SELLER FRAMEWORK AGREEMENT

This Seller Framework Agreement (the “Agreement”) is made and entered into on 05.02.2021 (the “Effective Date”), by and between Toyota Tsusho India Private Limited., a company incorporated under the laws of India and having its registered office at 33 and 34, BIDADI INDUSTRIAL AREA, BIDADI,RAMANAGAR,Bengaluru (Bangalore) Rural, Karnataka, 562109, India (hereinafter referred to as “TTIPL”), and _________, a seller incorporated under the laws of _________ and having its registered/corporate office at ________________________________________, (hereinafter referred to as “Seller”). The TTIPL and the Seller shall each be referred to as a “Party” or collectively as “Parties.”. The said expression(s), where the context admits, shall include its successors and assigns.

In consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TTIPL and Seller have agreed to the following facts, terms and conditions:

OVERVIEW

TTIPL owns and operates an independent e-commerce vertical B2B marketplace called as www.metalsplanet.com (as hereinafter referred to as “Website”) that can provide an integrated infrastructure for sales and purchase of goods and ancillary services through the Metals Planet Marketplace to domestic Indian metal market. The e-commerce Website includes robust infrastructure system to process such as seller listing(s), processing of customer orders, co-ordination with sellers for delivery as well as after sales support. The marketplace platform facilitates the sale and purchase of metal(s) inter-alia ferrous or non-ferrous metals and scraps, (hereinafter collectively referred to as “Materials”).

  1. The Seller is engaged in the metal business and wishes to list Materials (as defined hereinafter below) on the Website on the terms and conditions agreed hereunder.
  2. This Agreement includes each of the following Annexes, including the Appendixes thereto, (“Annexes”) which are applicable to this Agreement and each of which is incorporated by reference into this Agreement. By registering with the Seller’s Portal, the Seller agrees to the applicability of the Agreement, the Annexes and their contents.
  3. In case of any conflict between the Annexes and this Agreement, the provisions of the Annexure shall supersede and control to the extent of any such conflict, unless and to the extent that the Annex explicitly deviates from this Agreement with a specific reference to the topic, article or section from which it deviates.
  1. DEFINITIONS & INTERPRETATION
    1. Unless the context indicates otherwise, the words and expressions set out below shall bear the following meanings and cognate expressions shall bear corresponding meanings:

      1. Affiliate” shall mean a person or entity directly or indirectly in Control, of or is Controlled by, or under the common Control with a Party and shall include parent companies of such Party
      2. Claim” or “Claims” shall mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation;
      3. Commission” shall mean Commission to be charged by TTIPL on each metric tonne of the Material proposed to be sold by the Seller through the Website. The Commission charged by Seller shall vary depending on the category of the Material. A Schedule of Commissions/Charges shall be published on the Website and indicated on the Seller’s Portal. TTIPL can modify the Schedule of Commissions/Charges at its sole discretion subject to a prior notice to the Seller through the Seller’s porta;
      4. Content” shall mean all information, content and images, including without limitation, the Materials information, (a) provided or made available by Seller or its Affiliates to Website or its Affiliates or Service Providers for use in connection with the Marketplace Program and (b) otherwise made available by Seller or its affiliates to Customers on the Website (e.g., through Seller’s hosting of such information, content or images);
      5. Customer” means a customer purchasing Material(s) through the Website;
      6. Customer Information” shall include but is not limited to Customer Content, Customer’s name, company, delivery address, billing information, phone number and details of the Customer Request and any other requisite information as may be required by TTIPL for registration purposes of the Website or for allowing the access and use the services rendered thereto.
      7. Effective Date” means the date of acceptance of this Agreement;
      8. Fulfilment Services” means the bouquet of services provided by TTIPL and/or its Affiliates/Third Party Service Partner(s) which includes the services including and not limited to (a) Shipping; (b) Custom Handling Services; (c) Insurance and logistics (d) Return Handling and such other services as may be written or agreed by the authorised representatives, and specified in the Fulfilment Services Guidelines.
      9. Intellectual Property Right” means any patent, copyright, trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, logo, moral right, trade secret and any other intellectual property right arising under any law and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing;
      10. Law” shall mean any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, of any governmental, judicial and quasi-judicial authority of competent jurisdiction in India;
      11. Losses” shall mean any and all damages (including, without limitation, direct, consequential, economic, exemplary, future, incidental, indirect, noneconomic, past, special and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys’ fees and costs (whether or not suit is brought);
      12. Materials” means the materials that the Seller desires to sell on the Website, and approved by TTIPL, and as reflected on the Seller’ Portal;
      13. Material Information” means the information that Website requires as pre- requisite details to enable the seller to list the Material(s) on Website;
      14. "Marketplace Program” means the Seller’s right of access to the Seller’s Portal and the rights granted by the TTIPL to place information about the Materials for sale on the Website ;
      15. Privacy Policy” means the MetalsPlanet’s privacy policy that inter-alia governs Seller’s use of Customer information obtained in connection with the Marketplace Program, and as may be published on the MetalsPlanet Marketplace and/or Seller Portal from time to time;
      16. On-Time Shipping Standard” means the time specified for each order to be processed and delivered;
      17. Orders” means orders placed by a customer through the Website for the purchase of Materials;
      18. Public Promotions” means any public promotions generally available to all users ;
      19. Restricted Content” means content that:
        1. violates, misappropriates or infringes a third party’s rights, including but not limited to privacy, publicity or any intellectual property rights (including any copyright, patent, design right, trademark, trade secret or any other proprietary rights);
        2. contains information about or relating to firearms or any other weapons, including but not limited to their component parts, attachments, ammunition;
        3. contains any critical (functional) parts for aerospace, warcraft, offshore, automotive and/or medical applications;
        4. is contrary to or in violation of any applicable law or regulations or public policy;
        5. Material, are not conflict free as per the provisions of Section 1502 of U.S. Dodd Frank Act;
      20. Seller” means the third party vendors, manufacturers, distributors, wholesalers, retailers and any other incorporated company, who desires to sell approved Materials(s) through Website, and who have registered itself as a Seller on the Seller’s Portal and have agreed to the terms of this Agreement;
      21. Seller’s Customer Information” shall mean customer information in Seller’s possession that was not received from Website as Transaction Information or in any other manner and was not obtained or received by Seller in connection with this Agreement or Seller’s rights and obligations under this Agreement;
      22. Seller-Fulfilled Materials" means any Materials that are not fulfilled using the Fulfilment Services by TTIPL but by the Seller itself;
      23. Seller Portal” shall mean the web-based tool or other web services or interfaces, provided by Website and/or TTIPL and/or a Service Provider that Seller can use to manage its settings, Content and other information related to the Marketplace Program, and including all associated materials listing requirements and perform the required business and ancillary activities;
      24. Seller Marks” means Seller’s registered or unregistered, assigned or licensed name, trademarks, service marks and logos;
      25. Seller Share” shall mean the proceeds collected from the sale of the Sellers Materials less Commission earned by Website and/or any fees accruing to TTIPL on account of Fulfilment Services rendered by TTIPL to the Seller for such Materials;
      26. Seller Site” means any website, other than the Website, where a seller displays any information related to the Seller or its Materials;
      27. Service Provider” means a third party that provides management software and services for the Marketplace Program;
      28. Transaction Information” means the Customer’s Order information, including but not limited to the Customer’s name, email address, shipping address.
    2. No provision shall be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured or drafted such provision. The rule of interpretation that an agreement will be interpreted against the Party responsible for the drafting and any similar rules of interpretation shall not apply to this Agreement and the Parties waive any rights they have to rely on such rules.
    3. Terms other than those defined within this Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in the information and communications technology industry shall be interpreted in accordance with their generally accepted meanings.
    4. When any number of days is prescribed in this Agreement, it shall be reckoned to exclude the first and to include the last day.
    5. Any reference in this Agreement to legislation or subordinate legislation is to such legislation or subordinate legislation at the date of signature hereof and as amended and/or re-enacted from time to time.
    6. Words importing the singular shall include the plural, and vice versa, words importing the masculine gender shall include the feminine and neuter genders, and vice versa, and words importing natural persons shall include legal persons, and vice versa.
  2. Agreement to Terms and Conditions and Privacy Policy

    This Agreement is in addition to and supplements TTIPL Terms of Use and Privacy Policy posted on the Website. Upon the execution of this Agreement, the Seller also agrees to abide by TTIPL’s Terms of Use and Privacy Policy. TTIPL may modify its Terms and Conditions and Privacy Policy from time to time, with or without notice. The continued use of the Website and the Marketplace Program following TTIPL's posting of such modifications shall be deemed to be the Seller’s acceptance of any such modifications. In the event the Seller does not agree to the changes in the Terms and Conditions or Privacy Policy, the Seller should immediately cease to access the Seller’s Portal.

  3. SELLER ONBOARDING AND PRODUCT INFORMATION
    1. In order, for Seller to start listing Materials on the Website, the Seller shall complete registration formalities as stated in the website and sign up to the Seller Marketplace account on the Seller portal and thereby render the Seller as a subscriber to the Marketplace Program. The registration process shall also include uploading requisite documents as is stated in the Website which shall be mandatory for the Seller to go live on the Website.
    2. Seller will use the Seller Portal to list all the required Content, pricing and available inventory per MT basis. The Seller shall adhere to the minimum requirements as set out on Marketplace Seller Portal.
    3. In addition, the Seller will:

