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THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES THROUGH A PARTICULAR ACCOUNT OR ACCOUNTS AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT ("YOU") AND DIRECT CREATE PRIVATE LIMITED. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS AND PROGRAMME POLICIES FOR EACH SERVICE YOU REGISTER FOR OR USE IN CONNECTION WITH THE DIRECT CREATE SITE.
As used in this Agreement, "we," "us," and "Direct Create" means the Direct Create Private Limited company named in the applicable Service Terms. Capitalized terms have the meanings listed in the Definitions below. If there is any conflict between these General Terms and the applicable Service Terms, the Service Terms will govern.
The General policies applicable for all the visitors, users and members of Direct Create as regards its software, mobile or web application/s, website, online and offline resources and marketplace are an integral part of this agreement. In addition to these General policies there may be specific policies governing separate “Programmes” or “Services” (Programme Policies) of Direct Create, These Specific policies shall form an integral part of this agreement in as much as it applies to Sellers.
To begin the enrolment process, you must complete the registration process for one or more of the Services. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable Law. As part of the application, you must provide us with your (or your business') legal name, address, phone number and e-mail address. We may at any time cease providing any or all of the Services at our sole discretion and without notice.
2. Service Fee Payments
Fee details are described fully in the applicable Service Terms. You are responsible for all of your expenses in connection with this Agreement, unless this Agreement or the applicable Service Terms provide otherwise. For the Direct Create Site that you register for or use a Service in connection with, we may require you to submit valid credit card information from a credit card acceptable by Direct Create (with respect to such Direct Create Site, "Your Credit Card") as well as valid bank account information for a bank account in your name that is with a bank located within India and enabled for Your Account (which functionality may be modified or discontinued by us at any time without notice) (with respect to the Direct Create Site, "Your Bank Account"). You will use only a name you are authorized to use in connection with the Service and will update such information as necessary to ensure that it at all times remains accurate and complete. You authorize us to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit authorizations from the issuer of Your Credit Card, and to charge Your Credit Card or debit Your Bank Account for any sums payable by you to us (in reimbursement or otherwise). At Direct Create's option, all payments to you will be made to Your Bank Account, via cheque or electronic transfers or other means as specified by us. You agree that Direct Create shall not be liable for any failure to make payments to you on account of incomplete or inaccurate information provided by you with respect to Your Bank Account.
In addition to charging payable sums to Your Credit Card, we may instead choose to either (a) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you, or (b) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in the Local Currency, and all payments contemplated by this Agreement will be made in the Local Currency. If we discover erroneous or duplicate transactions, then we reserve the right to seek reimbursement from you by deducting from future payments owed to you, charging Your Credit Card, or seeking such reimbursement from you by any other lawful means; provided that the foregoing will not limit your rights to pursue any good faith dispute with Direct Create concerning whether any amounts are payable or due.
If we reasonably conclude based on information available to us that your actions and/or performance in connection with the Agreement may result in a significant number of customer disputes, chargebacks or other claims in connection with the Direct Create Site, then we may, in our sole discretion and subject to applicable Law, delay initiating any payments to be made or that are otherwise due to you under this Agreement for the shorter of: (a) a period of ninety (90) calendar days following the initial date of suspension; or (b) completion of any investigation(s) regarding your actions and/or performance in connection with the Agreement. You agree that we are entitled to the interest, if any, paid on balances maintained as deposits in our bank accounts.
3. Term and Termination
The term of this Agreement will start on the date of your completed registration for one or more of the Services (the "Effective Date") and continue until terminated by us or you as provided below (the "Term"). We may terminate or suspend this Agreement or any Service immediately in our sole discretion by notice to you for any reason at any time. You may terminate this Agreement or any Service for any reason at any time by the means then specified by Direct Create therefor. Termination or suspension of a Service will not terminate or suspend any other Service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Clauses 2-9, 11, 14-16 and 18 will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination.
You grant us a royalty-free, non-exclusive, worldwide, irrevocable right and licence during the Term and for as long thereafter as you are permitted to grant the said licence under applicable Law to use, reproduce, perform, display (public communication), distribute, adapt, modify, re-format, create and exploit derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials, and to sublicense the foregoing rights to our Affiliates and operators of Direct Create Associated Properties; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Trademarks (provided you are unable to do so using the standard functionality made available to you via the applicable Direct Create Site or Services); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a licence from you or your Affiliates under applicable Law (e.g., fair use under copyright law, referential use under trademark law, or valid licence from a third party).
