VENDOR AGREEMENT

THIS VENDOR AGREEMENT (THE “AGREEMENT”) IS A COMPUTER GENERATED ELECTRONIC RECORD AND DOES NOT REQUIRE ANY PHYSICAL OR DIGITAL SIGNATURES.

 

PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. THESE TERMS AND CONDITIONS ARE A BINDING CONTRACT BETWEEN GULLYBUY SOFTWARE PRIVATE LIMITED, A COMPANY REGISTERED UNDER THE LAWS OF INDIA, HAVING ITS REGISTERED OFFICE AT 101, TURAJA APARTMENTS, K.G. PAWAR MARG, S. NO. 16/5 ERANDWANE, PUNE 411004 (THE “COMPANY”) AND YOU, AN INDIVIDUAL OR AN ENTITY WHO HAS SUBSCRIBED TO THE MOBILE APPLICATION FOR FACILITATING THE ONLINE SALE OF ITS GOODS TO VARIOUS CONSUMERS THROUGH SUCH MOBILE APPLICATION (“YOU”, “YOUR”, “VENDOR”). THIS AGREEMENT IS EFFECTIVE UPON ACCEPTANCE AND SHALL GOVERN THE RELATIONSHIP BETWEEN THE VENDOR AND THE COMPANY. IF THESE TERMS CONFLICT WITH ANY OTHER DOCUMENT/RECORDS, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL PREVAIL UNLESS AND UNTIL FURTHER CHANGES/MODIFICATIONS ARE NOTIFIED IN WRITING BY THE COMPANY.

 

This Agreement provides and captures important legal information about the license to the Company’s proprietary automated solution referred to as the App (as defined below) and YOUR usage, and access of the App including technical support through a web-based service provided by the Company.

BY ACCEPTING THIS AGREEMENT, BY CLICKING ‘I AGREE’ (OR OTHER SIMILAR) BUTTON OR BY USING THE APP, YOU AGREE TO THE TERMS OF THIS AGREEMENT and YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY, THEN PLEASE REFRAIN FROM CLICKING ‘I AGREE’ (OR OTHER SIMILAR) BUTTON OR USING THE APP. 

In order to use the App, you need to (a) be 18 years or older; (b) have the power to enter a binding contract with us and are not barred from doing so under any applicable laws. By registering to and/or installing the App, you represent to the Company that you are at least 18 years old.

If You are entering into this Agreement on behalf of a company or other legal entity, You hereby represent that You have the authority to bind such entity to the terms and conditions of this Agreement and, in such an event, “YOU” “YOUR” OR “VENDOR” as used in this Agreement shall refer to such entity. If You do not have such an authority or do not agree to the terms of this Agreement, then You must not accept this Agreement and use the App. 

If You are a competitor of the Company, You shall not access or use the App, except with a prior written consent of the Company. In addition, You shall not access or use the App for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

1. DEFINITIONS:

1.1 “App” shall mean a proprietary mobile application of the Company, namely, GullyBuy, an online platform that provides a ‘click pe kirana’ service, which facilitates the buying and selling of various Goods (as defined below) by connecting various Vendors with Customers (as defined below).

1.2 “Customer(s)” shall mean the consumers who purchase Goods online from various Vendors using the App.

1.3 “Goods” shall mean any product, including Medicines offered by a Pharmacy, that is made available for sale, offered for sale or sold by the Vendors, through the App.

1.4 “Force Majeure Event” means any events not within the reasonable control of a concerned person including without limitation, fire, flood, atmospheric disturbance, lightning, storm, typhoon, tornado, earthquake, landslide, soil erosion, subsidence, washout, or pandemic or epidemic or other acts of God, war (whether declared or undeclared), blockade, insurrection, rebellion, mutiny, civil commotion, riot, acts of public enemies or civil disturbance, strike, lockout, or other industrial disturbance, affecting a person, any non-discriminatory acts of government, or compliance with such acts, which directly affects that person’s ability to perform its obligations, if the non-performing Party is without fault in failing to prevent or causing the default or delay, and the default or delay could not have been prevented or circumvented by the non-performing Party through the use of alternate sources, workaround plans or other reasonable precautions.

1.5 “Internet Convenience Fee” shall mean a fee that may be charged by the Vendor to the Customer for the purpose of receiving and servicing orders received on the App.  

1.6 “Medicines” shall mean medicines, including Over the Counter Medications, prescription medicines and other goods generally available at a Pharmacy. 

1.7 “Pharmacy(ies)” shall mean a pharmacy, chemist, drug store or medical store registered under the provisions of The Pharmacy Act, 1948 or other applicable laws, which is authorised to sell Medicines. 

1.8 “Registered Practitioners” shall mean any person permitted to practice medicine by the MCI (Medical Council of India) or any regional council for registration of Doctor/registered medical practitioners duly authorized by the government.

1.9 “Term” shall mean the duration for which the Vendor provides the services to the Customers through the App.

2. REGISTRATION AND SERVICES: 

2/.1 The Vendor shall subscribe to the App by providing its accurate details and information including the name of the entity/shop, address, shop license number, etc. as may be required by the Company through the App. As a pre-condition for using the App, Vendor shall be required to register itself with the Company through the Vendor’s a mobile phone by providing the mobile number and authenticate it using a One Time Password (OTP) and/or provide your email ID and validate it (the “Account”). The Vendor agrees to provide accurate and correct information to the Company about its name, registration details, approvals and permissions, etc. that it possesses, and the Company shall not be liable for any inaccuracy and/or misrepresentation, etc. by the Vendor regarding the same.   

2.2 Upon such subscription by the Vendor and subject to terms and conditions of this Agreement, the Company grants to the Vendor during the Term, a fixed-term, non-exclusive, non-transferable, revocable, non-sub licensable, limited license to use the App and access the App for facilitating the online sale of its Goods to various Customers. In consideration of the license to access and use the App, the Vendor agrees to sell and deliver the Goods through the App, to the Customers in accordance with the terms and conditions set forth herein.