      1. use commercially reasonable efforts to ensure the Seller Portal always has an accurate error-free available inventory count per MT listed on the Seller Portal;
      2. at least every hour, update the Seller Portal with an error-free updated inventory feed for only those Materials where inventory levels have changed since the last inventory feed provided for such Materials;
      3. provide Website through the Seller Portal with a daily inventory feed for all Materials;
      4. provide all Content requested by Website, including without limitation, the Materials information as set forth in the Seller Portal;
      5. only provide Content for Materials that fit into the categories or parameters as set forth in the Seller Portal.
    4. The Seller will be held solely responsible for the accuracy of its Pricing, available Inventory and all Content for Materials and will be obliged to honour any order placed by a Customer through the Website as a result of the Content provided.
    5. TTIPL retains the right to, at any time at TTIPLs’ sole discretion, deactivate or otherwise restrict Seller from accessing or using the Website in the event of: (i) a violation of this Agreement, (ii) Seller’s disparagement of TTIPL, (iii) Seller’s violation of laws, or violations of the Terms of Use/Privacy Policy as is set forth in the respective Agreement(s), or (iv) Seller’s act or omission that causes harm to TTIPLs’ brand, reputation or business, each as determined by TTIPL in its sole discretion. TTIPL also retains the right to deactivate or otherwise restrict Seller from accessing or using the Website for any other reason at the sole and reasonable discretion of TTIPL.
    6. The Seller will be restricted from selling any Materials, if the Seller is restricted from selling certain Materials on the Website due to supplier brand restrictions or if Seller is not an authorized reseller for any Materials.
    7. Provided that if Seller removes a Materials from the Website due to brand restrictions or because Seller is not an authorized reseller, it will promptly notify Website in writing of such removal. Upon Website’s request, Seller will provide Website with a list of all Materials withheld from the Marketplace Program including why such Materials is being withheld).
  4. LICENSE OF SELLER’S CONTENT
    1. Seller hereby grants TTIPL/Website, its Affiliates, and marketing partners, a non-exclusive, royalty-free, perpetual, irrevocable right and license to publish, use, reproduce, distribute, transmit, display, modify, create derivative works of and otherwise commercially exploit all Content (excluding the Seller Marks) in connection with the sale of Materials through Website and for the listing, advertising, marketing and promotion of such Materials or the Marketplace Program, including without limitation, through TTIPL’s website, third party websites, e-mail, social media or any other medium.
    2. Seller hereby grants Website and its Affiliates and marketing partners a non-exclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit and display Seller’s Marks during the term in connection with the Marketplace Program.
  5. MATERIALS AUTHENTICITY AND SAFETY
    1. Seller shall maintain adequate processes and procedures for conducting diligence to ensure that Materials are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. Upon Website’s request, Seller will promptly provide Website with:
      1. certificates of authenticity (or similar documentation) for Materials.
    2. Notwithstanding the above the Seller, shall ensure that the Seller has legal and valid title over the Material(s) listed on the Website and that such Material(s) do not infringe intellectual property rights (including rights of publicity or right of privacy) of a third party;
    3. Seller will comply with, and ensure that all Materials comply with, all Materials safety, testing and certification requirements under Applicable Law(s).
  6. ORDER PROCESSING AND FULFILLMENT
    1. Subject to the terms of this Agreement, the Seller is granted the opportunity to receive, accept and execute offers (each an “Order”) for the production and delivery of the Material, based on Customer Information and other information and instructions, as uploaded by a Customer to Seller’s Portal (altogether, the “Customer Request”). If Seller accepts an Order, Seller will fulfil the Order in accordance with the terms set forth in this Agreement and special terms and conditions (if any) stated in the Order.
    2. Seller must confirm order within 30 minutes after the receipt of notification of New Order. Prior to accepting an Order, Seller shall review the Customer Information for Restricted Content, technical errors, manufacturability, delivery date and any other errors (“Seller Review”). Seller shall have the sole and final responsibility for Seller Review. Upon acceptance of an Order, the Seller warrants to provide the Materials in accordance with the specifications in the Customer Request, the Order, this Agreement and the Annexes hereto. The availability of a Customer Request, an Order, or any other Customer Information to a Seller in no way represents a review of that information by TTIPL, and TTIPL shall not have and disclaims any and all liability and responsibility for that content.
    3. It is the Seller’s responsibility to review the Customer Information in the Customer Request, the Order and for Restricted Content as part of the Seller Review. If Seller receives Restricted Content, Seller shall refuse the Order and not supply or process such Order and immediately inform TTIPL about such Restricted Content. TTIPL shall not have, and disclaims, any liability and responsibility for, the Restricted Content.
    4. The Seller shall not directly or indirectly (including but not limited to face-to-face, phone, text, email or other messaging platforms) contact any Customer or use any Customer Information or Customer personal data for any purpose other than to execute an Order and raise invoices in accordance with its terms and this Agreement, or as required by applicable law, and Seller shall ensure that all data included within an Order and a Customer Request or otherwise provided by TTIPL with respect to a Customer remains confidential in accordance with Clause 11 of this Agreement.
