Your access to use the Services will be solely at the discretion of OneShip.
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and adequacy of which are hereby expressly acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
DEFINITIONS
In this Agreement, the following terms, to the extent not inconsistent with the context thereof, shall have the meanings assigned to them herein below:
1.1. “Affiliate” shall mean, with respect to a Person, any Person, company, or other entity which controls, is controlled by, or is under common control with such Person, company, or other entity.
1.2. “Agreement” means this Merchant agreement and shall include any recitals, Annexures, schedules, and exhibits which may or may not be annexed to this Agreement, and any amendments made by the Parties in accordance with the terms hereof.
1.3. “Aggrieved Party” shall have the meaning ascribed to it in Clause 16.
1.4. “Applicable Law/Laws” shall include all applicable statutes, enactments, acts of the legislature, laws, ordinances, rules, bye-laws, regulations, guidelines, policies, directions, directives and orders of any Government, and applicable international treaties and regulations, in force at the relevant time.
1.5. “Claims” shall have the meaning ascribed to it in this agreement.
1.6. “Confidential Information” shall mean and include any and all information that is confidential to a Party including (i) any business information, business strategies, and plans; (ii) any specifications, and data relating to Products, processes, and procedures; (iii) advertising and marketing plans or marketing information, data and/or material; (iv) any past, current or proposed development projects or plans for future development work; (v) any technical, marketing, financial and commercial information; (vi) all Company’s Information and (vii) Intellectual Property.
1.7. “Courier Partner” shall mean an entity or a person engaged by the Service Provider for providing on-ground courier services.
1.8. “Defaulting Party” shall have the meaning ascribed to it in Clause 16.
1.9. “Expenses” shall have the meaning ascribed to it in Clause 7.2.
1.10. “Field Executive” or “Field Executives” means any person employed by the Courier Partner or any of its consultant/partner / sub-contractor for the purpose of delivering the Products.
1.11. “Identified Customer” means any person for whom, the Merchant requests the Service Provider to arrange the delivery of Products.
1.12. “Intellectual Property” shall mean and include ideas, concepts, creations, discoveries, domain names, inventions, improvements, know-how, trade or business secrets; patents, copyright (including all copyright in any designs and any moral rights), trademarks, service marks, designs, utility models, tools, devices, models, methods, procedures, processes, systems, principles, algorithms, works of authorship, flowcharts, drawings, books, papers, models, sketches, formulas, teaching techniques, electronic codes, proprietary techniques, research projects, and other confidential and proprietary information, computer programming code, databases, software programs, data, documents, instruction manuals, records, memoranda, notes, user guides; in either printed or machine-readable form, whether or not copyrightable or patentable, or any written or verbal instructions or comments.
1.13. “Indemnified Parties” shall have the meaning ascribed to it in Clause 15.
1.14. “Indemnifying Parties” shall have the meaning ascribed to it in Clause 15.
1.15. “Material Breach” shall have the meaning ascribed to it in Clause 16.
1.16. “Merchant” shall mean any natural person, limited or unlimited liability company, corporation, partnership (whether limited or unlimited), proprietorship, trust, union, association, government or any agency or political subdivision thereof or any other entity that may be treated as a person under applicable Law.
1.17. “Product” or “Products” shall mean the goods provided by the Merchant to the Field Executives for the purpose of delivery.
1.18. “Service” or “Services” means the delivery of Products at the request of the Merchant, to the Identified Customers at their desired location.
1.19. “Service Fee” shall have the meaning ascribed to it in Clause 7.
1.20. “Territory” shall mean any territory which is mutually agreed between the Parties to be the operational area for performing the Services.
1.21. “Value Added Services” or “VAS” includes services like RTO prediction intelligence, NDR services, checkout services, communication services, working capital solutions, GST or other ancillary business registration services, and other ancillary services
1.22. “Website” means the website of the Service Provider i.e. www.weship.pk
2 SCOPE OF THE AGREEMENT
2.1 Subject to the terms and conditions of this Agreement, the Merchant hereby engages the Service Provider, on a non-exclusive basis and the Service Provider accepts such engagement, for providing the Services as per the terms of this Agreement.
2.2 The Service Provider shall provide the Services on an “as and when required” basis. The Merchant shall raise a request for any Service in the manner agreed in this Agreement or as may be mutually agreed between the Parties.
2.3 Service provider is the author and owner of its logistics software, hereinafter to be referred to as “Weship”, providing its Merchant automated shipping panel services integrated with the courier partners. Merchant agrees that Service Provider has no role and responsibility in the actual delivery and shipment of the product, and Service Provider provides a platform, for the Merchant to avail shipping services.