2.3 The Vendor shall not be required to display details of all the Goods (which it desires to offer for sale online) on the App. However, the Vendor may choose to list the Goods that the Vendor intends to offer at a ‘special price’ or to further enable the Customers to select the Goods, place orders and purchase such Goods through the App. If the Vendor displays a list of Goods on the App, the Vendor shall ensure to update the correct description of the Goods including brand-name, images, catalogue, brand visualization, stock-on-hand and other related information (“Goods Information”). Solely the Vendor shall be responsible for updating the Goods Information and shall ensure that the Goods Information is accurate and complete. In the event of any claims on the Company in relation the Goods Information, pricing or mismatch of the Product with the description, resulting in complaints, the Vendor shall be responsible for resolution of such claims and shall bear all costs and expenses in relation to resolution of such claims, whether threatened against the Company or incurred by the Company and shall keep the Company indemnified in this regard.

2.4 The Vendor shall ensure that any advertisements, promotions and/or other marketing information that the Vendor displays through the App shall be free of any content that may be illegal, offensive, pornographic, defamatory, libelous, or of a like nature.

2.5 The Vendor agrees to the below terms and conditions pertaining to Rewards/ Cashback:

2.5.1 The Company reserves the right to launch and withdraw its Rewards/ Cashback program, as per the Company’s policies, as modified from time to time.

2.5.2 In the event of any Vendor being indulged in any suspicious or fraudulent activities without any notice/intimation withdraw the Rewards/ Cashback benefits accrued to the account of such Vendor.

2.5.3 The unclaimed Rewards/ Cashback benefits will expire as per the Company policies.

2.5.4 The Company does not assure or guarantee any Rewards/ Cashback benefits.

3. ORDER AND DELIVERY:

3.1 Once the Customer places an order for the Goods through the App, the Vendor shall have the option to either accept or decline or ignore such order on the App. Once an order is accepted by the Vendor, the Vendor cannot revise or deny the order and would have to compulsorily deliver the Goods to the Customer. The Vendor can indicate if any items cannot be supplied at the time of order acceptance but can make further changes to the order only with the consent of the Customer as recorded in the App. Any failure of the Vendor to deliver the Goods in accordance with the order shall be considered as a material breach of this Agreement by the Vendor and the Vendor shall indemnify and hold harmless the Company from any claims arising therefrom. 

3.2 Upon acceptance of the Order, the Vendor shall confirm the total amount payable for the items that will be supplied. The Vendor shall endeavor to indicate the price for each item but is not required to do so. The detailed breakup of the total amount payable may be provided to the Customer along with the Goods at the time of delivery or pickup. 

3.3 In case the Customer has opted for the online mode of payment for the order, the Vendor must indicate the total amount payable as soon as possible after acceptance of the order. The Customer shall also expeditiously pay the amount online, so that the Vendor can prepare for delivery or pickup. 

3.4 Upon acceptance of the Order and if the Customer has opted for a doorstep delivery of Goods, the Vendor shall deliver the Goods to the Customer within the time frame proposed by the Customer on the App, at the delivery address mentioned under the order in a merchantable and consumable condition. The Vendor shall be solely responsible for the timely delivery of the Goods at the Customer’s doorstep, unless pick up of the Goods is undertaken by the Customer. The Vendor shall ensure that there is no delay in dispatch of the Goods to the Customer and shall, in advance, provide the lead time (if any) to Customers for any changes in the delivery schedule. At all times, the Vendor shall deliver the Goods within the timelines that have been communicated to the Customer.

3.5 The Company provides Vendors with an option in the App to enable a Payment Gateway for online payments by Customers. Vendors who opt for this option agree to pay a Fee (hereinafter referred to as “Transaction Fee”) charged by the Payment Gateway provider as noted in Annexure A. The Transaction Fee shall be deducted from the amount paid by Customer for each order and the net amount shall be paid to the Vendor.    

3.6 The Company provides Vendors with an option in the App to use the services of an independent third-party logistics service provider (hereinafter referred to as ”Delivery Partner”) to pick up and drop off  packages from the Vendor location to the Customer location. Any Vendor who wants to use this option must first select the Payment Gateway option in the App as discussed in clause 3.5. Vendors who select both options get access to one or more Delivery Partners for the doorstep delivery of Goods for selected Customer Orders. In case the Vendor is unable to provide delivery through his own staff, he can now opt for a Delivery Partner in the App. For orders to be delivered by a Delivery Partner, the following additional terms and process shall apply:

3.6.1 The App will obtain the payment to be charged by the Delivery Partner (hereinafter referred to as “Delivery Fee”) for the delivery of Goods between the Vendor and Customer locations. This amount will be displayed and included in the total amount payable for the order. 

3.6.2 The App shall inform the Customer that delivery will be made through a Delivery Partner and therefore it is mandatory for the Customer to pay online and in advance for the total amount payable inclusive of the Delivery Fee. Order fulfilment and delivery will be initiated only upon receipt of full payment.  

3.6.3 The App will utilize the Payment Gateway to transfer the payment from Customer directly to the Vendor’s account for the order amount excluding the Transaction Fee and Delivery Fee. The Transaction Fes shall be retained by the Payment Gateway. The Delivery Fee shall be routed directly to the Delivery Partner account on behalf of the Vendor. 

3.6.4 The App shall confirm the Delivery Fee payment to the Delivery Partner and request for initiating pick-up of from the Vendor location for delivery to the Customer location. 

3.6.5 In case there is any problem with the delivery of the Goods properly to the Customer, any resulting dispute shall be resolved by the Vendor and any resulting refund thereof (Vendor to Customer, or Delivery Partner to Vendor) shall be settled by the Vendor directly with Customer or Vendor as applicable.   

