Terms and Conditions *
1. Terms and Conditions of this Agreement
1.1 The Parties hereby agree that the Applicant intends to display and market its products and services for the prospective/ potential customersthrough the Website of Quicklab and in turn Quicklab agrees to display the said products and services of the Applicant on its Website for public display.
1.2 The Parties hereby agree that this arrangement of displaying the products and services of the Applicant for sale by Quicklab on its Website shall be reffered to asthe Quicklab Affiliates Program (hereinafter referred to as the "Program").
1.3 The Applicant agrees that the products and services and its quantity as detailed under Schedule-I, attached hereto (hereinafter referred to as “Products& Services”) shall only be activated (hereinafter referred to as “Activated”) upon reaching an agreed volume of purchasers (hereinafter referred to as “Volume Threshold”) and an agreed discount.
1.4 The Parties hereby agree that the Applicant shall remain the owner and the seller of theProducts& Services, and Quicklab shall remain the owner of the intangible rights including but not limited to the Intellectual Property rights of the Website as contained in thisAgreement.
2. Enrollment in the Program
2.1 It is hereby agreed that the Applicant shall submit the completedapplication form as provided by Quicklab for the Program via the Website within ______ days from the Effective Date.
2.2 Upon receiving the Application Form, Quicklab shall evaluate the same in good faith and shall notify the Applicant of its acceptance or rejection. The Parties agree that Quicklab reserves full and exclusive right to reject the Application Formin its sole discretion if it deems that the Website is unsuitable for the Program, i.e. display of the Products& Services.In an event the Application Form is rejected by Quicklab then the terms of this Agreement shall not be enforceable under law on either of the Parties.
2.3 The Parties hereby agree that the unsuitable Products & Servicesmay include but not limit to the following:
• Advertise misleading/wrong offers/deals in violation of applicable laws, bye-laws, rules, regulations, etc.
• Use affiliate links, whether directly or indirectly, on web sites offering any kind of referral program with/without payment of fees and/or sites in the nature of multi-level marketing arrangements.
• Use affiliate links in HTML mailers, newsletters or any other form of bulk emails.
• Promote affiliate link via the use of paid ads on search engine result pages and social media websites by bidding on trademark of Quicklab or any variation or misspelling of any trademark of Quicklab .
• Promote violence/illegal activities/ discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
• Include any trademark of Quicklab, or any variation or misspelling of any trademark of Quicklab, in any domain name – for example, a domain name such as "facebook.com/Quicklab or facebook.com/Quicklab.in," would be unsuitable.
• Include any trademark of Quicklab in any username, group name, or other identifier on any social networking website.
• Include any colour combination or layout similar or identical to Quicklab or its trade name or trade mark, with the intention to deceive.
• Use links or URLs which are not published by the Website or by Quicklab ’s Program.
• Add Products & Services directly to the customer's cart using scripts or any tools.
• Otherwise violate the Intellectual Property Rights(defined hereunder) or any part thereof.
2.4 It is hereby agreed by the Applicant that it shall not involve,participate, engage or carry on, directly or indirectly, any business, activity incidental or concurrent to the said business of Quicklab .
2.5 It is also fully agreed by the Applicant that if at any future date the Website is found to be unsuitable for the Program, then Quicklab shall have full and exclusive right to terminate this Agreement with immediate effect and to withhold all the Applicant’s pending commission payments, with or without notice, as may be determined in the sole discretion of Quicklab .
2.6 The Parties agree that Quicklab shall be an exclusive online selling partner of the Applicant.
2.7 The Applicantundertakes to provide all such information in respect of the Products & Services which shall be published or posted on the Website, as and when required by Quicklab .
2.8 The Applicant undertakes to have read, understood and accepted the contents of the terms and conditions ofQuicklab as detailed on the Webiste. The Parties further agree that the terms and conditions shall be a part and parcel of this Agreement, wherever applicable and binding on the Applicant.