You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of the territory in which your business is registered and are a resident of India for income tax purposes every financial year; (b) you have all requisite right, power and authority to enter into this Agreement and perform your obligations and grant the rights, licences and authorizations you grant hereunder; and (c) you and all of your subcontractors, agents and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement. (d) you have carefully gone through the wordings each and every policy associated with the use of the Direct Create Platform, Software, application, website and other tools that may be made available to you from time to time. ( e) you have understood the operation of these policies and its effects on your business and relationship with Direct Create (f) you unconditionally agree to abide by these policies in as much as transactions and your relationship with Direct Create and its affiliates are concerned.
You release us from, and agree to indemnify, defend and hold harmless us (and our officers, directors, employees, agents and Affiliates) against, any claim, loss, damage, settlement, cost, taxes, expense or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any sales channels owned or operated by you, Your Products (including the offer, sale, refund, adjustment, or return thereof), Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death or property damage related thereto; or (c) Your Taxes. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we determine in our sole discretion that any indemnified Claim might adversely affect us, we may take exclusive control of the defence at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
a. The Direct Create site and the services, including all content, software, functions, materials and information available or provided in connection with the services, are provided "as-is." as a user of the services, you access the direct create site, the services and any online portal or tool provided by direct create to help you avail the services at your own risk. We and our affiliates waive and disclaim: (1) any representations, warranties, declarations or guarantees regarding this agreement, the services or the transactions contemplated hereby, including any implied warranties, declarations or guarantees of merchantability, fitness for a particular purpose or non-infringement; (2) implied warranties arising out of course of dealing, course of performance or usage of trade; and (3) any obligation, liability, right, claim or remedy in tort, whether or not arising from our negligence. We do not warrant that the functions contained in the direct create site or the services will meet your requirements or be available, timely, secure, uninterrupted or error free, and we will not be liable for any service interruptions, including, but not limited to system failures or other interruptions that may affect the receipt, processing, acceptance, completion or settlement of any transactions.some jurisdictions' laws do not allow exclusion of an implied warranty. In which case the foregoing disclaimer may not apply to you, and we and our affiliates disclaim to the maximum extent permitted under applicable law all warranties of any kind, whether express, implied or statutory, including without limitation warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, non- infringement or quiet enjoyment. B. Because Direct Create is not involved in transactions between customers and sellers or other participant dealings, if a dispute arises between one or more participants, each of you release direct create (and its agents, affiliates and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
8. Limitation of Liability
We will not be liable (whether in contract, warranty, tort, delict (including negligence, product liability, any type of civil responsibility) or otherwise) to you or any other person for cost of cover, recovery or recoupment of any investment made by you or your affiliates in connection with this agreement, or for any loss of profit, revenue, business, or data or punitive or consequential damages arising out of or relating to this agreement, even if Direct Create has been advised of the possibility of such costs or damages. Further, except in case of gross negligence or willful misconduct, our aggregate liability arising out of or in connection with this agreement or the transactions contemplated hereby will not exceed at any time the higher of - the total amounts during the prior six month period paid by you as fee to Direct Create in connection with the particular service giving rise to the claim or Rs. 5000/-.
You will subscribe to and keep current a comprehensive insurance policy to cover against the all claims to goods (Inventory) listed on Direct Create whether kept at your facilities (storage) or the storage Operated by Direct Create or our Logistics Partners. You will also subscribe and maintain an insurance policy to answer claims of destruction or loss of merchandise during transit (logistics) to customers or on reverse logistics (Returns) to your/our warehouse as the case may be. Direct Create will not be responsible for any losses of inventory or items received in damaged or broken condition either at its warehouse or by the Customers and you will ensure that your insurance policy covers against these risks. These insurance policies shall have Direct Create as an Additional Insured and you will provide a copy of the insurance policy for our verification upon request at any time during the currency of your listing/s or order fulfillment.
10. Tax Matters
As between the parties, you will be responsible for the collection and payment of any and all of Your Taxes together with the filing of all relevant returns, such as service tax, VAT/CST and issuing VAT/CST invoices/credit memos where required. Direct Create is not responsible for collecting, remitting or reporting any service tax, VAT/CST or other taxes arising from such sale. You are solely responsible for preparing, making and filing any tax audit report and statutory reports and other filings and responding to any tax or financial audits.
