JOIN HERITAGEKART AND EARN TOGEATHER
This Vendor Agreement is executed at [●] on this the [●] day of [●], Two thousand and[●] (“this Agreement”)
BY AND BETWEEN
[●], an Indian company incorporated under the Companies Act, 2013, having its registered office at [●], registered under CIN number – [●] (hereinafter referred to as the “Company”, which expression shall unless repugnant to the context or meaning hereof be deemed to mean and include its successors in title and permitted assigns) of the FIRST PART.
[●], [please mention type of Entity] with TIN/CIN No: [●] having its registered office at [●] (hereinafter referred to as the “Vendor” which expression shall be deemed to mean and include its successors in title and permitted assigns and legal representatives as the case may be) of the SECOND PART;
[●], an Indian individual with PAN[●]and residing at [●] (hereinafter referred to as the “Vendor” which expression shall be deemed to mean and include its successors in title and permitted assigns and legal representatives as the case may be) of the SECOND PART;
The Company and the Vendor shall hereinafter be individually referred to as “Party” and collectively referred to as “Parties”
- The Company is engaged in the business of [●] (the “Business”);
- The Vendor is engaged in the business of [●].
- The Company has approached the Vendor to provide the Products for distribution, marketing and resale and the Vendor agrees to provide the same for the consideration and on the terms and conditions as stated hereunder.
The Recitals above shall form an integral part of this Agreement.
NOW THEREFORE IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS
- DEFINITIONS AND INTERPRETATION
- Unless repugnant to the context, the following terms used in this Agreement shall have the meanings respectively assigned to them.
- “Affiliate” shall mean, with respect to each Party, any person or entity directly or indirectly through one or more intermediary Controlling, Controlled by, or under direct or indirect common control with a Party. “Control”, “Controlled” or “Controlling” shall mean, with respect to any person or entity, any circumstance in which such person or entity is controlled by another person or entity by virtue of the latter person or entity controlling the composition of the board of directors or managers or owning the largest or controlling percentage of the voting securities of such person/entity or otherwise controlling the other;
- “Customer” shall mean any individual, group of individuals, firm, company or any other entity placing an order for the Products to the Company.
- “Customized Products” shall mean such Products which are manufactured in accordance with the specifications provided by the Companyin a Purchase Order;
- “Confidential Information” means all confidential or proprietary information, in whatever form or manner presented, which: (a) relates to a disclosing party’s business or business plans, including suppliers, customers, prospective customers, contractors, clinical data, the content and format of various clinical and medical databases, utilization data, cost and pricing data, disease management data, software products, programming techniques, data warehouse and methodologies, know-how, trade secrets, technical and non-technical materials, products, specifications, processes, sales and marketing plans and strategies, designs, all customer related information including any rates and discounts and any discussions and proceedings relating to any of the foregoing; (b) is disclosed pursuant to this Agreement;
- “Effective Date”shall mean the date on which this Agreement has been executed;
- “Final Price” shall mean the price at which the Products are purchased by the Customer;
- “Force Majeure” shall mean any unforeseen circumstance beyond the reasonable control of either Party, including but not limited to any act of nature, war and acts of war, strikes, riots, industrial actions, lock-outs, accidents, thefts, fire, blockade, power cut, import or export embargoes, physical obstructions, national catastrophes, acts of God, terrorist attacks, failure of public or private telecommunication systems, governmental laws, regulations, orders, or decrees or any other occurrence beyond either Party’s reasonable control;
- “Losses”shall mean any direct losses, liabilities, claims, damages, costs and expenses, including legal fees and disbursements in relation thereto;
- “Non-Complying Product”shall mean such Product that does not meet the specifications as detailed in the Standards or the terms and conditions detailed by the Company in its Purchase Order;
- “Price” shall mean the mutually agreed price to be charged by the Vendor for each Product supplied hereunder and delivered to the Company;
- “Product”shall mean the merchandise items, detailed in Schedule to be delivered by the Vendor as and when the Purchase Order is placed by the Company and shall include Customized Products, if any.
