This present agreement is established in order to set up a contractual relationship by and between Barq Spectrum Digital PVT Ltd and the Seller
This present agreement is established in order to set up a contractual relationship by and between Barq Digital Spectrum (hereinafter referred to as “Barq” ), a private limited company incorporated in the Islamic Republic of Pakistan with its registered office at Office no.9, 1st Floor, Safdar Mansion, Fazl-e-Haq Road, Blue Area, Islamabad-Pakistan.
The Seller (hereinafter referred to as “Seller” ), a sole proprietor/company, registered under the laws of the Islamic Republic of Pakistan.
(Barq and Seller are hereinafter referred to collectively as the “Parties” and individually as a “Party” )
This document is an electronic record in terms of Electronic Transactions Ordinance 2002 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Electronics Transactions Ordinance of 2002.
This electronic record is generated by a computer system and does not require any physical or digital signatures.
2. Interpretation & Definitions
3. Access To Platform And Store Manager
4. Featuring Products On The Platform
5. Seller Performance
6. Seller Obligations To Customer Service
10. Intellectual Property
13. Limitation Of Liability
14. Force Majeure
15. Duration & Termination
18. Relationship Of The Parties
1.1. Barq is in the business of providing services to facilitate Ecommerce via its online marketplace at Barq – a platform that enables Customers and Sellers to transact online. The Seller wishes to sell Products on the online marketplace platform provided by Barq. Barq offers multiple services to facilitate sales via its online platform. The Seller appoints Barq as its commission agent under the terms & conditions set hereunder.
1.2. This agreement expressly supersedes prior agreements or arrangements between both Parties unless expressly agreed otherwise between the Parties.
1.3. Both Parties agree that customer satisfaction is the ultimate interest responsible for guiding the commercial actions and behaviour of both Parties.
1.4. Every transaction of the Seller on Barq’ platform is bounded to the acceptance of the terms of this agreement as well as the details, annexes, appendices, platform policies mentioned in this agreement and/or available on Barq. This agreement will be considered valid as soon as it is electronically accepted by the Seller.
1.5. The service provided by Barq is limited to referring customers to the Seller and accepting orders and payments on their behalf as well as supporting, but not limited to, a range of logistics and marketing services, to be requested and purchased by the Seller. This support is covered within the agreed level of commission and any additional service fees.
1.6. Barq may use the services of subcontractors to execute any part of the present agreement or any kind of future services made available to the Seller without any prior intimation.
1.7. Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.8. The platform policies are to be read into and incorporated as an integral part of this agreement. Due to constant improvement of Barq’ services, platform policies will evolve and change over time (with notice to the Seller). The Seller’s use of the platform and access to the Store Manager is subject to this agreement and the latest platform policies available on Barq.
1.9. In order to maintain its reputation for quality and high service standards, Barq reserves the right to delist the Seller and to terminate the relationship with the Seller based on Barq’ internal quality assessment of the Seller as governed by Barq’ Customer Protection Policy.
1.10. Notwithstanding any clauses in this agreement, this contract is to be read in line with the Seller Code of Conduct. Any breach in the Seller Code of Conduct would automatically constitute a breach of contract within this agreement. In any event where the Seller Code of Conduct is amended, Barq shall inform the seller of the said amendment.
2. INTERPRETATION & DEFINITIONS
2.1. In this agreement, the words and expressions below shall have the following meanings:
|Bank Account||The bank account specified by the Seller in which payments are to be made|
|Business Day||A day (excluding Saturdays and Sundays) on which banks generally are open for business in Pakistan|
|Commission Schedule||The schedule setting out the commission which is payable to Barq by the Seller for each type of Product sold on the Platform and which can be viewed at Barq.|
|Competitor||Any person or entity, that directly or indirectly, engages in the sale of Products on the internet in Pakistan. For the avoidance of doubt, any person whose direct or indirect business is only partially similar to the aforementioned would still be deemed to be a Competitor|
|Contract||The contract entered into between the Seller and a Customer for the sale and purchase of the Products on the Platform|
|Seller Compliance Policy||Barq’s Seller Compliance Policy outlines the standard guidelines sellers need to follow on Barq’s platform. Any violations made by the seller, as per this policy will result in penalties. Click here to view the complete policy on Barq.|
|Customer Protection Policy||Barq policy via which Seller Performance is kept in check|
|Buyer-Seller Interaction Policy||Barq’s Buyer-Seller Interaction Policy outlines the standard of behavior that sellers need to follow when connecting with customers on the Question & Answer Section, Instant Messenger, and Product Review Platform (of Barq). Barq monitors all kinds of buyer-seller communications and is authorized to take action in case of any violations. Click here to view the complete policy on Barq University|
|Customer||A person, who purchases Products on the Platform|
|Barq Express||Fulfilment model whereby the Seller’s Products are stored at a Barq Fulfilment Center. The ownership of the Products remains with the Seller.|
|Dropship||Fulfilment model whereby the Seller is responsible for maintaining inventory of Products at own premises and making available to Barq for delivery to Customers|
|Fee(s)||Any fees charged by Barq for any additional services such as pickup or returns|
|Final Delivery||The transfer of ownership of the product from the Seller to the end customer|
|Fulfilment Center||A facility provided by Barq where all Barq Express Products are stored and where orders are processed|