Unless stated otherwise, any and all fees payable by you pursuant to this Agreement are exclusive of all value added, service, sales, use, goods and services and similar taxes, and you will pay any taxes that are imposed and payable on such amounts. If we are required by law or by administration thereof to collect any value added, service, sales, goods and services or similar taxes from you, you will pay such taxes to us.
If for any reason, any income tax or withholding tax is determined to be deducted and deposited on any payments or remittances to you, Direct Create will have the right to deduct and deposit any such applicable taxes with the appropriate regulatory authority. No claim in respect of the taxes deposited would be made by you against Direct Create.
It is your responsibility as a seller on the Direct Create.com platform to choose the most applicable product tax codes for your products, such that the correct tax rate is applied on all products offered for sale by you on DirectCreate.com If we determine that you are not in compliance with this section, then we may suspend the services provided to you on the DirectCreate.com platform.
During the course of your use of the Services, you may receive information relating to us or our Affiliates or to the Services that is not known to the general public ("Confidential Information"). You agree that: (a) all Confidential Information will remain Direct Create's exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services and ensure that persons who have access to Confidential Information will be made aware of and will comply with the obligations in this provision; and (c) you will not otherwise disclose Confidential Information to any individual, company, or other third party, including any Affiliates. You may not issue any press release or make any public statement related to the Services, or use our name, trademarks or logo in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
12. Force Majeure
We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control.
13. Relationship of Parties
You and we are independent principals, and nothing in this Agreement will be construed to create a partnership, joint venture, association of persons, agency, franchise, sales representative, or employment relationship between the parties. Direct Create is not an auctioneer, neither is it an intermediary between the customer and the seller. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your shop, profile pages or otherwise, that would contradict anything in this section. This Agreement will not create an exclusive relationship between you and us.
14. Use of Direct Create Transaction Information.
You will not, and will cause your Affiliates not to, directly or indirectly: (a) disclose or convey any Direct Create Transaction Information (except you may disclose this information as necessary for you to perform your obligations under this Agreement and provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information); (b) use any Direct Create Transaction Information for any marketing or promotional purposes whatsoever (except as permitted below), or otherwise in any way inconsistent with our or your privacy policies or applicable Law; (c) contact a Person that has ordered Your Product that has not yet been delivered with the intent to collect any amounts in connection therewith, to influence such Person to make an alternative purchase, or to harass such Person; (d) disparage us, our Affiliates, or any of their or our respective products or services or any customer; or (e) target communications of any kind on the basis of the intended recipient being an Direct Create Site user. The terms of this clause do not prevent you from using other information that you acquire without reference to Direct Create Transaction Information for any purpose, even if such information is identical to Direct Create Transaction Information, provided that you do not target communications on the basis of the intended recipient being a Direct Create Site user.
15. Suggestions and Other Information
If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to the Direct Create Site or Services (including any related Technology), we will be free to use, disclose, reproduce, modify, licence, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history and posted content.
We may amend any of the terms and conditions contained in this Agreement (including the Service Terms and Programme Policies) at any time and solely at our discretion. Any changes will be effective upon the posting of such changes on Seller Central or on the Direct Create Site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. All notice of changes to the Agreement will be posted for at least 30 calendar days. Changes to Policies may be made without notice to you. You should refer regularly to Your Account or Seller Central, respectively, to understand the current Agreement and Programme Policies and to be sure that the items you offer for sale can be sold via the Service in connection with the Direct Create Site. YOUR CONTINUED USE OF A SERVICE AFTER DIRECT CREATE'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.
17. Password Security
Any password we provide to you may be used only during the Term to access Your Account (or other tools we provide), to use the Service, electronically accept Your Transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use Your Account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password.
This Agreement will be governed by the laws of India, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the courts at New Delhi regarding any dispute with Direct Create relating in any way to this Agreement or your use of the Services. You may not transfer or assign all or any portion of this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.
Direct Create retains the right to immediately halt any transaction, prevent or restrict access to the Services or take any other action to restrict access to or availability of any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited by the applicable Programme Policies.
The authentic language of this Agreement and subsidiary or associated documentation shall be English and any translations provided are for convenience only. In the event of any conflict or difference in interpretation between the English language version of this Agreement and subsidiary or associated documentation and any translation of them, the English language version and interpretation shall prevail. You agree we may communicate with you in English during the Term of this Agreement.
