It's quick and easy.
THIS AGREEMENT WITNESSES AS UNDER
Terms and Conditions
You acknowledge and agree that by registering for or using the Seller Portal and/or the Winnpack Marketplace Program, you, as a Seller, expressly agree to be bound by the following terms and conditions, as may be updated and amended by Winnpack Marketplace from time to time at its sole discretion (“Agreement”). Any amendments to this Agreement shall become effective and binding on the Seller as soon as the amendments have been published the Seller Portal and/or the Winnpack Site (as applicable). This Agreement contains the terms and conditions that govern the Seller’s access to, and use of, the Marketplace Program and is an agreement between the Seller and Winnpack Marketplace.
1.1. No provision shall be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured or drafted such provision. The rule of interpretation that an agreement will be interpreted against the Party responsible for the drafting and any similar rules of interpretation shall not apply to this Agreement and the Parties waive any rights they have to rely on such rules.
1.2. Terms other than those defined within this Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in the information and communications technology industry shall be interpreted in accordance with their generally accepted meanings.
1.3. If any conflict exists between the provisions of this Agreement and any Annexures attached hereto, the provisions of the Annexures shall prevail.
1.4. When any number of days is prescribed in this Agreement, it shall be reckoned to exclude the first and to include the last day.
1.5. Any reference in this Agreement to legislation or subordinate legislation is to such legislation or subordinate legislation atthe date of signature hereof and as amended and/or re-enacted from time to time.
1.6. Words importing the singular shall include the plural, and vice versa, words importing the masculine gender shall include the feminine and neuter genders, and vice versa, and words importing natural persons shall include legal persons, and vice versa.
2.1. Unless the context indicates otherwise, the words and expressions set out below shall bear the following meanings and cognate expressions shall bear corresponding meanings:
2.1.1. “Aflliate” means a wholly owned subsidiary of Winnpack Marketplace and/or Winnpack;
2.1.2.“Confidential Information” means all information communicated by a disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation:
2.1.3. “Confidential Information” means all information communicated by a disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation:
184.108.40.206.the terms ofthis Agreement (including all Annexures and policies referenced herein or attached hereto);
220.127.116.11. all trade secrets;
18.104.22.168. existing or contemplated services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto;
22.214.171.124. Transaction Information, all Payment Card Data and all Tax Codes of Winnpack Marketplace.
2.1.4. “Content” shall mean all information, content and images, including without limitation, the product information, (i) provided or made available by Seller or its Affiliates to Winnpack Marketplace orits AffiliatesorServiceProvidersforuseinconnectionwiththeMarketplaceProgram and(ii)otherwise made available by Seller orits Affiliates to customers on the Winnpack Site (e.g.,through Seller’s hosting of such information, content or images);
2.1.5. “Customer” means a customer purchasing products through the Winnpack Site;
2.1.6. “Effective Date” means the date of acceptance of this Agreement;
2.1.7. “Excluded Offers” means private promotions offered only to all or a subset of Seller’s existing customers by e-mail or regular mail, and Public Promotions that a seller has indicated in writing that it cannot support and an equivalent offer or promotion cannot be provided.
2.1.8. “Intellectual Property Right” means any patent, copyright, trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, logo, moral right, trade secret and any other intellectual property right arising under any Law and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing;
2.1.9. “Law” shall mean any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, of any governmental authority of competent jurisdiction, including without limitation the Consumer Protection Act;
2.1.10. “Losses” shall mean any and all damages (including, without limitation, direct, consequential, economic, exemplary, future, incidental, indirect, noneconomic, past, special and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys’ fees and costs (whether or not suit is brought);
2.1.11. “Winnpack Marketplace” means Winnpack and includes all its Affiliates;
2.1.12. “Winnpack” means Winnpack andincludes all its Affiliates;
2.1.13. “Winnpack Return and Cancellation Policy” sets out Winnpack’s standard customer satisfaction policy which is available on the Winnpack Site, and as may be updated and amended from time to time at the sole discretion of Winnpack.
2.1.14. “Winnpack Site” means www.winnpack.com and applicable applications;
2.1.15. “Marketplace Program” means the Winnpack Marketplace program;
2.1.17. “On-Time Shipping Standard”means the time specified for each order to be processed and delivered;
2.1.18. “Orders” means orders placed by a customer through the Winnpack Site for the purchase of products;
2.1.19. “Party” or “Parties” means, individually, Winnpack Marketplace or the Seller as the context requires and, together, Winnpack Marketplace or the Seller;
2.1.20. “Payment Card” shall mean a debit or credit type card used for financial transactions;
2.1.21. “Payment Card Data” means any information located on a Payment Card, such as, but not limited to, debit or credit card number, expiration date, pin number, cardholder name, or cardholder address;
2.1.22. “PII” means any information that can be used to identify an individual and/orinformation that constitutes personal identifiable information.
2.1.23. “Products” means the products thatthe Seller desires to sell on the Winnpack Site, and approved by Winnpack Marketplace, and as reflected on the Seller Portal;
2.1.24. “Product Information” means the product information that Winnpack Marketplace requires;
2.1.25. “Public Promotions” means any public promotions generally available to all users ofthe Seller Site;
2.1.26. “Referral Fee” means the commission that Winnpack willretain from each sale of the Seller’s Products made through the Winnpack Site;
2.1.27. “Referral Fee Percentage” means the commission, calculated as a percentage of Sales Proceeds excluding Taxes; Referral Fee Percentages vary depending on the assigned product category;
2.1.28. “Sales Proceeds” means the gross sales proceeds from the sale of the Products, including Taxes and excluding shipping;
2.1.29. “Seller” means third party vendors, distributors, wholesalers, retailers and any other incorporated company wanting to sell approved product through the Winnpack site, and who have registered on the Seller Portal and have agreed to the terms of this Agreement;
2.1.30. “Seller Customer Information” shall mean customer information in Seller’s possession that was not received from Winnpack Marketplace as Transaction Information or in any other manner and was not obtained or received by Seller in connection with this Agreement or Seller’s rights and obligations under this Agreement;
2.1.31. “Seller Portal” shall mean the web based tool or other web services or interfaces, provided by Winnpack Marketplace and/or Winnpack and/or a Service Provider that Seller can use to manage its settings, Content and other information related to the Marketplace Program, and including all associated
product listing requirements;
2.1.32. “Seller Marks” means Seller’s name, trademarks, service marks and logos;
2.1.33. “Seller Share” shall mean the Sale Proceeds collected from the sale of the Sellers Products less the Referral Fee earned by Winnpack Marketplace for such Products;
2.1.34. “Seller Site” means any website, other than the Winnpack Site, where a seller displays any information related to the Seller or its products;
2.1.35. “Service Provider” means a third party that provides management software and services for the Marketplace Program;
2.1.36. “Service Level Agreement” means the service level agreement or SLA, that Sellers will be required to adhere to in order to provide the required service levels to and on behalf of Winnpack;
2.1.37. “Transaction Information” means the Customer’s Order information, including but not limited to the Customer’s name, email address, shipping address.