|Fulfilment Model||Fulfilment model via which the Seller chooses to fulfil orders (Dropship, Barq Express)|
|General Terms||The terms set out in this agreement|
|Handling Time||The time from forwarding of the order by Barq to the Seller till dispatch of the Product by the Seller (excluding Sundays)|
|Hub||A location owned or operated by Barq or one of its logistics partner, where the Seller can drop items and if/when eligible pick up returns|
|In writing/written||All communications made through the Seller Center or sent by Barq through courier or email|
|Inbound||The reception department at Barq’ warehouse that performs the actions of accepting and registering Products brought to the warehouse by the Seller|
|Intellectual Property||Any patent, copyright, registered or unregistered design, design right, registered or unregistered trademark, service mark or other industrial or intellectual property right and includes applications for any of them|
|Listed Price||The listing price of the Product on the Platform and shall be that price at which the Seller informs Barq that it wishes to sell any Product and which price shall include any taxes, whether federal, provincial or local, which the Seller is required and liable to pay on the sale or supply of each Product or type of Product. The Listed Price shall not be higher than the price at which the Seller offers the same Product through its own sales channels|
|Penalty/Penalties||Any financial and/or operational penalty inflicted by Barq on the Seller for any breach of Platform Policies|
|Pending||The status on the Seller Center depicting that an order has been received and awaiting processing|
|Performance Scorecard||The report conveyed to the Seller by Barq which depicts the operational performance of the Seller|
|Platform||The website Barq or any affiliate website|
|Platform Policies||All the policies and guidelines applicable to Sellers and available on Barq|
|Product(s)||The products which the Seller intends to sell on the Platform.|
|Ready to Ship||The Products are signaled as being physically available, packed according to packaging guidelines and ready to be transferred to Barq for delivery|
|Rejected Product||A Product that has been shipped but could not be successfully delivered to a Customer, for any reason whatsoever|
|Required Product Information||Means, with respect to each of the Products, the following (except to the extent expressly not required under the applicable Platform Policies): (a) detailed description, including as applicable, specifications, location-specific availability and options, scheduling guidelines and service cancellation policies; (b) Product numbers, and other identifying information as Barq may reasonably request; (c) information regarding in-stock status and availability, shipping limitations or requirements, and shipment information; (d) categorization within each Product category and browse structure as prescribed by Barq from time to time; (e) digitized image that accurately depicts the Product, complies with all Barq image guidelines, and does not include any additional logos, text or other markings; (f) Listed Price; (g) 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 the Product; (h) any Seller requirements, restocking fees or other terms and conditions applicable to such Product that a Customer should be aware of prior to purchasing the Product; (i) brand; (j) model; (k) product dimensions; (l) weight; (m) a delimited list of technical specifications; (n) Product numbers (and other identifying information as Barq may reasonably request) for accessories related to the Product that is available in Barq’ catalog; and (o) any other information reasonably requested by Barq (e.g., the condition of used or refurbished products)|
|Return Policy||The policy governing the return, refund, cancellation or rejection of products and which can be viewed within.|
|Returned Product||A Product that had been delivered but has been returned by the Customer, for any reason whatsoever|
|Rules of Packing & Shipping||The rules governing the dispatch and handling of the products sold by the Seller, which can be viewed within|
|Store Manager||The login based platform accessible by a Seller by using the user name and password provided to it by Barq|
|Seller Performance||The Seller performance in accordance with the policies and standards defined by Barq|
|Seller Support Center||The support service provided by Barq to solve the issues faced by Sellers as well as help Sellers grow their business|
|Shipped||A Product is considered shipped and on course for delivery to the Customer|
|Signup Process||Process via which person(s) or entities sign up to sell on Barq’ online marketplace|
|Third Party Logistics (3PL)||An external service provider designated by Barq for shipping|
3. ACCESS TO PLATFORM AND SELLER CENTER
3.1. After going through and successfully completing the Signup Process, Barq shall provide the Seller with a unique username and password to access the Seller Center and complete the registration process.
3.2. The Seller is responsible for maintaining up to date information pertaining to their business on Seller Center such as, but not limited to, address and bank account number. Barq is not responsible for any liability arising from incorrect information supplied by the Seller.
3.3. The Seller shall be solely responsible for the safety and security of its password and shall not disclose its password to any third party. The Seller is solely responsible for any use of or action taken under the password and shall fully indemnify Barq from any damages or injury resulting from any unauthorized use of its password.
3.4. Any correspondence or communication received through the Seller Center and/or appointed email address shall be presumed to originate from and have been made with the approval of the Seller and Barq shall be entitled to rely on such correspondence or communication.
3.5. Every message sent to the Seller through his registered email in the Seller Center account or via Seller Center which did not receive an answer or written objection within 72 hours will be worth agreement between Barq and the Seller.
3.6. The Seller shall complete a training module in order to be ready for operating on the Platform. The seller must pass this training and implement the learnings in their operations in order to start selling via Barq.