3 MANNER OF PROVIDING THE SERVICES
3.1 The Merchant shall request the Service Provider for the Services as and when required, either through a call on a designated phone number of the Service Provider or directly through the Website. Provided that the Merchant may also request the Services in the manner provided on the Website.
3.2 On the request made by the Merchant in the manner provided above, the Service Provider shall arrange a Field Executive to be available with the Merchant to provide the Services within a cut-off time as directed by the customer support team of the service provider depending on the availability of the Field Executives and other circumstances.
3.3 The Merchant shall hand over the properly packaged Product to the Field Executive.
3.4 The Field Executive will deliver the Product to the Identified Customer within a reasonable time or such time as is agreed with the Merchant. Provided however if there are any delays in the delivery of the Product to the Identified Customer on account of bad weather, heavy or congested traffic, or similar conditions then neither the Service Provider nor the Field Executive shall be responsible for any such delays.
3.5 Merchant shall provide/display prominently on the package the shipping label having full details of the order number, consignee details, product details, and return address i.e. the shipping address and the gross value and collectible value (net value) to be collected in case of COD (Cash on Delivery) shipments. The Service Provider’s backend panel platform shall enable the Merchant to take a print of the shipping label with all the details and the same shall be pasted on the shipment.
3.6 Shipments that cross national borders/ international shipments may be subject to customs clearance, in the destination country prior to its delivery.
3.7 In the event of Identified Customer canceling its order for the Product while the Product is in transit or upon non-delivery of the Product due to the absence of the Identified Customer at the specified location, the Field Executive shall arrange to return the Product to the Merchant. Upon return of the Product, the Merchant shall pay such amounts to the Service provider as provided in this agreement and all such cases shall be treated as NonDelivery Report ("NDR”) and if, at the time of non-delivery of Product, the Merchant did not respond within 24 hours, the service provider shall reserve the order as mark product as RTO.
4 ROLES AND RESPONSIBILITIES OF THE SERVICE PROVIDER
4.1 Quality of Service. The Service Provider shall make commercially reasonable endeavors that the Services are performed in a professional and competent manner, consistent with industry standards reasonably applicable to such services. 4.2 Performance of Services. The Service Provider and not the Merchant, shall have the right to control the manner and means by which the Services are to be completed by the Service Provider pursuant to this Agreement. The Service Provider shall also retain the right to ensure that the Services are being performed according to the agreed specifications.
4.3 The Service Provider makes practically reasonable endeavors that:
4.3.1 Field Executive shall be available with the Merchant within a reasonable time when required by the Merchant for providing the Service. However, the Service Provider shall reserve the right to reject the request made by the Merchant in cases of non-availability of Field Executives due to unforeseen circumstances and Force Majeure.
4.3.2 The Products given by the Merchant are delivered timely and in good condition to the address of Identified Customer or any other person specified by the Merchant. In order to do so, Merchant authorizes Service Provider to store/process/share/reproduce the Identified customer’s order-related data for intelligence purposes and to improve the delivery performance.
4.4 It is expressly understood by the Parties that the Service Provider is a mere service provider to the Merchant and not in any other capacity whatsoever it may be called. It is further agreed to by the Parties that the Service Provider is not performing any activity or job or providing service on behalf of the Merchant which is tantamount to seller or retailer and or stockiest/distributor. The complete activity performed by the Service Provider under this Agreement is based on specific instructions given by the Merchant as part of the scope defined from time to time.
5 ROLES AND RESPONSIBILITIES OF THE MERCHANT
5.1 The Merchant shall ensure the availability of the Products before making a request to the Service Provider for a Field Executive.
5.2 The Merchant shall ensure that:
5.2.1 The products which are banned or declared illegal or the transportation of such products which require a license under the Applicable Laws, shall not be shipped through the packaged packet. The Merchant does not carry on activities, which are banned or illegal or immoral under the Applicable Laws. In the event, the Merchant hands over or provides the aforesaid goods/shipments to Service Provider/its courier partner, then Service Provider /its courier partner shall not be responsible and liable for any loss, damage, theft, or misappropriation of such products even if the service provider or delivery personnel has the knowledge of the same and even if such loss, damage, theft or misappropriation is caused due to any reason attributable to the service provider or delivery personnel. The Merchant undertakes that in the event any article/good/shipment booked/handed over by it falls within the category of the banned/illegal items or those described above (including reactive, hazardous, and dangerous goods which are in breach of any applicable law or of any packaging/transportation guidelines of the concerned courier partner), then the Merchant agrees to indemnify Service Provider and its courier partner for any and all issues, losses, and damages pursuant thereto.