3. THIRD PARTY SERVICE PROVIDERS
3.1. Seller acknowledges and agrees that:
3.1.1. Winnpack may contract a Service Provider to provide management software and services for the Marketplace Program; and
3.1.2. Seller may provide Content to Winnpack Marketplace using the software and/or services of a Service Provider.
4. LICENSE OF SELLER’S CONTENT
License for Content.
4.1. Seller hereby grants Winnpack Marketplace, its Affiliates, and marketing partners, a non-exclusive, royalty-free, perpetual, irrevocable right and license to publish, use, reproduce, distribute, transmit, display, modify, create derivative works of and otherwise commercially exploit all Content (excluding the Seller Marks) in connection with the sale of products through the Winnpack Site and for the listing, advertising, marketing and promotion of such products or the Marketplace Program, including without limitation, through the Winnpack Site, third party websites, e-mail, social media or any other medium. Seller agrees that Winnpack Marketplace may permit users of the Winnpack Site to share and post Content on their own social media outlets. License for Marks.
4.2. Seller hereby grants Winnpack Marketplace and its Affiliates and marketing partners non-exclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit and display Seller’s Marks during the term in connection with the Marketplace Program.
Information for Products
5.1. Seller will use the Seller Portal to list all the required Content, Pricing and Available Inventory per unique product. The Seller shall adhere to the minimum requirements as set out on Marketplace Seller Portal. In addition the Seller will:
5.1.1. Use commercially reasonable efforts to ensure the Seller Portal always has an accurate error-free available inventory count per product listed on the Seller Portal.
5.1.2. Atleast every hour update the Seller Portal with an error-free updated inventory feed for only those Products where inventory levels have changed since the last inventory feed provided for such Product;
5.1.3. Provide Winnpack Marketplace through the Seller Portal with a daily inventory feed for all Products;
5.1.4. Provide Winnpack Marketplace with all Content requested by Winnpack Marketplace, including without limitation, the Product information as set forth in the Seller Portal;
5.1.5. Only provide Content for Products that fit into the categories or parameters as setforth in the Seller Portal.
5.2. The Seller will be held solely responsible for the accuracy of its Pricing, available Inventory and allContentforProductsandwillbeobligedtohonouranyorderplacedbyaCustomerthroughthe Winnpack Site as a result of the Content provided. Excluded Products.
5.3. Seller will be restricted from selling any products already listed by Winnpack for sale in its physical stores. If Seller is restricted from selling certain Products on the Winnpack Site due to supplier brand restrictions or if Seller is not an authorized reseller for any Product, Seller will withhold such Products from the assortment it provides Winnpack Marketplace. Provided that if Seller removes a Product from the Winnpack Site due to brand restrictions or because Seller is not an authorized reseller it will promptly notify Winnpack Marketplace in writing of such removal. Upon Winnpack Marketplace’s request, Seller will provide Winnpack Marketplace with a list of all Products withheld from the Marketplace Program (including why such Product is being withheld). Changes to Content.
5.4. Winnpack Marketplace will make commercially reasonable efforts to post updated Content provided by Seller on a daily basis through its standard transmission process; provided that Seller acknowledges that Winnpack Marketplace will impose freezes on Content updates from time to time in connection with releases on the Winnpack Site.
6. PRODUCT AUTHENTICITY AND SAFETY
6.1. Seller will receive all Products sold through the Marketplace Program directly from the brand owner or from an authorized supplier of the brand owner, and Seller must be an authorized reseller of the Products. Seller will maintain adequate processes and procedures for conducting diligence to ensure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. Upon Winnpack Marketplace’s request, Seller will promptly provide Winnpack Marketplace with:
6.1.1. Certificates of authenticity (or similar documentation)for Products; and
6.1.2. Documentation (e.g. email verifications from the brand owner or supplier) showing that Seller is permitted to sell specific brands or Products through the Winnpack Site .
6.2. Seller will comply with, and ensure that all Products comply with, all product safety,testing and certification requirements under applicable Law, and all other Law.
7. FEES ANDPAYMENTS
7.1. Winnpack will earn a Referral Fee equal to a percentage of Sales Proceeds from each sale of Seller’s Products through the Winnpack Site. The Referral Fee Percentages for Seller’s Products are specific to each Winnpack category and are listed in the Seller Portal. The Referral Fee Percentages are subject to change at any time, without prior notice to the Seller, and shall be effective as soon as the changes are reflected on the Seller Portal. Payment.
7.2. An Order is deemed complete only once:
7.2.1. The Product has been delivered with a proof of delivery signed by the customer; and
7.2.2. The returns and/or cancellation period stipulated in the Winnpack Return Policy has expired (“Deemed Completion”).
7.3. Winnpack Marketplace will make payment of the Seller Share for Orders that meet the Deemed Completion criteria on two set days of each month, namely the 15th and 30th of each month. When these dates do not fall on business days, payment will be made on the next business day after such a date.
7.3.1. For the sake of clarity, Orders that meet the Deemed Completion criteria on or before the 14th of a month will be paid on the last day of that month. Orders that meet the Deemed Completion criteria after the 15th of a month (but before the last day of that month) will be paid on or before the 15th day of the following month.
7.4. At Winnpack Marketplace’s option, all payments to Seller’s bank account will be made by mean of electronic funds transfer or similar method. If Winnpack Marketplace concludes that Seller’s actions and/or performance in connection with this Agreement may result in customer disputes, chargebacks or other claims, then Winnpack Marketplace may, in its sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to Seller under this Agreement for the shorter of:
7.4.1. a period of ninety (90) days following the initial date of suspension; or
7.4.2. Completion of any investigation(s) regarding Seller’s actions and/or performance in connection with this Agreement.
7.5. The Seller expressly acknowledges and accepts that payment of the Seller Share by Winnpack Marketplace shall at all times be subject to Winnpack Marketplace having received the corresponding Sales Proceeds from the customer. Winnpack Marketplace shall have no liability to the Seller, and the Seller shall have no claim against Winnpack Marketplace, for any failure by Winnpack Marketplace to make payment of the Seller Share in circumstances where the Winnpack Marketplace has not received the corresponding Sales Proceeds from the customer.
8. PURCHASE/ORDER PROCESSING, FULFILLMENT AND SHIPPING Orders Status Update
8.1. Customers purchasing Products through the Winnpack Site will place Orders using the Winnpack Site checkout and payment gateway. Winnpack will collect all proceeds from such transactions. Winnpack Marketplace will make available on the Seller Portal all the Transaction Information that Winnpack
8.2. Sellers need to manage all Orders via the Seller Portal. The Seller Portal requires sellers to update the Order status for the duration of the Order and delivery process.
8.3. Sellers will only receive Orders that have been paid for in full and accepted by Winnpack.
8.4. The Seller is obligated to update the Order status to “Accepted” (which means a confirmation by the Seller that it has stock), via the Seller Portal within 2 (two) hours of receiving an Order during business hours.
8.5. The Seller is obligated to update the Order status to “Ready for Collection” (which means the Order is picked, packed and ready for collection by the courier), via the Seller Portal within 48 (forty eight) hours of receiving an Order, during business hours. The Seller shall be entirely responsible for the shipping of the order through their designated courier partner.