3.6.6 It is understood and agreed by Vendors that Company will merely act as an intermediary between Vendors and Delivery Partners to facilitate order delivery and payment thereof to the Delivery Partner using App. Company shall not be held responsible or liable for any liability in relation to use of delivery services from Delivery Partners by Vendors. 

3.7 In case the Customer has opted for online payment for the order and doorstep delivery of Goods but has not paid the order amount prior to the agreed delivery time, it will be up to the Vendor to decide whether to still deliver the Goods. Since the Customer will pay the Vendor directly, the recovery of payment from Customer shall be entirely the responsibility of the Vendor and the Company shall not be responsible and/or liable for the same.  

 

3.8 Cash on Delivery or Credit: In case the Customer opts for the ‘cash on delivery’ (COD) or credit or ‘khata’ mode of payment for the Goods, it shall be the Vendor’s responsibility to populate the total amount payable by the Customer for such order in the App. The Vendor shall ensure the accuracy of the order value entered into the App for the COD and credit mode of payments. Also, it will entirely be the Vendor’s responsibility to collect the cash (for COD), including any fee charged to the Customer by the Company, and maintain the credit/khata for the user.  

3.9 The Vendor understands and acknowledges that all sales are binding upon the Vendor and the Vendor is under an obligation to deliver all the orders which have been accepted for delivery by the Vendor. 

4. GOODS:

4.1 The Vendor shall ensure that the Goods delivered are as per the specifications selected by the Customer on the App and there is no variation whatsoever. The Vendor shall strictly adhere to the instructions provided in by the Customers.  

4.2 The Vendor shall be solely liable to ensure that the Goods are in the nature, quality and quantity, in accordance with the order placed by the Customer on the App.  The Vendor shall ensure that the Goods to be delivered or collected by the Customer possesses the relevant packaging, brand-names, tags, leaflets, labelling, documents (if any), pricing (including maximum retail price) in accordance with applicable laws, at the time of delivery to the Customer.

4.3 The Vendor shall ensure that the Goods delivered to the Customer are of a good quality and are delivered in a merchantable and consumable condition.  In no event, the Vendor shall sell or deliver any spurious, duplicate or sub-standard Goods or Goods which are tampered with or spoilt in any way. The Vendor shall deliver the Goods (which consists of a specific packaging from its manufacturers) in an as is manner and shall in no event deliver any Goods without its relevant packaging materials.  

4.4 The Vendor shall ensure that no Goods which have crossed the ‘use by’ date or the expiry date are delivered to the Customer. 

4.5 The Vendor shall ensure that the price stated for all Goods must be an accurate representation of the sale, and the Vendor shall not alter such price in order to avoid and/or circumvent the charges levied by the Company, etc. 

5. RETURN OR REJECTION OF GOODS:

5.1 Since the Company is merely providing the App for facilitating the transactions of buying and selling between the Vendor and the Customers, any return and refund of the entire order or part of it is to be mutually decided and agreed between the Vendor and the Customer. However, this section specifies the minimum return and refund policy and procedure to be followed by the Vendor.

 

5.2 The Vendor agrees that the Customer may reject/return or seek replacement of Goods delivered because of any defects in the Goods, failure of the Goods to conform to the specifications, if the Goods are in a damaged condition or contains inadequate packaging/labelling or for the Customer’s convenience at its sole discretion. The Vendor shall not refuse to take back Goods or refuse refunds, if such Goods are defective, deficient, or if they do not meet the specification of the Customer’s requirement which was communicated to the Vendor. In such an event, the Vendor shall not be entitled to any consideration for such returned/rejected Goods and the Vendor shall:

5.2.1 If the Customer opts to return and/or reject any particular order or a part of it before 10 am the next working day after the Goods are delivered, the Vendor shall accept such return and/or rejection without demur and shall refund the amount paid by the Customer for any such returned and/or rejected Goods to the Customer. 

       In the event of occurrence of any dispute with a Customer wherein a police complaint or criminal complaint is filed, within 24 hours, the Vendor shall inform to the Company the details of such complaint and the action plan to resolve/ handle it.

        It is the responsibility of the Vendor to independently settle any dispute with the Customer through negotiations, or any other channels as mutually deemed fit by the Vendor and the Customer in relation to the refund and the Vendor shall not hold the Company responsible and/or liable in any manner whatsoever.  

5.2.2 If the Customer seeks a refund beyond the refund period as stated hereinabove, such refund(s) shall be negotiated and settled by and between the Vendor and Customer, and neither party shall hold the Company responsible and/or liable for the same in any manner whatsoever.

5.3 If the Customer seeks any replacement of Goods, the Vendor may replace such Goods at its own cost and shall not hold the Company responsible in any manner whatsoever. 

5.4 Any reverse pickup of the Goods which are rejected/returned or sought to be replaced by the Customer shall be the sole responsibility of the Vendor.

5.5 If the actual Goods do not match the description and/or images of the Goods as depicted on the App, and the Customer raises any complaint/grievance with regard to the same, the Vendor agrees to refund any amounts that it may have received from the Customer for such Goods.

5.6 The Vendor understands and acknowledges that the Company is merely providing a platform, in the form of the App, for facilitating the transactions of buying and selling between the Vendor and the Customer. The Vendor understands and acknowledges that the provision of the said platform by the Company does not, in any way, establish the Company as a provider/seller of the Goods or delivery services.   

6. CANCELLATION OF ORDERS:

The Vendor understands that the Customer is entitled to cancel any orders any time before the delivery for his/her own convenience. The Company shall have no responsibility whatsoever for any inconvenience and loss that the Vendor may incur from such a cancellation. 