- “Purchase Order” means a written or electronic order form submitted by the Company in accordance with the terms of this Agreement to the Vendor authorizing the supply of Product and shall contain details, quantities, timelines, any additional specification of the Product as requested by the customers and Price at which the Vendor will provide the Product to the Company.
- “Quality Check Centre” shall mean the nearest centre established for quality checking of the Products as may be notified by the Company to the Vendor;
- “Standards”shall mean the usual standards and quality of each Product, which should be maintained by the Vendor and which may be amended from time to time, by mutual agreement.
In this Agreement, unless the context otherwise requires:
- Any capitalized words not defined in Cause 1.1 shall have the same meaning as ascribed under the respective Clauses;
- Words importing persons or parties shall include natural person, entity, partnership firm, organization, operation, Company, HUF, voluntary association, LLP, joint venture, trust, limited organization, unlimited organization or any other organization having legal capacity;
- Words importing the singular shall include the plural and vice versa, where the context so requires;
- References to any law shall include such law as from time to time enacted, amended, supplemented or re-enacted;
- Reference to one gender shall include a reference to the other genders;
- References to the words “include” or “including” shall be construed without limitation;
- References to this Agreement or any other agreement, deed, instrument or document shall be construed as a reference to this Agreement or such other agreement, deed, instrument or document as the same may from time to time be amended, varied, supplemented or novated in accordance with the terms of this Agreement;
- The headings and titles in this Agreement are indicative and shall not be deemed part thereof or be taken into consideration in the interpretation or construction of this Agreement;
- The word ‘written’ shall include writing in electronic form and ‘signed’ shall include physical signature, electronic signature or any other electronic communication which signifies the sender’s or originator’s intention to be bound by such electronic communication.
- SUPPLY OF THE PRODUCT
- Agreement to Supply.
- Based on the Purchase Orders and subject to representations and warranties given by the Vendor, the Company hereby appoints the Vendor for delivery of Products to the Quality Check Centre and the Vendor agrees to provide the same for the consideration mentioned in Clause 3 below and on the terms and conditions stipulated herein.
- Non-exclusive. The Product under this Agreement shall be provided on a non-exclusive basis and the Company reserves the right to purchase the Product and/or similar products from any other party.
- No Minimum Purchase Obligation. There shall be no minimum purchase commitments required of the Company and the Company does not guarantee any particular sales volume with respect to the Products.
- Purchase Orders.
- The Vendor shall provide Product to the Company pursuant to Purchase Orders issued by the Company to the Vendor.
- The Purchase Order shall outline the following:
- Type of Product and its required quantity
- Price, inclusive of taxes
- The address of Quality Check Center
- Due date for delivery
- Specifications, in case of a Customized Product
- Upon receipt of a Purchase Order, the Vendor shall acknowledge receipt of said Purchase Order and confirm its ability to supply such quantities of the Product to the Company in accordance with the terms of the Purchase Order, including delivering such Product by the due date of delivery.
- In the event, the Vendor is not able to fulfil such Purchase Order, the Vendor shall notify the Company in writing promptly within 48 (forty-eight) hours from receipt of Purchase Order.
- Time is of Essence. If the Vendor delays in delivering the Products as per the Purchase Order, it shall be penalized by deducting 2% (Two percent) from the Price, mentioned in the Purchase Order, for each week of delay.
- Delivery; Risk of Loss
- The Vendor shall ship the Products ordered by the Company to the Quality Check Centre and deliver them by the due date set forth in the applicable Purchase Order, or such other date as may be agreed to in writing by the Parties from time to time. The cost of shipment and delivery shall be borne by the Vendor.
- The Vendor retains the option to subcontract third parties for shipping and delivery of the Products to the Quality Check Center, at its own cost and risk. Any sub-contracting shall not relieve the Vendor of its obligations and the Vendor shall, at all times, be responsible for the shipment and delivery of the Products to the Quality Check Center, as per the due date of delivery mentioned in each Purchase Order.
