Affiliate Services Agreement

SERVICES AGREEMENT
PAYTM E-COMMERCE PRIVATE LIMITED, a company incorporated under the provisions of the Companies Act, 2013 having its registered office at 136, First Floor, Devika Tower, Nehru Place, New Delhi-110019 and its business office at B-121, Sector-5, Noida-201301, (hereinafter referred to as “PAYTM E-COMMERCE”, which term shall, unless repugnant to the context or meaning thereof, mean and include its permitted assigns, administrators and successors) of the ONE PART; AND
Service Provider” - This expression shall unless it be repugnant to the context or meaning hereof shall be deemed to mean the person/entity accepting the terms of this Services Agreement digitally or otherwise; Both “Paytm E-Commerce” and “Service Provider” are hereinafter individually referred to as a “Party” and collectively as “Parties”.

The Service Provider hereby agrees to the below terms:
  1. Paytm E-Commerce owns and operates an online market place on the website located at the URL ‘www.paytmmall.com’ and ‘Paytmmall’ mobile application, and rides on, website located at the URL ‘www.paytm.com’ and ‘Paytm’ mobile application (collectively referred to as “Platform”) which acts as an online platform facilitating different Sellers to sell their Products and/or Services and enabling different buyers to purchase the Products and/or Services offered by the Sellers.
  2. Paytm E-Commerce shall be offering various products of its Platform’s Sellers for sale through Service Provider, as per the terms and conditions/Scope mentioned in Schedule A attached to this Agreement.
  3. Service Provider represents and warrants that Service Provider desires to and is capable of rendering Services to Paytm E-Commerce in accordance with the terms of this Agreement. Service Provider agrees to provide Services to Paytm E-Commerce during the subsistence of this Agreement and as per the requirement by Paytm E-Commerce. Service Provider represents and warrants that it has necessary measures and devices in place for compliance with the requirements of this Agreement.
  4. Service Provider agrees to provide Services to Paytm E-Commerce as per instructions and specifications provided by Paytm E-Commerce from time to time, and shall comply with all applicable laws including but not limited to GST laws.
  5. Paytm E-Commerce makes no commitment or guarantees on any volume of Services or monetary amount thereof and there is no obligation of Paytm E-Commerce to purchase Services from Service Provider and Paytm E-Commerce shall be at liberty to purchase such Services from any others.
  6. PAYTM E-COMMERCE MAKES NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTEES NOR ASSUMES ANY LIABILITY, INDEMNITY OR OBLIGATION OF ANY KIND WHATSOEVER, EITHER EXPRESS, IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, QUALITY, NON-INFRINGEMENT, PROFITS OR FITNESS IN GENERAL OR FOR A PARTICULAR PURPOSE WITH REGARD TO THE PRODUCTS SOLD ON ITS PLATFORM BY VARIOUS SELLERS. ANY GUARANTEE/WARRANTY SHALL BE AS PROVIDED BY THE SELLER OR THE MANUFACTURER OF THE PRODUCT (AS APPLICABLE).
  7. In consideration of the Services, Paytm E-Commerce shall pay consideration as described in the SCHEDULE B as intimated from time to time by Paytm E-Commerce for the service rendered by Service Provider. All payments shall be subject to applicable taxes/GST per prevailing government rates. Paytm E-commerce shall make the payments on the basis of reports in excel sheet and such reports shall be shared with the service provider, Service Provider may seek any corrections in relation to excess or wrong amounts or clarifications in the payout as may be required by him/her from Paytm E-Commerce and Paytm E-Commerce shall reconcile the data and make adjustments accordingly. There will be no late payment service charge of any kind. Paytm E-Commerce reserves the right to withhold any payments in compliance of applicable laws (including GST) or in case it has any query or dispute in relation to any invoice.
  8. All employees, workers, consultants and the like engaged by Service Provider (if any) to render the Services to Paytm E-Commerce shall be in the sole employment of Service Provider. Service Provider shall be solely responsible for payments and taxes relating to its employees and sub-contractors or otherwise applicable and in connection with the provision of Services and shall provide the documentary evidence to Paytm E-Commerce as and when called for. Service Provider shall at all times keep Paytm E-Commerce indemnified in relation to any claims arising out of this clause. Service Provider shall comply with all statutory laws and applicable law for engaging its employees and workers, consultants to render the Services to Paytm E-Commerce. Paytm E-Commerce shall not be liable for any compensation/damages/ claims and Service Provider shall indemnify Paytm E-Commerce against any such claims at all times during the term of this Agreement.
  9. Time is the essence of the contract. Paytm E-Commerce has the right to receive service credits or damages as may be decided by it in the event of any delays in achieving the milestones mentioned in SCHEDULE A.
  10. Paytm E-Commerce may provide materials and equipment to the service Provider in connection with the Services (“Equipment”), Service Provider hereby confirms that such Equipment shall be used exclusively in relation to Services solely and only during the subsistence of this Agreement. Service Provider shall have no ownership right or lien on the same and they shall be immediately returned to Paytm E-Commerce upon termination or expiration of this Agreement.