You agree that we may, in our sole discretion, disclose or make available any information provided or submitted by you or related to your participation under this Agreement (including information regarding Your Products or Your Transactions) to any judicial, quasi-judicial, governmental, regulatory or any other authority as may be required by us to co-operate and / or comply with any of their orders, instructions or directions or to fulfil any requirements under applicable Laws.
We will send all notices and other communications (including transactional, promotional and/or commercial communication) to you at the e-mail addresses you designated for notifications and updates in your programme application or within Seller Central or Your Account respectively, or at the valid phone number provided by you or any other means then specified by Direct Create. You consent to receive such communications through any mode including SMS, e-mail, phone calls etc. You may change your e-mail addresses or phone numbers via Your Account. You will update your e-mail addresses (as well as your legal name, address and phone number) as often as necessary to ensure that they are accurate. You must send all notices and other communication relating to Direct Create to us by using the applicable Contact Us form.
This Agreement incorporates and you hereby accept the applicable Service Terms and the applicable Programme Policies, which Direct Create may modify from time to time. In the event of any conflicts between the Programme Policies and this Agreement, the Programme Policies will prevail. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter described herein and supersedes any previous or contemporaneous oral or written agreements and understandings.
You agree that we may, in our sole discretion, disclose or make available any information provided or submitted by you or related to your participation under this Agreement (including information regarding Your Products or Your Transactions) to any judicial, quasi-judicial, governmental, regulatory or any other authority as may be required by us to co-operate and / or comply with any of their orders, instructions or directions or to fulfill any requirements under applicable Laws.
As used in this Agreement, the following terms have the following meanings:
"Affiliate" means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with, such entity, except with respect to Direct Create, "Affiliate" means solely its Affiliates domiciled in India.
"Direct Create Associated Properties" means any website or other online point of presence, other than the Direct Create Site, through which any Direct Create Site or products or services available thereon are syndicated, offered, merchandised, advertised or described.
"Direct Create Site" means www.Direct Create.in.
"Direct Create Transaction Information" means, collectively, Order Information, and any other data or information acquired by you or your Affiliates from Direct Create or its Affiliates, or otherwise as a result of the Agreement, the transactions contemplated hereby or the parties' performance
"Content" means copyrightable works and other content protected under applicable Laws.
"Intellectual Property Rights" means any patent, copyright, Trademark, moral right, trade secret right or any other intellectual property right arising under any Laws 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.
"Purchase Price" means the total gross amount payable or paid by a customer for Your Product (including taxes and customs duties).
"Sales Proceeds" means the gross sales proceeds paid by customers in the course of any of Your Transactions, including the Purchase Price, all shipping and handling, gift wrap and other charges, any taxes and customs duties.
"Your Account" means the particular account in our systems, in which information about Your Transactions is recorded, and which is one of the online portals and tools which Direct Create may make available to you, for your use in managing your orders, inventory and presence on the Direct Create Site.
"Your Materials" means all Technology, Your Trademarks, Content, Required Product Information, data, materials, and other items provided or made available by you or your Affiliates to Direct Create or its Affiliates.
"Your Product" means any product that is made available for listing for sale, offered for sale or sold by you through the Selling on Direct Create Service and/or fulfilled or otherwise processed through the Fulfilment by Direct Create Service in connection with Your Account.
"Your Sales Channels" means all sales channels and other means through which you or any of your Affiliates offer or sell products, other than physical stores.
"Your Taxes" means any and all value added, service, sales, use, excise, import, export, goods and service tax and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by you on or through or in connection with the Services, or otherwise in connection with any action, inaction or omission of you or your Affiliates or your or their respective employees, agents, contractors or representatives. Also, as it is used in the Fulfilment by Direct Create Service Terms, this defined term also means any of the types of taxes mentioned above that are imposed on or collectible by Direct Create or any of its Affiliates in connection with or as a result of: (a) the storage of inventory, packaging, Your Products and other materials owned by you and stored by Direct Create; or (b) the fulfilment, shipping, gift wrapping or other actions by Direct Create to Your Products pursuant to the Fulfilment by Direct Create Service Terms.
"Your Trademarks" means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
"Your Transaction"means any sale of Your Product(s) through the Direct Create Site.