7. PAYMENT:

7.1 The Vendor shall provide the total amount payable by the Customer for the order received on the App to enable the Customer to make payment. The Vendor is encouraged to either indicate the price for each item in the App itself or provide the item-wise bill for the Goods ordered by the Customer and the applicable GST, etc. at the time of pickup or delivery.

7.2 The App shall add an Internet Convenience Fee to the amount payable by the Customer as noted in Annexure A. GST and other taxes as applicable shall be added to the Internet Convenience Fee. The Vendor shall pay the Company Fees (term defined in Annexure A) to the Company, in accordance with the provisions set out in Annexure A hereto.

7.3 Parties acknowledge that the Customer will pay the Vendor directly for the Goods ordered through the App with any mutually agreed payment method (cash, online payment, credit etc.). It shall be solely the Vendor’s responsibility to collect payment from the Customer and the Company shall not bear any responsibility for the same.

 

8. CONDUCT AND RESPONSIBILITIES OF THE VENDOR:

8.1 The Vendor shall be responsible for: 

8.1.1 obtaining and maintaining, at its own expenses, all applicable permits, license, approvals required for selling the Goods and processing the orders;

8.1.2 taking its best efforts in performance of its responsibilities under the Agreement and provide reasonable support to the Company;

8.1.3 conducting its business in its own name, in a professional and workmanlike manner; 

8.1.4 conducting a staff/employee background check to satisfy itself that the staff/employee is genuine and trustworthy;

8.1.5 forthwith reporting fraud, theft, by staff/employee and/or any fraudulent act or criminal act against Customer;

8.1.6 for safety/ insurance of its employees and staff including delivery staff;

8.1.7 complying with all applicable laws and regulations pertaining the sale of Goods and shall not offer any Goods for sale on the App, which are prohibited for sale, against public policy, banned, unlawful, illegal, or violates any third-party intellectual property rights;

8.1.8 timely preparation of the order, including but not limited to the packaging of orders, personally checking, verifying and confirming the order; arranging the Goods, as per the requirements of the Customers and timely delivery of orders to the Customers;

8.1.9 delivering the Goods of the ordered specifications/description only, including quantity and quality prescribed in the order and there should be no instance of wrong item being delivered and/or quality issue and/or issue of non-delivery;

8.1.10 ensuring that the Goods sold are without any charge or encumbrance in favour of a third party;

8.1.11 ensuring that the Goods are not sold at any price greater than the Maximum Retail Price (MRP) indicated on the packaging of such Goods;

8.1.12 ensuring that discounts promised to the Customers, if any, are adhered to;

8.1.13 maintaining adequate stock/inventory of any Goods that the Vendor lists on the App. In case the Vendor is running out of supplies or is likely not to fulfill the order, it shall update the list on the App the same day. The Vendor understands and acknowledges that failure to do so shall adversely affect the rating of the Vendor on the App, which cannot be challenged by the Vendor;

8.1.14 resolving any dispute that may be raised by the Customer relating to the Goods, merchandise and services provided by the Vendor, through the App. The Company shall not be responsible for any claim, whatsoever, that may arise in relation to the Goods;

8.1.15 payment of all applicable taxes. The Vendor understands and acknowledges that the Company shall not be responsible and/or liable for any tax payments on behalf of the Vendor;

8.1.16 using its best efforts to market, promote and refer the App to various Customers;

8.1.17 displaying material at its premises for promoting the App in the form of flex boards, flyers, hoardings, etc. as may be directed by the Company from time to time;

8.1.18 security of the Customer data and information accessible to the Vendor and its employees, staff and representatives and shall ensure that its employees, staff and representatives will have access to such data on a ‘need to know’ basis, in order to avoid any misuse of the Customer data and information.

8.2 The Vendor shall not make any representations, warranties or guarantees to any third-party including but not limited to the Customers on behalf of the Company.  The Vendor shall not make any commitments or agreements or incur any liabilities whatsoever on behalf of the Company, nor will the Company be liable for any acts, omissions to act, financial liabilities, promises or representations made by the Vendor. The Vendor and its staff shall not act in any manner which is detrimental or prejudicial to its interest or reputation or goodwill of the Company. The Vendor’s activities under this Agreement shall be at its own cost and risk, unless otherwise agreed to in writing by the authorized officers of the Company. 

8.3. Feedback

8.3.1 The Company shall have the right to display the information, feedback, ratings, reviews, comments etc. (“Feedback”) that is publicly viewable rated/ provided by the Buyers on the App and provided to the Vendors on the App. The Company shall in no way be responsible or liable for the accuracy, correctness or completeness of any Feedback provided by the Buyer.

8.3.2 The Vendor shall be required to maintain average Feedback as per the benchmark set by the Company for the region, failing which the Company shall be entitled to restrict the Vendor’s access to the Platform and deactivate the Vendor’s account.

8.3.3 The Vendor agrees that the Company reserves a right to use, publish, display and share the Vendor Ratings and the Vendor expressly grants consents to the same. The Company shall not be liable or responsible for any Feedback published by the Buyers which is non-compliant with the provisions of the applicable laws.  