- Procurement of raw materials
- The Vendor, if engaged in the manufacturing of the Product, shall use good quality of raw materials so as to satisfy the Standards of the Product.
- The Vendor shall be solely responsible for and shall administer the procurement of the raw materials required to manufacture the Product.
- Any cost incurred by the Vendor, which includes transporting, inspecting, storing and the like,for manufacturing and delivering the Product shall be solely borne by the Vendor. The Vendor shall only receive the Price mentioned in the Purchase Order by the Company.
- Product Inspection
- After the Products reaches the Quality Check Center, the Company (or any such other person as the Company shall designate) shall have the right to monitor/inspect the quality and quantity of the entire shipment of Products or the Products on sample basis to determine whether it complies with the Standards or specifications mentioned in the Purchase Order.
- In the event the Product fails the quality test, the Product shall be returned to the Vendor and costs for the same shall be borne by the Vendor. In such event, the Company is not liable to pay any Price of the Product to the Vendor.
- The Company shall not be obligated to accept any deliveries which do not conform to the Standards of the Product or specifications mentioned in the Purchase Order.
- Any loss or cost incurred by the Company due to delay in delivery of Products or return of the Products due to inferior Standards shall be charged to Vendor.
- License of resale
- The Vendor grants a non-exclusive license to the Company for reselling the Products, purchased by the Company, to its Customers through various mediums including an e-commerce website.
- The brand name of the Product shall remain with the Vendor. However, the Company reserves the right to package, market and resell the Product, as it deems fit.
- PRICE, PAYMENT METHODS AND TAXES
- Purchase Price
- The Company shall purchase the Product from the Vendor at the Price, as set forth in the Purchase Order and in accordance with the terms of this Agreement.
- The Company shall pay the Price to the Vendor within 7 (seven) days from the date of receipt of the Product by the Customer.
- The Company shall not be billed for, nor shall the Company have any obligation to pay, any charge or amount not specifically authorized in the Company’s duly issued Purchase Order. Any additional terms or conditions contained in any Vendor invoice or packing slip shall not be binding on the Company, and no action by the Company (including the payment of any such invoice in whole or in part) shall be construed as binding Company with respect thereto.
- Invoices and Payment: The Vendor shall submit invoices to the Company upon shipment of Product to the Quality Check Centre. Payment by the Company shall not constitute a waiver of any of its rights under this Agreement.
- The Price shall include all applicable taxes and other charges such as duties, tariffs and government-imposed surcharges. The same shall be reflected on the invoice submitted to the Company.
- The Parties shall deduct the applicable tax at source including withholding tax, if any, from all the payments made to each other.
- RETURN POLICY
- Non-Complying and Rejected Product
- Before shipping the Product to Quality Check Centre, the Vendor shall conduct a quality test and shall not release any Product for shipment that does not conform to the Standards or specifications mentioned in the Purchase Order.
- The Company may reject any Non-Complying Product after intimating the same to the Vendor within 10 (Ten) days from receipt of the Product.The Company shall have the right to reject any Product hereunder, other than a Non-Complying Product, for a reasonable cause.
- In the event, a Customer identifies any defect due to non-conformation to the Standards or specifications mentioned in the Purchase Order within 7 (seven) days of receiving the Product,the Company reserves the right to return the said defective or rejected Product to the Vendor. The Vendor shall be notified about the same and the Vendor shall, within 10 (ten) days of such notice of defect or rejection, rectify the defects or replace the Product at no additional cost to the Company.
- The Company shall return any Products (or portions thereof) mentioned under clauses (a) and (b) to the Vendor, at the Vendor’s expense.
- The Vendor shall, at the discretion of the Company, bear any additional costs incurred by the Company under clause (c) above such as costs borne by the Customer in returning the Product.
- The provisions of this Clause shall survive termination or expiration of this Agreement, provided that, subsequent to the termination or expiration of this Agreement, the Vendor may, in lieu of replacing any rejected or missing quantities of Product, elect in its sole discretion to reimburse the Company for the costs (including any applicable freight charges) associated with the replacement of such rejected and/or missing quantities of Product by the Company or a third party selected by the Company.
