THIS SERVICE MANAGEMENT SOLUTION AGREEMENT is executed at Gurgaon (Haryana) and is effective from the date of Acceptance of the Agreement.
By and Between
MOMOE TECHNOLOGIES PRIVATE LIMITED, a private limited company incorporated under the laws of India having its registered office at Plot No. 112, Sector 44, Gurgaon, 122001, Haryana, India. (Hereinafter referred to as MOMOE)
AND
You , (company/ Individual/ firm/ body corporate) together with any company or other business entity you are representing, if any (hereinafter called collectively, “Merchant†or “you†or “user†) incorporated under the laws of India , which means and include, unless repugnant to the context or meaning thereof, its affiliates, assigns, liquidators, successors and permitted assigns) on the OTHER PART.
Momoe and the Merchant are hereinafter individually referred to as “Party†and collectively as the “Partiesâ€
Whereas
1. Momoe is engaged in the business of offering various services through its website/Mobile App platforms including but not limited to conventional offline businesses too for providing services, and to act as an aggregator of Services between Merchants and third party courier service providers.
2. Merchant is engaged in the business of Online Sales.
3. The Merchant is desirous of using the Services of Momoe and has approached Momoe for the same.
4. The Parties are desirous of recording the terms and conditions for the purpose set out above subject to provisions and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing and the promises contained herein the Parties, hereto agree as follows:
1.1. This Agreement shall commence from the date of Acceptance of the same (hereinafter referred as the "Commencement Date"). The Agreement shall be valid, legal and binding on the Parties for a period of one (1) year from the Commencement Date (the "Initial Term") which shall thereafter be renewed automatically unless terminated by the parties I accordance with the terms of the Agreement.
Momoe shall provide solution (“Serviceâ€) in a manner set out as below:-
2.1. Merchant shall provide the list of orders (“Order Listâ€) to Momoe.
2.2. Momoe shall facilitate/provide the Service to the Merchant by providing the Merchant an automated shipping panel services technology integrated with Momoe’s vendors (offered through an offline mode).
2.3. The Merchant agrees that the shipments shall be picked up by MOMOE’s Vendor from the Merchants’ locations as communicated to MOMOE
2.4. The tracking number would be assigned by Momoe based on the pickup, delivery pin code and type of shipment.
2.5. Merchants shall mandatorily provide and display prominently on package of the shipping label full details which shall include the name of the Merchant, his contact number, address, the Order Number, consignee details, product details, return address i.e. the shipping address and the Gross Value and Collectable Value (Net value) to be collected in case of COD (Cash on Delivery) shipments.
2.6. Merchant agrees that he shall be responsible for safe, proper, tamper proof and damage proof packing to ensure that it shall withstand the normal transportation and environmental hazards and shall be in compliance with applicable laws of the products that are handed over to the Courier service provider.
2.7. Merchant agrees that all claims must be notified to MOMOE in writing within twenty four (24) hours from the date of acceptance of the shipment, failing which Merchant forfeits and waives its right for/to such claim.
2.8. Merchant agrees that in case of shipments booked under COD (Cash on Delivery), MOMOE’s/Momoe’s vendor shall collect Cash, as per the instructions of MOMOE from the Consignee of the shipments as per the details mentioned on the COD Order and remit/reimburse the amount to MOMOE which then forth would be reimbursed to the Merchant.
2.9. Merchant agrees that the Merchant on its behalf shall keep MOMOE indemnified against all duties, taxes, octroi, cess, clearance charges and any other charge/levy by whatsoever name called, levied on shipments. In event of such charges being levied by any government authority, the same can be claimed from the Merchant against the challan of the same. Merchant shall keep MOMOE indemnified against any loss, damage, costs, expenses arising out of any action or proceedings initiated by any authority (judicial or regulatory of the like) on account of any act/omissions on the Merchants part , this shall include GSTIN Non-compliance.
2.10. The Merchant will be solely responsible for complying with all statutory requirements (State and Central Laws/Statutes) applicable including but not limited to requirements in relation to booking, sale and transportation of the shipments carried and delivered on merchant’s behalf in pursuance of this agreement.