5.2.2 The Merchant agrees that the Merchant shall be responsible for proper, tamper-proof, and damage-proof packing of the products.
5.2.3 The Merchant agrees that the Merchant shall use good quality boxes and tapes, duly engraved with your trademark/name, etc., and not generic tapes for the packaging/sealing of the goods/shipments. In case generic (brown/plain) tapes are used in the packaging/sealing of the goods/shipments, Service Provider shall have no responsibility of any kind, in case of pilferage/damage/alteration/tapering/leakage, etc. of the goods/shipments. In such a scenario, the entire responsibility shall be of the Merchant.
5.2.4 Merchant shall collect receipt(s) of the signed copy of the shipping manifest; it is the proof of handover of shipment to the courier companies.
5.2.5 At the time of handing over the Products to the Field Executive, the Products are in good condition. If the Products are not in good condition at the time of handling the Products, the Field Executive, at his sole discretion, may refuse to accept the Product, without any liability to the Service Provider.
5.2.6 The Merchant is solely liable for Products shipped through Service Providers. In the case of any Product mismatch/quality issue, Service Provider shall not be liable.
5.2.7 The Merchant shall give adequate prior intimation to the Service Provider about the nature of the Products to be transported. The Merchant shall also intimate the Service Provider about whether such Products are to be delicately handled, whether the Products are of hazardous nature, and other conditions with which the Products have to be handled in order to facilitate the Service Provider to make adequate arrangements for transport of such Products. This prior information is critical to the Service Provider. In the event of failure to provide such information, the Service Provider shall not be held liable for any damages and in addition, the Merchant shall be liable to indemnify the Service Provider for any actual and direct loss/injury suffered by its authorized personnel or to its vehicles on account of such hazardous nature of Products. The Merchant agrees that any information given to Service Provider will always be true, accurate, correct, complete, and up to date which shall be used by the Service Provider as per their requirements. The Merchant shall provide a proper prior intimation of the destination and details of the Identified Customer to whom/which the Products are to be delivered. Failure to provide proper information and/or any requisite information in relation to the Products shall absolve the Service Provider of any liabilities towards loss from damage, defect, delay, or miss-delivery. The Merchant agrees that it will be solely responsible for any breach of its obligations under this Agreement and for the consequences (including any loss or damage which the Merchant may suffer) of any such breach.
5.2.8 The Merchant shall be solely and directly liable to its Identified Customers. The Service Provider shall be liable only to the Merchant to the extent and in the manner set out in the Agreement. To that effect, the Merchant shall ensure to protect and immediately indemnify the Service Provider against any such claims from Identified Customers of the Merchant.
5.2.9 The Merchant shall ensure to make its premises or location of delivery of the Products, safe and accessible to the Field Executive for loading of the Products.
5.2.10 The Merchant shall be ready with the package in packed order when the Field Executive comes to receive the shipment, all pick-ups should be logged before the cut-off time as directed by the customer support team of the Service Provider, and no pick-up beyond the cut-off time of the Courier Partner shall be possible.
5.2.11 The Merchant shall not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services) of the Service Provider.
5.2.12 Service Provider hereby authorizes the Merchant to view and access the content available on the Website/Mobile App solely for ordering, receiving, delivering, and communicating as per this Agreement. The contents of the Services, information, text, graphics, images, logos, button icons, software code, design, and the collection, arrangement, and assembly of content on the Website and Mobile App (collectively, "Service Provider’s Content"), are the property of Service Provider and are protected under copyright, trademark, and other laws. Merchant shall not modify the Service Provider Content or reproduce, display, publicly perform, distribute, or otherwise use the Service Provider Content in any manner, without the consent of the Service Provider.
5.2.13 Merchant shall not transfer or share (including by way of sublicense, lease, assignment, or other transfer, including by operation of law) their log-in or right to use the Service to any third party. The Merchant shall be solely responsible for the way anyone has authorized to use the Services and for ensuring that all of such users comply with all of the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by any such Merchant shall be deemed to be a violation thereof by Merchant, towards which Service Provider shall have no liability or responsibility.
5.2.14 The Merchant is solely responsible for payment of all taxes, legal compliances, and statutory registrations and reporting under applicable law. Service Provider is in no way responsible for any of the Merchant’s taxes or legal or statutory compliances.
