer.
- Payment and Invoicing Terms
- Firm shall raise a valid invoice as per GST on the Customer and send the invoices to the Customers as prescribed under GST law.
- The Firm shall collect all the payments on behalf of the Seller for the Products listed on MOJOTRACK.
- For the services mentioned above, the Seller shall get a commission of 10% on the gross amount of the Product/services sold through MOJOTRACK. GST on commission will be charged extra as applicable.
- The Firm shall remit the payments received on behalf of Seller after deducting its commission charges, delivery fees and packaging fees and the applicable taxes as notified by the government from time to time.
- The Firm shall provide a detailed report which has a complete list of items sold, customer name, gross amount, tax amount, Order ID, commission amount etc. on the email and panel, as provided by the Firm to the Seller.
- The Seller shall reconcile the report with their database. In case, there is a discrepancy, the Seller shall communicate the same in writing to the Firm.
- Firm shall reimburse to the Seller all the amounts paid by the Seller to discharge its TDS liability. Seller will have to produce valid TDS certificate for claiming that reimbursement.
- In case of any issues or challenges causing any delay in payments, MOJOTRACK shall keep the Seller informed.
- Seller’s Obligations
The Firm and the Seller have agreed that the Seller shall be subject to the following obligations (hereinafter referred to as “Seller’s Obligations”):
- The Seller agrees that it will not launch any other lifestyle brand with any other platform for the next 10 years starting from the Effective Date.
- Any content to be posted by the Seller on its website with reference to Mojotrack shall be pre-approved by the Firm in writing. The contents, being uploaded, shall not be obscene, defamatory or scandalous in any manner, or capable of hurting the religious sentiments of any segment of the population, or infringing any Intellectual Property rights;
- Seller shall ensure back link to Mojotrack on every post by the Seller on all channels (by #tag or Website Link)
- Seller shall participate in at least one (1) monthly event organized by the Firm.
- Seller shall have no objection on the launch of the partnered brand on any platform or channel by the Firm. Firm shall be liable to pay the commission as mentioned in the Payment and Invoicing Terms.
- Seller shall give free and unhindered access to the Firm to its content for promotion by the Firm.
- Confidentiality and Information Security
- Any and all details, documents, data, applications, software, systems, papers, statements, business/Customer information and the Firm’s practices and trade secrets (“Confidential Information’’) which may be communicated to the Seller and /or its employees by the Firm shall be treated as absolutely confidential. The Seller irrevocably agrees and undertakes that the Seller and all its employees shall keep the same secret and confidential and not disclose the same, in whole or in part to any person without the prior written permission of the Firm. The Seller shall take all necessary action to protect Confidential Information against misuse, loss, destruction, deletion and/or alteration.
- The Seller shall not, directly or indirectly, misuse or permit misuse of or commercially exploit, disintegrate or disseminate the Confidential Information for any purpose whatsoever.
- The Seller shall not make or retain any copies or record of any Confidential Information submitted by the Firm other than as may be required for fulfilling the Seller’s Obligations or required by law.
- The Seller shall return all the Confidential Information which is in the custody of the Seller immediately upon termination or expiry of the Agreement, whichever is earlier.
- The Seller hereby unconditionally agrees and undertakes that the Seller and its personnel shall not disclose or publish the terms and conditions of this Agreement or disclose any Confidential Information of the Firm under this Agreement to any third party, except to any local or central regulatory/statutory authority and if such disclosure is required by law.
- The Seller shall procure from its employees and from such other staff as the Firm may require, an undertaking not to disclose to any third party, any Confidential Information concerning the business of the Firm. The Seller shall take such steps at the Seller’s own expense as the Firm may direct in order to enforce or restrain any breach of the terms of any such undertaking. The Seller shall immediately inform the Firm of any disclosure that is in contravention of this Clause 6by the Seller or any of its employees.
