Last updated on January 18, 2016
Associate Agreement
THIS ASSOCIATE AGREEMENT IS AN ELECTRONIC RECORD IN THE FORM OF AN ELECTRONIC CONTRACT FORMED UNDER THE INFORMATION TECHNOLOGY ACT, 2000 AND RULES MADE THEREUNDER AND THE AMENDED PROVISIONS PERTAINING TO ELECTRONIC DOCUMENTS / RECORDS IN VARIOUS STATUTES AS AMENDED BY THE INFORMATION TECHNOLOGY ACT, 2000. THIS AGREEMENT DOES NOT REQUIRE ANY PHYSICAL, ELECTRONIC OR DIGITAL SIGNATURE.
THIS AGREEMENT IS A LEGALLY BINDING DOCUMENT BETWEEN YOU AND DEMOPORT AND THE TERMS OF THIS AGREEMENT WILL BE EFFECTIVE UPON YOUR ACCEPTANCE OF THE SAME AND SHALL GOVERN THE RELATIONSHIP BETWEEN YOU AND DEMOPORT INCLUDING MARKETING, PROMOTIONS, TAKING ORDERS AND MAKING REFERRALS THROUGH THE WEBSITE AND COORDINATING FOR FULFILLMENT OF ORDERS (DEFINED BELOW). IF ANY TERMS OF THIS AGREEMENT CONFLICT WITH ANY OTHER DOCUMENT/ELECTRONIC RECORD, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL PREVAIL, UNTIL FURTHER CHANGE / MODIFICATIONS ARE NOTIFIED BY DEMOPORT.
For the purpose of this Associate Agreement, the individual or any legal entity (company, sole- proprietorship, partnership, HUF etc.) representing itself through its duly appointed authorized signatory’ who has submitted the Demoport’s Associate Registration Form (hereinafter, referred to as the “Associate” or “You” or “Your”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include Your heirs / subsidiaries, affiliates, successors and permitted assigns) shall constitute the FIRST PART;
AND
KORGEN Technologies P Limited, a company incorporated under the Companies Act, 1956, having its registered office at 3/3, Sarojini Street, Mahalingapuram, Nungambakkam, Tamil Nadu, India with the CIN - U41000TN2014PTC094944 (hereinafter referred to as “Demoport”, “We”, “Us”, “Our” which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include all its successors, liquidators, receivers, and assigns) shall constitute the SECOND PART.
Associate and Demoport may be referred to as the “Party” individually and as the “Parties” collectively, as the context may require.
WHEREAS
1. Demoport, inter alia, is in the business of owning and operating an online marketplace located at the URL https://www.demoport.in (hereinafter referred to as the “Website”) which acts as an online / electronic platform in the form of an intermediary, providing e-commerce marketplace / technology, internet marketing services, sharing of leads, facilitation of payment services to third party Merchants to offer for sale, sell their products and for third party Buyers to access a variety of products and accept to purchase the products offered by Demoport Merchants.
2. Demoport’s role is limited to managing the Website on which the products are listed and providing other incidental services to enable transactions between the Associates, Merchants and Buyers.
3. You are desirous of using the Website as a platform to take orders for the products offered and made available on the Website by Our Merchants.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND MUTUAL PROMISES AND COVENANTS SET FORTH HEREINAFTER, THE PARTIES, INTENDING TO BE LEGALLY BOUND, HERETO AGREE AS FOLLOWS:
1.0
DEFINITIONS
1.1
“Acceptance” shall mean acceptance of this Agreement directly or indirectly in electronic form or by means of an electronic record and shall include Your affirmative action of clicking on “I Accept/ I Agree” or the box against these words provided at the end of this Agreement / Associate Registration Form or any other manner of acceptance such as using the Associate Code, Associate Dashboard, start advertising or promotions in the market, by which action You confirm having read, understood and accepted the terms and conditions of this Agreement.
1.2
“Agreement” shall mean this Associate Agreement in its entirety, including all the annexures attached to this Agreement, Policies and Guidelines of the Website referenced herein and any other document pursuant to this Agreement and shall include any amendment thereto, from time to time.
1.3
“Applicable Laws” include (a) statutes, statutory instruments, bye-laws, orders, directives, decree or law (including any common law, judgment, demand, order or decision of any court, regulator or tribunal); (b) rules, policies, guidance or recommendations issued by any governmental, statutory or regulatory body.
1.4
“Buyer” shall mean any user of the Website who accepts an Associate’s offer and places an Order on the Website for the products or services listed therein.
1.5
“Prospective Buyer” shall mean any user of the Website who shares his contact details and submits an enquiry for a product or Service on the Website.
1.6
“Order” shall mean a binding purchase order electronically placed by a Buyer for any product or service on the Website.
1.7
Website means ‘www.demoport.in’ and instances of the same.
1.8
“Consents” include all consents, licences, authorizations, approvals, permissions, certificates, permits and any other form of consent (whether statutory, regulatory, contractual or otherwise).
1.9
“Intellectual Property Rights” means all rights to patents, designs, copyrights, trademarks, service marks, database, domain names, moral rights (whether or not any of those is registered and including applications for registrations of the foregoing) together with all trade secrets, know-how and all rights or forms of protection of a similar nature and causes of action for violation, misappropriation or infringement of any of the foregoing.
1.10
“Invoice” shall mean a valid tax invoice issued by Demoport Merchant to the Buyer for the sale of the Merchant’s Product to the Buyer through the Website.