5.2.15 Notwithstanding anything provided contrary in this Agreement, the Merchant hereby: (i) agrees that the Merchant has voluntarily submitted the various KYC information and documents (including but not limited to national CNIC, passport, driving license, GST certificate, income tax returns, entity details, etc.) and requisite information as required by Service Provider from time to time; (ii) provides his consent for verification of the information and documents submitted to Service Provider in order to establish its genuineness in the manner permitted by applicable laws; and (iii) provides his consent and further authorizes Service Provider to share his relevant details and documents (including but not limited to business/registered name(s), phone number(s), address(es), email-id(s), bank account details, KYC documents, etc.) with the concerned judicial authority, court, police, complainant, etc. (as the case may be) in the event of a complaint been filed against the Merchant or dispute been raised in relation to the shipment(s) made by the Merchant.
5.2.16 Merchant should properly paste and insert the invoice, in and on the package
5.2.17 Merchant to agree that when a shipment comes back as RTO (return to origin) due to failure of COD, failed delivery, failure to pay any duty, or any other reason whatsoever, it is the Merchant’s /Merchant’s responsibility to change the status of the order to RTO received. Merchant agrees to make payment as applicable.
5.3 In the event of any consumer complaint/dispute, the cases will be sent to the Merchant, and it will be the sole responsibility of the Merchant to resolve such cases within
24 Hrs of receiving such cases. In case of any failure to resolve such cases, the Service Provider reserves the right to take appropriate action, legal or otherwise. If at any stage due to the shipment of a fake/wrong product, through the Service provider's Courier partner, Service Provider faces any issues, the cases will be sent to the Merchant, and it will be the sole responsibility of the Merchant to resolve such cases within 24 Hrs of receiving such cases. If Merchant does not resolve the said issue within the above-mentioned time period in such event, one reminder mail will be sent to the Merchant on subsequent working days, after this reminder mails Service Provider reserves the right to hold the COD of the Merchant and will remit such COD to the End -customer after proper investigation. In addition to that Service Provider will levy liquidated damages of up to Rs. 5,000/- per product in addition to the invoice value which will be auto-adjusted from COD Remittance, if the COD amount falls short in such case, the Service provider will add such value in the invoice amount. However, on continuous violation of this term liquidated damages will be levied upto Rs. 100,000/- per product in addition to the invoice value which will be auto-adjusted from COD Remittance, The Service provider reserves the right to share the information of the Merchant with the End customer/ governmental authority in this event if required. 5.4 It is further related to mention here that the above-mentioned clause 5.3 will also be applicable in falling cases if Merchant does not share the product invoice with the shipment or share an incorrect invoice with the shipment due to which the service provider will face any issues.
6 LOGIN CREDENTIALS
You and your Authorised User(s) agree to regularly regenerate the Password and Login through our dashboard in order to avoid unauthorised access to our Product through your OneShip account. In the event of any unauthorised access, you agree to indemnify us against all claims, loss or damage arising from such unauthorised access. You also agree to pay the Charges for the use of the Product on account of such unauthorised access.
7 SERVICE FEES
You agree to defend, indemnify and hold the Company harmless, on demand, from and against an\ and all claims, damages, costs, and expenses, including attorney's fees, arising from or related to your use of the Website.
DISPUTE RESOLUTION
7.1 Service Fee. Starting from the Effective Date, as consideration in lieu of the Services provided by the Service Provider, the Merchant shall make a payment on a per order basis in the manner as set forth in this Agreement, or as otherwise agreed by the Parties (“Service Fee”). The Service Provider 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.
7.2 Expenses. For all the expenses to be incurred by the Service Provider for the purpose of providing the Services pursuant to this Agreement, the Service Provider shall submit an expense report with the Merchant. The expense report shall contain a brief summary/ breakup of the expenses incurred/to be incurred and receipts thereof. The expenses shall be paid in accordance with terms and conditions of this agreement.
7.3 Taxes. Goods and Service Tax will be applicable on the Invoice as per the Applicable Law.
7.4 Tax deduction at source (TDS). The Service Fee would be subject to statutory TDS by the Merchant at the applicable rate. In the event of such deduction, Merchant will provide the Service Provider with such certificate of TDS, requisite information and documentation in a timely manner as per the applicable rules so as to enable claim credits of the said TDS including without limitation a statutorily prescribed certificate in this regard.
7.5 Said To Contain Basis & Inspection: It is expressly understood by and between the Parties that all products agreed to be delivered by Service Provider or its logistics partners are on “SAID TO CONTAIN BASIS” i.e. Service Provider or its logistics partners shall be under no obligation and is not expected to verify the description and contents of the products declared by the Merchant on the docket and as such, the Merchant shall undertake and ensure to make proper, true, fair, correct and factual declaration on the docket regarding description and value of products. Further, Service Provider is not responsible in any way whatsoever for the merchantability of the products.