8.A Terms applicable to Pharmacy and Delivery of Medicines

8A.1 During the Term, the Vendor shall, at all times:

i. maintain its license/registration with the appropriate authority(ies) for sale of the Medicines in full force and effect;

ii. immediately cease the use of the App upon suspension or revocation of its license/ registration;

iii. immediately inform the Company of suspension or revocation of its license/ registration;

iv. maintain adequate stock of Medicines;

v. upon receipt from any enquiry or requirement from the Customer, verify the requisition list for any prescription drugs;

vi. deliver the prescription medicines to the Customers only upon receiving a copy of valid prescription by a medical practitioner and maintain a copy of such prescription with itself;

vii. be responsible for verification of the genuineness of the prescription provided by the Customer;

viii. in the event the prescription is not provided by the Customer for prescription Medicines, the Pharmacy shall cancel the sale transaction and refund the amounts toward such Medicines, if already paid by the Customers;

ix. ensure that the Medicines sold to the Customers are not expired, damaged or defective; 

x. ensure that the medicines provided match the requirements and specifications provided by the Customer;

xi. maintain all hygiene and sanitization standards in its premises and while delivering the Medicines to the Customers;

xii. provide reasonable support to elderly citizens or citizens with medical conditions;

xiii. deliver the Medicines in a timely manner as per its commitments;

xiv. not commit delivery of Medicines which it does not have in its possession;

xv. not charge the Customer over and above the prescribed maximum retail prices;

xvi. not directly or indirectly, offer, attempt to offer, trade or attempt to trade in any item, the dealing of which is prohibited or restricted in any manner under the provisions of any applicable law, rule, regulation or guideline for the time being in force; and

x.vii. not publish, post, disseminate information that is false, inaccurate or misleading or violate any applicable laws or regulations for the time being in force in or outside India.

8A.2 The Vendor agrees and understands that the Vendor will be receiving certain data or information pertaining to the Customer which may be sensitive and confidential in nature and that the Vendor hereby agree to comply with the provisions of: 

• Section 43 A of the Information Technology Act, 2000;

• Regulation 4 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 (the "SPI Rules");

• Regulation 3(1) of the Information Technology (Intermediaries Guidelines) Rules, 2011; and 

• Such other laws that may be applicable.

8A.3 The Company shall:

i. have a right to call for any documents or information pertaining to registration (renewal and validity thereof) of the Vendor and the Vendor shall promptly provide such documents;

ii. has a right to audit maintenance of records for prescription drugs;

iii. at its sole discretion, reserve the right to temporarily or permanently discontinue its Services to the Vendor and the Customers, for any breach or non-compliance by the Vendor for any breach of the Terms, including but not limited to: 

(a) sale of Medicines requiring a prescription, without verifying the validity of the same to the Customer or the sale of Medicines which are below the standard quality or prohibited from sale under any law; and

(b) breach of the provisions of the Drugs and Cosmetics Act, 1940 and the rules, including any other laws applicable to the Pharmacy and Medicines.

8A.4 In  addition to disclosure of any information about a Vendor or the Customer as required by applicable law or court order, the Vendor agrees that the Company can, in its sole discretion, as they may believe necessary or appropriate in connection with the investigation and/or resolution of possible crimes, disclose any information about the Vendor to law enforcement agency or other government officials, especially those that may involve personal injury or alleged illegal activity. 

8.A.5 The Vendor, in addition to the indemnity granted in Section 15 below, hereby indemnifies, holds harmless and keeps indemnified the Company from and against all claims or any expenses (including court costs and reasonable fees of attorneys, accountants and expert witnesses), claims from the Customer, injury suffered by the Customer, refund, costs, action, demand, proceeding, award, liability, losses, damages or in connection with:

i. use of Medicines delivered by the Vendor or its employees, representatives, agents;

ii. non-delivery, delay in delivery of the Medicines delivered by the Vendor to the User and/ or any other act committed or omitted by the Vendor;

iii. delivery of expired or incorrect Medicines by the Vendor to the Customer; and/ or

iv. non-compliance with the provisions of the applicable laws, regulations, guidelines by the Vendor.

8A.6 The Vendor understands that violation of the provisions of applicable laws would lead to potential criminal legal action against the Vendor, either by the Customers and that the Company shall neither be answerable or liable to the Customers for the same.

9. CONFIDENTIALITY:

9.1 In connection with this Agreement, Vendor will acquire or develop confidential and proprietary information concerning the Company and its dealings and methods of dealings with its existing and prospective customers and employees including but not limited to commercial terms, financial and business information, processes and proprietary information (collectively "Confidential Matter") and the Vendor will develop relationships of trust and confidence with existing and prospective customers and employees of the Company.  

9.2 The Vendor agrees that such Confidential Matter is for the Company's exclusive benefit and that, both during the term of this Agreement and at all times thereafter, the Vendor will not directly or indirectly use or disclose any Confidential Matter except for the sole benefit and with the prior written consent of the Company.  Upon the termination of this Agreement, the Vendor will promptly return all Confidential Matter to the Company. The Vendor shall not disclose any third-party information to the Company without being duly authorized by such third party. 

9.3 The Vendor further agrees and undertakes that: 

i. Any information shall not be collected by the Vendor from the Customers unless it is for lawful purpose and is considered necessary for sale of Goods. The information collected shall be used only for the purpose of sale of Goods for which it is collected and shall not be retained for a period longer than which is required or is otherwise required under any other law for the time being in force;

ii. It shall ensure that the person(s) providing information are aware about the fact that the information is being collected, its purposes & recipients, name and addresses of the agencies retaining and collecting the information;

iii. Offer the person(s) providing information an opportunity to review the information provided and make corrections, if required; and

iv. Maintain the security of the information provided by the Customer and/ or the Company.

10. ACCOUNT SECURITY:

10.1 The Vendor shall be responsible for maintaining the confidentiality of the information on its Account and shall be fully responsible for all activities that occur under its Account. The Vendor agrees to (i) immediately notify the Company of any unauthorized use of its Account information or any other breach of security, and (ii) ensure that the Vendor signs out from its Account at the end of each session. The Company shall not be liable for any loss or damage arising from the Vendor’s failure to comply with this provision. 

10.2 The Vendor agrees to use the App only: (i) for the purposes that are permitted under this Agreement; and (ii) in accordance with any applicable law, regulation or generally accepted practices or guidelines. The Vendor agrees not to engage in activities that may adversely affect the use of the App by the Company, other retailers and/or users.