8.6. The Seller is obligated to update the Order status to “Out with Courier” (which means the Seller has handed the packed Order to the courier for delivery), via the Seller Portal within 1 (one) hour of handing the Order over, during business hours. Risk of Fraud, Loss, and Cancellation
8.7. Winnpack will bearthe risk of credit card fraud occurring in connection with any Order.
8.8. The Seller shall bear the full risk in and to any valid cancellation of an Order by a Customer, and expressly acknowledges that Customer’s may have additional rights against the Seller as a result of the terms and conditions contained on the Winnpack Site (if any). Fulfillment of Orders
8.9. Once Winnpack Marketplace has transmitted an Orderto Seller, Seller will, atits own expense, be solely responsible for, and bear all liability for, processing and updating all relevant statuses on the Seller Portal, including the accurate picking and packing of all applicable orders, including without limitation, any ad hoc customer service requests from Winnpack Marketplace.
8.10. If Seller cannot fulfill the entire quantity of a purchase order line in an Order, then the Seller will (prior to acceptance) reject that purchase order line item and thereafter fulfill all other line items in the Order and promptly notify Winnpack Marketplace of such rejection. If the Order consists of one purchase order line iand the Seller cannot fulfill the entire quantity for, then the Seller will be expected to reject or cancel the entire Order and promptly notify Winnpack Marketplace via email or the Seller Portal and will provide any additional information that may be required by Winnpack Marketplace.
8.11. All packaging material needs to comply with the minimum packaging standards as set out in the Seller Portal. Under no circumstances should packaged Orders contain any Seller marketing or other materials that are not included as standard with regard to the specific Product being sold.
8.12. Timing of Order ransmission:
8.12.1. The Winnpack Site will accept multiple different payment methods from Customers. The Seller acknowledges that not all payment methods are processed by the relevant merchant bank within the same day in which they were received, and as such the Seller may only receive notification of an Order after the date of the Order.
8.12.2. The Seller accepts that it shall be obliged to honour all Orders based on the price and availability available on the Seller Portal as of the date of Order, notwithstanding that the Seller may have only been notified of the Order after the actual date of Order.
8.12.3. Winnpack will use all reasonable and commercially viable means to endeavor to keep such delays to a minimum.
8.13. Alternative Shipping Method (Not Recommended)
8.13.1. Winnpack May under certain circumstances undertakes to complete the shipping leg of an Order on the Sellers behalf. Winnpack will make use of approved couriers to collect and distribute all Seller Orders.
8.13.2. Seller is obligated to use the “shipping” function prescribed in the Seller Portal and complete the picking, packing, and waybill creation functions in order for the “Ready for Collection” status to be achieved.
8.13.3. Sellers are obligated to make available all facilities as are necessary in order for Winnpack approved couriers to collect packaged Orders from a single Seller warehouse or collection point. The Seller accepts that it shall be liable for any delays and/or Losses that may be suffered by Winnpack or the Winnpack Marketplace as a result of the Sellers failure in this regard.
8.13.4. For the sake of clarity, Winnpack’s obligations in terms of this clause 8.14 shall not apply to the collection of any returns for unwanted or defective Products, which shall be the sole responsibility and for the account of the Seller.
8.14. Preferred Shipping Method (Recommended)
8.14.1. The Seller shall undertake to handle its own shipping requirements as the preffered shipping method and the provisions of this clause 8.14 will apply.
8.14.2. Seller is responsible for properly specifying the shipping options for all Products through the Seller Portal (including as may be requested by Winnpack Marketplace) and for properly handling all returns at its own cost.
8.14.3. Seller will be responsible for shipping all Products purchased by Customers in accordance with Winnpack Marketplace’s standard shipping practices. Seller will be responsible for all shipping charges and for any costs or charges related to shipping-related problems, including without limitation, damaged or lost Products, late shipments or misdelivery.
8.15. Shipping Terms (Applicable to both Preferred and Alternative Shipping Methods)
8.15.1. Seller will ship each Product within the On-Time Shipping Standard after receipt of the Transaction Information from Winnpack Marketplace. If Seller cannot meet the On-Time Ship Standard for any Product,it will provide Winnpack Marketplace with email notification of such delay.
8.15.2. Seller will be fully liable for any fines, costs or expenses incurred by Winnpack Marketplace or by Winnpack or by a third party resulting from any failure to satisfy the On-Time Ship Standard for any Product. The Seller will indemnify and hold harmless Winnpack Marketplace and its Affiliates and their officers, directors, employees and agents for any losses, liabilities, fines, costs or expenses (including costs on an attorney and own client basis) resulting from such failure. Seller will be solely liable for all costs related to any duplicate or inaccurate shipments based upon Seller’s acts or omissions.
8.16. Winnpack Marketplace will provide Seller with information on the status of Orders through the Seller Portal. Seller will be solely responsible for reviewing and monitoring such information. Within 48 (forty eight) hours of receipt of the information, the Seller shall provide Winnpack Marketplace with written notice of any discrepancies between the information provided and Seller’s fulfillment of any Orders. Seller is solely responsible for monitoring and responding to information provided by Winnpack Marketplace pursuant to this Agreement.
9. CANCELLATIONS, RETURNS AND REFUNDS
9.1. Winnpack and/or Winnpack Marketplace shall process all Customer requests for cancellations, returns, refunds and/or customer service price adjustments. Seller will stop and/or cancel any Order if requested by Winnpack Marketplace; provided that if Seller has transferred Products to a courier, Seller will immediately notify Winnpack Marketplace and use commercially reasonable efforts to stop and or cancel the delivery.
9.2. The Seller expressly acknowledges and agrees thatit shall at all times be bound by, and agrees to adhere to,the terms and conditions ofthe WinnpackReturn Policy as maybeupdated and amended from time to time at the sole discretion of Winnpack. Refunds and Returns
9.3. Winnpack Marketplace retains the right to accept or reject all refund, return, and exchange requests by Customers. Winnpack Marketplace will process all refunds, returns, and exchanges immediately upon confirmation from the Seller, which confirmation shall be provided by the Seller within 24 (twenty four) hours from receipt of a request from Winnpack Marketplace, failing which the Seller will be deemed to have provided its confirmation.
9.4. Refunds, returns, and exchanges will be determined via the Winnpack Return Policy. Seller will be responsible for all exchanges and replacements, where applicable.
9.5. A Customer may return or cancel any Order for a Product sold through the Winnpack Site at any time within, and in accordance with, the Winnpack Return Policy. The Seller is obligated to accept any return or cancellation that meets the return policy as stipulated in the Winnpack Return Policy or on the Winnpack Site. Winnpack will use all reasonable and commercially viable means to endeavor to keep such returns and cancellations to a minimum.
9.6. Seller will be responsible for all applicable reverse logistics costs incurred in ensuring that the Product collected from the Customer and returned back to the Seller.
9.7. A Customer may return Products sold by the Seller to a Winnpack physical store or request that the Seller collect the Products from the same location they were delivered to.