7.6 For any claims by the Merchant the signed copy of the manifest sheet of the pickup against which the courier company has received the shipment has to be submitted along with the claim request. Without the signed manifest the request shall not be considered valid.
8 RETURNS/RTO OF THE PRODUCTS
8.1 Service provider reserves the right to returned to the Merchant, the products which are not accepted by the customer for any reason whatsoever, at the location(s) as specified by the Merchant.
8.2 Service Provider reserves the right to apply the RTO (return to origin) charges same as the agreed shipping rates.
8.3 Service Provider shall agree that the returns will be initiated by the courier partners for all products which are not accepted by the customer for any reason whatsoever. You will ensure that such products are accepted at the location(s) specified by Merchant and share the Airway bill number against which the shipment returned to the Merchant. In case the merchant has not received the shipment after being marked ''Returned to Origin '' by the Courier partner(s). The merchant must notify Service Provider within 15 days of the final RTO status marked for the Lost shipment to be claimed from the Courier partner(s) Shipments notified or claimed from merchant after 1 month of final status are void and the Merchant will forfeit all claims in this regard towards the Service Provider as Proof of Return cannot be generated and is not Entertained by the Courier Partner(s).
8.4 In case of non-acceptance of the RTO shipment by the Merchant or in case the Merchant is not reachable for RTO shipment, Service provider reserves the right to levy suitable demurrage/incidental charges for extended storage of such products for any period exceeding 7 (seven) business days from initiation of the returns and up to 30 (thirty days) days from such date. In case of non-acceptance of the products beyond 30 (thirty) days, Service Provider has the right to dispose such products and the Merchant will forfeit all claims in this regard towards the Service Provider also Merchant will be required to pay charges for disposing the product, along with all other charges (including demurrage/incidental charges). Further in such a case, Service Provider shall inter-alia have the right to: (a) retain the COD Amounts of the defaulting Merchant; and/or (b) retain the custody of the shipments of the defaulting Merchant which are in the possession of Service provider Courier partner(s).
9 REVERSE PICKUPS
9.1 “Reverse Pickup” means collection of the products by Service Provider from the customer’s address as specified by the Merchant and the delivery of such products at a location mutually agreed between the Parties.
9.2 Merchant shall agree that in case of a reverse pick up of orders, Merchant will be charged as per the reverse logistics price Agreed by Merchant on Dashboard.
9.3 Service Provider and Service Provider’s courier partners shall not be responsible for verifying the contents of the products handed over by the customer to it delivery personnel. The packaging of such products shall also be the sole responsibility of the customer. The packaging should be good enough to ensure no damage in transit. The sole responsibility of the contents of the packed consignment shall lie with the end customer. Service Provider and Service Provider’s courier partners shall be, in no way, responsible for any shortage or damage of such consignments unless the same is caused solely due to the gross negligence of Service provider.
9.4 It is the responsibility of the Merchant /its customer that on receipt of the shipment initiated through reverse pickup, share the AWB number on which the courier partner has delivered the shipment.
10 DISPUTES REGARDING PRODUCTS/SERVICES.
10.1 The Service Provider shall not be responsible for any claims in connection with the late delivery of the Products. Provided the late delivery is reasonable and caused by unforeseen situations and force majeure.
10.2 The Service Provider shall not be responsible for any damage caused to the Product or if the Product is harmed in any other manner before it comes into the possession of the Field Executives.
10.3 The Service Provider shall not be responsible for any damage caused to the Product in transit due to improper inner or outer packaging of the Product.
10.4 The Service Provider shall not be responsible for any damage caused to the Product due to improper packaging or if the Product is harmed in any other manner before it comes into the possession of the Field Executives. For more clarification, if outer packaging is not damaged but inner product is damaged that means product is damaged before it comes into the possession of the Field Executives.
10.5 The Service Provider shall not be responsible for any damage caused to the Product in transit due to improper packaging of the Product provided that if the Merchant follows all guidelines for packaging, then service provider shall be liable to pay lost claim.
10.6 In case of forward delivery, if Identified Customer raise the query that the product and packaging is damaged within 48 hours from the delivery of the product, the Service Provider shall be liable to investigate the case and provide the claim on case-to-case basis. There is no liability of the service provider in case Product is damaged but there is no effect on packaging or any complaint raised after expiry of 48 hours of delivery of such product.
10.7 Save as otherwise stated in this Agreement, for any claims by the Merchant regarding nonconnectivity of the shipment (i.e. where the Merchant is claiming that the shipment has been picked up but not connected) - the signed copy of the manifest sheet of the pick up against the disputed shipment has to be submitted along with the claim request by the Merchant within 3 (three) days from the pickup date. Without the signed manifest any such request shall not be considered valid.