10.3 The Vendor agrees not to access (or attempt to access) the App by any means other than through the interface that is provided by the Company. The Vendor shall not use any deep-link, robot, spider or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the App, or in any way reproduce or circumvent the navigational structure or presentation of the App, materials or any Company property, to obtain or attempt to obtain any materials, documents or information through any means not specifically made available through the App.

10.4 The Vendor acknowledges and agrees that by accessing or using the App, the Vendor may be exposed to content from others that the Vendor may consider offensive, indecent or otherwise objectionable. The Company disclaims all liabilities arising in relation to such offensive content on the App. Further, the Vendor undertakes not to:

i. defame, abuse, harass, threaten or otherwise violate the rights of others;

ii. publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, disparaging, ethnically objectionable, obscene, indecent or unlawful content, material or information;

iii. do any such thing that may harm minors in any way;

iv. copy, republish, post, display, translate, transmit, reproduce or distribute any Company property through any medium without obtaining the necessary authorization from the Company;

v. conduct or forward surveys, contests, pyramid schemes or chain letters;

vi. upload or distribute files that contain software or other material protected by applicable intellectual property laws unless the Vendor owns or controls the rights thereto or has received all necessary consents;

vii. upload or distribute files or documents or videos (whether live or pre-recorded) that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the App or another's devices;

viii. engage in any activity that interferes with or disrupts access to the App (or the servers and networks which are connected to the App);

ix. attempt to gain unauthorized access to any portion or feature of the App, any other systems or networks connected to the App, to any Company server, or through the App, by hacking, password mining or any other illegitimate means;

x. probe, scan or test the vulnerability of the App or any network connected to the App, nor breach the security or authentication measures on the App or any network connected to the App. The Vendor shall not reverse look-up, trace or seek to trace any information on any other retailer, user of the App, to its source, or exploit the App or information made available or offered by or through the App, in any way whether or not the purpose is to reveal any information, including but not limited to personal identification information, other than the Vendor’s own information, as provided on the App;

xi. disrupt or interfere with the security of, or otherwise cause harm to, the App, systems resources, accounts, passwords, servers or networks connected to or accessible through the App or any affiliated or linked sites;

xii. use any device or software to interfere or attempt to interfere with the proper working of the App or any transaction being conducted on the App, or with any other person’s use of the App;

xiii. use the App or any material or the Company property for any purpose that is unlawful or prohibited under this Agreement, or to solicit the performance of any illegal activity or other activity which infringes the rights of the Company or other third parties;

xiv. falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded;

xv. impersonate any other retailer, user, store, or person.

10.5 The Vendor understands and acknowledges that if the Vendor indulges in any of the prohibited conduct stated above, and it is brought to the notice of the Company, the Company may terminate the Vendor’s Account immediately and take any other corrective action as it deems fit.

10.6 In the event the Vendor is at the receiving end of any offensive content or the Vendor is the victim of any such actions of any other users or other vendors, the Vendor is encouraged to report such content or conduct to the Company. The Company may delete such offensive content and take any other corrective action as it deems fit.

11. REPRESENTATIONS AND WARRANTIES:

11.1 Vendor represents and warrant to Company that: (a) Vendor is duly organized, validly existing and in good standing under the laws of the territory in which its business is registered; (b) Vendor has all requisite right, power and authority to enter into this Agreement and perform obligations and grant the rights, licenses and authorizations as mentioned hereunder; and (c) Vendor and all of its subcontractors, agents and suppliers will comply with all applicable laws in performance of the obligations and exercise of the rights under this Agreement.

11.2 In case of any delay in delivery or change in the specification of the Goods, due to acts or omissions of the Vendor, Vendor warrants that, it shall be solely liable for the losses or the damages incurred by the Company or the Customers.

11.3 The Vendor warrants that it is not prohibited from processing the orders, as required under this Agreement, whether due to any legal, statutory, judicial orders or any contractual obligations Vendor holds all valid licenses and permits which are required to process the orders under this Agreement.

11.4 The Vendor warrants not to provide any description/image/text/graphic which is unlawful, illegal, intimidating, obnoxious, objectionable, obscene, vulgar, opposed to public policy, prohibited by law or morality or is in violation of intellectual property rights including but not limited to trademark and copyright of any third party or of inaccurate, false, incorrect, misleading description. 

11.5 The Vendor warrants that it will forward the Goods description and image only for the Goods which are offered for sale through the App. The Vendor agrees that in case there is violation of this, it shall do and cause to be done all such acts as are necessary to prevent disrepute being caused to the Company.

12. INTELLECTUAL PROPERTY RIGHTS:

12.1 Company retains all intellectual property rights in the App, including but not limited to the Confidential Information trademark, copyright, patents, designs, marketing materials, logos, brochures, etc. which would be used in accordance with this Agreement. This Agreement shall not construe as an assignment of any Intellectual Property Rights from Company to Vendor, in whatsoever format. The Vendor shall intimate Company of any infringement of the intellectual property rights or any damage to the reputation of the Company.

12.2 The Company grants a limited, non-transferable, non-licensable, non-assignable, revocable, royalty free license, to the Vendor, to use the logos, tradenames or the trademarks (“Company Marks”) of the Company for processing the orders under this Agreement. The Vendor shall access and use the Company Marks only for the limited purposes of this Agreement. The Company Marks provided by Company are either owned or licensed by the Company.

12.3 The Vendor grants a royalty free license, to the Company, to use the logos, tradenames or the trademarks of the Vendor (“Vendor Marks”) for processing the orders under this Agreement, and for marketing and publicity purposes. The Vendor represents that Vendor Marks provided by Vendor are solely owned by the Vendor and Vendor has the right to license the same to the Company. Vendor grants the Company a royalty free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, display, distribute, modify, create derivative works of, and may commercially exploit any or all of the content that the Vendor submits to the Company. The Vendor agrees that the Company shall use such Vendor Marks during the term of this Agreement and thereafter, in accordance with applicable regulations and the Company’s internal policies.