    5. Each Order shall indicate at least: (i) the Materials(s) to be delivered; (ii) other written specifications and/or instructions; and (iii) delivery time, location and related information. Any deviations from the standards in the Order shall be agreed upon in writing with Customer through Website.
    6. The Seller undertakes to commit to the quantity, price, despatch time in the accepted Order, therefore Seller cannot modify any details of an Order or make any other changes to it, unless there are errors related to , value of material
    7. and/or Quantity ) or Order adjustments requested and agreed upon by the Customer . If there are any errors in the Order, then the Seller should contact TTIPL’ customer care within 24 (twenty-four) hours of accepting the Order and prior to starting work on the Order, in which case the Parties shall work together to resolve the errors and make any necessary and agreed adjustments to the Order.
    8. TTIPL may periodically review Seller’s performance using metrics and optional quality inspections. If Seller’s performance does not meet the quality standards or other requirements, TTIPL will contact the Seller and indicate what needs to be improved. If Seller fails to improve performance to TTIPL’s satisfaction within the time period set out by TTIPL, TTIPL may temporarily or permanently deactivate or otherwise restrict Seller from accessing or using the Website and/or suspend Seller’s Access to Seller’s portal or terminate this Agreement, subject to a prior notice.
    9. TTIPL also provides Fulfilment Services for Materials sold through the Website. The Fulfilment Services shall be available to the Seller subject to the conditions of Fulfilment Service Terms stipulated in Annex I.
  7. LOGISTICS TERMS AND CONDITIONS FOR SELLER FULFILLED MATERIALS
    1. Seller shall ensure that Orders will be packed in an adequate manner as per the industrial and statutory standards in order to protect and preserve the Material(s) and that Orders will be shipped to the destination designated in the Order, or other place of shipment as specified by the Customer. All shipments of Materials shall be shipped with a qualified and licensed carrier and with adequate liability and replacement insurance coverage.
    2. Seller shall notify TTIPL when the Materials have been shipped in accordance with the instructions in the Purchase Order. The Materials are subject to acceptance by the Customer. TTIPL and/or the Customer may reject any portion of any shipment of the Materials which does not comply with the specifications in the Order.
    3. Title to the Materials delivered by the Seller pursuant to the Order to the Customer, provided that Customer has made full payment for the Materials to the designated bank account as prescribed by TTIPL. Seller acknowledges and agrees to this title and shall provide the Materials free and clear of all liens, charges, encumbrances, restrictions or not in violation of other third-party rights and applicable regulations.
  8. CANCELLATION OF ORDERS
    1. TTIPL and/or Website shall assist and process all Customer requests for cancellations, returns, refunds and/or customer service price adjust as per the Refunds/Returns/Cancellation Policy /Terms & Condition upon confirming with the Seller. TTIPL will process all refunds, returns, and exchanges immediately upon confirmation from the Seller which shall be provided by the Seller within [Twelve Hours] from receipt of a request from TTIPL, failing which the Seller will be deemed to have provided its confirmation.
    2. After acceptance of the Order, Seller cannot cancel the accepted order. In case of technical errors (e.g. price and/or quantity related errors or maintenance activity or apparent technical error, or the system upgradation or website maintenance is in progress or the Order is in violation of this Agreement or any applicable law or regulations . If there are any errors in the Order the Seller should contact TTIPL immediately. If TTIPL in its sole discretion determines that the Seller has unduly cancelled an Order, TTIPL may temporarily or permanently deactivate or otherwise restrict Seller from accessing or using the Website and/or or suspend or terminate this Agreement, without any notice.
    3. Effect to Cancellation
      1. If there are technical error(s), if any then cancellation will be discussed mutually Seller, Buyer and TTIPL; or
      2. If there are cancellation(s) by the Seller(s), if any then such differential cost between purchase order price and market price will be borne by Seller.
  9. PAYMENT TERMS
    1. TTIPL will earn a Commission on the basis of Rupees./MT of Sales Proceeds from each sale of Seller’s Materials through Website. The Commission Rupees./MT for Seller’s Materials are specific to each Materials category listed on the Seller’s Portal.
    2. An Order shall be deemed to be completed upon (a) the Material is delivered with a valid proof of delivery along with a challan/Tax Invoice signed by the customer; and /or (b) the period stipulated in the returns and/or cancellation Policy has expired (“Deemed Completion”).
    3. TTIPL shall process payments upon receipt of confirmation of Deemed Completion from the Customer, within three (7) business days from the date of Deemed Completion, subject to applicable guidelines issued by the Reserve Bank of India. When these dates do not fall on business days, payment shall be made on the next business day after such a date.
    4. At TTIPL’s option and subject to RBI’s regulations in this regard, all payments to Seller’s bank account will be made by mean of electronic funds transfer or similar method.
    5. If TTIPL concludes that Seller’s actions and/or performance in connection with this Agreement may result in customer or any other disputes, chargebacks or other claims, then TTIPL may, in its sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to Seller under this Agreement for the shorter of:
      1. a period of ninety (90) days following the initial date of suspension; or
      2. completion of any investigation(s) regarding Seller’s actions and/or performance in connection with this Agreement.
    6. The Seller expressly acknowledges and accepts that payment of the Seller Share by TTIPL shall at all times be subject to TTIPL having received the corresponding Sales Proceeds from the Customer. TTIPL shall have no liability to the Seller, and the Seller shall have no claim against TTIPL for any failure by TTIPL to make payment of the Seller Share in circumstances where the TTIPL has not received the corresponding Sales Proceeds from the Customer.