11 POINT OF CONTRACT
Merchant will provide Service Provider with the name, designation, E-mail address and phone co-ordinates of it or its representative who will be responsible to co-ordinate with Service Provider for the purposes of this agreement. Details of Merchant
12 INTELLECTUAL PROPERTY
12.1 The Merchant represents that it is the sole and exclusive owners of its Intellectual Property and has and shall have full and sufficient rights to grant to the Service Provider, the right to use and permit the use of its Intellectual Property. The Merchant grants the right to use its Intellectual Property to the Service Provider solely for the purpose of providing the Services under the terms of this Agreement.
12.2 Nothing contained in this Agreement constitutes a non-transferable, royalty free and nonexclusive license in favour of the Merchant to use the Intellectual Property owned by the Service Provider such as, but not limited to trademarks, service marks or logos, and any use by the Merchant of the same shall be only with the prior written permission of the Service Provider, as the case maybe.
12.3 All rights with respect to the data and information on the Service Provider Platform shall vest with Service Provider. For avoidance of doubt, it is hereby clarified that Service Provider may use such data for the purposes of research, analysis & business intelligence, improvement/development/advancement of Service Provider Platform & Service Provider Services, and for other purposes and in accordance with the privacy policy as provided on the Service Provider website.
13 REPRESENTATIONS AND WARRANTIES
13.1 Merchant represents to the other Party hereto that:
13.1.1 Merchant has obtained all governmental, statutory, regulatory or other consents, licences, authorisations, as per the Applicable Law, required to enter into and perform its obligations under this Agreement.
13.1.2 Merchant has the full power and authority to enter into, execute and deliver this Agreement and to perform the transactions contemplated hereby and Merchant is duly incorporated, registered with requisite authorities or organized with limited liability and existing under the laws of the jurisdiction of its incorporation or organization;
13.1.3 The execution and delivery by such Party of this Agreement and the performance by such Party of the transactions contemplated hereunder has been duly authorized by all necessary corporate, statutory, contractual or other action of such Party.
13.2 Except as set forth herein, Service Provider makes no representations, and hereby expressly disclaims all warranties, express or implied, regarding its Services or any portion thereof, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance.
14 CONFIDENTIALITY
Other than information required and processed by the Service Provider as stated in this Agreement, all communications between the Parties and/or any of them and all confidential information given to or received by any of them from any other, and all information concerning the business transactions and the financial arrangements including rate cards of any Party with any entity or person with whom any of them is in a confidential relationship with regard to the matter in question which comes to the knowledge of the recipient, shall be kept confidential by the recipient unless or until the recipient can reasonably demonstrate that any such communication or confidential information is in the public domain through no fault of its own, or is required to be disclosed pursuant to the obligations of extant laws. If it is in the public domain, this obligation shall then cease in relation to the specific information concerned only.
15 INDEMNITY
15.1 The Merchant (“Indemnifying Party”) hereby agrees to indemnify, defend and hold Service provider, its affiliates, officers, directors, employees, contractors, sub-contractors, consultants, licensors, other third party service providers, agents and representatives (“Indemnified Party”) harmless from and against claims, demands, actions, liabilities, costs, interest, damages and expenses of any nature whatsoever (including all legal and other costs, charges and expenses) incurred or suffered (directly or indirectly) by the Indemnified Party, on account of: (a) Indemnifying Party’s access to or use of Services; (b) violation of this Agreement or any terms of use of the Services by the Indemnifying Party (and/or its officers, directors and employees); (c) violation of applicable law by the Indemnifying Party (and/or its officers, directors and employees); (d) wrongful or negligent act or omission of the Indemnifying Party (and/or its officers, directors and employees); (e) any third party action or claim made against the Indemnified Party, by reason of any actions undertaken by the Indemnifying Party (and/or its officers, directors and employees); (f) any fraudulent business activities being carried on by the Merchant; and (f) any duties, taxes, octroi, cess, clearance charges and any other charge/levy by whatsoever name called, levied on the shipments.
15.2 Notwithstanding anything to the contrary contained under this Agreement, in any event the Service Provider shall not be liable (whether in contract, warranty, tort, including but not limited to negligence, product liability or other theory) to the Merchant or any other person or entity for any indirect, incidental, punitive, special, consequential or exemplary damages (including damages for loss of revenues, loss of profit, or anticipated profits, loss of goodwill, loss of business or data or cost of procurement) arising out of or in relation to this Agreement even if the Service Provider has been advised of the possibility of damages. Service Provider’s aggregate liability to the Merchant under this Agreement or under any Applicable Law or equity shall be limited solely to one month’s Service Fee payable to the Service Provider.