  11. Service Provider shall maintain all registers, books and records as may be specified by Paytm E-Commerce in the format and manner specified by Paytm E-Commerce from time to time.
  12. This Agreement is on principal to principal basis and nothing herein contained shall be deemed to create any employment, partnership, joint venture between Paytm E-Commerce and Service Provider or their representatives and employees.
  13. Service Provider acknowledges that all information, data, reports, studies and other tangible or intangible material (collectively “Materials”) of any nature whatsoever in all the deliverables, produced/created by for, or as a result of any of the Services, and all copies of the foregoing, created for Paytm E-Commerce by way of rendering of Services by the Service Provider at any time including without limitation the Materials created up to the date of execution of this Agreement shall be the sole and exclusive property of Paytm E-Commerce worldwide and in perpetuity and such Materials shall be deemed “works made for hire” of which Paytm E-Commerce shall be deemed the author. To the extent that any Materials are deemed to be “works made for hire”, Service Provider hereby irrevocably grants, assigns, transfer and sets over to Paytm E-Commerce all rights, titles and interests of any kind, nature or description in and to the Materials, including copyrights and any other intellectual property rights therein. Service Provider represents and warrants that any Materials including all its components created under this Agreement shall not infringe any rights including the intellectual property rights of any third party. Service Provider shall have no rights and shall not at any time in future claim any rights in the said Materials and Paytm E-Commerce shall retain all rights, titles and interests in and to Paytm E-Commerce intellectual property worldwide and in perpetuity. The provisions of this clause shall survive the termination and expiry of this Agreement.
  14. Service Provider shall at no time use the intellectual property including logo of Paytm E-Commerce/Seller/Brand/Manufacturer without prior written approval of Paytm E-Commerce
  15. Service Provider hereby agrees to protect, defend indemnify and hold harmless Paytm E-Commerce its employees, officers, directors, agents or representatives from and against any and all liabilities, damages, fines, penalties and costs (including legal costs and disbursements) arising from or relating to breach of law, confidentiality obligation, negligence, willful misconduct, fraud, including, without limitation, personal injuries, property damages and/or any claims by third parties based on breach of data, defamation, or invasion of privacy or breach of any of the terms of this Agreement or applicable laws. Except for any liability which cannot by law be excluded or limited, neither Party shall be liable to other Party or any other third party whether claiming through other Party or otherwise, for indirect, incidental, special, punitive or consequential damages.
  16. NOTWITHSTANDING ANYTHING TO THE CONTRARY, PAYTM E-COMMERCE’S LIABILITY IN CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE) HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED, IN TOTAL, REGARDLESS OF THE NUMBER OF CLAIMS, IN RESPECT OF ALL MATTERS, A MAXIMUM OF THE AMOUNT DUE AND PAYABLE BY PAYTM E-COMMERCE (WHICHEVER IS LOWER), AND BOTH THE PARTIES ACKNOWLEDGES THAT THIS IS REASONABLE ASSESSMENT OF RISK AND LIABILITIES. The Parties agree that IN NO EVENT Paytm E-Commerce shall have any liability to any third party. The provisions of this clause shall survive the termination and expiry of this Agreement.
  17. The Service Provider agrees that it will have access to certain Confidential Information of Paytm E-Commerce from time to time during the course of rendering of Services, and the misuse and/or unauthorised disclosure of said Confidential Information by the Service Provider could be damaging to the business of Paytm E-Commerce. Service Provider shall at all times keep all information shared by Paytm E-Commerce under this Agreement or generated under this Agreement, as confidential and shall return the same to Paytm E-Commerce on the termination/expiry of this Agreement.
  18. Non-compete: Accordingly, during the Term of this Agreement and for a period of six (6) months after termination of this Agreement (for any reason), Service Provider agrees that it will not directly or indirectly either for itself or through its employees, affiliates, relatives (as applicable) or in any other manner:
    • Be appointed as a Service Provider for any other person or legal entity which is carrying on a business similar to or in competition with any business carried on by Paytm E-Commerce.
    • Engage in a business that is similar to or in competition with any business carried on by Paytm E-Commerce.
    • Solicit, encourage any existing or potential customers of Paytm E-Commerce to cease doing business with Paytm E-Commerce or knowingly encourage any existing or potential customers of Paytm E-Commerce to do business with any person other than Paytm E-Commerce.
  19. This Agreement becomes effective on the date of acceptance (“Effective Date”) by the Service Provider, and shall be valid unless terminated by either Party as per the provisions of this Agreement.
  20. Termination and Consequences of Termination:
    • In the event of any breach of this Agreement by either Party, the other Party may terminate this Agreement, by giving the other Party seven (7) days’ prior written notice of termination thereof, only after providing a 15 day period for cure of the breach;
    • Either Party may terminate this Agreement forthwith in the event of fraud, breach of applicable laws by the other Party or the other Party passes a resolution for a voluntary liquidation, or is adjudged insolvent etc.;
    • Paytm E-Commerce can terminate this Agreement by tendering a 7 day’s written notice to the Service Provider without assigning any reason thereof. Service Provider can terminate this Agreement by tendering a 30 day’s written notice to Paytm E-Commerce without assigning any reason thereof
  21. Upon the expiration, completion or early termination of a scope of work or this Agreement, Service Provider shall immediately, as the case may be and as Paytm E-Commerce reasonably requires, (i) return all Paytm E-Commerce Materials, Equipment, records and documents (ii) deliver all complete or partially completed deliverables and works in progress under this Agreement or such scope of work (iii) expediently and cooperatively discontinue access to Paytm E-Commerce’s platform and application and (iv) collaborate with Paytm E-Commerce or any third party duly appointed by Paytm E-Commerce to ensure service continuity.
