The Terms of Use availale at elfreds.com/hisarfresh/terms, along with the Merchant Partner Terms of Use (“Terms”), represents and confirms our mutual Terms with respect to the Merchant Partner’s participation on the proprietary online platform made available by ELFREDS COMMERCE LLP (“ECL” or “us”) or its affiliates, from time-to-time, and referred to as “Hisar Fresh”. Upon signing up for an Store at Hisar Fresh, the Terms binding and enforceable legal contract between you and ECL as of the date of Sign Up (“Effective Date”)
The Terms with you are as follows:
Our Terms shall consist of this document, together with the addenda (individually, an “Addendum”) addressing areas of collaboration agreed to by both of us (this document and any and all such Addenda are collectively the “Terms”). In connection with each Addendum, we will designate those actions, responsibilities and services to be respectively provided by each of us. In the event of a conflict, the terms contained in an Addendum will supersede conflicting terms contained in these Terms.
We each agree to work in good faith with one another on certain collaborative projects, (as described below) or other projects as we mutually agree, in connection with the item(s), which may include medicines, cosmetics, other licensed drugs and products made available [each an “Item(s)”] via Hisar Fresh. Each project will be further specified in an Addendum, and any such project will only be undertaken once we mutually execute such Addendum.
The suggested search term(s) or Merchant item(s) visible on Hisar Fresh is the general availability of Item(s) during the Merchant’s normal business hours. The Merchant’s customers (the “Buyers” and/or “Hisar Fresh Users”/” User(s)”) may select Item(s) from the displayed search term(s)/listing(s) on Hisar Fresh.
The Hisar Fresh Seller Web Dashboard and App will be made available to the Merchant to access logistic services by ECL. ECL will not have any obligation to deliver the Item(s) as a platform provider. For purposes of delivery of the Items, ECL and its affiliates shall operate (i) under cover of any approval, license or permission required to operate your business at the Merchant Outlet and sell the Item(s) and (ii) under your control, as your agent (including but not limited to receipt agent of Item charges and based on your instructions, if applicable, apply the Item charges collected on your behalf towards disbursal of the fee payable by you to ECL), and not employee. For the sake of clarity, you, through the services provided by ECL, are responsible for the delivery of Items and you maintain possession, control and care of the Items at all times. You shall have marketable legal right and title to sell the products or render the services. You shall not offer any products or services which are illegal, unlawful, expired and in violation of applicable laws and policies. ECL will not be liable for any damage or loss incurred by the Users in relation to the delivery of the Items and will follow reasonable guidance you provide regarding the delivery of the Items.
ECL will provide you reasonable advice regarding demand prediction, which you may use in connection with your determination of the quantity and type of Items made available via Hisar Fresh. You are fully responsible for quality, safety and delivery of the Items and you shall adhere to all applicable laws and regulations in relation to the preparation, provision, packaging and delivery of the Items. You will determine any quality, portion, size, ingredient or other criteria (including those of laws and regulations) that apply to the Items (“Criteria”) and you are solely responsible for ensuring that the Items meet such criteria when then are made available via Hisar Fresh. In the event of failing to provide Items that adhere to the Criteria (each, a “Substandard Item”), ECL is under no obligation to make such Substandard Items available for sale via Hisar Fresh.
You are responsible for determining and setting the retail price (“Retail Price”) for each Item and duly informing ECL from time to time, including any Item discount(s)/discounts on offer from time to time. You shall be the “retailer” or “seller” of all Items for the purpose of any indirect tax (such as value added tax, sales tax, service tax, goods and services tax) (“Indirect Tax”) and the responsible party for collection and remittance of applicable Indirect Tax. For the sake of clarity, the Retail Price for each Item shall include Indirect Tax, as applicable. You undertake that all applicable taxes on item(s) & delivery would be deposited by you with the government treasury within stipulated timelines. Except as may be expressly agreed in this Terms, each party shall be responsible for its expenses and costs during its performance under this Terms.
You maintain title to all Item inventory until each Item is delivered to a User. You are responsible for the costs of all Items. Whenever a User wishes to avail Items or Service as identified by the App, ECL will notify the Merchant Partner of the specifications and particulars of the order as is received from the User. Upon receipt of an order request from a User, the Merchant Partner shall keep ready the product or provide any service as required by the User. In the event the specifications are not sufficient for the Merchant Partner to process any order, the Merchant Partner must seek further information as required.