16 TERM AND TERMINATION
16.1 This Agreement shall come into force from the Effective Date mentioned in this Agreement and shall be valid, legal and binding from the Effective Date unless terminated by either Party in accordance with this Agreement. Either Party can terminate the Agreement at any time prior to the expiry of the term for any reason whatsoever by providing an advance notice of [30 (thirty) days].
16.2 If at any time after the Effective Date, there is a breach of any warranties by any party; or there is any breach or non-fulfilment by a party (“Defaulting Party”) of its obligations under this Agreement then the other party (“Aggrieved Party”) may deliver a written notice to Defaulting Party which notice shall specify a period of 15 days from the date of such notice to remedy such breach, deficiency or matter that is capable of being cured, and during such day period the Defaulting Party shall have the opportunity to remedy such breach, deficiency or matter. If the Defaulting Party does not remedy the relevant breach, deficiency or matter to the reasonable satisfaction of the Aggrieved Party by the end of the 15 (fifteen) day period, or if the relevant breach, deficiency or matter is incapable of being cured, a “Material Breach” shall be deemed to have occurred under this Agreement.
16.3 Upon the occurrence of a Material Breach:
16.3.1 all obligations of Aggrieved Party towards the Defaulting Party shall automatically lapse without any further act, deed or thing on the part of any Party except for the already pending dues of Merchant towards Service provider; and
16.3.2 Aggrieved Party may terminate this Agreement at any time, by delivering a written notice to the Defaulting Party.
16.4 The termination rights under this Clause are in addition to, and not exclusive of, any other rights and remedies that the parties may have hereunder under applicable laws or otherwise.
17 ASSIGNMENT OF RIGHTS AND OBLIGATIONS
Merchant shall procure the written consent of Service Provider prior to assignment of its rights and obligations under the Agreement. if Merchant is merged with another company, de merged into several companies, or if assignment is to a subsidiary or another company within the same group after settling all the claims due with Service Provider. Any assignment of rights without prior written consent of Service Provider, shall not be valid and neither release Merchant from its obligations and responsibilities.
18 NOTICES
All notices or other communications required to be made under this Agreement shall be valid when received, if personally delivered and an acknowledgement in writing is obtained; when transmitted, if transmitted by E-mail, Upon receipt of acknowledgement, if sent by registered post with acknowledgement due. In each case notice will be sent to the respective parties in the address as provided by them time to time. any change in the address of a party should be notified to the other party on immediately basis.
19 MISCELLANEOUS
19.1 Amendment. No change, alteration, modification, amendment or addition to this Agreement shall be effective unless it is in writing and properly signed by both Parties.
19.2 Assignment. The Merchant shall not assign its rights and obligations under this Agreement to a third party without the prior written consent of the Service Provider.
19.3 Relationship Of Parties. The Parties are not and shall not be considered joint ventures, partners, or agents of each other, and neither shall have the power to bind or obligate the other except specifically as set forth in this Agreement. Parties agree that the relationship created by this Agreement is not a fiduciary relationship. Neither of the Party shall not, under any circumstances, act or hold itself out as an agent or representative of the other Party.
19.4 Entire Understanding. This Agreement contains the complete and integrated understanding and agreement between the Parties hereto and supersedes any understanding, agreement or negotiation, whether oral or written, as set forth herein or in written amendments hereto duly executed by both Parties.
19.5 Force Majeure. Any non-performance or delay in performance by any Party of any of its duties, obligations or responsibilities under this Agreement, shall be excused if, and to the extent that such non- performance or delay in performance is caused by force majeure. For the purposes of this Clause, “force majeure” shall mean the following events and circumstances to the extent that they, or their consequences, have an effect described herein: a. Acts of God, including without limitation fire, storms, floods, earthquake or lightning pandemic. b. War, hostilities, terrorist acts, riots, civil commotion, pandemic, spread of life threatening communicable diseases, or disturbances, change in governmental laws, orders or regulations adversely affecting or preventing due performance by any Party of its duties, obligations or responsibilities under this Agreement, embargoes, actions by a government, central or provinces in Pakistan or overseas, or any agency thereof, sabotage, explosions. c. Strikes, lockouts or other concerted industrial action or failure of Internet. d. Any other acts, occurrences, events or circumstances beyond the reasonable control of the Party affected. The prices may be subject to hike in the event of pandemic or due to any unavoidable circumstances. No debit claims shall be accepted for any such events.