4. FEATURING PRODUCTS ON THE PLATFORM
4.1. Barq shall feature the Seller’s Products on the Platform for sale at the given Listed Price. The Platform shall show the Product as being sold by the Seller and not by Barq.
4.2. Barq may offer additional promotions/discounts over and above a Sellers Listed Price via multiple channels and the Seller agrees that this does not constitute a change in the ownership of the Product(s). Any Commission and/or Fees charged on such a transaction will however be upon the Sellers Listed Price.
4.3. The manner in which the Products are featured on the Platform and its placement on the Platform shall be the sole responsibility of and at the discretion of Barq.
4.4. Any particular Product(s) featured on the Platform may be delisted by Barq if sale of that Product would contravene any law or the Seller breaches any of its obligations under this agreement and in such case, the Seller shall be notified immediately.
4.5. Seller shall provide Barq with the Required Product Information in the prescribed format. This information must be true and in line with the actual physical Product. The Seller will be responsible for listing their own products.
4.6. Barq reserves the right to use, reproduce, modify, adapt, publish, translate, create and distribute any content that the Seller provides.
4.7. Where at the request of the Seller, Barq produces digitized images and photographs of the Product(s) for display on the Platform, Barq may charge a Fee and is entitled to deduct this amount from payments made to the Seller for the sale of any Product(s) in addition to any other amounts it is entitled to deduct under this agreement.
4.8. Featuring any Product on the Platform shall constitute an offer of sale on display by the Seller to all persons using the Platform.
4.9. Where a Customer places an order for purchasing a Product through the Platform, it shall be deemed to be an acceptance of the Seller’s offer to sell the Product and a binding contract shall come into force between the Customer and the Seller. The order is considered legally confirmed once the item is dispatched by the seller. The terms of the contract are offered by the Seller and are agreed to by the Customer and have no relation with Barq.
4.10. Barq will not be responsible for, resolve or mediate any disputes between the Seller and a Customer.
4.11. All Contracts entered into between the Seller and a Customer shall be subject to this agreement and in the case of any conflict between this agreement and the Contract or any document included in the Product(s) sent to a Customer or implied by trade practice or course of dealing, this agreement shall prevail.
5. SELLER PERFORMANCE
5.1 The Seller agrees to respect and follow Barq’s Compliance Policy to operate their shop smoothly and avoid the consequences of breaching the policy.
5.2. The Seller agrees to respect and follow Barq’ Customer Protection Policy. If any changes occur in the policy, the Seller will be informed via email.
5.3. Barq measures Seller performance on an ongoing basis and will share a weekly performance report with the ops score of the respective Seller:
5.3.1. Barq will rank the Seller based on performance. There are daily order limits associated with each rank.
5.3.2. Barq may, at any time, delist, downgrade or upgrade the Seller depending on commercial and operational performance without any prior notice to the Seller.
5.3.3. Upon delisting, the Seller may need to go through the training module again in order to re-list on Barq’ Platform. Barq retains the right to blacklist Sellers who repeatedly breach delisting thresholds and retains sole discretion on how the re-listing process in managed.
5.3.4. Barq may, at its discretion, exempt certain sellers from the daily order limitations and delisting criteria. These sellers may instead be charged financial penalties if performance does not meet the Standard Ops Score. These financial penalties may be deducted from the payout released to the Seller as per payment terms. Offences that can lead to Penalties include, but are not limited to, the following:
126.96.36.199. High rate of return on products
188.8.131.52. Lack of respect of packaging guidelines
184.108.40.206. Cancellations and orders out of stock
220.127.116.11. Slow fulfilment of orders
18.104.22.168. Selling counterfeit and illegal Products
6. SELLER OBLIGATIONS TO CUSTOMER SERVICE
6.1. Barq may forward questions or complaints received by Barq’ Customer Service department regarding any sold Product(s) to the Seller. The Seller shall be obliged to respond to Barq on all such questions or complaints within forty-eight (48) hours of the receipt of such questions or complaints.
6.2. On receiving Seller’s response to any question or complaint, Barq shall promptly forward the response to the Customer.
6.3. If a Seller fails to respond to any question or complaint within forty-eight (48) hours of receiving the same, the Seller or any of its Products may be de-listed from the Platform without further notice.
7.1. As an agent for the Seller, Barq shall be entitled to receive a commission for the sale of each Product on the Platform, as stipulated in the Commission Schedule unless specified otherwise in any special terms agreed upon.
7.2. Commissions are calculated as a percentage of tax inclusive sales price.
7.3. These Commissions are deducted by Barq when making a payout to the Seller defined under Payments.
7.4. Barq reserves the right to adjust the percentage Commission defined in the Commission schedule, providing suitable notice of 14 days in advance to the Seller before enactment.
8.1. Barq shall receive and process all payments for Products purchased on the Platform on behalf of the Seller. Barq shall make payment of the amount of the Listed Price for the Product(s) received from a Customer, less its commission for the sale of the Product(s), less any service Fees/Penalties or any other amounts due if applicable, subject to its right of set-off under this agreement.
8.2. The payments will be made to the Seller on a bi-monthly basis to the Bank Account, provided that payment related to any Product shall be initiated not less than 15 days after the Product has been successfully delivered to the Customer.