Seller Services Specific Terms
The Selling on Direct Create ("Seller Services") is a Service that allows you to list products for sale directly via the Direct Create website (e-commerce), mobile Applications (m-Commerce), social media or direct sales during Direct Create events. Selling on Direct Create is operated by Direct Create Private Limited. These Seller Service Specific Terms are part of the Direct Create Seller Services Agreement (“Agreement"), but, unless specifically provided otherwise, concern and apply only to your participation in Selling on Direct Create. BY REGISTERING FOR OR USING SELLING ON DIRECT CREATE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY This AGREEMENT AND THESE DIRECT CREATE SERVICE TERMS. Unless defined in these Seller Services (including the definitions), all capitalized terms have the meanings given them in the General Terms (Business Solutions Agreement).
1.1 Products and Product Information. You will, in accordance with applicable Programme Policies, provide in the format we require accurate and complete Required Product Information for each product that you make available to be listed for sale through the Direct Create Site and promptly update such information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same on the Direct Create Site comply with all applicable Laws (including all marking and labeling requirements) and do not contain any sexually explicit, defamatory or obscene materials or any unlawful materials. You may not provide any information for, or otherwise seek to list for sale on Direct Create, any Excluded Products (prohibited, restricted or infringing items); or provide any URL Marks for use, or request that any URL Marks be used, on the Direct Create Site. For each item you list on the Direct Create Site, you will provide to us the location, state or country from which the item ships.
1.2 Product Listing; Order Processing. We will list Your Products for sale on the Direct Create Site in the applicable product categories and promote Your Products as determined by us in accordance with your subscriptions to additional services, (via the Value added services or any other functions, features, advertising, or programs on or in connection with the Direct Create Site). Direct Create reserves its right to restrict at any time in its sole discretion the access to list in any or all categories on the Direct Create Site. We may use mechanisms that rate, or allow shoppers to rate, Your Products and/or your performance as a seller on the Direct Create Site and Direct Create may make these ratings and feedback publicly available. We will provide Order Information to you for each of Your Transactions. Sales Proceeds will be paid to you only in accordance with clause 6.
1.3 Shipping and Handling Charges. When Items Are Shipped by You - You will determine shipping and handling charges via and subject to our standard functionality and categorizations for the Direct Create Site and further subject to any shipping and handling charge Programme Policies for the Direct Create Site. Any such amounts, paid by the customer towards shipping and handling charges, shall be your proceeds, subject to deduction of applicable charges as may be determined by us and you are solely responsible for reporting and remitting any applicable taxes on the shipping and handling charges. For Products kept at Direct Create facilities and Fulfilled by us, Direct Create will determine what the shipping fees will be and will display and collect them accordingly in accordance with the Fulfilment Service Terms.
S-1.4 Credit Card Fraud. We will bear the risk of credit card fraud (i.e. a fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information) occurring in connection with Your Transactions, and you will bear all other risk of fraud or loss; provided, that we will not bear the risk of credit card fraud in connection with any Seller fulfilled order that is not fulfilled strictly in accordance with the Order Information and Shipment Information. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any of Your Transactions. You will stop and/or cancel orders of Your Products if we ask you to do so (provided that if you have already transferred Your Products to the carrier or shipper, you will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). You will refund any customer (in accordance with clause 2.2) that has been charged for an order that we stop or cancel.
2.1 Sale and Fulfilment. For all the products that you sell on the Direct Create Platform, you will: (a) Make (Source), List, sell, fulfil, ship and deliver your Products, in accordance with the terms of the applicable Order Information, these Service Terms (Agreement), and all terms provided by you and displayed on the Direct Create Site at the time of the order and be solely responsible for and bear all risk for such activities; (b) package each of Your Products in a commercially reasonable manner (in accordance with packaging and guidelines of Direct Create) and ship each of Your Products on or before its Estimated Ship Date; (c) retrieve Order Information at least once each Business Day; (d) not cancel any of Your Transactions except as may be permitted pursuant to your terms and conditions appearing on the Direct Create Site at the time of the applicable order (which terms and conditions will be in accordance with this Agreement) or as may be required under this Agreement; (e) ship Your Products throughout India (except to the extent prohibited by applicable Law or this Agreement); (f) provide to Direct Create information regarding shipment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available; (g) comply with all Street Date instructions, where applicable; (h) notwithstanding any other provision of these Service Terms, ensure that you are the seller of all products made available for listing for sale hereunder; (i) include an order-specific packing slip within each shipment of Your Products; (j) identify yourself as the seller of the product on all packing slips or other information included with Your Products and as the Person to which a customer may return the applicable product; and (k) not send customers emails confirming orders or shipments of Your Products (except that to the extent we have not yet enabled functionality for Your Account that allows payment to be processed on the basis of when shipment occurs, then you will send customers emails confirming shipment of Your Products in a format and manner reasonably acceptable to us). For Direct Create-Fulfilled Products, if any, the Direct Create Fulfilment Service Terms will apply to the storage, fulfilment and delivery of such Direct Create-Fulfilled Products.