  10. INTELLECTUAL PROPERTY & KNOW HOW
    1. All intellectual property rights, including but not limited to any copyright, trademark, trade name and database right, in the Website and all data related to the access and use of the Website, including all data related to Customers and Sellers and all data related to the provision of Fulfilment Services via the Website, and the content thereof, and the selection and arrangement thereof are the property of TTIPL, its licensors or other third parties. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Seller, including any right to obtain possession of any source code, data or other technical material related to the Website.
    2. Seller agrees that it will not use or reference in any manner TTIPL, or its respective licensors’ company names, logos, Materials and service names, trademarks or service marks. Seller agrees that it will not try to register or otherwise claim ownership in any of the TTIPLs marks and names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark or name.
    3. Any information that the Customer uploads to the Website or any information related to the Customer and/or its Order that is provided by TTIPL to Seller, such as samples, images, photos, videos, text, or any other content submitted by a Customer to the Website (the “Customer Content”), is the exclusive (intellectual) property of the Customer. Seller is hereby granted a non-exclusive, non-transferable, non-sub-licensable, revocable limited license to use, the Customer Content for the sole purpose of fulfilment of Orders through the Website under this Agreement.
    4. Seller acknowledges and agrees that TTIPLs’ pricing and algorithms, processes and mechanisms are the confidential information and trade secrets of TTIPL. Accordingly, Seller shall not, and shall not permit, encourage or assist any third party in using, disclosing, copying or reverse engineering any of such algorithms, processes, mechanisms, or engines, and that TTIPL will suffer irreparable harm for which monetary damages may be difficult to ascertain and/or inadequate in the event of any breach by Seller of the foregoing. In the event Seller breaches, threatens to breach or attempts to breach this article 8, TTIPL may take any action it deems necessary or appropriate to protect its rights and interests. In the event Seller breaches this article 8, TTIPL shall have the right to be indemnified by the Seller in terms of the provisions of Clause 14 of this Agreement. Without any prejudice to TIPL’s right to indemnity as stated above or any other right available to TTIPL under law, TTIPL reserves the right to deactivate or restrict Seller’s access to the Services and to suspend or terminate this Agreement without any prior notice in such event.
  11. CONFIDENTIALITY
    1. Seller acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to Confidential Information of TTIPL or the Customer (the “Purpose”). “Confidential Information” means any non-public information disclosed, either directly or indirectly, in any form including but not without limitation, information obtained from TTIPLs, proprietary or confidential information of third parties, such as TTIPLs’ customers, documents, data, prototypes, ideas, inventions, processes, methodologies, know-how, business practices, marketing plans and strategies, plans, or financial information. Confidential Information shall also include items such as samples, notwithstanding the absence of any proprietary marking on such device. Confidential Information does not include information that Seller can establish by competent evidence: (i) is or has become generally available to the public without violation of this Agreement or any other obligation of confidentiality; (ii) is known by Seller prior to disclosure by TTIPL, provided that the source of such information was not bound by any obligation of confidentiality with respect to such information, (iii) is lawfully obtained by Seller from a third party, provided that such third party was not bound by any obligation of confidentiality with respect to such information; or (iv) is independently developed by Seller without use of or reference to the Confidential Information.
    2. Seller shall receive and use the Confidential Information only in furtherance of the Purpose, shall not use Confidential Information for any other purpose, and shall not disclose any Confidential Information to any third party. Seller may only disclose TTIPL’s Confidential Information to its employees, directors, officers, agents or consultants (including, without limitation, its attorneys, accountants, bankers and financial advisors) (collectively, “Representatives”) and Representatives of Seller’s Affiliates (as hereinafter defined) who have a need to know the information in connection with the Purpose and his or her job duties and who are subject to a written agreement or professional obligation that prevents unauthorized use or disclosure of the Confidential Information. Seller shall protect TTIPLs’ Confidential Information against unauthorized use and disclosure by using the same degree of care as it employs with respect to its own confidential and proprietary information and, at a minimum, shall exercise reasonable care. Seller shall be liable for any unauthorized disclosure of the confidential Information by Representatives or Representatives of its Affiliates.
    3. Seller acknowledges and agrees that the Customer Content is confidential and proprietary information of the applicable Customer, it will not disclose the Customer Content to any third party, it will not use Customer Content for any purpose other than to fulfill such Customer’s Order, and it will not disclose Customer identifying information (or any information from which Customer’s identity can be determined), in each case without the prior written consent of TTIPL. Seller may disclose the Customer Content to Seller’s employees who have a need to know and who are bound by confidentiality obligations no less restrictive than those contained herein. Seller will take any measures necessary to store and keep the Customer Content safe and secure. Seller will promptly notify TTIPL of any unauthorized use or disclosure of Customer Content and shall be liable and responsible for any such unauthorized use or disclosure.