8.3. Barq will ensure payment statements are available on the Seller Center with all relevant payment information.
8.4. All payments will be made in Pakistan Rupees. In case the Seller wishes to change the information for the Bank Account, it may do so by updating its Bank Account information through the Seller Center. Payments will be made via online transfer to the Bank Account specified by the Seller in the Seller Center.
8.5. The Seller agrees that Barq shall not be liable for any failure to make payments arising due to incomplete or inaccurate information provided by the Seller with regards to its Bank Account
8.6. In case a payment has been issued by Barq to the Seller for a delivered item that is later returned to Barq by the customer, Barq will deduct equivalent amount in the next cycle and return the product to the Seller (subject to return policy).
8.7. In case a Seller’s Product is lost by Barq and/or 3PL during transit or handling, Barq will reimburse the Seller for the Product in question.
8.8. In case the Seller raises a dispute about the condition of a returned Product (e.g. Product is damaged), Barq will reimburse the Seller for the Product in question given the case is reviewed and accepted by Barq in favor of the Seller. For such a reimbursement, title of ownership of said Product shall only pass to Barq in the case Barq decides to hold the Product for commercial purposes. Barq may also hold the Product temporarily in order to claim insurance or settlement with a 3PL. This does not mean ownership of Product transfers to Barq.
8.9. Barq shall be entitled to deduct or withhold from payments to be made to the Seller under this agreement any duties, taxes or other amounts required to be deducted or withheld under any federal, provincial or local law and to remit the same to the taxing authority of any jurisdiction relevant to the transaction.
8.10. Any sums due to the Seller hereunder may be applied by Barq as a set off against any sums owed by the Seller to Barq, or against any claims of third parties against Barq arising from the Seller’ performance, whether under this agreement, any Contract or other document.
8.11. The Seller shall be responsible for payment of all customs duties, sales tax, excise tax, value-added tax and any other duties, excess, fees or charges of whatsoever nature which may be imposed by governing authorities of any jurisdiction applicable in connection with sale or supply of its Products on the Platform and their purchase by Customers. It is clarified that the Seller shall be solely responsible for the payment of any sales tax on the supply of these Products to the Customer through the Platform and Barq shall have no liability in this regard.
9.1. The Seller warrants to Barq that all its Products sold on the Platform, whether manufactured, imported or otherwise produced or provided by the Seller or others, will:
9.1.1. Strictly conform to the specifications, drawings, samples, performance criteria, and other descriptions referred to or provided on the Platform;
9.1.2. Be of merchantable quality and fit for the purpose(s) intended; and
9.1.3. Have all relevant regulatory permits and licenses, and conform to all applicable laws, ordinances, codes and regulations.
9.2. The Seller furthermore warrants and represents to Barq that:
9.2.1. It is competent to enter into this agreement and any Contract and its entry into this agreement and any Contract and the performance thereof have been duly authorized by all necessary corporate action and constitutes a valid and binding agreement of the Seller, enforceable against the Seller in accordance with the terms thereof.
9.2.2. The Products and their packaging will comply with all applicable marking and labelling requirements.
9.2.3. None of the Products have been or will be produced or manufactured, in whole or in part, by child labour or by convict or forced labour.
9.2.4. It and its subcontractors, agents and suppliers involved in producing or delivering the Products will strictly adhere to all applicable laws of Pakistan and other countries where the Products are produced or delivered, regarding the operation of their facilities and their business and labour practices, including without limitation working conditions, wages, hours and minimum ages of workers.
9.2.5. All customs duties, excises tax and any other tax on the import, manufacture or production of the Products have been duly paid.
9.2.6. It is legally entitled and permitted to sell the Products that it is listing.
9.2.7. The Products are not dangerous and do not contain any hazardous substance, contraband, explosives, or any kind of prohibited material as per law.
9.2.8. It will package and ship all Products in accordance with all applicable laws and the Seller shall be solely responsible for any violation of law and will indemnify Barq against the consequences of any such violation.
9.2.9. All information, including but not limited to all information furnished to Barq with regards to the Products is accurate and up-to-date.
9.2.10. It shall not host, display, upload, modify, publish, transmit, update or share any information which infringes any patent, trademark, copyright, proprietary rights, third party’s trade secrets, rights of publicity, or privacy, is fraudulent or involves the sale of counterfeit or stolen items.
9.2.11. All formal consents, waivers, approvals, authorizations, exemptions, registrations, licenses or declarations of or by or filing with, any authority or contracting party which are required to be made or obtained by the Seller in connection with the entry into this agreement or any Contract and the performance of the same, have been duly obtained.
9.2.12. The entry, delivery and performance of this agreement or any Contract by the Seller will not violate or conflict in any material respect with any law, statute, rule, regulation, ordinance, code, judgment, order, writ, injunction, decree or other requirement of any court or of any governmental body or agency thereof.