  22. Service Provider shall itself perform its services, obligations and duties under this Agreement and shall not sub contract the rights and obligations hereunder, except without written approval from Paytm E-Commerce’s authorised person. Service Provider shall ensure that none of its employees, sub-contractors, personnel etc. have any conflict of interest with the business of Paytm E-Commerce.
  23. Service Provider shall comply and shall ensure compliance by all its personnel/ subcontractors with all applicable laws including all applicable anti-bribery and anti-corruption laws as well as the code of conduct guidelines of Paytm E-Commerce.
  24. Service Provider shall maintain, and upon request shall furnish to Paytm E-Commerce copies of all requisite insurance policies, required under applicable laws
  25. Paytm E-Commerce shall have the right to verify, audit and inspect the Service Provider for any records and material as and when it deems fit. Service Provider shall provide all records as required to Paytm E-Commerce.
  26. Service Provider shall not make announcement or communications relating to Paytm E-Commerce without prior written approval of Paytm E-Commerce.
  27. This Agreement will constitute the entire agreement between such Parties with respect to its subject matter, superseding all previous agreements, promises, proposals, representations, understandings and negotiations, whether written or oral, between such Parties pertaining to such subject matter.
  28. This Agreement will be governed by and construed in accordance with the laws of India and subject to the arbitration clause below, Parties irrevocably consent to the exclusive jurisdiction of courts located at New Delhi over any dispute hereunder.
  29. Each of the Parties agrees that all differences, disputes, issues relating to interpretation of any clauses and claims whatsoever arising out of or in any manner related to any provision of this Agreement including any failure of the Parties to reach an understanding under any provision of this Agreement shall be resolved by a sole arbitrator appointed by Paytm E-Commerce. The sole arbitrator shall adopt all the procedures, rules and regulations mentioned in the Arbitration & Conciliation Act, 1996 and the accompanying rules, as amended from time to time. The costs of the Arbitration shall be borne equally by both Parties. The arbitration proceedings shall be in English. The venue of the arbitration proceedings shall exclusively be at New Delhi.
  30. No amendment (including any modification or supplement) to this Agreement will be valid unless it is in writing and signed by authorized representatives of the Parties.
  31. Neither Party will be deemed to be in default of or to have breached any provision of this Agreement to the extent the performance of its obligations or attempts to cure any breach are delayed or prevented as a result of any natural disaster, act of God, riot, terrorism, fire, strike, lockout, major technical snag, or governmental act beyond such Party’s reasonable control and to which it did not contribute (each, a “Force Majeure Event”). Provided that if such Force Majeure Event continues beyond a period of 30 (thirty) days, the unaffected Party shall have a right to terminate this Agreement.
  32. Neither Party may assign its rights or obligations under this Agreement to any third Party, except Paytm E-Commerce to its associates, subsidiaries or affiliates. Any purported assignment in breach of this Section will be null and void.
The Service Provider hereby agrees to the below terms:
SCOPE OF WORK/SERVICES OF THE SERVICE PROVIDER
  1. Paytm E-Commerce’ authorised agent (“Agent”) shall, upon successful registration of the Service Provider with Paytm E-Commerce, affix quick response code (“QR Code”) at Service Provider’s premises to facilitate offline transactions of the sale of various goods already available for sale on Paytm Platform.
  2. Service Provider shall facilitate such sale of goods through use of QR Code by the Customers/Users/Buyers visiting the Service Provider’s premises.
  3. Seller understands, agrees and acknowledges that Paytm Ecommerce is an intermediary which facilitates the online/offline transaction for sale of Products between the Seller and Buyer and that there is no privity of contract between the Buyer and Paytm Ecommerce; and it shall be a bipartite transaction between the Seller and Buyer and Paytm Ecommerce shall not be a party to the same.
  4. Sale of products through Paytm E-Commerce Platform are subject to the terms and conditions available on Paytm Platform, and the Service Provider shall sensitize the Customers/Users/Buyers about the same.
SCHEDULE-B
COMMERCIALS
  • PAYTM E-COMMERCE shall pay to Services provider an amount for each Successful order within 3 working days of completion of return policy of the product shown on catalogue of the product. Paytm E-commerce shall time to time notify the list of categories on which such amounts shall be paid. The amount shall be based on the category of the product ordered by the service provider as follows:
  • Base Margin 1%
    Kicker Margin To be decided by Paytm E-commerce
  • A Successful order can be defined as - An order which is not cancelled/return requested by customer.
  • All payments shall be subject to applicable taxes/GST per prevailing government rates and PAYTM E-COMMERCE shall deduct TDS before making the payment.