9.7.1. Where returned Products are required to be collected from the Customer, the Seller will have 48 (forty eight) hours to collect the Products and then 5 (five) business days to assess return for resolution.
9.7.2. When Products are returned to a Winnpack physical store, Winnpack Marketplace will notify the Seller via the Seller Portal or email that there are Products that have been returned and require assessment before a refund can be processed. The Seller is obligated to collect and assess Products that are returned for resolution within 5 (five) business days of notification of return.
9.7.3. The Seller acknowledges that a return in terms of the Winnpack Return Policy shall be deemed to have complied with the Winnpack Returnx Policy if the Customer returns the Product to a Winnpack physical store within the stipulated period. This will apply notwithstanding the fact that the Seller may only receive the actual Products at a time after expiration of the applicable period.
9.8. The ultimate decision on whether or not to refund a Customer will always lie with Winnpack.
9.9. Sellers are obligated to facilitate all warranty claims made within 60 days of purchase date by the Customer, or within the warranty period provided by the applicable Original Equipment Manufacturer and attached to the Product.
10. PARITY WITH SELLER SALES CHANNELS
10.1. Seller will maintain parity between the Products it offers through the Seller Site and the Products offered on the Winnpack Site by ensuring that at alltimes:
10.1.1. except for in connection with Excluded Offers, the selling price and every other term of offer and/or sale of the Products (including associated shipping and handling charges and options, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable return and refund policies is at least as favorable to users of the Winnpack Site as the most favorable terms upon which that Product is offered and/or sold via the Seller Site;
10.1.2. customerservicefortheProductsisatleastasresponsiveandavailableandoffersatleastthe same level of support as the most favorable customer service offered in connection with the Seller Site; and
10.1.3. The Content provided by Seller to Winnpack Marketplace for the Winnpack Site:
10.1.3.1.1. Is of least the same level of quality as the highest quality information displayed or used on the Seller Site; and
10.1.3.1.2. Provides users of the Winnpack Site with at least as much product information, images and other content as the information provided on the Seller Site.
10.2. If Seller becomes aware of any non-compliance with 10.1 above, Seller will promptly notify Winnpack Marketplace and compensate adversely affected Customers by approving appropriate refunds to such Customers. Special Offers and Promotions
10.3. Seller will notify Winnpack by e-mail at firstname.lastname@example.org (or through the Seller Portal) of all special offers and promotions (i.e., where Seller discounts an item or items by a certain amount for a certain period of time) offered on the Seller Site. Seller will make special offers and promotions available to Winnpack Customers in connection with the Marketplace Program, and will use commercially reasonable efforts to allow Winnpack Marketplace to support any such special offer or promotion through the Seller Portal. If Seller makes any Public Promotions generally available to all users of the Seller Site and Winnpack Marketplace cannot support such Public Promotion, then Seller will provide an equivalent offer or promotion to Winnpack Marketplace Customers to the extent possible. For example, if Seller lists a promotion code on the Seller Site that can be used by any customer for 10% off specific Products or all Products sold on the Seller Site and Winnpack Marketplace cannot support the promotion code, Seller will reduce the price of such Product or all Products, as applicable, through the Seller Portal by 10% for the duration of the special offer or promotion on the Seller Site. Seller will work in good faith with Winnpack Marketplace to maximize the number of Seller offers and promotions (including equivalent offers and promotions) made available to Winnpack Marketplace Customers.
10.4. Winnpack Marketplace may choose, in its sole discretion, not to permit certain special offers or promotions offered by Seller on the Winnpack Site (e.g., where Winnpack Marketplace cannot support the special offer or promotion) and may request that Seller filter out any such special offers or promotions. Notwithstanding the foregoing, Seller will not be required to make Excluded Offers available to Winnpack Marketplace Customers, provided that, if Winnpack Marketplace is able to support any Excluded Offer at any time during the Term and desires to do so, it will notify Seller and after receipt of such notification, Seller will make such special offer or promotion available to Winnpack Marketplace in connection with the Marketplace Program.
11. RECALLS ANDDEFECTS
11.1. Seller is solely responsible for any non-conformity or defect in, or any public or private recall of Seller’s Products. Winnpack Marketplace will have no responsibility or liability for any recalls of Products sold through the Winnpack Site. If Products are subject to a recall, Seller is responsible for all matters, costs and expenses associated with such recall, including without limitation, notices and refunds to Customers, contact and reporting of the recall to any governmental agency having jurisdiction over the affected Products, and compliance with all applicable Law with respect to such recall. Seller will promptly remove any recalled Products from the Winnpack Site by unpublishing or retiring the Product through the Seller Portal. Seller will notify Winnpack Marketplace by e-mail at email@example.com of all Product recalls within 24 hours of becoming aware of the recall. Seller will promptly provide Winnpack Marketplace with all information reasonably requested in connection with the recall of any Product.
12. CONTACTWITHCUSTOMERSANDCUSTOMERSERVICEESCALATION Customer Service
12.1. Winnpack will be responsible for providing 1stline telephonic support for Customers;
12.2. Where the Customer query cannot be resolved by Winnpack, Winnpack will escalate the support query to Winnpack Marketplace for 2nd line support and resolution;
12.3. Where Winnpack Marketplace is unable to resolve a Customer support query, Winnpack Marketplace will escalate the support query to the Seller for 3rd line support and resolution.
12.3.1. Seller will always represent itself as a separate entity from Winnpack Marketplace and Winnpack when providing customer service for its Products sold through the Winnpack Site.
12.3.2. For the sake of clarity, the Seller shall not be entitled to contact the Customer directly under any circumstances without having first obtained Winnpack Marketplace’s prior written consent.
12.4. Neither Party will disparage the other party or its Affiliates or its or their products or services when performing obligations under this Agreement.
13. SELLER SYSTEMS AND SERVICE LEVELS
13.1. Seller shall be solely responsible for the adequate maintenance and uptime of all Seller systems that are necessary for the Seller to fulfil Orders and meet its obligations of this Agreement.
13.2. The Seller shall notify Winnpack Marketplace within 1 (one) business hour, of any down-time or related system issues, that may or will have an impact on the Sellers ability to fulfil Orders or otherwise meet its obligations on terms of this Agreement.
13.3. The Seller will comply with any service levels prescribed by Winnpack or Winnpack Marketplace from time to time, in connection with Seller’s systems that, directly or indirectly, impacts the Winnpack Marketplace systems or the Marketplace Program; and
13.4. The Seller shall at all times comply with the Order and Customer Service Level Agreement, attached hereto as Annexure B.