1.11
“Business Opportunity Cost” shall mean a non-refundable fixed charge on a yearly basis, payable to Demoport by the Associate, for using the Website and earning income by taking orders and submitting referrals for products and services listed therein.
1.12
“Referral Fee” shall mean a fixed value payable by Demoport to the Associate on order conversion of enquiries / leads received from the Associate. The fixed value shall vary based on the value of the products, as provided in the ‘Schedule of Payments’ in force.
1.13
“Product(s)” shall mean the product(s) or service(s) as exhibited, advertised, made available and offered by the Demoport Merchants for sale on the Website.
1.14
“Associate Dashboard” shall mean a Web page / URL provided by Demoport to the Associate on the Website with a unique login id and password to track the orders taken by the Associate and the referral fees / commission payments received.
1.15
“Selling Price” shall mean the price (in INR) at which the Associate has taken an order for any product or service listed on the Website.
1.16
“Net Landing Price” shall mean the price (INR) at which a Product or Service is offered to the Associate by the respective Merchants.
1.17
“Order Commission” shall mean the net commission amount receivable by the Associate from Demoport after deduction of statutory taxes, levies, or any amount to cover contractual obligations as provided in the “Schedule of Payments”.
1.18
“Associate Registration Form” shall mean the electronic form available on the Website at https://www.demoport.in/Associate_Partner that You are required to complete before registering as an Associate for Demoport.
1.19
“Demoport Policies” shall mean the various rules and policies on the Website as may be relevant or applicable to the Associate including the Terms of Use, Terms of Sale, Privacy Policy, Infringement Policy and such other policy (including any amendments thereof) which Demoport may issue and make applicable on the Associate. By impliedly or expressly accepting this Agreement, You also accept and agree to be bound by the aforesaid Policies and all other policies as updated and provided from time to time. Further, if the hyperlink is not provided for any policy(s) in this agreement then that policy(s) may be accessible in the hyperlink created for the policies on the Website.
1.20
“Term” shall mean the period commencing from the date of Associate submitting the Associate Registration Form available on the Website up to the termination of this Agreement in accordance with Clause 18 as provided herein below.
1.21
“Territory” shall mean the Republic of India.
2.0
ASSOCIATE REGISTRATION AND ACCEPTANCE
2.1
As part of the registration process, You state that You have completed the Associate Registration Form and provided other relevant details as required by Demoport. You represent and warrant that You, in Your individual capacity and/or as an authorized representative of the entity registering as an Associate on the Website, are competent to contract, are at least eighteen (18) years of age, are of sound mind and have the requisite right to and are not disqualified from entering into a lawful contract under Applicable Laws.
2.2
You have the option of accepting or declining to accept this Agreement. Please provide Your Acceptance to this Agreement if and only if You are agreeable to the terms and conditions provided herein. Upon Your Acceptance, this Agreement shall become binding on You. Without prejudice to the binding nature of this Agreement upon Your Acceptance, Demoport may, as an additional electronic record of this Agreement, send an “Agreement Acceptance Notification” in electronic form to the email address provided by You in the Associate Registration Form.
2.3
If You are not agreeable to the terms and conditions of this Agreement, please DO NOT proceed with the registration. Your non-acceptance of this Agreement will automatically stop the Associate Registration Process.
2.4
On submission of the Registration Form, You shall also pay the annual ‘Business Opportunity Cost’ using one of the payment options available on the Website. Your Registration as our Associate shall be deemed to be complete only on successful payment of the ‘Business Opportunity Cost’ as mentioned in the ‘Schedule of Payments’.
2.5
You will be solely responsible for maintaining the safety and confidentiality of Your login credentials (User Name/password) and details in relation to the Associate Dashboard and the information provided therein, and shall be fully responsible for all activities that occur under Your Associate Dashboard. You agree to (a) ensure that You log out from Your Associate Dashboard Account at the end of each session, (b) immediately change Your Account Password in case You suspect that Your existing password is compromised and (c) also immediately notify Demoport (to the Grievance Officer) of any unauthorized use of Your account information or any other breach of security. You fully agree that Demoport shall not be liable for any loss or damage arising from Your failure to keep Your Associate Dashboard protected from any unauthorized access, blockage, misuse or any other unauthorized use and You shall indemnify Demoport in accordance with this Agreement for any such unauthorized use.
2.6
Demoport reserves the right to suspend or terminate access to Associates registered on the Website and the Associate Dashboard, at any time and without assigning any reasons for doing so.
3.0
BASIC RESPONSIBILITIES AND ASSOCIATED CONDITIONS
3.1
By registering as an Associate, You agree that this Agreement with You is on a non-exclusive basis and Demoport reserves the right to allow any number of people in Your location and at any place, to get registered as Associates with Demoport, at our absolute discretion.
3.2
You also agree and expressly authorize Demoport to make available or inform about Your business relationship with Demoport and related information to other Associates, Merchants, Partners, general public through the Website, emails, newsletters, online forums and any other media, at our discretion.
3.3
As an Associate, You can take orders for select products ( based on Your domain expertise and as permitted by Demoport ) and / or submit referrals for products that are listed on the Website, in any location in India where Demoport is operational. You shall accept orders only after a thorough evaluation of the buyer requirements as determined by the nature of the products.