2.11. Merchant undertakes to fully indemnify ,hold harmless and defend MOMOE (including its employees, directors and vendors) and hold it entirely harmless in case of any breach of this Agreement or law ,by the Merchant and /or by its customers.
2.12. Merchant agrees that any registration information given to Momoe and the details of the shipment will always be true, accurate, correct, complete and up to date . Merchant agrees that any phone number used to register with the Service will be registered in the Merchant’s name and Merchant might be asked to provide supporting documents to prove the same.Further the Merchant agrees to ensure that the Phone Number being provided by the Merchant shall be an active number.
2.13. Merchant agrees not to use the Services provided by Momoe for any unauthorized and unlawful purpose and will not impersonate another person.In case any such action is committed by the Merchant , Merchant shall be liable for the same and shall defend and hold Momoe harmless.
2.14. Merchant shall allow Momoe and its registered service partners to send delivery related messages and calls to its customers which shall be in compliance with the required laws.
2.15. Merchant agrees to use the Services only for purposes that are permitted by (a) the Terms of this agreement and (b) any applicable law, regulation and generally accepted practices or guidelines in the relevant jurisdictions (including the laws related to Data Protection and Privacy)
2.16. Merchant agrees to indemnify Momoe and hold it harmless and shall be solely responsible for (and that Momoe has no responsibility to Merchant or to any third party for) any breach of Merchants obligations under the Terms of this agreement or any law for the time being in force, and for the consequences (including any loss or damage which Momoe may suffer) from any such breach.
2.17. Merchant shall indemnify Momoe for any claims, losses or damages, or for the costs of any regulatory or court proceedings suffered by Momoe as a result of Merchant’s breach of the terms of this agreement and/or breach of any applicable law.
2.18. It is expressly agreed between the parties that Momoe is merely providing a facilitating service between the Merchant and various Third Party Logistics Service Providers , under no situation whatsoever is Momoe responsible for the Merchants Act’s or Omissions .
3.1. Merchant agrees that he shall be responsible for safe, proper, tamper proof and damage proof packing to ensure that it shall withstand the normal transportation and environmental hazards and shall be in compliance with applicable laws of the products that are handed over to the Courier service provider/Momoe’s Vendor.
3.2. Merchant shall be responsible for packaging as well as for providing the correct weight of the shipment before the same is picked up by the third party logistics service provider. In the event of any discrepancy found in the weight provided by the Merchant at the time of booking/submission/uploading data or under any other circumstance if the weight provided by the Merchant is found to be inaccurate , the weight provided by the third party logistics service provider/Momoe shall be accepted as the correct weight.
3.3. Merchant shall be ready with the packed order when the courier service provider/personnel comes to receive the shipment, all pick-ups should be logged before the cut off time as directed by the customer support team of MOMOE, and no pick up beyond the cut-off time will be done. Merchant agrees that they shall contact the MOMOE personnel for the pickup arrangements.
3.4. Once the shipment is handed over to the third party logistics service provider the Merchant shall hand over the shipment manifest and the same shall be signed by the third party logistics service provider and returned to the Merchant. The receipt of the signed manifest is the proof of handing over of the shipment.
3.5. Merchant agrees to properly paste and insert a valid invoice, in and on the package.
3.6. Merchant agrees to ensure that he shall provide all relevant information including name , registered number , address for the purpose of being mentioned on the shipping label to be affixed on the shipment/package.
3.7. Merchant agrees that when a shipment coming back as RTO (return to origin) due to failure of COD or failed delivery or any other reason whatsoever, it is the Merchant’s responsibility to change the status of the order to RTO received and intimate MOMOE in with the Reverse Airway bill number. Merchant agrees to make payment as applicable.
3.8. Merchant shall agree that he shall not book / handover or allows to be handed over any good which is banned, restricted, illegal, prohibited, stolen, infringing of any third party rights, hazardous or dangerous or in breach of any tax laws or contains any cash, jewellery of (excluding artificial jewellery) gold, silver, diamond, platinum, precious metals, precious stones, currency, bullion, letters and financial and security instruments, and Momoe shall not be liable for the Delivery of any such products. Without prejudice to the generality of the aforesaid, an indicative list of the banned or prohibited products is given in “Banned Productsâ€, attached as Annexure 1. In the event Merchant hands over or provides the aforesaid products to Momoe then Momoe shall not be responsible and shall not be liable for any loss, damage, theft or misappropriation of such Products or seizure of the same by any judicial/regulatory authority, even if such loss, damage, theft or misappropriation is caused due to any reason attributable to any of it’s vendor or authorized delivery personnel.