    4. Seller may disclose Confidential Information and/or Customer Content pursuant to a valid judicial or governmental order or as required by applicable law or stock exchange rule, provided that, prior to disclosure, Seller notifies TTIPL of such requirement to disclose and reasonably cooperates with TTIPL’s efforts to seek a protective order or otherwise avoid or minimize the disclosure, unless the order or rule prohibits Seller from doing so.
    5. Seller’s obligations for each item of Confidential Information shall continue in full force and effect for five (5) years from the date of disclosure.
    6. Upon TTIPL’s request, Seller shall promptly return or destroy all Confidential Information (and copies thereof) and cause an officer of Seller to certify to such return or destruction. With respect to Customer Content, Seller agrees that upon the completion of the Services for any Order, or upon request from TTIPL, whichever is earlier, Seller will return or destroy the Customer Content and any representations or derivatives and copies thereof (including, but not limited to the personal contact details, adjustments of sample model for manufacturing purposes and material specifications), unless TTIPL has given its explicit consent to not return and destroy it, or as otherwise required by applicable law. Any Defect Materials (as hereinafter defined) produced but not ultimately shipped to Customer shall be immediately destroyed. For clarity, this includes any parts of Materials, objects manufactured for testing purposes, objects rejected for content policy purposes, and any other objects produced for the Customer or based on the Customer Content, but not ultimately shipped to the Customer (“Defect Materials”). Defect Materials or parts thereof shall not be used, photographed and published or distributed without the prior permission from TTIPL. Notwithstanding the return or destruction of the Confidential Information, Seller will continue to be bound by its obligations hereunder during the confidentiality period.
    7. Specific additional and/or deviating confidentiality terms may apply in relation to certain Customers. In such event, TTIPL will modify and update the existing provisions with respect to confidentiality and publish the same on Seller’s Portal, based on the confidentiality terms agreed between TTIPL and such Customer which shall apply mutatis mutandis to Seller. In the event of conflicting terms between this article 9 and the additional Customer confidentially terms, the latter will prevail (to the extent of the conflict).
  12. Representations and Warranties; Disclaimers:
    1. The Seller represents and warrants that the statements contained in this Section are true, correct and complete as of the Effective Date of this Agreement and the date of any Services provided by the Seller. The Seller hereby represents and warrants that:
      1. it has the full power and authority to enter into this Agreement and perform Seller’s obligations hereunder;
      2. it possesses the appropriate and current level of expertise and experience to perform its obligations under this Agreement, in a professional manner with due skill, care and diligence and shall maintain high standards of professionalism and service and shall provide the Services in accordance with industry standards, this Agreement and the Annexes hereto;
      3. it will comply with all applicable laws and regulations governing the manufacture, assembly, transportation, import, export, or sale of goods in its performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations (including but not limited to all applicable consumer, data protection, intellectual property, commerce, transportation, environmental, occupational safety, securities, and employment and labour laws);
      4. Customer Content or any other information or data provided by TTIPL or TTIPL Customers may be subject to import and/or export control laws and regulations and to laws protecting privacy of personally identifiable information. Seller agrees that neither Seller nor any of Seller’s personnel will export or re-export any Customer Content or any other information or data, or the direct Materials of such data, to any country (or to nationals or residents of such countries) listed in such applicable laws and regulations;;
      5. in relation to the transactions contemplated in this Agreement, neither the Seller, its directors, officers, or, to the knowledge of Seller, any agent or affiliate of Seller has made, offered or authorized or will make, offer or authorize any payment, gift, promise or other advantage, whether directly or through another person or entity, to or for the use or benefit of any government official or any entity or other person where such payment, gift, promise or any other advantage;
      6. it will comply with the specifications set out in the Order and the Annexes hereto and be free from defects in material and workmanship at the time of delivery to the Customer.
    2. DISCLAIMER OF WARRANTIES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TTIPL MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NON INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT CUSTOMER CONTENT, ORDERS, PURCHASE ORDERS, THE WEBSITE, THE SERVICES, AND ANY INFORMATION MADE AVAILABLE HEREUNDER, INCLUDING WITHOUT LIMITATION TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PARTS OR SERVICES PROVIDED TO SELLER BY TTIPL.
    3. NO SERVICE GUARANTEE: THE WEBSITE AND ANY EXTENSIONS PROVIDED BY TTIPL HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE".TTIPL DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS AND AVAILABILITY OF WWW.METALSPLANET.COM. THE OPERATION OF WWW.METALSPLANET.COM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL INCLUDING BUGS OR ERRORS OR DEFECTS THAT TTIPL MAY NOT BE ABLE TO RECTIFY IMMEDIATELY. SELLER ACKNOWLEDGES AND AGREES THAT THE WEBSITE AND SERVICES MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (E.G., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE WEBSITE AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TTIPL IS NOT RESPONSIBLE FOR ANY DOWNTIME, UNAVAILABILITY, DELAYS, DELIVERY FAILURES OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS. THE SELLER ACKNOWLEDGES THAT HE HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN

      The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.

    4. NO EXPECTATION OF PURCHASE ORDERS: SELLER ACKNOWLEDGES AND AGREES THAT TTIPL DOES NOT PROVIDE ANY ASSURANCE THAT SELLER WILL OBTAIN ANY PARTICULAR NUMBER OF PURCHASE ORDERS OR AMOUNTS AS A RESULT OF THIS AGREEMENT.
  13. LIMITATION OF LIABILITY:
    1. DISCLAIMER OF CERTAIN DAMAGES: THE PARTIES UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TTIPL, OR ANY DIRECTOR, OFFICER OR EMPLOYEE OF TTIPL, ITS AFFILIATES, AGENTS, ASSIGNS OR SUBSIDIARIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT LIMITATION DAMAGES OR COSTS DUE TO LOSS OF MATERIALSION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE, WHETHER OR NOT TTIPL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM OF OR BY ANY THIRD PARTY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
    2. CAP ON LIABILITY: NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT , THE LIABILITY OF TTIPL OR ANY DIRECTOR, OFFICER OR EMPLOYEE OF TTIPL, ITS AFFILIATES, ASSIGNS OR SUBSIDIARIES UNDER THIS AGREEMENT EXCEED THE COMISSION PAID BY SELLER TO TTIPL FOR THESALES MADE BY THE SELLER THROUGH THE WEBSITE IN THE 12 (TWELVE) MONTHHS PRECEEDING THE CLAIM GIVING RISE TO THE LIABILITY, WHETHER SUCH LIABILITY IS BASED ON AN ACTION IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE. NOTWITHSTANDING THE ABOVE AND TO THE EXTENT THE LIABILITY PERTAINS TO A SPECIFIC SERVICE OFFERED BY TTIPL, THE LIABILITY WILL BE RESTRICTED TO THE COMMISSION ATTRIBUTABLE TO THE SAID SERVICE.
    3. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE SELLER ACKNOWLEDGES AND AGREES THAT ANY AND ALL CLAIMS SELLER HAS OR PURPORTS TO HAVE AGAINST TTIPL MUST BE NOTIFIED TO TTIPL UNDER SECTION 16.6, IMMEDIATELY AFTER THE EVENT OCCURS GIVING RISE TO SUCH CLAIM,.
    4. EXCEPTION: NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT OR EXCLUDE TTIPLS’ LIABILITY FOR DAMAGES CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF TTIPLS’ SENIOR MANAGEMENT, OR DAMAGES THAT MAY NOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
  14. INDEMNIFICATION
    1. Seller will indemnify, defend, and hold harmless TTIPL and its affiliates, and its and their officers, directors, employees, agents, partners, subsidiaries, assigns, successors and licensors against any and all costs, expenses (including reasonable attorneys’ fees, costs of litigation and any and all expenses whatsoever reasonable incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim), losses, damages, claims, liabilities, demands, penalties, forfeitures, suits and judgments, which they may incur, become responsible for or pay, as a result of, in connection with or relating to:
      1. Seller’s breach or other violation of this Agreement, including without limitation, of the industry standards, or applicable law and regulations;
      2. Seller’s negligent or wilful acts, errors or omissions including any death or bodily injury to any person, destruction or damage to any property as a result of Seller’s negligent or wilful act;
      3. any acts or omissions of the Seller, its agents or employees in connection with this Agreement;
      4. any defects in the Materials supplied by the Seller; or
      5. contamination of or adverse effects on the environment and any clean-up costs in connection therewith.
    2. TTIPL reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Seller, in which event Seller will fully cooperate with TTIPL in asserting any available defences. Seller agrees that the provisions in this article 13 will survive any termination of Seller’s Account, this Agreement or Seller’s access to the Services or Website.
  15. TERM AND TERMINATION
    1. This Agreement shall commence upon the Effective Date, for an initial term of three (3) years, which shall be extended automatically by one (1) year term, unless terminated earlier in accordance with this Agreement.
    2. Seller can terminate this Agreement after three (3) year term and thereafter as per the end of each one (1) year extension upon two (2) months’ prior written notice to be given to TTIPL. Notwithstanding termination, Seller is obliged to complete any Orders accepted by Seller, due as on the date of such notice, unless otherwise agreed by TTIPL.
    3. TTIPL may terminate this Agreement at any time if the Seller:
      1. has provided incorrect account information or has otherwise provided TTIPL with incorrect information about its identity or its services;
      2. fails to meet agreed upon delivery dates;
      3. fails to comply with this Agreement, the Annexes hereto and/or the specifications of an Order; or
      4. attempts to contact a Customer directly or indirectly without prior written permission from TTIPL.
    4. In addition to the termination rights specified in this section 15.3, TTIPL has the right to, immediately and without notice, suspend or terminate this Agreement and/or Seller’s use of the Website and/or provision of the Services at any time (with or without cause), if Seller has breached any provision of this Agreement, if TTIPL is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), or if, at TTIPL’s sole discretion, for any reason whatsoever, TTIPL decides to discontinue the contractual arrangement with the Seller.
    5. Seller acknowledges and agrees that termination shall be made at TTIPLs’ sole discretion and that TTIPL shall not be liable to Seller or any third party for any termination of this Agreement and Seller’s Account.
    6. Upon termination of this Agreement, Seller’s right to use the Website will terminate immediately. Termination of this Agreement may include deletion of Seller’s Account and all related information, files and content associated with or inside Seller’s Account (or any part thereof). Termination is without prejudice to TTIPLs’ other available rights and remedies, all of which are cumulative.
  16. MISCELLANEOUS
    1. Relationship between the Parties: Seller acknowledges and agrees that Seller is an independent contractor, acting as such for Seller’s own account and financial risks. The Parties’ relationship is non-exclusive and nothing in this Agreement shall prevent Seller from providing services to customers or otherwise engage in other business or employment activities, including: (i) using other services in addition to the Website; and (ii) engaging in any other occupation or business. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between TTIPL and Seller. Seller is not an agent of TTIPL and is not authorized and must not represent to any third party that Seller is authorized to make any commitment or otherwise act on behalf of TTIPL.
    2. Non-Exclusivity: Seller acknowledges and agrees that TTIPL may seek and attract, through advertising and marketing, other seller and that TTIPL does not provide any assurances related to a certain amount of Orders and/or profits under this Agreement.
    3. Subcontracting: Seller shall not subcontract or delegate any of its obligations hereunder without the prior written consent of TTIPL.
    4. Modification: TTIPL reserves the right to make changes to this Agreement and its Annexes at any time. Such amended Agreement and Annexes shall be effective immediately upon posting on the Website, or through some other reasonable method. TTIPL will take reasonable efforts to post notices regarding any changes to this Agreement and its Annexes. TTIPL may require Seller to provide consent to the updated Agreement and/or its Annexes in a specified manner before further use of the Website and Services is permitted. Seller shall check the Website on a frequent basis for any changes to this Agreement and its Annexes. If Seller does not agree to any change(s), the Seller shall notify TTIPL and stop using the Website and providing the Services. Otherwise, Seller hereby acknowledges and agrees that, by Seller’s continued use of the Website and provision of the Services, Seller shall be deemed to have accepted the modified terms and conditions of this Agreement and/or its Annexes and Seller is bound by any future amendments and additions to this Agreement and/or its Annexes, information referenced as hyperlinks herein, or documents incorporated herein. Continued use of the Website and provision of the Services after any such changes shall constitute Seller’s consent to such changes.
    5. Force Majeure: Neither party shall be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, epidemic, pandemic, SARS, government sanctions, orders, earthquake, civil commotions,
    6. riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labour or materials, in each case not caused by the negligence of the non-performing party. If the Seller is prevented or delayed due to such causes, it must notify TTIPL as soon as possible. If such prevention or delay may affect an outstanding Order, then TTIPL may terminate such Order by informing the Seller.
    7. Notice