- The Seller shall identify and clearly isolate any and all information provided by the Firm from information of other parties. The Firm reserves the right to monitor any and all security practices and control processes employed by the Seller at any time. The Seller shall immediately report any security concern or breach to the Firm.
- Upon termination /expiry of the Agreement, whichever is earlier, the Seller shall be obliged to and shall deliver to the Firm all Confidential Information and material in their possession and/or in the possession of sub-contractors of the Seller or its employees which is capable of being delivered such as reports, records etc. The Seller shall delete, erase, or otherwise destroy any Confidential Information and material contained in its computer memory, magnetic, optical, laser, electronic, or other media in its possession or control which is not capable of delivery to the Firm, and certify such destruction to the Firm in writing.
- Representations and Warranties
- Both Parties confirm that they are duly organised, validly existing, and in good standing under the laws of India and have full corporate power, license and authority to enter into this Agreement and to perform its obligations therein without infringing the rights of any third party and without violating any law.
- The Seller herby represents and warrants that:
- the Seller shall at all times abide by the terms and conditions of this Agreement and all of the Firm’s policies;
- during the term of this Agreement, the Seller’s Products listed on the Website will not be listed on any other website at a price less than the selling price on the Website;
- unless otherwise specified, the Seller shall not transact with the Customer directly at any point in time;
- the contents of the Products, text or images, being uploaded on the Website, shall not be obscene, defamatory or scandalous in any manner, or capable of hurting the religious sentiments of any segment of the population;
- the Seller shall not use any Intellectual Property of the Firm’s in any manner without its prior written consent; and
- the Seller shall make no statement, representation or claim and shall give no warranty or undertaking under this Agreement to any person for or on behalf of the Firm, save as may be specifically authorised in writing by the Firm.
- Intellectual Property Rights
- For the purpose of this Agreement, "Intellectual Property" shall mean inventions (whether patentable or not), patents, utility models, trademarks, service marks, logos, trade names, domain names, database rights, design rights, rights in know-how, trade secrets, copyrights, moral rights, topography rights and rights in databases in all cases and any other intellectual property or proprietary rights, in each case whether registered or unregistered and including applications for the registration or grant of any such rights and any and all forms of protection having equivalent or similar effect anywhere in the world, for the full term of such rights including any extension to or renewal of the terms of such rights.
- The Seller represents and warrants that it owns or otherwise controls all of the rights to the content that the Seller submits to the Firm, and that the use of such materials by the Firm will not infringe upon or violate the rights of any third party. The Parties agree that all consequent liability for violation of this covenant will be borne by the Seller only.
- The Seller, by entering into this Agreement, grants to the Firm, a limited, non-exclusive and royalty-free license to use the Seller’s name and trademark/copy rights/ designs/logos and other Intellectual Property owned and/or licensed by it, for the purpose of this Agreement and reproduction on the Website, any of the Firm’s advertising materials and such other places as the Firm may deem necessary.
- The Seller shall ensure that it has the requisite rights and capacity to grant a license to the Firm and all the approvals and/or licenses pertaining to display of third party brands and logos and does not violate Intellectual Property rights of any third party including copyright, patent, trademark, service mark, trade secret and/or other proprietary rights, rights of publicity and/ or privacy.
- Nothing in this Agreement will prevent or impair the Firm’s right to use without the Seller’s consent the content and any other materials provided by the Seller, to the extent that such use is allowable without a license from the Seller under applicable law.
- Except for rights expressly granted under this Agreement, nothing in this Agreement will function to transfer any of the Firm’s Intellectual Property rights to the Seller, and the Firm will retain exclusive and sole interest, rightsand ownership over its Intellectual Property developed before or during the Term of this Agreement or developed outside the scope of this Agreement.