4.1. Momoe shall issue invoice to the Merchant on a monthly basis for services being rendered in the immediate preceding month, the payment shall be adjusted after deducting service fee from the COD remittance, if applicable. 20% of the COD Remittance shall be withheld till the time of clearance of monthly invoice .The same shall be reimbursed accordingly. The Merchant shall pay to the Momoe within 7 ( Seven ) days from the date of submission of the invoice.
4.2. Momoe may add new services for additional fees and charges or may proactively amend fees and charges for existing services, at any time in its sole discretion, after communicating the same to the Merchant. If the Merchant avails any service, the merchant authorizes Momoe to charge fees as applicable to the said service, and authorizes Momoe to make such modification to the fee structure as required and also agrees to abide by such modified fee structure.
4.3. Merchant is solely responsible for payment of all taxes, legal compliances and statutory registrations. Momoe is in no way responsible for any of the Merchants taxes or legal or statutory compliances, except for its own due diligence.
4.4. Fees not received within the specified due dates attract late charges of 1% per month from the due-date of payment, and any such charges may be levied at Momoe’s sole discretion after a 15 (fifteen) day curable notice has been sent to the Merchant & merchant fails to comply with the same.
4.5. Momoe reserves the right to modify the fee structure by providing a 7 (Seven days) prior written notice to the Merchant. Upon the Merchant not communicating any response to Momoe to such notice, Momoe shall apply the modified fee structure effective from the expiry of the said notice period. Fee structure has been provided as Annexure 2 to this Agreement, which can be amended by the sole discretion of Momoe by serving a prior written notice of seven days to the merchant.
4.6. Both parties will comply with tax, GST and other regulations applicable on them from time to time.
4.7. Parties shall be responsible for complying with all applicable laws, regulations governing the parties from time to time and their scope of work envisaged in the this Agreement. If, due to any change in applicable law or regulations or the interpretation thereof by any court or other governing body having jurisdiction subsequent to the date of this Addendum, performance of any provision under the Principal Agreement is affected, the Parties shall use their best efforts to find an alternative means to achieve the same or substantially the same results as are contemplated by such provision.
4.8. In the event of any dispute between the Parties with respect to the invoiced Delivery Services, the dispute should be raised within one week of the receipt of the invoice. Thereafter, the Parties shall promptly seek to resolve the dispute in good faith. Payment of the undisputed amount shall not be affected and should be made as per the general terms of this Agreement.
4.9. If for any reason the Merchant defaults in making the payments against undisputed invoices issued by Momoe, then notwithstanding any other rights and remedies that Momoe may have in contract, at law (including common law) or in equity, the Merchant shall pay liquidated damages to Momoe on the invoiced amounts that are not paid by the Merchant on the due date of such payment(s) from the due date till payment, and shall attract late charges of 1% per month after serving a 7 (Seven) days curable notice.
4.10. If the Merchant is unable to resolve the dispute against disputed invoices within 15 (fifteen) days from date of payment of such service/claim, Momoe reserves the right to withhold the shipment or COD remittances till the time such payment is made/or such dispute is resolved.
4.11. Where the Merchant subscribes to any packages offered by the Company, he shall have to pay an additional subscription fee as applicable.
5.1. MOMOE shall not be responsible or liable in any manner to the Merchant for any losses, damage, injuries or expenses incurred by the Merchant as a result of any action taken by MOMOE, where the Merchant has consented for the same.
5.2. MOMOE does not verify any content or information provided by the Merchant and to the fullest extent permitted by law disclaims all liability arising out of the Merchant’s use or reliance upon the Services or the use of the Merchants product by the end customer.