      For Metals Planet:

      Attention : Rajiv Kumar Kushwaha

      Address : 33 and 34, BIDADI INDUSTRIAL AREA, BIDADI,RAMANAGAR, Bengaluru (Bangalore) Rural, Karnataka, 562109

      Telephone :

      Facsimile : 080-40823114

      E-mail : rajiv.kushwaha@metalsplanet.com

      For Seller :

      Attention :

      Address :

      Telephone :

      Facsimile :

      E-mail :

      Seller is responsible for providing TTIPL with Seller’s most current and correct email address. In the event, the last email address of the Seller in TTIPL’s record is not valid, or for any reason is not capable of delivering to Seller the notices required and/or permitted under this Agreement, TTIPLs’ dispatch of the email containing such notice will nonetheless constitute effective notice.

    8. Assignment: This Agreement, and Seller’s rights and obligations hereunder, may not be assigned, subcontracted, sublicensed, delegated or otherwise transferred by Seller without TTIPLs’ prior written consent, and any attempted assignment, subcontract, sublicense, delegation, or transfer in violation of the foregoing will be null and void. This Agreement will bind the Parties’ successors and permitted assigns.
    9. Entire Agreement: This Agreement and its Annexes, which form an integral part of this Agreement, are the final, complete and exclusive Agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matter.
    10. Severability: If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    11. Waiver: A The failure of a Party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of that right at any time thereafter. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
    12. Survival: All provisions within this Agreement which by their nature are intended, whether express or implied, to survive the termination or the expiration of this Agreement, including but not limited to sections 2.2, 8 to13, 16, 17.3, 17.8, 18 and 19 shall survive.
  17. DISPUTE RESOLUTION
    1. Notice Requirement and Informal Dispute Resolution: Before either Party may seek arbitration, the Party must first send to the other Party a written notice of dispute describing the nature and basis of the claim or dispute, and the requested relief. A notice to TTIPL should be sent to: Authorised person, a notice to the Seller should be sent to Authorized person. After the notice is received, TTIPL and Seller will attempt to resolve the claim or dispute informally. TTIPL and Seller agree to use good faith efforts to resolve the claim amicably through negotiation but if the Parties do not resolve the claim or dispute within thirty (30) days after the notice is received, either Party may begin an arbitration proceeding.
    2. Arbitration: The disputes and differences which may arise between the Parties hereto and which cannot be settled amicably with regard to the construction, meaning and effect of this Agreement or any part thereof or in any way related to or pertaining thereto shall be referred to a panel of three (3) arbitrators and shall be conducted in the English language. Each Party shall nominate an arbitrator and the arbitrators so nominated shall appoint a third arbitrator, who shall be the chairman of the arbitral panel. The place of Arbitration shall be Bangalore, India. The Award made by such arbitral panel shall be final and binding on the Parties hereto and this agreement shall be deemed to be a submission to Arbitration within the meaning of the Arbitration and Conciliation Act, 1996, including any statutory modifications and/or re-enactments thereof from time to time. The Cost of Arbitration proceedings shall be borne equally by the Parties. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the Seller and shall not be used by the Seller for any purpose other than for purposes of the arbitration or the enforcement of the arbitrators’ decision and shall not be disclosed, except in confidence to persons who have a need to know such purposes, or as required by law.
  18. Governing law and jurisdiction
    1. Governing law: This Agreement, the relationship between the Parties and any dispute connected thereto is construed under and shall be governed by the laws of India.
    2. Forum: Any dispute, claim or cause of action arising out of or in connection to an Agreement, or the relationship between Metals Planet and Seller, on any basis whatsoever, to which the Arbitration Agreement in article 18 does not apply, shall exclusively be submitted to the competent courts in Bangalore, India.
  19. Taxes

    Seller confirms and agree to pay to TTIPL all Taxes inclusive of TCS GST and TDS as imposed by Govt time to time. TTIPL will collect it from the Seller, pay to Govt as an advance, and share the certificate to Seller.

  20. Seller agree to accept and authorize TTIPL for updating the status of each transaction activity through mobile SMS and email