Term and Termination
- Unless terminated as provided herein below, this Agreement shall be valid for  year(s) from the Effective Date (“Term”) and may be extended for such additional term as maybe mutually agreed to between the Parties in writing. Provided however that there shall be a lock-in-period of one (1) year from the Effective Date (“Lock-in-Period”), wherein Seller shall not be entitled to terminate this Agreement. The Parties agree that owing to exclusive nature of this Agreement the foregoing condition of Lock-in-Period is reasonable in nature
- Subject to the foregoing clause, this Agreement may be terminated by:
11.2.1 Seller with cause by providing a written notice of six (6) months to the Firm. However, prior to termination by the Seller, the Seller shall give a notice in writing to the Firm to cure the Firm’s breach within 30 (thirty) calendar days from the date of such notice and in case, the same is not made good, the above right of the Seller shall fructify.
11.2.2 Firm without cause by providing a written notice of three (3) months to the Seller.
11.2.3 Firm upon a written notice of thirty (30) days to the Seller in case of any breach of representations, warranties, covenants or any other condition of this Agreement.
- Upon termination of this Agreement, all rights, obligations and liabilities of the Parties hereto accrued up to and including the date of such termination and those rights, obligations or liabilities of the Parties stated to survive the termination of this Agreement shall not be affected thereby.
- The Seller shall indemnify, defend and hold harmless the Firm, its directors, officers, employees and shareholders against any/all claims, liabilities, damages, losses (whether financial, reputational or otherwise), costs, charges, expenses (including reasonable legal fees), legal proceeding and action of any nature whatsoever made or instituted against or caused to or suffered by the Firm that may arise out of any one or more of the following:
- Seller’s breach of its representations, warranties, covenants and obligations hereunder;
- misappropriation, misuse or damages of or any documents/ information which is either in the actual or the constructive possession of the Seller or its employees;
- Seller’s breach of Confidential Information;
- any wrongful misconduct, incorrect, dishonest, criminal, fraudulent act or negligence by the Seller or any of its employees;
- any breach, violation or non-compliance on the part of the Seller or its directors or employees or agents, of any statutory provisions and applicable laws including any rules, regulations, bye-laws and lawful directions of any governmental instrumentalities or public authorities; and
- any claim by the employees of the Seller
- The Seller acknowledges that the data as well as documents provided by the Firm are of a sensitive nature and are difficult to replace. The Seller agrees to release, indemnify, defend and hold Firm harmless from and against any and all liability, loss, and expense (including reasonable attorneys’ fees) or claims for injury or damages arising out of or resulting from, or that are alleged to arise out of or result from, the actions or omissions, including but not limited to claims resulting from loss or damage to such documents or unauthorized disclosure of such documents, by Seller or of any of its officers, agents, employees in connection with this Agreement.
- The Firm shall have no liability whatsoever for any injury to the Seller and /or its employees caused or suffered while performing its obligations under this Agreement.
- Notwithstanding anything to the contrary contained in this Agreement, the total and aggregate liability of the Firm arising under this Agreement shall be limited to a maximum of the total Agreement value.
- This Agreement is on a principal-to-principal basis. This Agreement does not create nor shall be deemed to create any employer-employee or principal-agent relationship between the Seller and/or sub-contractor and the Firm.
- It is clearly understood and agreed that all sub-contractors of the Seller are the employees and/or personnel of the Seller and that all such sub-contractors are the sole responsibility of the Seller.
- The Seller shall fully comply with all legislative, regulatory and/or other government requirements, as required, and further undertakes that being completely responsible and liable in all respects for and to its sub-contractors, it shall timely pay, make good and settle all salaries, wages, benefits, compensation and claims relating to and/or in respect of the sub-contractors and that the Firm shall not be construed to be the principal employer/employer in respect of the sub-contractors of the Seller under any laws or regulations.
- The Seller shall not by any act, deed or otherwise, represent to any person that the Seller is representing or acting as agent of the Firm except as may be expressly permitted in writing by the Firm.
- The Seller shall not use the name and logo of the Firm for any reason whatsoever, unless expressly authorised in writing by the Firm.