5.3. In no event, including but not limited to negligence, willful misconduct , shall MOMOE, or any of its directors, officers, employees, agents be liable for any indirect, special, incidental, consequential, exemplary or punitive damages arising from, or directly or indirectly related to, the use of, or the inability to use, the Services or the content, materials and functions related to this agreement.
In no event shall the total aggregate liability of Momoe to the Merchant for all/any damages, losses, and causes of action (whether in contract or tort, including, but not limited to, negligence or otherwise) arising from the terms and conditions agreed between the Parties or a Merchants use of the Services exceed, in cases where no FOV is accepted then maximum liability shall be limited to INR 2,000 (Rupees Two thousand only) or actual cost whichever is lower, or where FOV is accepted then as per actual cost or an aggregate of INR5,000/shipment , whichever is lower out of the both.
5.5. Subject to clause 5.4 and Annexure 2 , Freight for LOST & Damage shipments : Freight in both scenarios will be charged depending upon the transition of the shipment i.e if the shipment is damaged/lost during transit/delivery to end customer then a forward Services charge shall be deducted however if the same is lost /damaged when the shipment has been marked as RTO , then both forward as well as RTO charge shall be applicable.
5.6. MOMOE shall not be liable for any act or omission of any other company or companies furnishing a part of the Services, or from any act or omission of a third party and those vendors participating in the Services, or for any unauthorized interception of Customer’s communications or other breaches of privacy attributable in part to the acts or omissions of Customer or third parties, or for damages associated with the Service.
5.7. Momoe shall not be liable in any manner whatsoever for any third party claims including but not limited to consumer grievances , complaints , intellectual property rights violations,etc in regard with the
i) Quality/Quantity of the product
ii) Defect/Damage in the product
iii) Deficiency in service/Unfair Trade practice by the Merchant.
iv) Intellectual property right infringement
v) Any illegal/unlawful acts/omissions by the customer of the Merchant
The Merchant shall ensure that in any such situation as mentioned above, the Merchant shall indemnify, defend and hold harmless Momoe, its affiliates, employees, directors and vendors .
Further the Merchant shall indemnify Momoe / Third Party Logistics Service Provider in any event where the end consumer/customer of the Merchants Product would do any inappropriate/unlawful act including but not limited to forcefully snatching the shipment or Cash from the courier,etc .
6.1 It is expressly understood and agreed by both parties that MOMOE will not offer and not be required to insure any item contracted by Merchant for carriage by any vendor of MOMOE ..
a) Merchant agrees to indemnify,defend and hold harmless Momoe, its affiliates, officers, directors, employees, consultants, licensors, agents, and representatives from any and all claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from his/her/ its access to or use of Service, violation of this Agreement, or infringement by any other party of his/her/its account, of any intellectual property or other right of any person or entity including any claim or proceeding brought by the Customer or any other person against MOMOE in respect of the Products/Services or any act, deed, omission or non-performance of the Merchant; any non-compliance with the Applicable Laws by the Merchant; any third party claims arising from wilful misrepresentation, gross negligence or wilful misconduct of the Merchant. Merchant further agrees to provide Momoe with reasonable assistance, at its expense, in defending any such claim, loss, liability, damage, or cost.
b) This Clause shall be read along with any/all other clauses pertaining to indemnification within the Agreement.
Either Party may terminate this Agreement on the occurrence of any of the following events;
a) Immediately, if the Party is declared insolvent or bankrupt or is unable to pay its debts or makes a composition with its creditors;
b) Immediately, if the Party is dissolved or wound up compulsorily or if an order is made or an effective resolution is passed for the winding up of the such Party;
c) Immediately, if the Merchant violates any applicable law and misuse the services as defined under Clause 11;
d) In case of any material breach of this Agreement apart from violation of applicable law and misuse of services, after giving one month prior written notice to the other Party to rectify such breach and the Party in breach is unable to rectify such breach within such one month time.
e) In the event of termination of this Agreement, the Merchant shall promptly and forthwith make payments of all the Fees accrued or due to Momoe.
f) Momoe can terminate this Agreement by giving one month notice in writing without assigning any reason.
g) Clauses 4,5,6,7,9,10,11,12,13,14,15,16,19,20,21 shall survive expiry or early termination of this Agreement.