3.4
You shall take orders only for products about which You have sufficient knowledge and prior experience. Alternatively, You can choose to submit referrals for products that You cannot explain and take orders. Demoport shall have no obligations, whatsoever, to train You on these functions or assist You in discharging Your responsibilities under this Agreement such as taking orders or conducting promotions.
3.5
As our Associate, You will use only legitimate methods or promotions, permitted by the Laws of India, to approach prospective buyers for the purpose of taking orders or generating referrals.
3.6
While taking orders from buyers, You shall share Your Associate Code and the One-time Password (received on Your authorized mobile) with the Buyer, to enable the Buyer to successfully place an Order on the Website.
3.7
You shall not take orders through false promises or commitments to the prospective buyers or under duress. In the event of any dispute with the buyers, You shall be obliged to resolve the same to the best satisfaction of the buyers.
3.8
Demoport, based on the market trends, may add new products from time to time, for the Associates to take orders or submit referrals. On the contrary, Demoport may also revoke permissions to take orders and referrals for existing products, at our sole discretion.
3.9
Fulfillment of the orders taken by You, including issue of invoices and other product-related documents, shall be the sole responsibility of the Merchants chosen by Demoport to service such orders. You shall not make any commitments to the buyers in this regard. However, You will coordinate with Demoport for the smooth execution of the order.
3.10
Installation or after-sales service of the products for which You take orders on the Website shall be the responsibility of the respective brands or their authorized service franchisees, as the case may be, and You shall not, at any time, approach the buyers for such requirements or offer any promises regarding the same.
4.0
MINIMUM PERFORMANCE NORMS
4.1
As an Associate, You will have to either sell a minimum of one (1) product or submit three (3) referrals per month to keep Your Associate Code active. If You fail to achieve either of these norms in any given month, Demoport reserves the right to deactivate Your Associate Code immediately.
4.2
In the event of You failing to achieve the minimum performance norms consecutively for a period of three (3) months, Demoport reserves the right to permanently terminate Your Associate Membership with immediate effect.
4.3
These minimum performance norms are subject to constant review. Demoport shall be at liberty to modify the same at its absolute discretion and You shall be obliged to achieve the modified norms thereafter. Demoport shall electronically communicate the modified minimum performance norms to You, from time to time.
5.0
ELECTRONIC COMMUNICATION
5.1
When You use the Website or send emails or other data, information or communication to Demoport, You agree and understand that You are communicating with Demoport through electronic records and You consent to receive communications via electronic records from Demoport periodically and as and when required. Demoport will communicate with You by email or by notices on Associate Dashboard or electronic records on the Website which will be deemed adequate service of notice / electronic record. You also agree that Demoport can provide disclosures and notices required by law about Your Demoport Account to You electronically by posting it on our Website / Your Dashboard or by emailing it to the email address listed in Your Demoport Account. To the maximum extent permitted under any applicable law, You hereby waive all Your rights to challenge the service of documents under any and all legal proceedings if the document is served on Your designated electronic address including Associate Dashboard in terms of Information Technology Act, 2000.
6.0
COMMERCIALS
6.1
You agree to pay Demoport, the Business Opportunity Cost at the time of Registering as an Associate and thereafter annually for renewal of Your Associate Registration on Demoport and any other fees and applicable taxes (as applicable), as provided in the ‘Schedule of Payments’.
6.2
While the Annual Business Opportunity Cost shall be payable by You on pre-paid basis at the beginning of every twelve (12) months, Demoport shall release the requisite Referral Fees and Order Commission, as provided in the “Schedule of Payments” periodically at intervals as determined by Demoport from time to time, after deduction of appropriate statutory taxes / charges.
6.3
Demoport shall have the right to amend the charges (as provided in Clause 6.1 and 6.2 above) applicable to each Product category and/or add or introduce any new fee or charges and/or the Payment Cycle as provided in the ‘Schedule of Payments’ with prior notice to You. Accordingly, prior to the implementation of the revised charges (as provided in Clause 6.1 and 6.2 above) or new fee or Payment Cycle for any Product, Demoport shall notify You, by way of an email and/or a notification on the Associate Dashboard detailing such additions/modifications/ amendments/ revisions to the fee or Payment Cycle. It shall be the Associate’s responsibility to read the emails / notifications sent by Demoport from time to time. Your use of Associate Dashboard (including updating any information in Associate Dashboard ) after additions/modifications/ amendments/ revisions of the Charges (as provided in Clause 6.1 above) or Payment Cycle shall be deemed as acceptance of such additions/modifications/ amendments/ revisions.
6.4
The Associate can submit referrals, take orders and collect payments using the payment options available on the Website. Demoport shall remit the agreed referral fees or order commission as applicable for such orders, into a bank account designated by You (“Designated Account”). The Designated Account shall be in Your name and shall be opened and operated in accordance with all Applicable Laws and You further represent and warrant that Your KYC (Know Your Customer) details with such Designated Account shall always be true and current. You also agree that, in doing so, Demoport will be merely acting as an intermediary with the sole intent and purpose of facilitating the sale and purchase of Products, between You, the Merchant and the Buyer, through the Website. You also agree that the payment facility provided by Demoport is neither a banking service nor a financial service but is merely a facilitator / facilitating the service of providing an automated online electronic payment system, using the existing authorized banking infrastructure and payment gateway networks or payment through other permitted payment systems or cash on delivery, for the orders You receive on the website.
6.5
In the event of buyer choosing the “Cash on Delivery” option to make the payment, then the payment will be collected by the respective Merchants. Under no circumstances, the Associate shall directly take payments, in any mode, from the Buyers directly.