2.2 Returns and Refunds. For all of Your Products that are not fulfilled using Direct Create Fulfilment Service, you will accept and process returns, refunds and adjustments in accordance with these Service Terms and the Direct Create Refund Policies published at the time of the applicable order, and we may inform customers that these policies apply to Your Products. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by you to customers in connection with Your Transactions, using a functionality we enable for Your Account. This functionality may be modified or discontinued by us at any time without notice and is subject to the Programme Policies and the terms of this Business Services Agreement. You will route all such payments through Direct Create. We will provide any such payments to the customer (which may be in the same payment form originally used to purchase Your Product), and you will reimburse us for all amounts so paid alongwith the Direct Create Refund Handling Fees, as applicable under the Direct Create Fee Schedule for your membership category. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable Direct Create Refund Policies and as required by Law, and in no case later than thirty (30) calendar days following after the obligation arises. For the purposes of making payments to the customer, you authorize us to make such payments or disbursements from your available balance in the Nodal Account (as defined in clause 6). In the event your balance in the Nodal Account is insufficient to process the refund request, we will process such amounts due to the customer on your behalf, and you will reimburse us for all amounts so paid.
3.1 Delivery Errors and Nonconformities; Recalls. You are responsible for: any non-delivery, misdelivery, theft or other mistake or act in connection with the fulfilment and delivery of Your Products, except to the extent caused by: (a) credit card fraud for which we are responsible under clause 1.4; or (b) our failure to make available to you Order Information as it was received by us or resulting from address verification. Notwithstanding the previous sentence, for Direct Create-Fulfilled Products, if any, the Direct Create Fulfilment Service Terms will apply to non-delivery, misdelivery, theft or other mistake or act in connection with the fulfilment and delivery of those of Your Products. You are also responsible for any non-conformity or defects in, or any recall of, any of Your Products. You will notify us promptly as soon as you have knowledge of any defects, or recalls of Your Products.
3.2 Direct Create Satisfaction Guarantee and Chargebacks. If we inform you that we have received a claim under the Direct create Satisfaction Guarantee" offered on the Direct Create Site, or any chargeback or other dispute, concerning one of Your Transactions, you will deliver to us: (a) proof of delivery of Your Product(s) (as applicable); (b) the applicable Direct Create order identification number; and (c) a description of Your Product(s) (as applicable). If you fail to comply with the prior sentence, or if the claim, chargeback, or dispute is not caused by: (y) credit card fraud for which we are responsible under clause 1.4; or (z) our failure to make your Order Information available as the same was received by us or resulting from address verification, then you will promptly reimburse us in accordance with the Service Fee Payments section of the Business Solutions Agreement for the amount of the customer purchase (including the Purchase Price, all associated shipping and handling charges and all taxes, but excluding any associated Referral Fees retained and not subject to refund by Direct Create) and all associated credit card association, bank or other payment processing, re-presentment and/or penalty fees associated with the original purchase and any chargeback or refund, in each case to the extent paid or payable by us or our Affiliates.
Subject to this clause, you are free to determine which of Your Products you wish to list for sale on the Direct Create Site. You will maintain parity between the products you offer through Your Sales Channels and the products you list on the Direct Create Site by ensuring that at the applicable Selling on Direct Create Date and thereafter: (a) the Purchase Price and every other term of offer and/or sale of Your Product (including associated shipping and handling charges, Shipment Information, any 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 favourable to users of the Direct Create Site as the most favourable terms upon which a product is offered and/or sold via Your Sales Channels; (b) customer service for Your Products listed on the Direct Create Site is at least as responsive and available and offers at least the same level of support as the most favourable customer services offered in connection with any of Your Sales Channels (provided that any such customer service will at all times be conducted in a timely, professional and courteous manner) (this requirement does not apply to customer service for payment-related issues on Your Transactions, which we will provide); and (c) the Content, Required Product Information and other information under Clause 1.1 regarding Your Products listed on the Direct Create Site that you provide to us is of at least the same level of quality as the highest quality information displayed or used in Your Sales Channels. If you become aware of any non-compliance with (a) above, you will promptly compensate adversely affected customers by making appropriate refunds to them in accordance with Clause 2.2.