3. Duties & Obligations
3.1 The Applicant undertakes to fulfil the following as per the terms of this Agreement:
a) To not, in connection with this Agreement, display or refer any trademark or logo of any third party seller on the Website.
b) To ensure that any "Privacy Information" link or Quicklab trademark (either in logo or text form) that Quicklab uses in a special link, is not obscured or altered in any way or made invisible, illegible or indecipherable.
c) To use any data, images, text, or other information obtained from Quicklab or the Website in connection with this Agreement ("Content") only in a lawful manner and in accordance with the terms and conditions of this Agreement.
d) To not use any Content relating to any Excluded Merchant or any product sold by any Excluded Merchant.
e) To not modify or alter any Content that consists of a graphic image, other than to resize it and to not edit any Content that consists of text, other than to shorten its length.
f) To not sell, redistribute, sublicense or transfer any Content to any third party.
g) To not use any Content in a manner intended to send sales to any website(s) other than the Website as defined herein.
h) To promptly delete any Content that is no longer displayed on the Website or that isno longer available for the use of the Applicant as notified by Quicklab .
i) To provide the Minimum Warranty of twelve (12) months (for each Product& Service) as specified by the Applicant under the affiliated agreement or as specified for individual Product and/ or Service. If any damage occurs within this period to the Product and/ or Service, then the Applicant shall be liable for bearing the cost of damage/ replacement of the same, if any.
j) To be responsible and liable for the quality, quantity, condition, characteristic, packaging, etc. of the Product and/ or Service.
k) To not in any manner misrepresent or embellish the relationship between the Parties, or express or imply any relationship or affiliation between the Parties or any other person or entity except as expressly permitted by this Agreement.
3.2 Quicklab undertakes to fulfil the following as per the terms of this Agreement:
a) The Applicant also acknowledges that as a participant in the Program, Quicklab may from time to time send email or SMS updates about the Program to the Applicant and the Applicant agrees to receive an email and SMS update whenever an order is placed.
b) To use its best possible efforts to vigorously promote the sale of the Products & Services in line with the sales and marketing policy from time to time.
c) To strictly comply with the contractual provisions (particularly with the price-list and the sales and marketing policy in force at the relevant time) as detailed under this Agreement.
d) To perform its obligations as per the industry standards of professionalism.
e) To decide and be authorised to make necessary changes in the contract conditions,as required in its sole discretion, during negotiations with the potential/ prospective customer.
f) To agree that the saleof Products & Services shall be made at prices as the Applicant may establish from time to time subject to prior approval of Quicklab .
g) To not make any payments, offers, promises of money, or give anything of value (the “Improper Payments”), directly or indirectly, to any official of any governmental authority or any similar agency or instrumentality, to unlawfully influence or induce an action or decision, or obtain an improper advantage, ultimately to assist in obtaining or retaining business, or directing business to any person.
h) To not make or permit to be made, or knowingly allow a third party to make any Improper Payments, or perform an act in breach of any applicable law on behalf of the Applicant.
4. Order Processing
4.1 It is agreed between the Parties that Quicklab shall process the orders placed by potential/ prospective customers onthe Website and shall also reserve the right to reject/disapprove orders that do not comply with the quality standardsas specified by the Applicant beforehand. In an event an order is rejected or disapproved, fullreimbursement of the rejected / disapprovedProduct and/ or Service shall be made by the Applicant to the potential/ prospective customer in case the payment of the order is made in advance before delivery.
4.2 The Parties agree that shipment and any other extra charges for the rejected/ disapproved order shall be borne by the Applicant including charges for any other requirements that Quicklab may periodically establish.
4.3 The Parties agree that Quicklab shall prepare the order forms, process payments, cancellations and returns, and handle customer service during the Term (defined hereunder).
4.4 The Parties agree that Quicklab shall be entitiled to approveor disapprove any issues in respect of cancellation and/or return as raised by the potential or prospective customer taking into consideration the condition of the Product(s).