9.2.13. In its performance under this agreement and any Contracts entered into with Customers, the Seller shall strictly comply with all applicable laws, treaties, ordinances, codes and regulations, and specifically with any import and export, and health, safety and environmental, laws, ordinances, codes and regulations of any jurisdiction (whether international, country, region, state, province, city, or local) where this agreement may be performed. Upon Barq’ written request, the Seller shall provide any written certification of compliance required by any federal, state, or local law, ordinance, code, or regulation.
9.2.14. If necessary, the Seller shall be obliged to procure all formal consents, waivers, approvals, authorizations, exemptions, registrations and/or licenses necessary for Barq to feature the Products on the Platform, at its own cost.
9.2.15. Barq may at any point require the Seller to provide any financial, business or personal information for any purpose whatsoever, and the Seller shall provide the same to Barq within seven (7) Business Days of such request being made.
9.2.16. It is our policy to prohibit and actively pursue the prevention of money laundering and any activity that facilitates money laundering or the financing or of terrorist or criminal activities. We are committed to anti-money laundering compliance in accordance with applicable law and require our directors, officers and employees to adhere to these standards in preventing the use of our products and services for money laundering purposes. You warrant that you are not, in any way, actively involved in money laundering or financing of terrorist or criminal activities or any other illegal activity. We reserve the right to carry out necessary money laundering, terrorism financing, fraud or any other illegal activity check before authorizing your account, payments or processing of any applicable refunds.
10. INTELLECTUAL PROPERTY
10.1. The Seller warrants, represents and covenants that its import, manufacture, production, sale, distribution and use of the Products do not infringe directly or indirectly any Intellectual Property. The Seller warrants, represents and covenants that featuring of the Products on the Platform does not, directly or indirectly, infringe any Intellectual Property.
10.2. The Seller undertakes and represents to Barq that it has all rights and ownership or is a licensed user of all Intellectual Property in relation to the Products and the supply of the Products which shall not be infringed due to marketing, promoting and featuring the Products on the Platform. Barq acknowledges that it will not acquire any rights in respect of the Intellectual Property in relation to the Products.
10.3. The Seller represents and warrants to Barq that it is not aware of any claims made by any third party with regards to any alleged or actual patent, copyright, trade secret, trademark, trade name, or other intellectual property right infringement or other claim, demand or action resulting from the manufacture, sale, distribution or use of the Products.
10.4. Both parties agree to release, defend, protect, indemnify and hold their affiliates, and their respective directors, officers, employees, contractors, agents, suppliers, users, successors, and assigns, harmless from and against any and all costs (including attorney fees and court costs on an indemnity basis), expenses, fines, penalties, losses, damages, and liabilities arising out of any alleged or actual patent, copyright, trade secret, trademark, trade name, or other intellectual property right infringement or other claim, demand or action resulting from the advertising, promotion, manufacture, sale, distribution or use of the Products.
10.5. The Seller shall not be entitled to use any Intellectual Property belonging to Barq without Barq’ prior approval in writing.
10.6. Both Parties shall not make any negative, denigrating, or defamatory statement(s)/comment(s) about each other, the brand name, or the Platform, or otherwise engage in any conduct or action that might tarnish the image or reputation of Barq or Seller’s on the platform or otherwise tarnish or dilute any Barq or Sellers’ trade mark, service marks, trade name and/or goodwill associated with such trade, service marks or trade name as may be owned or used by either Party
11.1. All Customer information and data, designs, drawings, specifications, communications, whether written, oral, electronic, visual, graphic, photographic, observational, or otherwise, and documents supplied, revealed or disclosed in any form or manner to the Seller by Barq, or produced or created by the Seller for Barq hereunder are the intellectual property of, and confidential to Barq and Seller and shall be used solely by the Seller for purposes of this agreement. All such information shall be treated and protected by the Seller as strictly confidential, and shall not be disclosed to any third party without the prior written consent of Barq, and shall be disclosed within the Seller’s organization only on a need-to-know basis.
11.2. Both Parties may require their respective employees and other personnel involved in the performance of this agreement to execute an individual confidentiality agreement prior to any disclosure. Any non-disclosure agreement heretofore executed by the Seller in connection with the sale of its Products under this agreement is hereby expressly incorporated within the Contract.
11.3. Both parties shall immediately return to each other any information provided, either upon demand, or upon termination of this agreement, including all copies made by either Party.
11.4. Both Parties shall not publicize, disclose, or discuss the existence, content, or scope, whether generalities or details, of this agreement or make any reference to each other, the business of either to any third party by any means, and through any medium (including but not limited to advertising, web site references, photographs, articles, press releases or interviews, speeches or programs) without obtaining prior written consent.
12.1. The Seller agrees to release, defend, indemnify and hold harmless Barq, including its affiliates, and any director, officer, employee, contractor, or agent, against any costs (including attorney fees and court costs on an indemnity basis), fines, penalties, damages, and liabilities, arising from, alleged to arise from, or in any way associated with:
12.1.1. any defect in Products sold to any Customer;
12.1.2. any claim made by any Customer on the basis of any Contract;
12.1.3. any defect in the packaging or shipping of a Product by the Seller;
12.1.4. any violation of any law committed by the Seller, including any failure by the Seller to pay any required tax on the import, manufacture, production, sale, supply, distribution or delivery of a Product;
12.1.5. any negligence or fault of whatever nature of the Seller or its affiliates, and any director, officer, employee, contractor, or agent; or
12.1.6. any breach in any warranty or representation made herein.