6.6
Release of Referral Fee or Order Commission, as the case may be, is subject to the successful conversion of the referred lead into an order, fulfillment of the Order by the respective Merchant and subsequent receipt of Buyer Confirmation. You hereby authorize Demoport to electronically remit Your commission payments, at a periodicity decided by Demoport from time to time, to Your designated account after making the necessary statutory deductions and other charges, as applicable.
6.7
You shall be liable / responsible for bank charges or other costs incurred on account of incomplete or inaccurate information provided by You with respect to Your Designated Account. In the absence of any Referral Fees or Commission Payments or in the event such payments are not sufficient for Demoport to deduct and recover the aforesaid fee and charges, You shall promptly pay such fee and charges upon receipt of the invoice for the same from Demoport.
6.8
Demoport shall, at all times, have the right and option to deduct / adjust / offset any referral fees or order commission accrued in Your account against any payment due and payable by You to Demoport and You expressly authorize Demoport to such deductions, recovery, offset or adjustment.
6.9
Unless stated otherwise, any and all fees or charges payable by You pursuant to this Agreement are exclusive of applicable taxes, and You agree to pay any taxes that are imposed and payable on such payments.
7.0
OTHER OBLIGATIONS OF THE ASSOCIATE
7.1
You shall be Demoport’s single point of contact for any and all matters related to this Agreement including Your use of the Website / Associate Dashboard and all transactions between You and the Buyer.
7.2
Buyers will have the option of providing Product / Associate reviews and rating of Associates from whom they have purchased any Products using the Website. Demoport has the right (but not the obligation) to publish all such ratings and information received from the Buyers regarding the Product / Associate on the Website. Demoport is not obliged to monitor or modify any such ratings or reviews. You confirm that You will not indulge in any unethical activity to manipulate, directly or indirectly, the information that can affect Your rating. You further acknowledge that such ratings and reviews are the opinions of Buyers and Demoport is not responsible for such ratings and reviews.
7.3
You agree to release Demoport from all kind of claims, demands and damages (actual and consequential) related to transaction disputes between You and the Buyers and You undertake to settle such disputes with the Buyers in an amicable manner.
7.4
You shall not, during the validity of this Agreement or thereafter, use the name of Demoport or the brands whose products are listed on the Website or involve in marketing and promotional activities of the products in a manner which might jeopardize the reputation and goodwill of Demoport and the concerned brands.
7.5
During the course of your dealing with the Buyer on or through the Website, You may receive or be provided certain personally identifiable information or sensitive personal information of the Buyer. You shall keep such information strictly confidential and shall not disclose or reveal such information to any third party. In addition to the above confidentiality and non-disclosure obligation, You shall ensure that Your dealing with Buyer’s information shall not lead to Demoport’s breach of the Privacy Policy with respect to such Buyer’s information.
8.0
TAX AND STATUTORY COMPLIANCES
8.1
You shall be solely responsible to comply with all the applicable Governmental / Local Laws, Rules and Regulations from time to time in Your location and in India as a whole. You shall, at Your own expense, apply for and obtain any and all applicable statutory permits, registrations, licences and renewals thereof, required to discharge Your obligations under this Agreement. Demoport makes no promise or representation towards obtaining such approvals for You from the statutory authorities.
8.2
In case of instruction from any statutory authority or in the interest of compliances, Demoport may ask and You agree to promptly provide Demoport the requisite evidence of Your discharge of obligations relating to compliances. In case of Your failure to duly comply with statutory obligations, Demoport shall have the right to immediately deactivate Your account and/or utilize Associate Proceeds for discharging statutory obligations arising due to Your failure.
8.3
If Demoport is required by Applicable Law to collect any taxes from You, You will immediately pay such taxes to Demoport and Demoport shall have the right to deduct or recover the same from the Associate Proceeds.
8.4
If for any reason, any income tax or withholding tax or any statutory dues or taxes are instructed by any statutory authority to be deducted and deposited on any payments or remittances to You including Associate Proceeds, Demoport will have the right to deduct and deposit any such applicable taxes with the appropriate statutory authority and remit the balance amount to You. No claim in respect of such taxes deposited would be made by You against Demoport.
8.5
You undertake that all information provided by You in relation to Your above obligations including various registration / consents are true, accurate and current and You will immediately update any such information in case of any changes. Demoport reserves the right to request additional information and to confirm the validity of any of Your account information from You or Government authorities and agencies as permitted by Applicable Laws and You hereby irrevocably authorize Demoport to request and obtain such information from such Government authorities and agencies. Further, You agree to provide any such information to Demoport immediately upon request.
8.6
In addition to other indemnification obligations in this Agreement, You agree to indemnify, defend and hold harmless Demoport, its affiliates and its respective officers, directors, employees, contractors , representatives and agents against Your failure to pay any due taxes or non-compliance with any statutory requirement for transactions carried out by You on the Website.
8.7
You agree that any non-compliance of statutory requirements under this clause may cause prejudice or harm to the reputation and goodwill of Demoport. If Demoport is informed or aware about any such non-compliance then without prejudice to Demoport’s other rights and remedies under Applicable Laws, this Agreement or equity, Demoport shall be entitled to withhold any amount accrued to You pursuant to this Agreement including any Associate Proceeds.