5.1 The Parties hereby agree that the specified time for the delivery of the Product and/ or Service shall be agreed upon by the Applicant as specified in this Agreement. The Applicant shall be able to deliver Products and/ or Services within an agreed timeline of not more than 72 hours from the time of the order processed by Quicklab .However, in an event there is a delay in delivery beyond 72 hours, the sameshall be notified by the Applicant to Quicklab immediately.
5.2 The Applicant agrees to give regular notification to Quicklab in respect of theavailability of the Product and/ or Service which are displayed on the Website and shall ship the Product and/ or Service ordered by Quicklab within the aforementioned notified time.
5.3 The Parties agree that in an event the Applicant fails to execute the order within 72 hours, then Quicklab shall be entitled to cancel the order and the Applicant shall be liable to give full refund of the Product and/ or Service amount to the potential/ prospective customer. In such an event, the Applicant shall be liable to paya penalty equivalent to 5% of the total value of the Product and/ or Service in addition to the actual and notional loss incurred by Quicklab .
5.4 In an event the order is delayed beyond______ hours from the time of the order being processed by Quicklab , then Quicklab shall be entitled to cancel the order and the Applicant shall be liable to give full refund of the Product and/ or Service amount to the potential/ prospective customer. In such an event, the Applicant shall be liable to paya penalty equivalent to25% of the actual value of the Product and/ or Service in addition to the actual and notional loss incurred by Quicklab .
6. Payment Terms
6.1 During each calendar month, for any qualifying Product and/ or Service sold on the Website, Quicklab shallpay thesum to the Applicantashad been agreed between the Parties, in writing.
6.2 The Parties agree that the transaction will be made in cash or credit basis if agreed between the Parties, in writing. Allcash payments or settlementsshall be done by the Parties within ____ (____)days from the date of receipt of the undisputed invoiceby Quicklab from the Applicant, through NEFT/Netbanking.
6.3 The Parties further agree that in an event the value of the Product and/ or Serviceis more than Rs.1,00,000/- (Rupees One Lakh only), an agreed percentage of advance paymentshall be remitted from Quicklab before the actualisationof the delivery of theProduct and/ or Service.
6.4 The Parties hereby agree that the transaction shall commence from the time of receipt of the order made by the prospective/ potential customer throughthe Website in respect of the Product and/ or Service and shall be completed upon the successful delivery of the Product and/or Service to the prospective/ potential customer.
6.5 It is also agreed by the Parties thatQuicklab shall bear the cost of delivering the Products and/or Services to the customer including the cost of freight, tax or charges, if any.However, Quicklab shall in no manner be responsible or liable for the quality, condition, packaging, quantity, etc. of the Product and/ or Service and the Applicant being the seller shall be solely responsible for the same.
6.6 The Parties agree that the Products and/or Services shall be offered on the Website as per mutually agreed terms and conditions between the Parties, in writing.
6.7 It is hereby agreed between the Parties that the revenue sharingmodel shall be as detailed under Schedule-II, attached hereto.
6.8 The profit margin offered by the Applicant in respect of the Products and/or Services being sold or rendered, shall cover all the expenses of delivery as incurred by Quicklab .
7.1 The Applicant shall indemnify and keep indemnified Quicklab , its directors, officers, shareholders, employees and agents (collectively the “Indemnified Persons”), from and against all and any loses, damages, liabilities, costs, expenses, claims and charges incurred as a result of: (a) any claim or suit or other legal proceeding by a third party against Quicklab claiming that the Applicant misrepresented in respect ofselling or providing its Product and/ or Service; (b) any act, omission, negligence or breach of the terms and conditions of this Agreement by the Applicant; and/ or (c) any breach of any applicable laws, bye-laws, regulations and guidelinesby the Applicant.
7.2 Quicklab shall not be liable, in any manner whatsoever, for any false or unlawful commitments made by the Applicant to any prospective or potentialcustomer(s) in respect of the sale of the Products and/ or Services by the Applicant through the Website.