14.1. Seller will, within a reasonable period oftime, notto exceed thirty (30) days,following request from Winnpack Marketplace, make commercially reasonable efforts to provide Winnpack Marketplace with any reports, information or other documentation relating to Seller’s compliance with this Agreement and applicable Law reasonably requested by Winnpack Marketplace; provided, however,thatin the event Winnpack Marketplace requests that SellerprovideWinnpack Market place with copies of reports that Seller was required to file with any regulatory agency, Seller will provide such reports within seven (7) days of Winnpack Marketplace's written request. Audit Rights
14.2. Seller will keep accurate and complete books, records and accounts related to Marketplace Program transactions and this Agreement, and will allow Winnpack Marketplace, or its duly authorized representative,the right, upon notless than five (5) business days prior written notice, during theTerm of this Agreement and for two (2) years after its termination or expiration, to conduct, during regular business hours, full and independentaud its and investigation so fall information, books,recordsand accounts reasonably required by Winnpack Marketplace to confirm Seller’s compliance with the terms of this Agreement and applicable Law. Certifications
14.3. Upon Winnpack Marketplace’s request, Seller will provide Winnpack Marketplace with written certification from an officer of Seller stating that Seller has complied with any of Seller’s obligations under this Agreement, including, for example and without limitation, compliance with SLAs, consumer product safety laws, authenticity of Products, or restrictions on use of Transaction Information.
15. REPRESENTATIONS AND WARRANTIES
15.1. Each Party hereby represents and warrants to the other Party the following: Authority
15.2. TheParty is a duly organized, validly existing and in good standing under the laws of the state where such Party was organized and the Party has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid and binding obligations ofthe Party. No Conflicts
15.3. Neither the execution and delivery of this Agreement by the Party nor the consummation of the transactions contemplated here by will violateor conflict with any obligation, contractor license of such Party which could reasonably be expected to interfere with the consummation of the transactions contemplatedhereby.
15.4. Seller hereby represents and warrants to Winnpack Marketplace the following: Power andAuthority
15.4.1. Seller has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims ,liens and encumbrances and to sell the Products. Compliance with Laws
15.4.2. Sellerandallofitsemployees, subcontractors, agentsandsupplierswill complywith all applicable Law, as may be amended from time to time, in performing any of its obligations or exercisinganyofitsrightsunderorrelatedtothisAgreement.AllProducts(includingallpackaging) and Content will comply with applicable Law.The production, manufacturing, offer, sale, shipping and delivery of all Products will comply with all applicable Law. Products will not be produced or manufactured by child labor or convict orforced labor. Principal Place of Business
15.4.3. Seller’s principal place of business is in India and Seller will not conduct any operations relating to this Agreement from outside India Content
15.4.4. All Content will be truthful and accurate. Content will not:
126.96.36.199. be misleading or deceptive
188.8.131.52. be defamatory, libelous, threatening or harassing;
184.108.40.206. promote or depict gratuitous violence,the use of alcohol, tobacco orillegal substances or adult-oriented content; or
220.127.116.11. reflect unfavorably on Winnpack Marketplace, its Affiliates, or the Winnpack Site or be the type ofcontentthatcouldotherwisereasonablyadverselyimpactor damagethereputationorpublic image of Winnpack Marketplace or its Affiliates. Seller will not use the Content to redirect Winnpack Marketplace Customers to any other sales channels.
15.4.5. Seller will only offer Products for sale on the Winnpack Site that may be sold and shipped throughoutIndia.SellerwillnotofferforsaleanyProductsthroughtheWinnpackSitethatWinnpack Marketplace indicates as prohibited, including without limitation, the Prohibited Products attached hereto as Annexure A. The list of Prohibited Products may be updated by Winnpack Marketplace from time totimeandWinnpackMarketplacewill notifySellerofsuchupdatesbyemailand/orthroughtheSeller Portal. Personnel
15.4.6. All Seller personnel will be properly registered, documented,licensed and/or certified in accordance with applicable Law. Ongoing Warranties
15.4.7. Except as otherwise expressly provided herein,the representations and warranties made in this Agreementarecontinuous innatureandwillbedeemedtohavebeengivenbySellerattheexecution ofthis Agreement and each stage of performance ofthis Agreement.
16. CONTROL OF WINNPACK SITE
16.1. Winnpackhasthesolerighttodeterminethecontent,appearance,design, functionalityandall other aspects ofthe Winnpack Site, including, withoutlimitation, all content provided in connection with thesaleofProductssoldbySellerthroughtheWinnpack Site.WinnpackMarketplaceintendstouseonesetof contentforeachitem soldthroughthe Winnpack Site.Winnpack Marketplace may suspend anyProduct listingordisplay ofContentorrefusetolistanyProductsinitssolediscretionandWinnpackMarketplace may requireSellertoexcludeanyProductsfromtheWinnpackSite.IfWinnpack Marketplacerequeststhat SellerremoveProducts fromtheWinnpack Site,Sellerwillmake commerciallyreasonableefforts to removethose Productsbyunpublishing orretiring such Products throughtheSellerPortalwithin twenty four(24)hours of such request sosuchProducts no longer appearfor saleontheWinnpack Site andSellerwillnotincludesuchremoved ProductsontheWinnpackSiteatanytimeunlesstheinclusionof such Products is specifically authorized by Winnpack Marketplace in writing. Winnpack Marketplace will have sole control of any marketing of:
16.1.1. any products on the Winnpack Site,including withoutlimitation, Seller’s Products; and
16.1.2. the MarketplaceProgram.
17. OWNERSHIP AND USE OF TRANSACTION INFORMATION
17.1.1. disclose or convey any Transaction Information to any third party (except as necessary for Seller to perform its obligations under the Agreement);
17.1.2. use any Transaction Information to conduct customer surveys or for any marketing or promotional purposes;
17.1.3. contact a Customer that has ordered a Product that has not yet been delivered with the intent to collect any amounts in connection therewith or to influence such Customer to make an alternative or additional purchase; or
Winnpack Marketplace user.
18. RATINGS ANDREVIEWS
18.1. WinnpackMarketplacemayusemechanisms thatrateorreview,orallowshoppers torateor review, Seller’s Products and Seller’s performance as a seller and Winnpack Marketplace may make these ratings publicly available. Winnpack Marketplace will have no liability to Sellerforthe content or accuracy ofany ratings orreviews. Sellerwillhave noownership interestinorlicensetouseany ratingor reviews posted on the Winnpack Site.
19. SUGGESTIONS ANDFEEDBACK
19.1. IfSelleroranyofSeller’sAffiliatesoragentselecttoprovideormakeavailablesuggestions, comments, ideas, improvements, or other feedback or materials to Winnpack Marketplace in connection withorrelatedtoanyWinnpackSiteorTheMarketplaceProgram(includingany relatedtechnology), Winnpack Marketplace will be free to use, disclose, reproduce, modify, license,transfer and otherwise distribute, and exploit any ofthe foregoing information or materials in any manner. In orderto protect Winnpack Marketplace’s systems and customers, or to ensure the integrity and operation of Winnpack Marketplace’s business and systems, Winnpack Marketplace may access and disclose any information Winnpack Marketplaceconsidersnecessaryorappropriate,includingbutnotlimitedtousercontact details, IP addresses and traffic information, usage history, and posted content.