9.0
REPRESENTATIONS AND WARRANTIES
9.1
The Parties hereby represent and warrant to each other as under:
9.1.1
The Parties have all requisite power, authority and competency to execute the Agreement, deliver and perform their obligations under this Agreement and have been fully authorized by all requisite corporate actions to do so; and
9.1.2
The execution and performance of this Agreement by either Party does not and will not violate any provision of any existing contract or Applicable Law.
9.2
In addition, the Associate represents, undertakes and warrants that, at all times during the Term of this Agreement, he or she will:
9.2.1
Use the Website and Service provided therein only for lawful purposes and in a lawful manner
9.2.2
deal honestly, fairly, and in good faith with both Buyers and Demoport;
9.2.3
not to make false claims or representations about the products and services listed on the Website.
9.2.4
comply with all Applicable Laws and Regulations in the performance of this Agreement;
9.2.5
attend to, and resolve, the Buyers’ queries with regard to the delivery of the Products or any other queries related to the order immediately from the date of receipt of such query;
9.2.6
not to take orders for products at a price in excess of the stipulated MRP.
9.2.7
not re-register with another name in the event of getting delisted due to any reason pursuant to this Agreement.
9.3
Nothing contained in this policy or in any other agreement entered by the Associate with Demoport shall deem to grant any rights to You, in any intellectual property owned by Demoport. The Associate represents that the Associate shall not, at any time, use any intellectual property of Demoport in any manner without the prior written consent of Demoport. The Associate also represents that the Associate shall not purchase any Demoport meta tags on the Internet without the prior written consent of Demoport.
9.4
The Associate represents and warrants that if the Associate is found indulging in providing false or misleading information about the products or services listed on Demoport or is infringing any third party’s intellectual property rights, then Demoport may initiate civil and/or criminal proceedings against the Associate and Demoport may, at its sole discretion, suspend, block, restrict, or cancel the Associate’s registration on the Website and /or disqualify / bar the Associate from taking orders and / or submitting referrals on the Website.
10.0
DISCLAIMER
THE WEBSITE, ASSOCIATE DASHBOARD AND THE SERVICES INCLUDING THIRD PARTY SERVICES, ALL CONTENT, FUNCTIONS, SOFTWARE, MATERIALS AND INFORMATION AVAILABLE OR PROVIDED IN CONNECTION WITH THE SERVICES ARE PROVIDED ON "AS-IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ASSOCIATEABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING, DEMOPORT MAKES NO WARRANTY THAT (I) THE WEBSITE, ASSOCIATE DASHBOARD OR ANY THIRD PARTY SERVICES IN RELATION TO THE SAME WILL MEET YOUR REQUIREMENTS OR YOUR USE OF THE WEBSITE, ASSOCIATE DASHBOARD OR ANY THIRD PARTY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE, ASSOCIATE DASHBOARD OR ANY THIRD PARTY SERVICES IN RELATION TO THE SAME WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (III) THE QUALITY OF THE WEBSITE, ASSOCIATE DASHBOARD OR ANY THIRD PARTY SERVICES IN RELATION TO THE SAME WILL MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS OR DEFECTS IN THE WEBSITE, ASSOCIATE DASHBOARD OR ANY THIRD PARTY SERVICES IN RELATION TO THE SAME WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DEMOPORT OR THROUGH THE WEBSITE / ASSOCIATE DASHBOARD SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT AND THE TERMS OF USE PUBLISHED IN THE WEBSITE.
11.0
INTELLECTUAL PROPERTY RIGHTS
11.1
You agree that all intellectual property, including any brands / logos, trademarks etc., belonging to Demoport or the concerned brands are the exclusive property of the concerned Parties and, except as provided in this Agreement or permitted under Applicable Laws, cannot in any circumstances be used, or copied, or altered in any manner by You, without being specifically authorized in writing.
11.2
The information and data (including personal and sensitive information and data) of the Buyer or any user of the Website shall be proprietary to Demoport and Demoport shall alone retain all rights including all intellectual property rights in such information and data. No rights in or to such information and data are deemed to have been granted to the Associate. To the extent Associate derives any rights in such information and data by virtue of it taking orders from a Buyer, the Associate shall hold such rights in trust for Demoport and the Associate shall do and undertake all such acts to exclusively assign such rights in the information and data to Demoport. The Associate further agrees that (a) all such data and information shall be treated as Confidential Information of Demoport for the purposes of this Agreement, irrespective of whether whole or part of such data is available in public domain; (b) Demoport being the owner and proprietor of such data and information shall be entitled to use, store and exploit the same in any manner as may be deemed fit by Demoport and in accordance with Demoport’s privacy policy as provided on the Website from time to time; and (c) Associate shall not use such information and data other than taking orders through the Website or required for law enforcement purposes and shall in no way sell, transfer or otherwise exploit such information and data.
11.3
The ownership of the Website shall always vest with Demoport (or its assignees) and Demoport shall make reasonable efforts to deal with any technical issues affecting the Website (such as, for instance, the Website becoming inoperative). Demoport does not warrant that the Associate will be able to use the Website and take orders for products or services exhibited therein, at all times or locations on the Website or that the Website and the services provided through the Website will be uninterrupted or error-free or that the defects will be corrected by Demoport.
11.4
Associate acknowledges that Demoport hereby reserves all rights except those expressly granted herein, and that no right or license will arise by implication, estoppels or otherwise by operation of law. Associate shall not and shall not cause to reverse engineer, disassemble or decompile any application, software or other material or objects associated with the Website.