7.3 The obligations under this clause shall survive the termination of this Agreement.
8. Representations And Warranties
8.1 The Parties hereby make the following representations and warranties to each other:
a) it has all necessary statutory and regulatory permissions, approvals and permits for the running and operation of its establishments and for the conduct of its business operations, more particularly as provided in this Agreement;
b) to fulfil their respective obligations under this Agreement only in accordance with the terms and conditions of this Agreement and all applicable laws, bye-laws, rules, regulations and notifications for time being in force;
c) the Parties are fully entitled to enter into this Agreement and that this Agreement constitutes a legal, valid and binding obligation of each Party;
d) to be liable for their own respective tax liabilities;
e) the Parties undertake that by executing this Agreement and by the performance of their respective obligations under this Agreement, no Party will violate or conflict with, or exceed any limits imposed by:
(i) any law or regulation to which either Party may be subject to; or
(ii) any agreement, instrument or undertaking binding upon either Party.
9. Force Majeure
9.1 If either Party shall be considered in breach of this Agreement or in default of its obligations hereunder because it fails to perform or observe any or all of the terms of this Agreement resulting directly or indirectly from causes such as but not limited to, acts of God, Civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, explosions, fires, earthquakes, floods, transportation embargoes, epidemics, acts of government, its agencies or officers, or any other legitimate cause beyond the reasonable control of the Parties, the Party whose performance is affected or is likely to get affected thereby, shall notify the other Party of the occurrence of such cause due to the Force Majeure event and the time allowed for performance by the affected Party will be extended for the duration of such cause. However, if as a consequence of such cause, performance by a Party under this Agreement shall be prevented for a period longer than one (1) month, then the other Party shall have the right to terminate this Agreement forthwith. The terms of termination under this condition will be with no liabilities, payments or penalties.
10. Relationship of Parties
10.1 It is hereby agreed that Quicklab and the Applicantare independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between them. The Applicant shall have no authority to make or accept any offers or representations on behalf of Quicklab .
11. Term & Termination
11.1 The term of this Agreement shall commence upon the acceptanceof the Applicant’s application formin respect of the Program by Quicklab till terminated by either Party in accordance with the terms and conditions of this Agreement (“Term”).
11.2 Both the Parties reserve their right to terminate this Agreement by giving a prior written notice of ninety (90) days to the other Party. However, the Parties hereby agree that any transaction or order being made during the ninety (90) days notice period shall be the responsibility of the Parties and the Parties shall be liable to complete the transaction and fulfil their respective obligations in respect of the same.
11.3 Upon the termination of this Agreement for any reason whatsoever, the Applicant shall immediately cease use of, and remove from their website, all links to the Website including the trademarks, trade name, logos and all other materials of Quicklab as provided by Quicklab to the Applicant in pursuant hereto or in connection with the Program and the terms of this Agreement. The Parties agree that Quicklab shall be entitled to withhold the payments of theApplicant or any part thereof for a reasonable time to ensure adherence to this clauseand to also ensure that the correct amount is paid.
12. Intellectual Property
12.1 “Intellectual Property” shall mean any intellectual property including, without limitation, patents including patent applications, patents arising from such applications, and continuations of existing applications, or any intellectual property relating to patents, trademarks, copyrights, registered designs, rights of license, assignment, use, right of confidence in know-how, technical or commercial information generally and any other such rights or interests in intellectual property whether or not protected under any law in force.
12.2 All Intellectual Property Rights in the customer database, design and information on the Website, including the on-line information filled in by the prospective/ potential customers and/ orthe Applicant shall vest solely and exclusively withQuicklab only.
12.3 Nothing in this Agreement shall be construed as a transfer or assignment of any of the Intellectual Property Rights of Quicklab to the Applicant.
12.4 At the time of termination or expiration of this Agreement, the Applicant shall return to Quicklab all Intellectual Property including materials, information, data, documents as provided by Quicklab or developed by the Applicant under the terms of this Agreement.