20. CONFIDENTIAL INFORMATION AND INFORMATION SECURITY
20.1. Both Parties acknowledge that either Party may receive (the“Receiving Party”) Confidential Information from the other Party (the“Disclosing Party”) during the term ofthis Agreement, and such Confidential Information will be deemed to have been received in confidence and will be used only for purposes ofthis Agreement. The Receiving Party will:
18.104.22.168. use the Disclosing Party’s Confidential Information only to perform its obligations and exercise rights under this Agreement; and
22.214.171.124. disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel, contractors and affiliates that:
126.96.36.199.1. have a need to know the information to assistthe Receiving Party with fulfilling obligations underthis Agreement; and
188.8.131.52.2. have agreed to keep the information confidential in accordance with the terms setforth herein.
20.2. TheReceivingPartywilltreattheConfidentialInformationasitdoesitsownvaluableand sensitive information of a similar nature and, in any event, with notless than a reasonable degree of care.Theobligationofconfidentialitywillcontinueforthree(3)years fromtheexpirationor terminationofthisAgreement;provided,however,theReceivingPartywillcontinuetokeep confidential:
20.2.1. any PII at alltimes and as required by this Agreement and any applicable Law;
20.2.2. any trade secrets ofthe Disclosing Party; and
20.2.3. the terms ofthis Agreement.
20.3. Seller agrees that Winnpack Marketplace may share Seller’s Confidential Information with its Affiliates for internal use only. Exceptions
20.4. The obligations of either Party under this Section will not apply to information thatthe Receiving Party can demonstrate:
20.4.1. was initspossessionatthetimeofdisclosureandwithoutrestrictionas toconfidentiality;
20.4.2. at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act or failure to act by the Receiving Party; provided, however, PIIremains subjectto confidentiality obligations regardless ofits availability to the public or availability through unauthorized disclosure;
20.4.3. has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by such third party orthe Receiving Party; or
20.4.4. is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.
20.5. In the eventthe Receiving Party is required by Law, stock exchange requirement orlegal process todisclose anyoftheConfidentialInformation,theReceivingPartyagrees to:
20.5.1. givetheDisclosingParty,totheextentpossible, advance notice priortodisclosure; and
20.5.2. limitthe disclosure to minimum amountthatis legally required to be disclosed.
21.1. ThisAgreementwillapplytotheSellerfromthemomentofregistrationonoruseoftheSeller Portaland/ortheWinnpackMarketplaceProgram,andshallcontinuetoapplyfor solong as theSeller remains part of the Marketplace Program;
21.2. Seller acknowledges and agrees that Winnpack Marketplace may amend and/or replace this Agreement at any time in its sole discretion, and by logging onto the Seller Portal,the Seller shall automatically be bound by the latest Agreement. Termination for Convenience
21.3. Either Party may terminate this Agreement for any reason by giving 48 (forty eight) hours prior written notice to the other Party. Post-Termination Obligations
21.4. Seller will continue to have obligations underthis Agreement aftertermination ofthe Agreement, including without limitation,the obligation to:
21.4.1. Fulfil all Orders that have been accepted but not yet delivered;
21.4.2. provide customer service to Customers who purchased Products on the Winnpack Site;
21.4.3. pay any invoices delivered by Winnpack Marketplace in connection with the Agreement;
21.4.4. notify Winnpack Marketplace and Customers of any recalls ofits Products;
21.4.5. remit any taxes collected to the properjurisdiction(s); and
21.4.6. immediately notify Winnpack Marketplace of any security breach that allows a third party to view or access or otherwise compromises any Transaction Information.
21.5. Winnpack Marketplace will pay Sellerthe Seller Share attributable to Orders placed by Customers priortotheterminationoftheAgreementinaccordancewiththepaymentterms set forthinthis Agreement. Survival
21.6. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement will survive its termination.
22.1. Seller will defend, indemnify and hold harmless Winnpack Marketplace and its Affiliates and each of their respective stockholders, successors, assigns, officers, directors, employees, agents, representatives (eachan“Indemnitee”)fromandagainstanyandallLossesarisingoutofor relatedtoanythirdparty Claimsassertedagainst,imposeduponorincurredbyanIndemniteedue to,arisingoutoforrelating to:
22.1.1. an actual or alleged breach by Seller ofthis Agreement;
22.1.2. theSellerSiteandothersaleschannels,theContentortheProducts (including,without limitation,the offer, sale,refund, orreturn of Products) or any violation of Law with respectto the foregoing (including but not limited to the Consumer Protection Act, 2008), or any actual or alleged infringement of any Intellectual Property Right by any ofthe foregoing, or personal injury, death or property damage related thereto or arising therefrom; and
22.1.3. any and all income, sales, use, ad valorem, and othertaxes, surcharges,fees, assessments or charges of any kind whatever,together with any interest, penalties and other additions with respect there to,imposed by any federal, state,local orforeign governmentin any way related to the sale ofthe Products on the Winnpack Site, specifically excluding, however, any such taxes related to Winnpack Marketplace’s net income. Procedure for Indemnification
22.2. Upon receipt of notice, from whatever source, of Claims against Winnpack Marketplace for which Seller is obligated to indemnify Winnpack Marketplace, Seller immediately will take necessary and appropriate action to protect Winnpack Marketplace’s interests with regard to the Claims. Winnpack Marketplace will notify Seller of the assertion, filing or service of any Claims of which Winnpack Marketplace has knowledge, as soon as is reasonably practicable. Seller will use counsel reasonably satisfactory to Winnpack Marketplace to defend each Claim. Conflict
22.3. Notwithstandingtheforegoing,however,ifWinnpackMarketplacereasonably determinesthat theremaybeaconflictbetweenitspositionandthatofSellerinconnectionwith thedefenseofa Claim orthatthere may be legal defenses available to Winnpack Marketplace different from orin addition to those available to Seller,then, at Seller’s expense, counselfor Winnpack Marketplace will be entitled to conductadefensetotheextentWinnpack Marketplacereasonablydeterminesnecessarytoprotectthe interest of Winnpack Marketplace. If Winnpack Marketplace, in its sole discretion, determines that the counsel providedbySellertodefendWinnpackMarketplaceisunacceptableorthataconflictof interestexists betweenWinnpackMarketplaceandcounsel,Winnpack MarketplacemayrequestthatSellerreplacethe counsel. If Sellerfails to timely replace counsel, Winnpack Marketplace may replace the counsel and, as part of Seller’s indemnification obligation to Winnpack Marketplace, Seller will pay to the new counsel, or reimburse Winnpack Marketplace, any and all fees and expenses as to the new counsel, including any and all expenses or costs to change counsel. Settlement
22.4. Seller,inthedefenseofanyClaim,willnot,exceptwiththepriorwrittenconsentofWinnpack Marketplace, consent to entry of any judgment or enter into any settlement with respect to such Claim.