12.0
BUSINESS INTEGRITY AND ANTI BRIBERY
12.1
You understand and agree that as our Associate, You shall conduct all Your dealings in an ethical manner and with the highest integrity to safeguard the reputation of Demoport and the various brands whose products are listed on the Website.
12.2
The Associate agrees to exercise utmost caution and comply with high ethical standards and adopt appropriate processes to prevent offering any illegal gratification in the form of bribes or gifts either in cash or in kind in the course of their dealings with Demoport or any other third parties for the purpose of this Agreement. Any instances of such violations will be viewed seriously and Demoport reserves the right to take all appropriate actions or remedies as may be required under the circumstances.
12.3
Demoport has the right to investigate any reported violations of its policies or complaints about unethical behavior or business conduct by the Associate or people hired by the Associate and the Associate shall provide all possible assistance to Demoport for completing the investigation and take any action that Demoport deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension of account, termination of service and denying access. In the event of Demoport determining or suspecting a possible violation of any law or regulation, Demoport reserves the right to immediately report the same to appropriate law enforcement authorities / regulators.
13.0
LIMITATION OF LIABILITY
13.1
Associate’s acknowledgements: Associate acknowledges that Demoport has made and is in the process of making substantial investment both monetary, knowhow and otherwise to establish its trade name among Users, Brands, Manufacturers, Merchants, Associates and general public so as to create a goodwill connoting a specific manner in which goods and services can be presented on and sold through the Website. The Associate further recognizes that overall success of the Website and trade names of Demoport and its affiliates depends on the users of the Websites and how public in general perceives the Website as a trusted online and electronic marketplace to buy and sell goods and services.
13.2
NOTWITHSTANDING ANYTHING CONTRARY CONTAINED IN THIS AGREEMENT, IN ANY EVENT DEMOPORT AND ITS AFFILIATES SHALL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), TO THE ASSOCIATE OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUES, LOSS 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 DEMOPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.3
Demoport’s entire liability to Associate under this Agreement or under any Applicable Law or equity shall be limited solely to actual and proven direct damages sustained by the Associate as a result of the gross negligence or willful misconduct of Demoport in the performance of its respective services and other obligations under this Agreement. In no event shall Demoport be liable, vicariously or otherwise, to the Associate or any third party for any losses, damages, liabilities, costs (including reasonable legal costs) and expenses (including taxation) which are in the aggregate in excess of the Referral Fee or Order Commission paid by Demoport to the Associate in relation to the Products in dispute.
14.0
CONFIDENTIALITY
14.1
You acknowledge that during the existence of this Agreement, You will have access to confidential information of Demoport and its affiliates and their respective third parties which shall include the data and information of Buyers, Merchants or any user of the Website. You undertake to keep strictly confidential all data, reports and other confidential information supplied to You by Demoport or You have the access under this Agreement and shall not sell or otherwise make that information available to any third parties and shall not use the confidential information in connection with this Agreement.
14.2
You shall not disclose or use such information during the validity of this Agreement and thereafter to any person or for any other purpose except as specifically permitted or authorized under and in accordance with this Agreement.
15.0
INDEMNIFICATION
15.1
In addition to any other indemnification obligations of the Associate in this Agreement, the Associate shall indemnify and hold harmless Demoport, its affiliates, successors, agents, assigns, and each of their directors, officers, employees, Associates, agents, and representatives from and against any losses, damages, liability, settlement, claims, costs, taxes, penalty and expenses (including, without limitation, reasonable attorneys‟ fees) incurred by reason of (i) any breach or alleged breach by the Associate; (ii) any non-compliance / violation by the Associate of Applicable Law or Consents or Associate not obtaining any Consent; (iii) any breach by the Associate of any Demoport Policies or any other policies; (iv) any infringement and passing off of intellectual property rights of any third party; (v) any cheating, misappropriation, acts of omission, fraud or illegal activity of Associate or his or her representatives / hired persons.
15.2
Associate shall be under an obligation to ensure that Demoport is not made a party to any third party claims and shall promptly and unilaterally take adequate steps to absolve Demoport from any liability of any nature whatsoever, either present or anticipated.
15.3
Demoport shall be entitled to offset a portion of the amount payable to the Associate, which in its reasonable estimation is required to safeguard its interests or comply with statutory directions / instructions or to cover losses, damages, liabilities, penalties or claims or towards the indemnification obligation of the Associate herein contained.
15.4
Associate shall notify Demoport of any claims made against the Associate, in relation to his or her use of the Website / orders taken from Buyers on the Website, within 3 days of receipt of any notices, or knowledge of such claim by the Associate. In case Demoport, at its sole discretion, determines that any claim (brought to its notice by You or otherwise) might affect Demoport, You shall not consent to any settlement or further proceedings without Demoport’s prior written consent.
16.0
ASSIGNMENT
16.1
The rights and obligations under this Agreement shall not be assigned or transferred by You to any third party whomsoever, during the Term of this Agreement and any such assignment shall be void ab initio.
16.2
Demoport shall be entitled to transfer or assign any or all of its rights and/or obligations under this Agreement to a third party without a prior written notification to You or any requirement to obtain Your consent.