You will pay us: (a) the applicable selling commission; (b) the non-refundable Direct Create Membership Fee (as applicable for sellers) in advance for each month (c) any applicable VAS Fees; during the Term of this Agreement. "Membership Fee" means the fee specified as such on the Membership Fee Schedule for the Direct Create Site at the time such fee is payable. "VAS Fee" means the applicable fee, if any, as specified in the Direct Create Fee Schedule as setout against each Value Added Service opted on the Direct Create Site; and "selling commission" means the applicable percentage of the Sales Proceeds from Your Transaction through the Direct Create Site specified on the Direct Create Fee schedule, as applicable to each level or category of members at the time of Your Transaction. Provided, however, that Sales Proceeds will not include any shipping, insurance and taxes applicable on your Sales. Except as provided otherwise, all monetary amounts contemplated in these Service Terms will be expressed and provided in the Local Currency, and all payments contemplated by this Agreement will be made in the Local Currency.
All taxes or surcharges imposed on fees payable by you to Direct Create will be your responsibility.
Nodal Account. Remittances to you for Your Transactions (excluding COD transactions) will be made through a nodal account (the "Nodal Account") in accordance with the directions issued by Reserve Bank of India for the opening and operation of accounts and settlement of payments for electronic payment transactions involving intermediaries vide its notification RBI/2009-10/231 DPSS.CO.PD.No.1102 / 02.14.08/ 2009-10 dated November 24, 2009. Remittance to you for COD transactions shall be made through the online bank or any other mutually agreed and other means used to transfer to Your Bank Account. You hereby agree and authorize us to collect payments on your behalf from customers for any sales made through the COD mechanism. You authorize and permit us to collect and disclose any information (which may include personal or sensitive information such as Your Bank Account information) made available to us in connection with this Agreement to a bank, auditor, processing agency, or third party contracted by us in connection with this Agreement.
Subject to and without limiting any of the rights described in Clause 2 of the General Terms, we may hold back a portion or your Sale Proceeds as a separate reserve ("Reserve"). The Reserve will be in an amount as determined by us and the Reserve will be used only for the purpose of settling the future claims of customers in the event of non-fulfilment of delivery to the customers of your Products keeping in mind the period for refunds and chargebacks.
6.2. Except as otherwise stated in this Agreement (including without limitation Clause 2 of the General Terms), you authorize us and we will remit the Settlement Amount to Your Bank Account on the Payment Date in respect of an Eligible Transaction. When you either initially provide or later change Your Bank Account information, the Payment Date will be deferred for a period of up to 14 calendar days. You will not have the ability to initiate or cause payments to be made to you. If you refund money to a customer in connection with one of Your Transactions in accordance with Clause 2.2, on the next available Designated Day for Direct Create Site, we will credit you with the amount of the Referral Fee paid by you to us attributable to the amount of the customer refund, less the Refund Administration Fee for each refund, which amount we may retain as an administrative fee.
"Eligible Transaction" means Your Transaction against which the actual shipment date has been confirmed by you.
"Designated Day" means any particular Business Day of the week designated by Direct Create on a weekly basis, in its sole discretion, for making remittances to you.
"Payment Date" means the Designated Day falling immediately after 14 calendar days (or less in our sole discretion) of the Eligible Transaction.
"Settlement Amount" means Sales Proceeds (which you will accept as payment in full for the sale and shipping and handling of Your Products), less: (a) the Referral Fees due for such sums; (b) any Direct Create Fees (Subscription Fee or VAS Fee) due; (c) taxes required to be charged by us on our fees; (d) any refunds due to customers in connection with the Direct Create Site; (e) Reserves, as may be applicable, as per this Agreement; (f) Closing Fees, if applicable; and (g) any other applicable fee prescribed under the Programme Policies (including fee payable under the FBA Fee Schedule for Direct Create Site), if applicable.
6.3. In the event that we elect not to recover from you a customer's chargeback, failed payment, or other payment reversal (a "Payment Failure"), you irrevocably assign to us all your rights, title and interest in and associated with that Payment Failure.