12.4 The Vendor agrees that, during the Term of this Agreement, the Company shall at its sole discretion, with a 2 (two) day notice, be entitled to change or cease using the Company Trademarks and/or require the Vendor to cease using the Company Trademarks. The Vendor  shall adopt the change or cease the use of the Company Trademarks, forthwith, without any demur or protest. The requirement to cease use or change under this clause does not entitle the Vendor any right of termination.

12.5 The Vendor shall not use the Company Marks, upon the expiry or termination of this Agreement and shall immediately, but not later than 2 days from the date of such expiration or termination, as the case may be, return all the Company Marks to the Company. 

12.6 The Vendor shall not during the tenure of this Agreement or thereafter, apply for registration of any trademark, copyright or any other intellectual property right similar, deceptively similar, competitive or identical with the Company Marks or any other intellectual property owned by the Company. 

13. DISCLAIMER OF WARRANTIES:

13.1 THE APP OR THE CONTENT, FUNCTIONS, MATERIALS AND INFORMATION AVAILABLE OR PROVIDED ON THE APP, ARE PROVIDED ON A "AS-IS" “AS-AVAILABLE” BASIS, AND THE VENDOR UNDERSTANDS THAT ACCESS TO THE APP IS PROVIDED TO HELP THE VENDOR TO PROMOTE AND SELL THE GOODS AT ITS OWN RISK. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APP WILL MEET VENDOR’S REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND THE COMPANY WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTION OR ORDER. 

13.2 BECAUSE COMPANY IS NOT INVOLVED IN TRANSACTIONS BETWEEN THE CUSTOMERS AND VENDOR, IF A DISPUTE ARISES BETWEEN THE CUSTOMERS OR THE VENDOR, VENDOR RELEASES THE COMPANY (AND ITS AGENTS, AFFILIATES AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.

13.3 THE APP’S ROLE IS THAT OF AN INTERMEDIARY IN THE FORM OF AN ONLINE PLATFORM AND IS LIMITED TO MANAGING THE APP TO ENABLE VENDOR TO EXHIBIT, ADVERTISE, DISPLAY, MAKE AVAILABLE AND OFFER TO SELL THE GOODS AND TO ENABLE CUSTOMER TO VIEW AND PURCHASE THE GOODS SO OFFERED, AND OTHER INCIDENTAL SERVICES TO FACILITATE THE TRANSACTIONS BETWEEN VENDOR AND THE CUSTOMERS. ACCORDINGLY, THE CONTRACT FOR SALE OF ANY OF THE GOODS SHALL BE A BIPARTITE CONTRACT BETWEEN VENDOR AND THE CUSTOMER. AT NO TIME SHALL THE COMPANY HAVE ANY OBLIGATIONS OR LIABILITIES IN RESPECT OF SUCH CONTRACT NOR SHALL THE COMPANY HOLD ANY TITLE IN THE GOODS. THE TITLE IN THE GOODS AND OTHER RIGHTS AND INTEREST IN THE GOODS SHALL DIRECTLY PASS TO THE CUSTOMER FROM THE VENDOR.

14. LIMITATION OF LIABILITY:

THE COMPANY MAKES NO WARRANTIES WHETHER EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, IN RELATION TO THE APP AND THE COMPANY SPECIFICALLY DISCLAIMS THE SPECIFIC OR IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY SHALL NOT BE LIABLE TO THE VENDOR OR ANY THIRD PARTY FOR ANY INDIRECT DAMAGES INCLUDING TOWARDS COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), REGARDLESS OF WHETHER THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF THE COMPANY FOR DIRECT DAMAGES FOR ANY REASON SHALL BE LIMITED TO THE AMOUNTS PAID BY THE VENDOR TO THE COMPANY IN THE PRECEEDING ONE MONTH FROM THE DATE ON WHICH THE CLAIM AROSE UNDER AN APPLICABLE ORDER UNDER WHICH THE CLAIM ARISES. 

15. INDEMNITY: 

The Vendor agrees to indemnify, hold harmless and keep indemnified the Company from and against all claims or any expenses (including court costs and reasonable fees of attorneys, accountants and expert witnesses), claims from the Customer, refunds, costs, action, demand, proceeding, award, liability, losses and damages suffered by the Company in connection with:

 

i. Misrepresentation of any material facts by the Vendor under this Agreement to the Customer/prospective customers or the Company;

ii. Any injury or damage suffered by the Customer on account of reasons attributable to the Vendor;

111. Fraud, misconduct, cheating, misappropriation or other act punishable by law, by the Vendor or its employees, staff and/or representatives in relation to a Customer or a third party;

iv. Failure of the Vendor to perform any of its obligations under this Agreement;

v. Failure of the Vendor to comply with operational instructions of the Company;

vi. Infringement of any third party intellectual property;

vii. Unauthorized use or disclosure of Confidential Information and failure to comply with data protection requirements as may be prescribed under the law during the term of this Agreement; and/ or

viii. Breach of any applicable laws.

Your indemnification obligation will survive the termination/deactivation of your account or your use of the App.

16. TERM AND TERMINATION:

16.1 This Agreement shall be valid for perpetuity, unless the Agreement is terminated by the Company or the App is discontinued by the Company. 

16.2 Either party may terminate this Agreement by giving the other party fifteen (15) days’ notice at the address mentioned herein below. 

16.3 Subject to provisions of Section 16.4 below, either party may terminate this Agreement in the event that the other party materially breaches any term of this Agreement and fails to cure such breach within seven (7) days following notice of such breach by the affected party. 