Either party may terminate this Agreement by giving a 30 days prior written notice to the other Party.
9.1. UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT OR ANY OF ITS BUSINESS PARTNER BE LIABLE TO THE MERCHANT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY LOSSES OR DAMAGES ARISING FROM THE AGREEMENT, UNDER TORT, COMMON LAW OR UNDER PUBLIC POLICY.
9.2. UNDER NO CIRCUMSTANCES WILL MOMOE OR ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT OR ANY OF ITS BUSINESS PARTNER BE LIABLE TO THE MERCHANT FOR ANY LOSS OR DAMAGES ARISING OUT OF THIRD PARTY GREIVANCES OR CLAIMS RELATING TO THE PRODUCT, OR ANY INTELLECTUAL RIGHTS INFRINGEMENT BY THE MERCHANT OR ANY OTHER LOSS OR DAMAGES, WHICH HAVE TAKEN PLACE DUE TO THE ACT OR OMISSION OF THE MERCHANT.
9.3. Momoe’s liability in any/all cases is limited to : i)In case where the Merchant accepts FOV , then either actual cost or an aggregate of INR 5,000 ,whichever is lower. ii)In case where the Merchant does not accept FOV , then either the actual cost or an aggregate of INR 2,000 per shipment, whichever is less.
9.4. THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISKS BETWEEN THE PARTIES AND ESSENTIAL ELEMENT FOR PARTIES TO ENTER INTO THIS AGREEMENT.
10.1 Each party shall, during the term of this Agreement and at any time thereafter, be under an obligation to keep confidential any and all Confidential Information. Each party hereby acknowledges that it shall not, without the prior written consent of the other party, in any way disclose or transfer any Confidential Information to any third party (other than any of its respective Authorized Party subject to this Agreement), or use, transfer or otherwise dispose of any Confidential Information for any purpose other than for the performance of its obligations under this Agreement.
10.2 Any contravention of the present clause shall be taken to be a material breach of the contract rendering the Agreement to be terminated forthwith by MOMOE.
11.1 Subject to Clause 11.2, this Agreement (including, without limitation, any and all rights, interest, benefits and obligation in relation thereto) shall apply to and bind any and all successors and assigns of the parties hereto.
11.2 Neither party shall assign, transfer, licence or sub-contract any of its rights, interests, benefits and/or obligations under this Agreement to any third party without the prior written consent of the other party, which shall not be unreasonably withheld.
No variation, waiver or amendment of any term of this Agreement shall be valid unless such variation, waiver or amendment is made in writing and signed by or on behalf of both parties hereto.
This Agreement constitutes the entire agreement between the parties and revokes and supersedes all previous agreements. No amendments hereto shall be valid unless made in writing and signed by or on behalf of the parties hereto.
Momoe shall be entitled to make public disclosure without obtaining the prior written consent of the Merchant regarding the execution of this Agreement and from time to time regarding the ongoing business relationship between Momoe and the Merchant.
Each Party represents that it has taken all necessary corporate actions to authorize the execution and consummation of this Agreement and will furnish the other Party with satisfactory evidence of same upon request. Each Party agrees to negotiate in good faith the execution of such other documents or agreements as may be necessary or desirable for the implementation of this Agreement and the effective execution of the transactions contemplated hereby, and shall continue to do so during the Term of this Agreement.
Momoe may restrict, suspend or terminate the account of any Merchant who abuses or misuses the Services. Misuse includes creating multiple or false profiles, infringing any intellectual property rights, violating any of the terms and conditions of this Agreement, or any other behavior that Momoe, in its sole discretion, deems contrary to its purpose. In addition, and without limiting the foregoing, Momoe has adopted a policy of terminating accounts of Merchants who, in Momoe’s sole discretion, are deemed to be repeat infringers of any the Terms of this agreement and of any other applicable law.