12.5 The obligations under this clause shall survive the termination of this Agreement.
13. Confidential Information
13.1 The Parties agree that “Confidential Information” shall mean and include but not be limited to the technical or financial information or official secrets pertaining to or of the other Party, information of the prospective or potential customer, softwares,employees or agents of the other Party, ideas and know-how, the terms and conditions of this Agreement and any other information which is by nature deemed to be confidential.
13.2 The Parties agree not to divulge to any third person, unless authorized, or use for any purpose, other than those set out in this Agreement, any of the trade secrets or Confidential Information or any other information which it acquires as a result of entering into this Agreement or otherwise.
13.3 The obligations under this clause shall survive the termination of this Agreement.
14. Limitation of Liability
14.1 It is hereby agreed that Quicklab shallnot be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even ifQuicklab have been advised of the possibility of such damages.
15. Governing Law and Dispute Resolution
15.1 The Parties agree that the courts at Mumbai, India only shall have exclusive jurisdiction in respect to the subject matter of this Agreement and any actions, suits and proceedings under or arising from this Agreement or any issue connected therewith or incidental thereto. This Agreement shall be governed by and construed in accordance with the laws of India without reference to any conflict of law principles.
15.2 The Parties expressly agree that any dispute, claim or difference arising out of or in connection with this Agreement, shall be resolved by mutual discussions and negotiations between the Parties, within 15 working days from the date of receipt of a notice of dispute by one Party from the other Party.
15.3 Any dispute, claim or difference arising out of or in connection with this Agreement, which remains unresolved between the Parties in terms of clause 15.2 herein above, shall be referred to arbitration under the Arbitration and Conciliation Act, 1996, as amended. The arbitral tribunal shall consist of a sole arbitrator to be appointed by Quicklab whose award shall be final and binding on the Parties. The seat of arbitration shall be at Mumbai, India and the proceedings shall be held in English language only.
15.4 The obligations under this clause shall survive the termination of this Agreement.
16.1 It is hereby agreed between the Parties that they have read this Agreement and agree to all its terms and conditions as detailed herein. The Applicant agrees that Quicklab reserves the right to modify the terms and conditions of this Agreement or any part thereofin its sole discretion, without prior notice and at any time by posting notice of such a change or the amended or fresh agreement on the Website.The Applicant’s continued participation in the Program subsequent to the modification shall constitute to bea binding acceptance of the amended agreement.
16.2 The Parties agree to act in good faith and fair dealing with each other, in carrying out their respective obligations under this Agreement. The provisions of this Agreement, as well as any statements made by the Parties in connection with these terms and conditions, shall be interpreted in good faith.
16.3 The Applicant shall not be entitled to assign this Agreement or any of its rights, powers, benefits, responsibilities, obligations and/or duties hereunder or any part thereof to any third person, either partially or wholly without the prior written consent of Quicklab .
16.4 This Agreement shall constitute the entire agreement and understanding between the Parties reached so far as to the subject matter contained herein.
16.5 No failure by a Party to take any action with respect to a breach of or default under this Agreement by another Party shall constitute a waiver of the former Party’s right to (a) enforce any provision of this Agreement or (b) take action with respect to such breach or default or any subsequent breach or default.
16.6 The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement, or the application of that provision to any Person or in any circumstance or jurisdiction, is found to be invalid or unenforceable, then (a) a suitable and equitable provision shall be substituted for that invalid or unenforceable provision in order to carry out, so far as may be valid and enforceable, the intent and purpose of that invalid or unenforceable provision and (b) the remainder of this Agreement, and the application of that invalid or unenforceable provision to other persons or in other circumstances or jurisdictions, shall not be affected by such invalidity or unenforceability.
16.7 All Notices required or permitted under this Agreement will be in writing and sent by either hand delivery or electronic mail or recognized courier or registered post, provided that if the notice is sent by electronic mail, a confirmation copy shall be sent by recognized courier or by registered post at the following address of the receiving Party, unless the changed address is notified by either Party, in writing, to the other.