16.4 The Company may terminate this Agreement and deactivate the Vendor’s Account with immediate effect in the event the Vendor is:

(i) the subject of any insolvency, bankruptcy or other proceedings;

(ii) Prosecution for any offence of directors / partners / proprietor(s) of the Vendor;

(iii) the Vendor has defaulted payments to the Company; 

(iv) engagement/ relationship with the Vendor under this Agreement is likely to result in loss of good will or reputation of Company;

(v) If the Vendor changes its area of operation or shifts the business premises as recorded with the Company without prior intimation to the Company; 

(vi) If the Vendor, directly or indirectly, performs any act which is prejudicial to the interest and/ or reputation of the Company;

(vii) If the Vendor commits any violation of any applicable laws. 

16.5 The Vendor understands and agrees that in case any repeated complaints  are or a complaint of serious nature is received from Customers about the Vendor, the Company reserves the right to terminate its association with the Vendor and delist the Vendor from the App.

16.6 Any notice delivered by the Company to the Vendor under this Agreement will be delivered by email to the email address associated with Vendor’s account or by SMS to the mobile number associated with the Vendor’s Account or posting on the Account available to the Vendor on the App. Any notice delivered by Vendor to the Company under this Agreement will be delivered by upon receipt by the Company either at the Company’s registered office or at marketing@gullybuy.in.

17. CONSEQUENCES OF TERMINATION:

17.1 Any termination or expiry, as the case may be, of this Agreement shall not release the Vendor from any obligation to deliver the orders which are due before the date of the termination or expiration of this Agreement.

17.2 Upon the termination or expiration, as the case may be, of this Agreement, the Vendor shall return all the relevant documents, including the Confidential Matter in its possession, owned by the Company. 

17.3 Upon termination or expiration, as the case may be, of this Agreement, the Vendor shall discontinue all promotions and marketing of the App. 

17.4 Upon termination or expiration of this Agreement, as the case may be, the Vendor shall deactivate the Account and uninstall the App. 

18. PRIVACY POLICY:

18.1 The Company is committed to responsibly handling the information and data collected from the Vendor through the App in compliance with the Company’s privacy policy (“Privacy Policy”). 

18.2 The Vendor is encouraged to review the privacy policy so that the Vendor is aware of how the Company collects and uses the Vendor’s personal information. The Company’s Privacy Policy is located at https://www.gullybuy.com/privacy-policy.

19. MISCELLANEOUS:

19.1 Governing Law and Dispute Resolution: This Agreement will be governed by and construed in accordance with the laws of India. Any dispute or difference arising between the parties hereunder shall be settled through arbitration. The arbitration shall be conducted as per the provisions of the Arbitration & Conciliation Act, 1996 (as amended from time to time), by a sole arbitrator to be mutually appointed by the parties. The arbitration shall be in the English language and the venue shall be in Pune. Subject to the above, the courts in Pune shall have exclusive jurisdiction to try any disputes arising between the parties out of this Agreement. 

19.2 Modifications:  This Agreement may be amended only by a formal written document signed by both the parties.

19.3 Waiver:  A party's failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of this Agreement. A party's waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.

19.4 Captions:  The captions in this Agreement are not part of the Agreement but are for the convenience of the parties.  References to sections are to sections of this Agreement.

19.5 Severability:  In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of this Agreement will remain in full force and effect.

19.6 Relationship between the parties: The parties are independent contractors and this Agreement has been entered into on a principal to principal basis.  Neither party is the agent of the other nor may either party represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. The Vendor is not an employee of the Company and shall not represent to any third party that it is an employee of the Company.  Employees recruited by the Vendor shall be solely employees of the Vendor and the Company shall not be liable for any salary and/or statutory dues in any manner whatsoever.  

19.7 Assignment:  The Vendor shall not assign this Agreement without the Company’s prior written consent. The Company shall be entitled to assign this Agreement.

19.8 Force Majeure: Neither party shall be liable for any failure or delay in fulfilling the terms of this Agreement due to occurrence of a Force Majeure Event. This provision shall not be construed as relieving either party from its obligation to pay any sum due the other Party.

19.9 Entire Agreement:   This Agreement constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior understanding or communication, whether written or oral.

This Vendor Agreement was last modified on March 30, 2021

ANNEXURE A 

VENDOR FEES

A.1 Fee payable to Company:

Vendor agrees to pay the following Fee to the Company (“Company Fee”):

A.1.1 Any Vendor registering after April 2, 2021, shall pay a monthly subscription fee depending on the specific Plan (Base, Smart) selected by the Vendor as noted on the website www.GullyBuy.com on the Plans & Pricing page. A Vendor who selects the Super Plan shall discuss and agree with the Company on the Company Fee to be paid based on Vendor’s specific requirements. 

A.1.2 GST and other taxes shall be extra as applicable.

A.1.3 The Plan may be changed at the time of Renewal. The Plan can also be upgraded but not downgraded during the subscription period.

A.2 Invoicing:

A.2.1 Company shall provide an invoice as part of the registration process and 30 days prior to the end of every subscription period. 

A.2.2. Vendor must pay the Company Fee at the time of registration and minimum 7 days prior to the end of the subscription term for the next 3 months. Payment will be online payment using the UPI ID provided by the Company. 

A.2.3 In case the Vendor decides to upgrade the Plan, the differential subscription Company Fee for the remaining period shall be invoiced to the Vendor and be paid within 2 days.  

A.2.4 In the event of Vendor’s failure to pay the Company Fees at the time of Registration or a minimum of 7 days prior to renewal date, the Company shall unregister the Vendor and this Agreement shall stand terminated. 

A.3 Payment Gateway Fee:

The Company provides Vendors under the Super Plan with an option in the App to enable the RazorPay Payment Gateway for online payments by Customers. Vendors who select this option agree to pay the Transaction Fee of 1.9% of the order amount to RazorPay. The Transaction Fee shall be deducted from the order amount received by RazorPay from a Customer and the net amount shall be paid to the Vendor.