- Public Statements
The Seller shall not, without the prior written consent of the Firm, issue press releases, marketing literature, public statements, or in any way engage in any other form of public disclosure relating to this Agreement. The Seller further agrees not to use the Firm's name or trademarks or otherwise imply any endorsement by the Firm, without first obtaining the Firm’s prior written consent, which the Firm in its sole discretion may give or may not give.
The Parties agree that this Agreement is non-exclusive in nature and the Firm reserves the right to enter into similar transactions with any entity or individual, whether or not they are the competitors of the Seller. Provided, however, that the Seller will not engage or tie-up with any third party performing same or similar services as that of the Firm under this Agreement, unless the Firm is notified of same in writing by the Seller by advance notice of sixty (60) days.
- Limitation of Liability
In no event shall the Firm, its officers, directors, employees, partners or agents be liable to the Seller or any third party for any special, incidental, indirect, consequential or punitive damages whatsoever, including those resulting from loss of use, data or profits. In case the law prohibits complete exclusion of liability, the Firm’s aggregate liability (whether under contract, tort including negligence, warranty or otherwise) and that of its affiliates shall be limited to the marketing fees paid to the Firm by the Seller for the last month.
- Force Majeure
Neither Party shall be liable for failure to perform its obligations under this Agreement to the extent such failure is due to causes beyond its reasonable control. In the event of a force majeure, the Party unable to perform shall notify the other Party in writing of the events creating the force majeure and the performance obligations of the Parties will be extended by a period of time equal to the length of the delay caused by force majeure; provided that if any such delay exceeds ninety (90) days, then following such ninety (90) days period, either Party hereto may terminate the unperformed portions of this Agreement on thirty (30) days prior written notice to the other Party. For the purposes of this Agreement, “force majeure events” shall include, but not be limited to, acts of God, systems and communications breakdowns, failures or disruptions, orders or restrictions, war or warlike conditions, hostilities, sanctions, mobilizations, blockades, embargoes, detentions, revolutions, riots, looting, strikes, stoppages of labour, lockouts or other labour troubles, earthquakes, fires or accidents.
- Time of The Essence
Time is of the essence in respect of any time, date or period specified either in this Agreement or in any notice or other communication served pursuant to this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then the remainder of this Agreement shall remain in full force and effect.
Neither Party shall assign this Agreement, or any right or obligation hereunder, to any third party without the prior written consent of the other Party.
The waiver of any term, condition, or provision of this Agreement by either Party must be in writing. No such waiver shall be construed as a waiver of any other term, condition, or provision except as provided in writing, nor as a waiver of any subsequent breach of the same term, condition, or provision.
Any notice under this Agreement shall be in writing and shall be sent by registered post A.D to the Seller or the Firm at their respective addresses mentioned hereinabove and for proving transmission, it shall be sufficient to show that the envelope containing the notice was properly addressed and posted.
Any clauses relating to indemnity, confidentiality, limitation of liability and any other provisions that by their nature are meant to survive, shall survive the termination of the Agreement or expiration of the Agreement, to the extent required for the full observation and performance of the Agreement by the Parties in accordance with its terms.
This Agreement supersedes all previous understanding, agreements, correspondences, etc. on this subject between the Parties hereto.
Subject to clause 26, any difference or dispute between the Parties arising under this Agreement shall be resolved amicably. In case the Parties fail to resolve their disputes amicably, the same shall be referred to arbitration. Each Party shall nominate one arbitrator and the arbitrators so appointed shall appoint the third Arbitrator. The arbitration proceedings shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 (including any amendments thereto). The arbitration shall be held at Bangalore and the proceedings shall be held in English. The arbitration award shall be final and binding on the Parties.
- Governing Law and Jurisdiction
This Agreement shall be governed by the laws of India and the courts of Bangalore, India shall have exclusive jurisdiction over any disputes hereunder.
No modification, amendment or supplement to this Agreement shall be effective for any purpose unless in writing, signed by each Party.