19.6 Non-solicitation. The Merchant agrees that during the Term and 2 (two) year thereafter, it shall, unless it secures the prior written permission of the Service Provider, directly or indirectly through its subsidiaries, affiliates or group companies, induce or attempt to induce any employee, officer, director, agent, independent contractor, customer, supplier or other service provider of the Service Provider to terminate its relationship with, or cease providing services or products to, or purchasing products from, the Merchant.
19.7 Dispute Resolution. In the event of any dispute that remains unresolved for a period of 30 days, the party aggrieved shall submit the dispute before Mediation Centre (As applicable by the Law) for mediation, an independent mediator appointed by such Mediation Centre This provision shall continue in full force and effect subsequent to and notwithstanding expiration or termination of this Agreement. In the event of any dispute that remains unresolved even in mediation then only that dispute will be referred to the courts of Law. Notwithstanding anything contrary to the provisions of this Clause, either Party hereto shall have the right to obtain temporary restraining orders or temporary or preliminary injunctive relief from a court of competent jurisdiction, provided, however, such Party shall contemporaneously submit the dispute, controversy or claim for mediation on the merits as provided herein.
19.8 Governing Law and Jurisdiction. This Agreement shall, in all respects, be governed by and construed in all respects in accordance with the laws of Pakistan and subject to Dispute Resolution provisions contained in this Agreement, the courts in Lahore, Pakistan shall have exclusive jurisdiction over the Dispute referred to it under this Agreement.
19.9 Attorneys’ Fees and Costs. Subject to Clause 19.11, if court proceedings are required to enforce any provision or to remedy any breach of this Agreement, the prevailing Party shall be entitled to an award of reasonable and necessary expenses of litigation, including reasonable attorneys’ fees and costs.
19.10 Severability. If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part of such provision and the remaining part of such provision, and all other provisions of this Agreement shall continue to remain in full force and effect. Upon such determination that any provision is invalid, illegal or incapable of being enforced, if required, the parties will negotiate in good faith to modify this agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
19.11 Remedies. The Merchant acknowledges, understands and agrees that should the Merchant breach any of its obligations contained in this Agreement, the Service Provider shall have the right to fully enforce this Agreement and the Service Provider shall be irreparably harmed and entitled to specific performance, including without limitation, an immediate issuance of a temporary restraining order or preliminary injunction (without posting a bond) enforcing this Agreement, in addition to a judgment for damages caused by any such breach, and to any other remedies provided for by applicable laws.
19.12 Counterparts. The Merchant hereby agrees and undertakes that the Merchant is legally entitled and eligible to enter into this e-Agreement and further agrees and undertakes to be bound by and abide by this Agreement and the person accepting this Agreement, by and on behalf of the Merchant, is authorized signatory of the Merchant and is entitled and legally authorized to bind such Merchant on whose behalf this Agreement is being accepted. The Merchant hereby expressly waives all its rights to dispute the legal validity/tenability of this e-Agreement.
19.13 Waiver. Waiver by one Party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.
19.14 Mutual Obligations. Each Party agrees to not knowingly do any act or knowingly make any statement, oral or written, which would injure the other party’s business, its interest, or its reputation, unless required to do so in a legal proceeding by a competent court with proper jurisdiction.
19.15 Good Faith. Each Party will act in good faith in the performance of its respective duties and responsibilities and will not unreasonably delay or withhold the giving of consent or approval required for the other Party under this Agreement. Each Party will provide an acceptable standard of care in its dealings with the other Party and its employees.
19.16 Survival. Notwithstanding the foregoing, the provisions set forth in Clause 15 (Indemnity), Clause 14 (Confidentiality), Clause 12 (Intellectual Property), Clause 18 (Notices), Clause 19.6 (Non-Solicitation), Clause 19.7 (Dispute Resolution), Clause 19.8 (Governing Law and Jurisdiction), Clause 19.9 (Attorney’s Fees and Costs), Clause 19.11 (Remedies) and Clause 19.16 (Survival) shall survive any termination of this Agreement.
19.17 Compliance With Laws: Each Party shall at all times and at its/his/her own expense: (a) strictly comply with all applicable laws, now or hereafter in effect, relating to its/his/her performance of this Agreement; (b) pay all fees and other charges required by such applicable law; and (c) maintain in full force and effect all licenses, permits, authorizations, registrations and qualification from any authority to the extent necessary to perform its obligations hereunder.
19.18 Sub-contractor. The Service Provider shall have the right to appoint a third party subcontractor for rendering the Services without any prior intimation of such appointment being provided to the Merchant.