- REPRESENTATIONS, WARRANTIES AND COVENANTS
- The Vendor represents, warrants and covenants to the Company that:
- It shall manage and maintain sufficient inventory of the Products which the Company offers to sell to Customer through its e-commerce website and other mediums and shall mandatory deliver the Products to the Company within such time as may be prescribed in the Purchase Order.
- It shall deliver the same Product as mentioned in the Purchase Order with the same Standards as specified by the Parties.
- It shall perform all its obligations under this Agreement in full compliance with all applicable laws. The Vendor has and shall hold during the Term of this Agreement all licenses, permits and similar authorizations required by any governmental authority for the Vendor to perform its obligations under this Agreement.
- It has the necessary expertise, tools, equipment, technology and personnel to manufacture the Products and delivery set forth under this Agreement in accordance with the best standards in the industry.
- The execution, delivery and performance of this Agreement will not violate any agreement or instrument to which the Vendor is a party.
- The Company represents, warrants and covenants to the Vendor that:
- It has all requisite power and authority (as applicable) to enter into this Agreement and to consummate the transactions contemplated by this Agreement, under all applicable law.
- It is duly organized, validly existing and in good standing under applicable laws.
- Neither execution nor performance of this Agreement will result into violation of any law or conflicting with or will result in the breach or constitute a default or require any consent under any decree, order, judgment, indenture or agreement.
- INTELLECTUAL PROPERTY
- On an ongoing basis, the Vendor shall provide the Company, free of charge, all current Product information, including electronic images and any Product information or warnings required by law to be disclosed in any sale or advertisement of the Product (“Product Information”). Product Information also includes any Product information collected by the Company from the Vendor’s website, or otherwise made available to the Company by the Vendor (or by a third party at the Vendor’s direction).
- The Vendor grants the Company a non-exclusive, worldwide, perpetual, irrevocable and royalty-free license to: (a) use, copy, display, perform, and distribute the Product Information on or in connection with any online or offline point of presence, mobile application, service or feature; (b) excerpt, reformat, adapt or otherwise create derivative works of the Product Information; and (c) use all trademarks or trade names included in the Product Information.
- The Vendor will promptly provide all information regarding safety, compliance, industry standards or testing related to their Products (“Product Safety Information”) that the Company reasonably requests.
- Limited Right to Use
Subject to the provisions of Clause6.2, nothing set forth in this Agreement shall be construed to grant to the Company any title, right or interest in or to any Product Information owned or controlled by the Vendor or any of its Affiliates. Use of the Product Information shall be limited exclusively to the Company’s performance of this Agreement.
- INDEMNIFICATION; LIMITATION ON LIABILITY
- Indemnification of the Company.
The Vendor shall indemnify, defend and hold harmless the Company and its directors, officers, employees and agents, from and against any and all Losses arising out of or resulting from any of the following items: (i) the Vendor’s or its Affiliates breach of this Agreement or of any representation or warranty made by the Vendor or its Affiliate under this Agreement; (ii) any death of or injury to any person, damage to any property or any other damage or loss related to any Product; (iii) the Vendor’s supply of Non-Complying Product; (iv) any infringement or misappropriation of any third party rights, including intellectual property rights, by any Product, Product Information, or other content provided by the Vendor; or (v) any grossly negligent or reckless act or omission or misconduct on the part of the Vendor, Affiliates of the Vendor, subcontractors of the Vendor, or its or their respective employees or agents.
- Indemnification of the Vendor.
The Company shall hereby indemnify, defend and hold harmless the Vendor, from and against any and all losses arising out of or resulting from any of the following items: (i) the Company’s breach of this Agreement or of any representation or warranty made by the Company or its Affiliate under this Agreement; or (ii) any grossly negligent or reckless act or omission or misconduct on the part of the Company or its or their respective employees or agents.
- Notwithstanding the foregoing, under no circumstances will either Party be liable to the other Party for any consequential loss (inter alia, being loss of business, goodwill, opportunity or profit) even if advised of such loss or damage.