Notwithstanding these Terms, ECL reserves the right to temporarily discontinue Services or permanently terminate with immediate effect for material breach or non-compliance by the Merchant Partner which includes, but is not limited to, the following instances: (i). User/Buyer complaints received by ECL which are directly or indirectly attributable to the quality of item(s) provided by the Merchant Partner either through poor ratings, as defined by ECL, through calls placed with ECL or through any other means; (ii). Sale of medicines requiring a prescription, without one to the User or the sale of medicines which are below the standard quality or prohibited from sale under any law; (iii). Breach of the provisions of the Drugs and Cosmetics Act, 1940 and the rules, including any other law applicable to the Merchant Partner; (iv). Breach of the representations and warranties of the Merchant Partner; or (v). Any other material breach of the terms.
Notwithstanding anything contained under this Terms, ECL has the right to immediately delist any of the item(s) from the Platform, which is not in compliance with applicable law or the rules or regulations, made thereunder.
You are responsible for costs related to reimbursement to the Users in the event Users have either refused to pay for or have claimed partial or full refund, as applicable, for reasons that are attributable to Merchant Partner, including but not limited to, User’s expectations not being met or User dissatisfaction in relation to, inter alia, the quality of the Item(s), undelivered Item(s), discrepancy in the Item(s) delivered which is not in accordance with the Item placed and/or those Item(s) for which User requests for a replacement. (“Disputed Orders”) Any such User(s) request a refund for any Item(s) (including, without limitation, any costs associated with retrieving any such Item(s), if applicable), for reasons that are considered by ECL in its sole discretion as reasonable, for request by the Users of refund. ECL may deduct refunds from the payment made to you under these Terms. It is clarified that ECL shall not be liable to make any payment for a Disputed Order. ECL shall reserve the right to recover from Merchant Partner, the amount paid to Users/Buyers as refund upto the order value.
In case of complaints from the User pertaining to item quality, or any other such issues, ECL shall notify the same to Merchant Partner and shall also redirect the Buyer to the consumer call center of the Merchant. Merchant Partner shall alone be liable for redressing and bound to take action on the complaints by the User. ECL has the right to share with the Merchant Partner, the relevant information including the Merchant details to enable satisfactory resolution of the complaint. ECL shall in the interest of satisfactory resolution of the Complaint, share with the User, relevant information pertaining to the Order along with Merchant details.
In consideration for use of Hisar Fresh, ECL will charge you a service fee as specifically set forth on each applicable Addendum as well as the Terms. All fees under these Terms shall be paid in Indian Rupees and are exclusive of any taxes, including Indirect Tax and withholding tax, if applicable.
ECL does not guarantee that you will be matched with the Delivery Partner at the time you wish to be matched. ECL shall not be liable for any failure to match.
ECL will each showcase the availability of the Items via Hisar Fresh through various promotional activities (e.g., our respective social media channels, websites, or blogs), as mutually agreed.
Subject to the terms and conditions of this Terms, each party hereby grants to the other party (and, in the case of ECL, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use the such party’s respective Marks (as defined below), on a royalty-free basis, for the sole purpose of performing the promotional activities as set forth in an applicable Addendum. For purposes of this Terms, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party. All uses of a party’s marks by the other party will be in the form and format specified or approved by the owner of such marks. Except as expressly set forth herein, neither party will use the other party’s marks without the prior, express, written consent of the other party. All goodwill related to the use of a party’s marks by the other party shall inure to the benefit of the owner of such marks. Except as expressly set forth herein, neither party shall be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights.
Except as may be expressly set forth in this Terms or an applicable Addendum, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Terms or otherwise, without the prior written consent of such other party.
“Personal Data” means any information obtained in connection with this Terms (a) relating to an identified or identifiable natural person; (b) that can reasonably be used to identify or authenticate an individual, including but not limited to name, contact information, precise location information, persistent identifiers; and (c) any information that may otherwise be considered “personal data” or “personal information” under the applicable law. Merchant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performing the services contemplated by this Terms. Merchant shall maintain the accuracy and integrity of any Personal Data provided by ECL in its possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by ECL solely by using the software and tools provided by ECL.
We each acknowledge and agree that, unless otherwise stated in a Letter/Addendum, our relationship is non-exclusive.
“Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party (the “Discloser”) to the other (the “Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information will not include that information that (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties, or use in any way other than as necessary to perform this Terms, the Discloser’s Confidential Information. Each Recipient will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective of the Discloser as this Terms before such individual has access to the Discloser’s Confidential Information. Each Recipient will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the Discloser has authorized such disclosure, nor to the extent a Recipient is required to disclose certain Confidential Information of the Discloser as a legal obligation based on the applicable laws and regulations or order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in filing petition of objection etc. prior to making such disclosure. Upon expiration or termination of this Terms and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
Each party hereby represents and warrants that: (a) it has full power and authority to enter into this Terms and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the Term (as defined below) will not enter into, any Terms that would prevent it from complying with or performing under this Terms (in your case, including without limitation, any exclusive Terms with any third parties for the availability of item via a technology platform); and (d) the content, media and other materials used or provided as part of this Terms shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party.
The Merchant further represents and warrants that it will comply with all applicable laws and regulations in its performance of this Terms including, but not limited to, the Drugs and Cosmetics Act, 1940 and rules and regulations made thereunder, including any law applicable to its engagement of ECL or its affiliates.
The Merchant further represents and warrants that the details of the tax registrations provided by the Merchant and Indirect tax to be levied on each item to be made available for sale via Hisar Fresh is as per Addendum II, forming integral part of this Terms. The Merchant further confirms and declares that the information provided in Addendum II and the copies of tax registrations, are true and correct, and assumes responsibility to intimate ECL in case of any change in the provided information. The Merchant undertakes that all Indirect Tax applied on each Item and Delivery made available for sale via Hisar Fresh would be deposited with the Government Treasury within stipulated timelines.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR PURPOSE OF THIS TERMS.
Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (a) the negligence or wilful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding ECL and its affiliates to the extent they are your agents pursuant to Section 3) in their performance of this Terms; (b) any claims that the Indemnifying Party breached its representations and warranties in this Terms; (c) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party; or (d) any breach and/or non-compliance with applicable data protection laws. In addition, you will indemnify, defend and hold harmless the ECL Indemnified Parties from and against any and all Losses with respect to any third-party claim arising out of or related to any harm resulting from your violation or alleged violation of any applicable retail or other health and safety code, rule or regulation, except to the extent such harm was directly caused by the gross negligence or wilful misconduct of ECL or its employees, agents or affiliates.
Each Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
For the purposes of this clause, “Liability” means liability in or for breach of contract, negligence, misrepresentation, tortious claim, restitution or any other cause of action whatsoever relating to or arising under or in connection with these Terms, including liability expressly provided for under these Terms or arising by reason of the invalidity or unenforceability of any term under this contract. ECL does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, ECL shall not be under any Liability for loss of actual or anticipated profits, loss of goodwill, loss of business, loss of revenue or of the use of money, loss of contracts, loss of anticipated savings, loss of data and/or undertaking the restoration of data, fraudulent orders, any special, indirect or consequential loss, and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of any doubt, this clause shall apply whether such damage or loss is direct, indirect, consequential or otherwise. However, ECL will use its best endeavors to ensure that the unintentional operational errors do not occur, ECL cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, ECL’s aggregate liability under this Agreement and respective Terms of Use shall not exceed the total value of a Disputed Order.
During the Term (as defined below) and for one (1) year thereafter, the Merchant shall maintain General Commercial Liability and, if required by law, Worker’s Compensation (or substantially equivalent) insurance. The General Commercial Liability insurance policy limits shall be the greater of (a) the limits required by applicable law or (b) the limits customarily maintained by companies in the merchant’s industry, in India. All policies shall be written by reputable insurance companies in the jurisdiction. Such insurance shall be primary and non-contributing to any insurance maintained or obtained by the other party and shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon ECL’s request, the Merchant shall provide evidence of the insurance required herein. In no event shall the limits of any policy be considered as limiting the liability of a Merchant under the Terms.
Either ECL or the Merchant Partner can terminate this contract providing 15 days’ prior written notice to the other. ECL shall delist the Merchant Partner at the end of the 15th Day. Upon termination in accordance with the terms hereof, Merchant Partner shall only be required to service Item(s) already placed through ECL prior to such expiry or earlier termination of these Terms, and ECL shall be entitled to receive Service Fee for such Item(s).