17.0
SUSPENSION AND TERMINATION
17.1
This Agreement may be terminated:
- i. By Demoport, with immediate effect, if You are in breach of any of its terms and/or any of the Demoport Policies, provided that, instead of terminating this Agreement, Demoport may, at its discretion, delist or temporarily or permanently disable Your access to Associate Dashboard and/or Associate Code;
- ii. By Demoport, if You are found guilty of dishonesty, falsehood, disorderly behavior or any other conduct considered detrimental to the reputation and interests of the Company
- iii. By Demoport, without any reason, by giving You a prior written notice of seven (7) days;
- iv. By Associate, with 30 (thirty) days prior written notice to Demoport (to its Grievance Officer), unless specifically stated to the contrary in this Agreement; or
- v. By Demoport, with immediate effect, if a petition for relief under any bankruptcy or insolvency is filed by or against You, or You make an assignment for the benefit of the creditors, or a receiver or an administrative receiver or administrator is appointed for all or a substantial part of Your assets.
17.2
Demoport also has the right to suspend Your access to the Associate Dashboard (instead of terminating the Agreement) for any period of time (during which time period You shall not be permitted to submit referrals or take orders on the Website) on the occurrence of any of the termination triggers specified in Clause 17.1 above or without any reason as stated in 17.1(ii) above.
18.0
CONSEQUENCES OF TERMINATION
18.1
On termination of this Agreement:
18.1.1
Demoport will, with immediate effect, block Your access to the Associate Dashboard and/or Website and consequently, You will not be able to submit referrals or take orders from prospective Buyers thereafter; and
18.1.2
You shall return to Demoport all the confidential information of Demoport and all other properties and materials belonging to Demoport. Where the confidential information cannot be returned in material form, You shall destroy all of Demoport’s confidential information and shall provide Demoport with a certificate of destruction with respect to the same.
18.2
An Associate, whose arrangement under this Agreement has been terminated by Demoport for any reason whatsoever, shall not have the right to re-register himself / herself as an Associate on the Website at any time after such termination, unless Demoport, in its discretion, permits such re-registration.
18.3
It is agreed that the provisions set out in clauses 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and all those provisions and obligations which, by their very nature, survive the termination of this Agreement, shall continue to be binding on the Parties.
18.4
On the termination of the Agreement, You will be entitled to only the Associate Proceeds which have become due to You on account of any referrals submitted or orders taken by You through the Website, prior to the date of termination of this Agreement. Demoport shall be entitled to adjust and offset any monies, due from You to Demoport till the date of termination, from the Associate Proceeds payable to You on termination.
18.5
Without prejudice of the foregoing, the termination of this Agreement pursuant to any of the provisions contained herein above shall not limit or otherwise affect any other remedy (including a claim for damages), which Demoport may have, arising out of the event which gave rise to the right of termination.
18.6
Termination of this Agreement or suspension of any rights of Associate under this Agreement shall not relieve Associate of its duties and obligations towards the Buyers after the Associate has taken an order from the Buyer through the Website.
19.0
DISPUTE RESOLUTION, GOVERNING LAW AND JURISDICTION
19.1
Any dispute between the Parties hereto during the subsistence of this Agreement or thereafter, in connection with or arising out of, this Agreement, shall be referred to arbitration under the Arbitration and Conciliation Act, 1996, including any amendments or re-enactments thereto to be adjudicated by a sole arbitrator to be appointed by Demoport. Arbitration shall be held at Chennai, India. The proceedings of arbitration shall be confidential and exclusively conducted in the English language. The arbitrator’s award shall be final and binding on the Parties as from the date they are made, and shall be enforceable in any competent Court of Law.
19.2
During the pendency of the arbitration proceedings or any judicial proceedings, Demoport shall have the right, to be exercised in its sole discretion, to suspend the Associate Dashboard access or any other access of the Website to the Associate.
19.3
The Agreement shall be governed by and construed in accordance with the laws of India, without reference to rules governing choice of laws. Except for any equitable relief, for which a Party may approach any court having competent jurisdiction, the courts of Chennai, India, shall have exclusive jurisdiction in connection with this Agreement. Each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. You shall not accept this Agreement and use the Website if You do not wish to submit to the aforesaid laws and jurisdiction.
20.0
AMENDMENT
20.1
Demoport may amend the terms and conditions of this Agreement and the Demoport Policies at any time in its sole discretion by intimating You by way of notification on the Associate Dashboard and/or by sending an email to the email ID provided in the Associate Registration Form. It is Your responsibility to review amendment notifications from time to time.
20.2
YOUR USE OF WEBSITE IN YOUR CAPACITY AS ASSOCIATE OR YOUR USE OF ASSOCIATE DASHBOARD AFTER ANY MODIFICATION, AMENDMENT OR REVISION BEING SO NOTIFIED SHALL BE DEEMED AS YOUR ACCEPTANCE OF SUCH MODIFICATION, AMENDMENT OR REVISION.
21.0
GENERAL PROVISIONS
21.1
Force Majeure: Any delay in or failure to perform any obligations by the Parties under this Agreement shall not constitute default hereunder if and to the extent caused by force majeure, which is defined to be occurrences beyond the reasonable control of the Party committing default, including but not limited to technical crash/downtime of Website, acts of the government authorities, acts of God, fire, flood, explosion, riots, war, rebellion, insurrection, sabotage and non- cooperation of third parties. Provided, however, that Associate shall give prompt written notice within a period of two (2) days from the date of the force majeure occurrence to Demoport. You shall use all possible efforts to avoid or remove such cause of non-performance and shall continue performance hereunder whenever such causes of force majeure are removed.