- Survival: This Clause shall remain operative and in full force and effect, regardless of the termination or expiry of this Agreement, as the case may be.
- The Vendor may,at its sole discretion, take appropriate insurance covers to safeguard itself from any loss, breakage, theft or damage of the Products till such time the Products are actually delivered to the Company.
- The Vendor shall furnish to the Company, if required, the certificate evidencing the specified insurance policy taken for the Products upon execution of this Agreement.
- CONFIDENTIAL INFORMATION
- Non-use and Non-disclose
- Each Party to this Agreement shall maintain in strict confidence, and shall not disclose to any third party, all Confidential Information observed by or disclosed to it by or on behalf of the other Party pursuant to this Agreement. Each Party shall not use or disclose such Confidential Information except as permitted by this Agreement. Each Party shall safeguard the confidential and proprietary nature of the Confidential Information of the other Party with at least the same degree of care as it holds its own confidential or proprietary information of like kind, which shall be no less than a reasonable degree of care.
- Notwithstanding the foregoing, the preceding restrictions shall not apply to information that the recipient can demonstrate (a) was lawfully in its possession prior to the time of disclosure, or (b) is or becomes public knowledge through no fault, omission, or other act of the recipient; (c) is obtained from a third party lawfully entitled to possession of such Confidential Information and under no obligation of confidentiality to the disclosing party; or (d) was independently developed by or for recipient without violating the terms of this Agreement.
- In addition, if recipient is requested to disclose the Confidential Information of the other Party in connection with a legal or administrative proceeding or otherwise to comply with a requirement under any Law, such recipient shall give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or other remedy, or waive compliance with the relevant provisions of this Agreement. If the disclosing party seeks a protective order or other remedy, recipient shall promptly cooperate with and reasonably assist the disclosing party in such efforts.
- Return of Confidential Information: Upon the written request of the disclosing Party, the recipient shall promptly return or destroy, at such disclosing Party’s option, all Confidential Information of such disclosing Party (including all copies in whatever medium provided to, or made by, such recipient). Notwithstanding recipient’s return or destruction of Confidential Information, recipient shall continue to be bound by its obligation of confidentiality and non-use under this Agreement.
- Survival: The provisions of this Clause shall survive for a period of two (2) years from the later of the termination or expiration of this Agreement, or the last Purchase Order issued by the Company to the Vendor hereunder.
- FORCE MAJEURE
- If either Party is prevented or delayed in performing any of its obligations under this Agreement by Force Majeure, then:
- that Party’s obligations under this Agreement shall be suspended for so long as the Force Majeure continues and to the extent that, that Party is so prevented, hindered or delayed;
- as soon as reasonably possible and in any event within 5 (five) days after commencement of the Force Majeure, that Party shall notify the other Party in writing of the occurrence of the Force Majeure, the date of commencement of the Force Majeure and the effects of the Force Majeure on its ability to perform its obligations under this Agreement; and
- that Party shall use all reasonable efforts to mitigate the effects of the Force Majeure upon the performance of its obligations under this Agreement.
- TERM; TERMINATION
- This Agreement shall commence on the Effective Date and shall continue for a period of [●]([●]) years (the “Term” of this Agreement), unless extended or terminated pursuant to this Clause or the mutual written agreement of the Parties.
- Either Party shall have the right to terminate this Agreement and all then existing terms and conditions by issuing a 30 (thirty) days prior notice of termination in writing.
- Either Party shall have a right to terminate this Agreement upon any material breach of this Agreement by the other Party or commencement of any insolvency proceedings.Provided that where in the reasonable opinion of the non-breaching Party, such breach is capable of cure, the non-breaching Party shall not terminate this Agreement without providing the breaching Party a period of 30 (thirty) days to cure such breach and provide the non-breaching Party with necessary documents satisfactorily evidencing cure of such breach.