Merchant hereto agrees that it shall comply with all applicable local laws, ordinances and codes including compliance of anti-bribery laws/regulations in performing its obligations hereunder. If at any time during the Term of this Agreement, Merchant is informed or information comes to its attention that it is or may be in violation of any law, ordinance, regulation, or code (or if it is so decreed or adjudged by any court, tribunal or other authority having competent jurisdiction), Merchant shall immediately take all appropriate steps to remedy such violation and comply with such law, regulation, ordinance or code in all respects. Further, Merchant shall establish and maintain all proper records (particularly, but without limitation, accounting records) required by any law, code of practice or corporate policy applicable to it from time to time.
Parties represent, warrant and covenant that as on the date of this Agreement, the Parties are in full compliance of all applicable laws and regulations relating to anticorruption and anti-bribery ("Anticorruption Laws") and have not violated the same and agree and undertake that they shall not violate the Anti-corruption Laws, whether directly or indirectly.
Data privacy.
Parties are required to comply with all the applicable data privacy and data protection laws including but not limited to Information Technology Act, 2000 ,and rules framed under it, if applicable.
18.1. Except financial obligation ,In the event either party (the Prevented Party) is prevented from performing its obligations under this Agreement by force majeure, such as earthquake, typhoon, flood, public commotion, torrential rains, heavy winds, storms or other acts of nature, fire, terrorist acts, threatened terrorists acts, explosion, acts of civil or military authority including the inability to obtain any required approvals or permits, strikes, riots, war, plagues, other epidemics, or other unforeseen events beyond the Prevented Party’s reasonable control (an Event of Force Majeure), the Prevented Party shall notify the other party without delay and within fifteen (15) days thereafter shall provide detailed information concerning such event and documents evidencing such event, explaining the reasons for its inability to execute, or for its delay in the execution of, all or part of its obligations under this Agreement. If an Event of Force Majeure occurs, neither party shall be responsible for any damage, increased costs or loss which the other party may sustain by reason of such a failure or delay of performance, and such failure or delay shall not be deemed a breach of this Agreement. The Prevented Party shall take reasonable means to minimise or remove the effects of an Event of Force Majeure and, within the shortest reasonable time, attempt to resume performance of the obligations delayed or prevented by the Event of Force Majeure.
This Agreement, the construction and enforcement of its terms and the interpretation of the rights and duties of the Parties hereto shall be governed by the laws of India and shall be subject to the jurisdiction of courts in Gurugram. This Agreement is executed in English language which shall prevail over any translation thereof.
All disputes arising out of or in relation to this Agreement, including any question regarding its existence, validity or termination, which cannot be amicably resolved by the Parties within 15 days of being brought to their attention (such 15 day period is referred to as the “Consultation Periodâ€), shall be settled by arbitration governed by the provisions of Arbitration and Conciliation Act, 1996 and the rules made thereunder and/or any amendments thereof. If the parties are not able to agree on a sole arbitrator, a panel of three arbitrators shall be appointed wherein each party shall appoint one arbitrator within 15 days of the expiry of the Consultation Period, and the two arbitrators together shall appoint the presiding arbitrator within 15 days of the appointment of the last of the two arbitrators. The venue/seat of Arbitration shall be New Delhi and the language of arbitration shall be English. A dispute shall be deemed to have arisen when either Party notifies the other Party in writing to that effect.
This Agreement binds the successors and assigns of the respective Parties with respect to all covenants herein, and cannot be changed except by written agreement signed by both Parties.
If any provision of this terms of use is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. A failure or delay of any Party to this Agreement to enforce at any time any of the provisions of this Agreement or to exercise any option which is herein provided, or to require at any time performance of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions of this Agreement.
It is expressly understood by the parties to the agreement that Momoe is not performing any activity or job or providing service on behalf of the Merchant which tantamount to Seller or Retailer and or Stockiest/Distributor. Nothing in this Agreement (or any of the arrangements contemplated herein) shall be deemed to constitute a partnership between the parties hereto, nor, except as may be expressly provided herein, constitute any party as the agent of another party for any purpose, or entitle any party to commit or bind another party in any manner.
The Parties may execute this Agreement in counterparts and each fully executed counterpart shall be deemed an original.v ON CLICKING ON THE CONTINUE BUTTON ON THE REGISTRATION PAGE , YOU SHALL BE DEEMED TO HAVE ACCEPTED THE AGREEMENT.
ANNEXURE I
List of banned or prohibited Products