13. LIMITATION OF LIABILITY
13.1. The Platform And Store Manager, Including All Content, Software, Functions, Materials And Information Made Available On Or Provided In Connection With The Seller’s Access To And Use Of The Platform And The Store Manager, Are Provided “As-is.” The Seller Acknowledges And Confirms That It Will Access And Use The Platform And The Store Manager At Its Own Risk. To The Fullest Extent Permissible By Law, Barq Disclaims:
(i) Any Representations Or Warranties Regarding This Agreement, The Contracts Or The Transactions Contemplated By This Agreement, Including Any Implied Warranties Of Merchantability, Fitness For A Particular Purpose Or Non-infringement;
(ii) Implied Warranties Arising out Of Course of Dealing, Course of Performance or Usage of Trade; And
(iii) Any Obligation, Liability, Right, Claim or Remedy in Tort, Whether Or Not Arising from Barq’ Negligence. Barq Does Not Warrant That The Functions Contained In The Platform And Store Manager Will Meet The Seller’s Requirements Or Be Available, Timely, Secure Uninterrupted Or Error Free, And Barq 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 Contracts Or Transactions.
Barq Does Not Warrant That The Functions Contained In The Platform And Selle Will Meet The Seller’s Requirements Or Be Available, Timely, Secure Uninterrupted Or Error Free, And Barq 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 Contracts Or Transactions.
13.2. Because Barq Is Not A Party To The Contracts Between Customers And Sellers, If A Dispute Arises Between Them, The Customer And Seller Release Barq (And Its Agents 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.
13.3. Barq Will Not Be Liable (Whether In Contract, Warranty, Tort (Including Negligence, Product Liability Or Other Theory) Or Otherwise) To The Seller Or Any Other Person For Cost Of Cover, Recovery Or Recoupment Of Any Investment Made By The Seller 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 Barq Has Been Advised Of The Possibility Of Those Costs Or Damages. Further, Barq’ Aggregate Liability Arising Out Of Or In Connection With This Agreement, The Contracts Or The Transactions Contemplated Will Not Exceed At Any Time The Total Commission During The Prior Three Month Period Paid By The Seller To Barq.
14. FORCE MAJEURE
14.1. Barq shall not be liable to the Seller or be deemed to be in breach of this agreement by reason of any delay in performing or any failure to perform any of Barq’ obligations if the delay or failure was due to any cause beyond Barq’ reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond Barq’ reasonable control:
14.1.1. Act of God, explosion, flood, tempest, fire or accident war or threat of war, sabotage, insurrection, civil disturbance or requisition;
14.1.2. Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
14.1.3. import or export regulations or embargoes;
14.1.4. interruption of traffic, strikes lock-outs or other industrial actions or trade disputes (whether involving employees of Barq or of a third party);
14.1.5. interruption of production or operation, difficulties in obtaining raw materials labor, fuel, parts or machinery;
14.1.6. power failure or breakdown in machinery.
14.2. Barq may, at its option, fully or partially suspend delivery/performance while such circumstances continue and Barq shall not be liable for any loss or damage suffered by the Seller as a result of such suspension, including but not limited to from the Seller’s failure to fulfill any Contract with a Customer.
15. DURATION & TERMINATION
15.1. This agreement remains valid for one year extendable by tacit agreement until one of the parties terminates it.
15.2. The Seller may terminate this agreement by means of thirty (30) Days’ notice by registered letter with acknowledgement of receipt.
15.3. On or at any time after the occurrence of any of the events of default in Clause 15.4 below, Barq shall, in addition to any rights or remedies it may have in law, in equity, be entitled to terminate this agreement with immediate effect by written notice to the Seller.
15.4. The following shall constitute events of default:
15.4.1. the Seller being in breach of any warranty or representation under this agreement or any Contract;
15.4.2. the Seller being in breach of any obligation under this agreement or any Contract and failing to remedy the same on or before seven (7) Business Days from receipt of a written notice from Barq of such breach;
15.4.3. the Seller passing a resolution for its winding up or a court of competent jurisdiction making an order for the Seller’s winding up or dissolution;
15.4.4. The making of an administration order in relation to the Seller or the appointment of a receiver over or an encumbrance taking possession of or selling any of the Seller’s assets;
15.4.5. the Seller making an arrangement or settlement with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors;
15.4.6. the Seller ceasing or threatening to cease to carry on business; or
15.4.7. Barq reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.
15.5. The termination of this agreement shall not terminate any Contracts already entered into and the Seller shall be obliged to perform all Contracts entered into with Customers.
15.6. The Parties will settle all outstanding liabilities on termination of this agreement.
16.1. The Seller may not assign this agreement or any Contract, or any part hereof, or any money due hereunder, without the prior written consent of Barq. If consent is granted, any such assignment by the Seller shall not increase or alter Barq’ obligations nor diminish the rights of Barq, nor relieve the Seller of any of its obligations under this agreement or any Contract.