21.2
Entire Agreement: This Agreement, including the Demoport Policies incorporated herein by reference, shall constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersedes / cancels all prior and contemporaneous agreements, representations and understandings, whether written or oral or in electronic form between the Parties in connection with the subject matter hereof. The parties further state that there are no oral statements, representations, warranties, undertakings or agreements between the Parties except as provided herein.
21.3
Notices: Any notice or other communication to be given hereunder will be in writing and in English language and given by post-paid registered, certified mail return receipt requested, or electronic mail. Notice to You shall be issued at the address including electronic address provided by You in the Associate Registration Form or in the Associate Dashboard, as amended by You from time to time.
21.4
No Partnership or Agency:- Associate and Demoport are independent contractors, and nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, association of persons, agency (disclosed or undisclosed), franchise or employment relationship between the Parties and no Party shall hold himself out as an agent for the other Party. As an abundant caution, it is clarified that Demoport shall not have any right to conclude any order for and / or on behalf of the Associate and both parties have entered this agreement on principal to principal basis.
21.5
No Waiver: No failure or delay on part of any Party hereto in exercising any rights or remedies hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other rights or remedies by such Party. All waivers to be valid shall be in writing and signed by the Party whose rights are thereby waived. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein (whether similar or not), nor shall such waiver constitute a continuing waiver unless otherwise expressly so provided.
21.6
Severability: If any provision of this Agreement, in whole or in part, becomes or is held to be invalid, illegal or unenforceable, under any present or future laws, by any Court or other competent authority, this Agreement shall continue to be valid as to its other provisions and the remainder of the affected provision, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Agreement, and the remaining provisions of this Agreement shall be given full force and effect. Further, this Agreement shall be deemed amended to revise or modify such provision to the extent necessary to render them enforceable.
21.7
Rights and Remedies Supplementary: The rights and remedies of Demoport available under this Agreement are supplementary to, and in addition to, any rights and remedies available to Demoport elsewhere or under Applicable Law or in equity.
21.8
Construction: This Agreement represents the negotiated agreement of the Parties, with the advice and assistance of counsel, and shall not be construed against either party as the drafter thereof. This Agreement is written in English and the controlling language of the Agreement shall be English.
21.9
Grievance Officer: In compliance with Information Technology Act, 2000 and the rules made thereunder, the Grievance Officer of Demoport for the purpose of this Agreement shall be Mrs. Sujatha Nandhagopal with email address:
[email protected]. Demoport may change the aforesaid details from time to time.
ANNEXURE
SCHEDULE OF PAYMENTS
Business Opportunity Cost
At the time of registration as an Associate, a non-refundable Business Opportunity Cost of Rs.1500/- and the applicable Service Tax shall be paid by the registrant. The Registration is deemed to be complete only on the successful completion of this payment.
Business Opportunity Cost is an Annual Fee payable by the Associate at the completion of every 12 (twelve) months to renew the Agreement.
Demoport payments to Associates, under the Agreement are classified into two. ie., Referral Fees and Order Commission.
Referral Fees
- 1. Demoport shall pay a Referral Fee for the leads generated by the Associates for select B2C and B2B products and services.
- 2. Referral Fee is payable only for the converted leads that are submitted through the Referral Form available on the Website.
- 3. Referral Fee may be a fixed value or a percentage based on the nature and price of the products and may differ from location to location.
- 4. Referral Fee payable, in value or percentage range between Rs.100/- to Rs.10000/- per lead. Specific details of the same will be emailed to the Associates from time to time.
- 5. Referral Fee accrues in the Associate’s Account only when a lead gets converted into a sale.
- 6. Payment of Referral Fee is released at periodical cycles on the successful fulfillment of the order and receipt of buyer confirmation.
Order Commission
- 1. Demoport shall pay a commission for the orders taken by the Associates for select B2C and B2B products and services.
- 2. Order Commission is payable only for the orders taken using the payment options available on the Website.
- 3. Products for which a Net Landing Price is offered, the Order Commission shall be the difference amount between the selling price of a particular product and the net landing price offered to the Associate for that particular product.
- 4. Certain products may also come with a fixed percentage from the selling price as commission.
- 5. Net Landing Price and percentage commission are based on the nature and price of the products and may differ from location to location.
- 6. Order commission range from Rs.500/- to Rs.50,000/- per order. Specific product-wise details of the same will be emailed to the Associates from time to time.
- 7. Commission payments are released at periodical cycles on the successful fulfillment of the order and receipt of buyer confirmation.
Notes :
- Demoport reserves the rights to revise the above charges from time to time, at its absolute discretion, in the manner as explained in the Agreement.
- Demoport also reserves the right to customize these charges for Associates based on varying market conditions and other business factors.
- Appropriate Income Tax (TDS) and other applicable statutory charges will be deducted from the above payouts at the time of disbursement.
Release of Referral Fees and Commission Payments
Payments that accrue to the Associate’s account by way of referral fees and commission, in any given month, shall be transferred to the Associate’s designated bank account in the first week of the subsequent month, subject to receipt of confirmation from the Merchant and Buyer as well.
Charges for Cancelled Orders / Product Returns
- Pre-shipment Cancellations - No charges
- Cancellations due to stock-outs / delivery delays - No Charges
- Post-delivery Returns / Customer Non-Acceptance - Bank Charges incurred on Demoport Payment Platform and Freight Charges incurred by the Merchant will have to be borne by the Associate