23. WARRANTY DISCLAIMER
23.1. NEITHER WINNPACK, WINNPACK MARKETPLACE, NOR ITS AFFILIATES, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, EMPLOYEES OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESSORIMPLIED,THATTHEWINNPACKSITE, THEMARKETPLACEPROGRAM,ANYSELLERPORTAL, SERVICESPROVIDEDBYWINNPACK MARKETPLACEORANYSERVICE PROVIDER,ORSOFTWAREUSEDTO PROVIDE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR ERROR-FREE, AND SELLERAGREESTHATWINNPACK MARKETPLACEWILLNOTBE LIABLE FORTHECONSEQUENCESOFANY INTERRUPTIONSORERRORS,INCLUDINGWITHOUTLIMITATION,SYSTEMORSOFTWAREFAILURESOR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS. NEITHER WINNPACK, WINNPACK MARKETPLACE NOR ITS AFFILIATES, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, EMPLOYEES OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO SELLER WITH RESPECT TO THE SALE OF SELLER’S PRODUCTS THROUGHTHEWINNPACKSITEPURSUANT TOTHISAGREEMENT,ANDALL SUCHSERVICESPROVIDEDBY WINNPACK MARKETPLACE ARE PROVIDED ON AN“AS-IS”AND“AS AVAILABLE”BASIS.
23.2. WINNPACK MARKETPLACE AND ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, LICENSORSANDSUPPLIERSEXPRESSLYDISCLAIMALLWARRANTIESOFANY KIND,WHETHEREXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPRIETARYRIGHTSANDTHOSEIMPLIEDWARRANTIESARISINGOUT OFCOURSEOFPERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
24. LIMITATION OF LIABILITY No ConsequentialDamages
24.1. INNOEVENT SHALL WINNPACKOR WINNPACK MARKETPLACE BE LIABLE TOSELLEROR ANYTHIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
24.1.1. LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OR LOSS OF DATA;
24.1.2. EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE; OR
24.1.3. FORCOSTOFCOVER,RECOVERYORRECOUPMENTOFANYINVESTMENT, EACHOFWHICHIS HEREBYEXCLUDEDBYAGREEMENTOFTHEPARTIESREGARDLESSOFWHETHERSUCHDAMAGESWERE FORESEEABLEORWHETHERWINNPACKMARKETPLACEHASBEENADVISEDOFTHE POSSIBILITYOF SUCH DAMAGES.
24.2. INNOEVENTSHALLWINNPACKMARKETPLACE’SAGGREGATELIABILITYTOSELLER ORANYTHIRD PARTYFORANYCLAIMS,LOSSES,INJURIES,SUITS,DEMANDS, JUDGMENTS, LIABILITIES,COSTS, EXPENSESORDAMAGES FOR ANY CAUSEWHATSOEVER, ANDREGARDLESSOF THE FORM OF ACTION ORLEGALTHEORY,EXCEEDTHETOTALREFERRAL FEESPAIDBYSELLERTO WINNPACKMARKETPLACE PURSUANTTOTHISAGREEMENTDURINGTHESIXMONTH PERIODPRECEDINGTHEEVENTGIVINGRISE TOSUCHLIABILITY.THELIMITATIONSOFLIABILITY REFLECTTHEALLOCATIONOFRISKBETWEENTHE PARTIES.THELIMITATIONSSPECIFIEDINTHIS SECTIONWILLSURVIVEANDAPPLYEVENIFANYLIMITED REMEDY SPECIFIED INTHIS AGREEMENT IS FOUNDTOHAVE FAILEDOF ITS ESSENTIAL PURPOSE.
25. INSURANCE, RISK, AND OWNERSHIP
25.1. Sellerwillmaintain,atSeller’sexpense,commercialgeneral,umbrellaand/orexcess liabilityin the aggregate covering liabilities caused by or occurring in connection with this Agreement or Seller’s business (including without limitation, product, completed operations, hijacking, overturning and bodily injury), or as otherwise required by Winnpack Marketplace from time to time. All such policies will beoccurrencebased,willincludeWinnpackMarketplaceasanadditional insured,andwillcontaina waiver of subrogation.
25.2. The Seller acknowledges thatit shall retain all risk in and to the Products until the Products have beendeliveredwithaproofofdeliverysignedbytheCustomer.OwnershipinandtotheProductsshall pass totheCustomerwhen theProductshavebeendeliveredwithaproofofdelivery signedby the Customer.
26. CHOICE OF LAW, JURISDICTION AND VENUE
26.1. ThePartiesmutuallyacknowledgeandagreethatthisAgreementwillbeconstruedand enforcedinaccordancewiththe Indian Laws andwithoutregardtoany conflictoflaw provisions.ThePartiesagreethatinanydisputearisingfromorrelatedtothis Agreement, shallbesubjecttotheexclusivejurisdiction ofthe Delhi NCR Court. The Parties mutually acknowledge and agree that they will not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum orlack of personaljurisdictioninanyaction orsuitbroughtinaccordancewiththeforegoing.TheParties acknowledgethattheyhaveread andunderstandthisSectionandagreevoluntarilytoitsterms.
27.1. Assignment. Seller may not assign (including, without limitation, by way of merger, consolidationorsaleofallorsubstantiallyallofSeller’sstockorassets)thisAgreement,oranyofits respective rights or obligations hereunder, without the prior written consent of Winnpack Marketplace. Subjecttotheforegoing,thisAgreementwillbebindingupon,andwillinuretothe benefitof,the Parties and their respective successors and permitted assigns. Any assignment or assumption without Winnpack Marketplace’s prior written consent will be null and void.
27.2. Integrated Agreement. This Agreement,including all Annexures and policies referenced herein, constitutes the complete integrated agreement between the Parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations orrepresentations, whetheroralorinwriting,relatingtothesubjectmatterofthisAgreementaresupersededintheir entirety.
27.3. Amendments.WinnpackMarketplacemayamendthetermsofthisAgreement (includingwithout limitation, any Annexures hereto) from time to time and will either post such amendments to the Seller Portal(“AmendmentNotice”).IfSellerobjects toanyamendmenttothe termsofthisAgreement (includinganyAnnexurehereto),SellershouldterminatethisAgreementIF SELLERCONTINUESTO PARTICIPATE IN THE MARKETPLACE PROGRAM AFTER THE EFFECTIVE DATE OF ANY AMENDMENT, SELLERWILLBEDEEMEDTOHAVEAGREEDTOANDACCEPTEDANY MODIFICATIONS SETFORTHINTHE AMENDMENT.
27.4. Waiver. No waiver of any of the provisions ofthis Agreement will constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any oftheprovisionsofthisAgreement,willinnowaybeconstruedtobeapresentorfuturewaiverof such provisions.
27.5. Severability.Ifanyprovision ofthisAgreementis foundbya courttobeinvalid, voidor unenforceable,the Parties agree thatthe remaining provisions ofthis Agreement will not be affected thereby, andthatthisAgreementwillinanyevent otherwise remain validandenforceable.
27.6. Where any provision of this Agreement constitutes a provision in favour of Winnpack, such provisionshallconstituteastiplulatioaltericapableofacceptanceby Winnpackatanytime.
27.7. Independent Contractors. Winnpack Marketplace and Seller are acting hereunder as independent contractors. Seller will not be considered or deemed to be an agent, employee, joint venture or partner of Winnpack Marketplace. Seller’s personnel will not be considered employees of Winnpack Marketplace, will notbeentitledtoanybenefitsthatWinnpackMarketplacegrantsitsemployeesandwillhavenoauthority to act or purport to act on Winnpack Marketplace’s behalf. If any federal, state or local government agency, anycourtorany otherapplicableentitydeterminesthatanysuchpersonnelofSellerisanemployeeof Winnpack Marketplace for any purpose, Seller will indemnify, defend and hold harmless Winnpack Marketplace, its Affiliates, oflcers, directors, employees and agents from all liabilities, costs and expenses (including, but notlimited to,reasonable attorneys’fees) associated with such determination. Seller willremain primarily liable for Seller’s obligations performed by any third party and for any act or omission of any such third party.