16.2. Barq reserves the right to assign this agreement, in whole or in part, to any party, including Barq’ affiliates.
16.3. The Sellers shall give Barq prompt written notice of any change in its ownership or organization, and changes in the manufacture or production of the Products provided hereunder.
17.1. All notices between the Parties shall be in writing.
18. RELATIONSHIP OF THE PARTIES
18.1. Nothing in this agreement will create any partnership, joint venture, franchise, sales representative or employment relationship between the Parties or impose any liability on Barq in relation to the Seller beyond that specifically expressed in this agreement as a commission agent.
19.1. The Seller acknowledges and agrees that Barq may at its sole discretion modify, amend or change any of the General Terms and Platform Policies and such modified, amended or changed General Terms and Platform Policies shall come into force and be binding on the Seller upon the posting of such changes on Seller Center or on the Platform, and the Seller is responsible for reviewing these locations and informing itself of all applicable changes or notices. The Seller should refer regularly to Seller Center to review the current agreement (including the Platform Policies). Barq will inform the Seller of any modification via email. THE SELLER’S CONTINUED ACCESS AND USE OF THE PLATFORM AND SELLER CENTER AFTER BARQ’ POSTING OF ANY CHANGES WILL CONSTITUTE ITS ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.
19.2. The Seller will then have fourteen (14) days to accept any and all modifications or communicate disagreement via the Seller Center or via Email. If there is no response from the Seller it will count as an agreement on the Sellers part.
The Seller has a choice between 2 different Fulfilment Models (Dropship or Barq Express). When creating an account on Seller Center, the Seller is by default operating on Dropship. The seller can apply for Barq Express by contacting its dedicated account manager or the Seller Support Center.
20.1. Any typographical clerical or other error or omission in any acceptance, invoice or other document on the part of Barq shall be subject to correction without any liability on the part of Barq.
20.2. No waiver by Barq of any breach of this agreement by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
20.3. If any provision of this agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this agreement and the remainder of the provision in question shall not be affected thereby.
20.4. No person who is not a party to this agreement (including any employee, officer, agent, representative or sub-contractor of either party) shall have any right to enforce any terms of this agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Parties.
20.6. Barq shall be entitled to commence legal proceedings for the purposes of protecting its confidential information or any exclusivity rights, as contained in this agreement, by means of injunctive or other equitable relief.
21.1. Inventory Treatment:
21.1.1. The Seller is obliged to maintain inventory of all Products featured on the Platform and update its true inventory through the Store Manager on a daily basis.
21.1.2. In the event that the Seller reasonably anticipates that any Products sold on the Platform may go out of stock, it shall immediately update the inventory information in the Store Manager.
21.1.3. If an out of stock Product is shown as in stock on the Platform due to the Seller’s inability to update the correct inventory information for that Product on the Store Manager and a Customer places an order for the Product, the order may be cancelled and the Seller may be penalized for breaching Platform Policies.
21.2. Order Processing and Packaging:
21.2.1. Upon receipt of an order for the purchase of Products, Barq shall forward the order and furnish the Seller with details relating to the ordered Product(s) via the Seller center, including the Seller’s product or bar code relating to the Product(s) and any other details required to fulfill the order – as provided by the Customer. Order Status on the Seller Center will be depicted as Pending and is a confirmation of an order placed by a Customer.
21.2.2. Upon receipt of information under Clause 21.2.1 above, the Seller shall be obliged to process and package each order such that any and all sold Products shall have a Handling Time as defined by the Sellers ranking within the Customer Protection Policy. In case of any delay, either materialized or foreseen, the Seller shall immediately inform Barq via the Contact Us Form.
21.2.3. No package will be handed over to 3PL nor Barq Hub if the order / item status is marked as “cancelled” on Store Manager prior to its shipment.
21.2.4. Packaging materials to be used are prescribed within the Packaging Guidelines.
21.2.5. The Seller must print and pack the invoice, shipping label and returns form generated via the Store Manager with the shipment package.
21.3. Shipping and Order Fulfilment:
21.3.1. Seller shall remain the sole and undisputed owner of the sold Product(s) until it is successfully delivered to the Customer, at which point title and ownership shall be transferred to the Customer. In case any Product is returned or rejected by a Customer, the title and ownership of the Product shall, immediately upon return or rejection, revert to the Seller who shall be the sole and undisputed owner of the Product. Title and ownership of the Products shall never pass to Barq except as provided under clause 8.8.
21.3.2. The Seller acknowledges and agrees that:
22.214.171.124. Neither the 3PL nor Barq shall be liable for any loss including but not limited to taxes and duties levied on the consignment arising due to confiscation of shipments by any government agencies due to lack of proper documents.
126.96.36.199. The 3PL and Barq shall have the right but not the obligation, to inspect any shipment without prior intimation to the Seller for checking the contents. The Seller is responsible for ensuring the correct Product(s) are sent to Customers
188.8.131.52. All parcels shall be accompanied by the respective forms as prescribed by law to meet the requirements of any governmental authority.
184.108.40.206. No package will be handed over to 3PL nor Barq Hub if the order/item status is marked as “canceled” on Seller Center prior to its shipment.