No failure or delay by any Party in exercising any right, power or remedy under these Terms of Use or provided by law shall operate as a waiver thereof or affect that right, power or remedy. No waiver by any Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
The Parties agree that nothing in this Terms shall be construed as creating the relationship of employer and employee, master and servant, or principal and agent, or a partnership, or a joint venture of any kind whatsoever between the Parties or between the parties and its respective contractors / employees.
This Terms of Use shall be governed by and construed in accordance with the laws of India. Any dispute arising out of or in connection with Services, which the Parties are unable to settle within 30 days, shall be referred to arbitration by a sole arbitrator appointed mutually by both Parties. The Arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force. The venue of the arbitration shall be Bengaluru and the arbitration shall be conducted in English language. Subject to the foregoing, the courts at Bengaluru shall have exclusive jurisdiction.
If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Terms of Use which can be given effect without the invalid provision shall continue in full force and effect and shall in no way be impaired or invalidated.
All notices under these Terms shall be sent by registered post acknowledgment due, contemporaneous courier or email to the address mentioned below:
ELFREDS COMMERCE LLP Reg Office: Aman Nagar, Mirzapur Road, Hisar, Haryana 125001 Email: [email protected]
If the Merchant Partner notices any discrepancy in the weekly settlement, the Merchant Partner may raise a ticket by writing an email to [email protected] and the same will be mutually resolved by both parties within 15 days from the date on which the ticket was raised.
The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
Any modification or amendment to this Terms shall be effective only if in writing and signed or sealed with print name by both parties. In the event any provision of this Terms is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Terms and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
Any delay in or failure by either party in performance of this Terms shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Terms. This Terms may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Terms, upon notice to the other party, to (a) an affiliate of Dunzo (for Dunzo), or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Terms shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns. Nothing in this Terms shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as specifically set forth in Section 3 above), and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto. Each party shall be solely responsible for its employees and contractors used in connection with this Terms. This Terms contains the full and complete understanding and Terms between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and Terms, whether oral or written, relating such subject matter hereof. This Terms may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format or exchange by hard-copy, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.
Special Terms
ECL will give you information regarding the number of Items picked up by Delivery Partners and sold by you to the Users pursuant to the Terms. The Merchant Partner shall maintain such documents to record the proof of delivery of product or performance of service. Without prejudice to the generality of the aforesaid, Merchant shall routinely and at such time intervals provide such reports and in such formats as may be specified by the Company.
In consideration for ECL’s lead generation, demand prediction, payment processing and other related services provided via Hisar Fresh under the Terms, ECL will charge you a service fee, agreed under the document and reiterated under the Addendum II (exclusive of Indirect Tax and withholding tax, if any) on Item Value, as defined under the document or (the “Service Fee”). This Service Fee is charged as consideration for expediting the Users’ orders via Hisar Fresh.
Collection by ECL from Users on your behalf would be subject to tax deduction or collection at source in accordance with the applicable GST laws.
ECL will remit to you the total (i) Item Payment (including any Indirect Tax collected on your behalf but reduced by the Service Fee, amounts remitted to Delivery Partners under your instructions and tax deduction/ collection at source) earned by you, (ii) less any refunds given to your customers or Users (such final remitted amount being the “Item Revenue”).
Item Revenue received by ECL from the User on behalf of the Merchant Partner will be settled into the Merchant Partner’s bank account, details of which are set forth in Addendum II. Settlement of transaction payments shall be within the time period as set forth by the guidelines of the Reserve Bank of India, where applicable. The Merchant Partner agrees to provide such documents and information necessary or as may be sought by a payment facilitator or bank to enlist the Merchant Partner as a payee of ECL. The Merchant Partner agrees that for this purpose, information about and provided by the Merchant Partner will be shared with a payment facilitator or bank.
Any item that you do not have permission or license to sell or deliver may not be sold to Users.
Details of Registration :
Registration Number :
Permanent Account Number :
Goods & Service Tax Registration :
Nature of Tax : Percentage Levy
Service Tax :
Value Added Tax :
Central Goods & Service Tax :
State Goods & Service Tax :
Integrated Goods & Service Tax :
Nature of Charges : Percentage / Amount
Packaging Charges :
Name of Merchant Partner :
Effective Date :
Registered Address of the Merchant Partner :
Service Address, Email, Telephone numbers, User/Customer Complaint Redressal Number :
Merchant Partner contact person :
Service Fee % of the Item Value. :
Mode of Payment Settlement :
Bank Account details of the Merchant Partner : :
EOD