7. Control of Site
Notwithstanding any provision of this Agreement, we will have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Direct Create Site and all the Services on Direct Create (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to any of the Direct Create Site and the Services therein and any element, aspect, portion or feature thereof (including any listings), from time to time) and to delay or suspend listing of, or to refuse to list, or to de-list, or require you not to list any or all products on the Direct Create Site in our sole discretion.
8. Effect of Termination
Upon termination of these Selling on Direct Create Service Terms in connection with the Direct Create Site, all rights and obligations of the parties under these Service Terms with regard to the Direct Create Site will be extinguished, except that the rights and obligations of the parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term.
9. Tax MattersIn addition to the General Terms, you agree that, unless otherwise agreed by Direct Create in advance in writing, the price stated by you for Your Products is inclusive of all taxes including VAT/CST, customs duty, excise duty or other tax or levy that you may be required to remit in connection with such sale.
All payments by Direct Create to you shall be made subject to any applicable withholding taxes under the applicable Law. Direct Create will retain, in addition to its net fees together with any applicable taxes Direct Create determines it is obligated to charge or collect on the fees, an amount equal to the legally applicable withholding taxes at the applicable rate. You are responsible for deducting and depositing the legally applicable taxes and delivering to Direct Create sufficient documents evidencing the deposit of such tax. Upon receipt of the evidence of deduction of such tax, Direct Create will remit the amount evidenced in the certificate to you. Upon your failure to duly deposit these taxes and provide evidence to that effect within five (5) Business Days from the end of the relevant month, Direct Create shall have the right to utilize the retained amount for discharging its tax liability.
Where you have deposited the taxes, you will issue an appropriate tax withholding certificate for such amount to Direct Create and Direct Create shall provide the necessary support and documentation as may be required by you for discharging your obligations.
Direct Create has the option to obtain an order for lower or NIL withholding tax from the Indian Revenue authorities. In case Direct Create successfully procures such an order, it will communicate the same to you. In that case, the amounts retained shall be in accordance with the directions contained in the order as in force at the point in time when tax is required to be deducted at the source.
"Direct Create-Fulfilled Products" means any of Your Products that are fulfilled using the Direct Create Fulfilment Service.
"Direct Create Refund Policies" means the return and refund policies published on the Direct Create Site.
"Estimated Ship Date" means, with respect to any of Your Products, either: (a) the end of the shipping availability period (15 days from as of the date on which the relevant order is placed by the customer), or the shipping availability date, as applicable, specified by you in the relevant inventory/product data Listing for Your Product on the Direct Create Site.
"Refund Administration Fee"means the lesser of (a) the maximum fixed fee or (b) the variable (x %) of the applicable Referral Fee. This is indicated in the Direct Create Fee Schedule and setout against different categories of Memberships and/or transactions.
"Required Product Information" means, with respect to each of Your Products in connection with the Direct Create Site, the following (except to the extent expressly not required under the applicable Programme Policies): (a) description; (b) SKU and EAN/UPC numbers and other identifying information as Direct Create may reasonably request; (c) information regarding in-stock status and availability, shipping limitations or requirements, and Shipment Information (in each case, in accordance with any categorizations prescribed by Direct Create from time to time); (d) categorization within each Direct Create product category and browse structure as prescribed by Direct Create from time to time; (e) digitized image that accurately depicts only Your Product and does not include any additional logos, text or other markings (and that complies with any Direct Create published image guidelines); (f) Item Value/Selling Price; (g) shipping and handling charge (in accordance with our standard functionality therefor); (h) any text, disclaimers, warnings, notices, labels or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising or sale of Your Product; (i) any Makers’/Designers’ requirements, any special fees (customization/modification or alteration charges etc.) or other terms and conditions applicable to such product that a customer should be aware of prior to purchasing the product; (j) brand; (k) model; (l) product dimensions; (m) weight; (n) making technique or other details; (o) any other information reasonably requested by us (e.g., the condition of used or refurbished products).
"Shipment Information" means, with respect to any of Your Products, the estimated or promised shipment and/or delivery date.
"Street Date" means the date(s), if any, specified by the maker/designer and/or licensor of a product as the date before which specified information regarding such product (e.g., a curated collection of Items) should not be disclosed publicly, or such product should not be delivered or otherwise made available to customers.
"URL Marks" means any Trademark, or any other logo, name, phrase, identifier or character string, that contains or incorporates any top level domain (e.g., .com, co.in, co.uk, .in, .de, .es, .edu, .fr, .jp) or any variation thereof (e.g., dot com, dotcom, net, or com).