27.8. Publicity. Except as specifically provided herein, neither Party will use the name, logo, trademarksortradenamesoftheotherPartyorotherwise,directlyorindirectly,refertotheother party in publicity releases, promotional material, customerlists, advertising, marketing or business generatingefforts,whetherwrittenororal,withoutobtainingsuchParty’spriorwrittenconsent. Notwithstanding the foregoing, Winnpack Marketplace will have the rightto refer to Seller as a participant in the Marketplace Program in marketing and promoting the Marketplace Program.
27.9. Nonexclusive.EachPartyacknowledgesandagreesthattherightsgrantedtotheotherPartyin this Agreement are nonexclusive and that without limiting the generality of the foregoing, nothing in thisAgreementwillbedeemedorconstruedtoprohibiteitherPartyfromparticipatinginsimilar business arrangements as those described herein.
27.10. Force Majeure. Notwithstanding the other provisions of this Agreement, if either Party is in good faith prevented from performing its obligations under this Agreement because of an unexpected extraordinaryeventbeyondthecontrolofthePartyconcerned,includingwithoutlimitation,war (declared or undeclared), acts of god,terrorism, earthquake, accident, explosion,fire orflood, such Party will promptly notify the other Party, and while so affected,the affected Party will be relieved from performing its obligations provided that,the Party affected willtake all reasonable steps to promptly remedy the cause of such delay orfailure if itis in its powerto do so.
27.11. Seller Portal Selleris solely responsible for maintaining the security ofits password for any Seller Portalandforallactiontakeninconnectionwithitsaccount.IfSellerhasknowledgeorsuspectsthat itspasswordhasbeencompromised, SellerwillimmediatelynotifyWinnpackMarketplace andfully cooperate with Winnpack Marketplace in investigating and preventing any further breach to Winnpack Marketplace’s systems. Winnpack Marketplace shall not be liable to the Seller for any Losses it may suffer as a result ofthe Seller Portal being unavailable for any reason.
LIST OF PROHIBITED PRODUCTS
“Prohibited Products” means:
1. cigars, cigarettes, or othertobacco products;
2. guns intended to provide lethal force (and related gun parts, kits and ammunition); mace, black powder and other explosives; disguised, undetectable or switchblade knives; martial arts weapons; or BB guns, stun guns, paintball guns, or airsoft guns;
3. any drug, vitamin, herbal product or similar substance which requires a doctor’s or other health care provider’s prescription as a prerequisite for purchase;
4. used,remanufactured,reconditioned orrefurbished products;
5. stolen, counterfeit, misbranded orillegal products;
6. products that have been recalled;
7. products that violate applicable Law;
9. products that contain materialthatis obscene, pornographic or offensive;
10. products containing viruses, Trojan horse, spyware or malicious code;
11. ‘sex and sensuality’products;
12. loose gemstoneproducts;
13. anyproductforwhichSellerisnotan“authorizedreseller”(asdesignatedbytheproduct’s manufacturer or distributor), or does not provide to Customers the manufacturer’s standard warranty therefor;
14. liquor and alcohol based products;
15. any age restricted products;
16. any controversial products;
17. prepaid access products (whetherissued in the form of a card, electronic PIN or other device) that provide access to funds (orthe value offunds)that have been paid in advance and can be retrieved in the future,including withoutlimitation, gift cards, prepaid phones, or prepaid minutes;
18. recreational drugs;
19. Specificproducts orbrandnames thatmaynotbesoldontheWinnpack Site asare indicated by Winnpack Marketplace to Seller separately in writing (which in this case may include email or through any Seller Portal);and
20. any other types of products that in Winnpack Marketplace’s discretion are not appropriate for sale ontheWinnpackSiteasindicatedbyWinnpackMarketplaceto Sellerseparatelyinwriting;providedthata ProhibitedProductwillceasetobeaProhibited ProductwhenWinnpackMarketplaceinformsSellerof such change.
ORDER AND CUSTOMER SERVICE LEVEL AGREEMENT
Winnpack Marketplace is committed to customer service. Sellers participating in the
Marketplace Program will endeavorto meetthe following service levels:
1. Seller will maintain an On-Time Ship Standard of atleast 99%.
2. Seller will ensure thatthe correct Productis delivered to the correct Customer at a rate of 99% of all Products shipped.
3. Seller will maintain inventory to fulfill CustomerOrders thatresultin a cancelrate (excluding Customer requested cancellations) of 2.5% or less;
Products sold on the Winnpack Site.
5. Seller shall limit emergency updates related to productinformation through any Seller Portalto a rate no greater than .3% of its entire SKU count in Winnpack Marketplace’s catalogue per month; providedhowever,thatWinnpackMarketplacemakesnoguaranteethatall requestswillbegranted. WinnpackMarketplacewillassesseachemergencyrequestona casebycasebasisandmakeupdates in situations Winnpack Marketplace deems critical.
6. Ninety-day Sellerratings shall, onaverage,remainabove a sellerrating of90%positive.
7. Seller will within one (1) hour ofreceipt on a 24/7 basis, confirm every Orderfile received by Winnpack Marketplace on the Seller Portal.
8. Seller will, within four(4) hours ofreceipt on a 24/7 basis, confirm every orderline within every Orderfile received by Winnpack Marketplace on the Seller Portal.
9. Seller will provide Winnpack Marketplace with electronic notice, on the Seller Portal, confirming shipment of each Product shipped and the corresponding shipment tracking information (if available) within four (4) hours of the Product/Order actually shipping so that Winnpack Marketplace may notify the Customer and allow the Customerto track shipment of Products.
10. Seller will send a refund request to Winnpack Marketplace through the data feed specified by Winnpack Marketplace, and on the Seller Portal, within 24 hours of receiving a Customer refund or adjustmentrequest,unlessSellerhas refusedtoaccepta Productforreturnforanyreason.
11. Ninety percent (90%) of emails received from Winnpack Marketplace shall be answered by Seller within twenty four (24) hours of receipt. Winnpack Marketplace may, atits discretion, work with a Sellerto remedy any failure of a service level or performance issue under this Annexure B; provided, however, that no waiver by Winnpack Marketplace of any provision ofthis Annexure B maybe deemed or constitute awaiver of any provision ofthis Agreement,whetherornot similar,normaythewaiverconstitutea continuingwaiverbyWinnpack Marketplaceunlessotherwiseexpresslysoprovidedin writing.ThefailureofWinnpackMarketplaceto requireatanytimeperformancebySeller ofanyoftheprovisionsherein,mayinnowaybeconstrued tobeapresentorfuturewaiverof provisionsorinanywayaffecttheabilityofWinnpackMarketplaceto enforce each and every provision after such event.
You have account ?Create Account