- If any Force Majeure prevails for a continuous period in excess of 2 (two) months, the Party who is not prevented or delayed from or in performing any of its obligations under this Agreement as described in Clause 10, shall be entitled to terminate this Agreement by giving not less than 10 (ten) days’ notice in writing to the other Party.
- EFFECT OF TERMINATION
- The termination or expiration of this Agreement for any reason shall not release any Party hereto of any liability which at the time of termination or expiration had already accrued to the other Party in respect to any act or omission prior thereto.
- Upon the effective date of expiration or termination of this Agreement, the Vendor shall immediately deliver to the Company all Products which are pending as per the last Purchase Order and the Parties shall deliver all Confidential Information (and copies thereof) and, at the disclosing Party’s direction, destroy them.
- The termination or expiration of this Agreement shall not affect the survival and continuing validity of Clause 5(Representations, Warranties and Covenants), 6 (Intellectual Property), 7 (Indemnification),9 (Confidential Information), 12 (Effects of Termination), 13 (Dispute Resolution) and 14(Miscellaneous), or of any other provision which is expressly or by implication intended to continue in force after such termination or expiration.
- DISPUTE RESOLUTION
- Any dispute, arising out of or in connection with this Agreement, or the execution, interpretation, validity, performance, breach or termination hereof, which is not settled by mutual agreement shall be settled through arbitration and the proceeding shall be held in English language at Ludhiana, Punjab. One mutually appointed arbitrator shall conduct the arbitration proceedings as per the Arbitration and Conciliation Act, 1996 and any award of such Arbitration shall be final and binding upon both parties.
- Continued Performance: Dispute resolution procedures invoked under this Clause shall not excuse any Party from performing its obligations under this Agreement and during the pendency of any such procedure, all Parties shall continue to perform their obligations in good faith.
- Governing Law and Jurisdiction:This Agreement shall be governed by the laws of India and the Courts at Ludhiana, Punjab shall have the exclusive jurisdiction to adjudicate the dispute.
- No Agency: Nothing contained herein shall be construed to place the Parties in the relationship of partners, joint ventures, principal and agent, or employer and employee. Neither Party shall have the power to assume, create, or incur liability or any obligation of any kind, express or implied, in the name of or on behalf of the other party by virtue of this Agreement.
- Assignment: Neither this Agreement nor any part of it is assignable, transferable, sub-licensee, sub contactable or conveyable by Vendor, either by operation of law or otherwise, without the express, prior, written consent of the Company.
- Sever ability: Each clause of this Agreement constitutes a separate and distinct undertaking, covenant and/ or provision hereof. In the event that any provision of this Agreement shall finally be determined to be unlawful and/or void, such provision shall be deemed severed from this Agreement, but every other provision of this Agreement shall remain in full force and effect.
- Waiver of Default: Waiver by any Party of any default by the other Party of any provision of this Agreement shall not be deemed a waiver by the waiving Party of any subsequent or other default, nor shall it prejudice the rights of the other Party.
- Counterparts and Entire Agreement
- This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party. Execution of this Agreement or any other documents pursuant to this Agreement by facsimile or other electronic copy of a signature shall be deemed to be, and shall have the same effect as, execution by an original signature.
- This Agreement and the exhibits, the schedules and appendices hereto and thereto contain the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter. There are no agreements or understandings between the Parties with respect to such subject matter other than those set forth or referred to herein or therein.
- Amendments: No provisions of this Agreement shall be deemed waived, amended, supplemented or modified by any Party, unless such waiver, amendment, supplement or modification is in writing and signed by the authorized representative of the Party against whom it is sought to enforce such waiver, amendment, supplement or modification.
- Notices: All notices or other communications under this Agreement shall be in writing and shall be deemed to be duly given when (a) delivered in person or (b) by registered post; or (c) email at the following respective addresses of the Parties hereto:
To the Company:
Email id: [●]
To the Vendor:
Email id: [●]
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN
SIGNED AND DELIVERED
On behalf of the VENDOR
For and on behalf of the COMPANY
[Please list down the Products to be purchased from the Vendor and the Standards of each Product]