220.127.116.11. The Seller acknowledges that Barq shall not be liable to pay for any payment(s) of any canceled packages to the Customer.
18.104.22.168. For the avoidance of doubt continuous abuse of this policy shall result in the seller’s shop being delisted by Barq.
21.4. Cancellations, Rejections, Returns and Refunds
21.4.1. The Seller agrees that a Customer may cancel an order for any Product in any category before it has been shipped to the Customer.
21.4.2. The Seller agrees that if the customer cancels an order prior to the order being marked shipped, the seller shall not dispatch any cancelled status orders for shipment to 3PL / Barq hubs. Any such shipment and liability associated with the same shall remain the Sellers responsibility at all times.
21.4.3. The Seller authorizes Barq to provide the Customer with a refund where the Customer has pre-paid for the Product and he/she cancels the order before it has been shipped or the Product is rejected and/or the Product is returned.
21.4.4. Where for any reason whatsoever, any Product in any category cannot be delivered to the Customer (“Rejected Product”), Barq may, at its discretion, charge the entire cost of shipping the Product to the Seller.
21.4.5. Unless stated otherwise in the Return Policy in relation to any particular category of Products, the Seller will accept returns of Products in the following cases:
22.214.171.124. Defective/Damaged Product
126.96.36.199. Incorrect Product
188.8.131.52. Incomplete Product
184.108.40.206. The Customer changes his/her mind or no longer needs the product (applicable for certain categories only)
220.127.116.11. The product is unused, unworn, unwashed and without any flaws.
18.104.22.168. The product includes the original tags, user manual, warranty cards, freebies and accessories.
22.214.171.124. The product is returned in the original and undamaged manufacturer packaging / box.
21.4.6. In case of a return, Barq may, at its discretion, bill the Seller for the cost of shipping the Product from the Customer to Barq or to the Seller.
21.4.7. In case of returned products, Barq protects the Seller by conducting a quality control check at Barq’ Fulfilment Center to determine the validity of the Customer’s return claim. If the quality control identifies the customers return claim is invalid, for whatever reason, the Product is sent back to the Customer.
21.4.8. In case of any dispute with the Customer as to the condition of the Product when it was delivered, the Seller agrees that it shall be bound by Barq’ inquiry into and decision as to the condition of the Product at the time of delivery.
21.4.9. At the Customer’s option, the Seller will either replace the damaged Product within the stipulated timeline as defined in the Customer Protection Policy or authorize Barq to provide a full refund. The damaged Product may be shipped to the Seller at the Seller’s cost unless the Seller directs Barq to dispose the Product.
21.4.10. Barq may, at its discretion, bill the Seller for the cost of shipping the replacement Product to the Customer.
21.4.11. The Seller agrees to be bound by and act in accordance with the Return Policy. To the extent that there is any conflict between the Return Policy, the Return Policy shall prevail.
21.5. Additional Services
21.5.1. Pick-up: The Seller can opt for a pick-up service, whereby Barq will pick up the processed package from the Seller before dispatching to the end Customer. Barq may charge a pick-up Fee and is entitled to deduct this amount from payments made to the Seller for the sale of any Product(s).
21.5.2. Packaging and Processing (Cross-dock): Barq will be responsible for processing and packaging an order once the Products are handed over via drop-off or pick-up, by the Seller. The Seller simply needs to make the Product purchased by the customer available to Barq. Barq may charge a Cross-docking Fee and is entitled to deduct this amount from payments made to the Seller for the sale of any Product(s).
22. BARQ EXPRESS
22.1. Inventory Treatment:
22.1.1. In the case the Seller opts to operate on Barq Express, the Parties shall agree on the type and quantity of Products, which the Seller shall deliver to the Fulfilment Center located at the address notified by Barq to the Seller through the Seller Center. If, for any reason, the Seller is unable to deliver the Product(s) to the Fulfilment Center, it may request Barq to pick up the Product(s) from the Seller’s premises or such other location as may be notified by the Seller for which Barq may, at its discretion, charge a Fee and may adjust the amount of the Fee against any payments to be made to the Seller for the sale of any Product(s).
22.1.2. The Seller shall deliver the Products to the Fulfilment Center within the agreed and specified timeline with Barq’ operations team.
22.1.3. Either Party may alter the type and quantity of the Products by providing notice no less than five (5) Business days to the other Party prior to the delivery of the Products to the Fulfilment Center.
22.1.4. Prior to the delivery, the Seller shall provide to Barq the Required Product Information agreed to be delivered, which shall be accurate (for instance a box marked as “16GB Galaxy Note” shall contain a 16GB Galaxy Note mobile phone or box clothing marked as “Medium” shall contain clothing of medium size). Seller shall ensure that each Product clearly states its unique code and its Seller price, along with other code stickers and tags. Upon delivery to the Fulfilment Center, the Seller shall produce a packing list containing the relevant above mentioned information, which shall be confirmed by Barq.
22.1.5. After the delivery, Barq may independently conduct a Quality Check (QC) on the Products at the Fulfilment Center. Barq shall only accept the delivery of any Product if it passes the QC, otherwise the Product shall be returned back to the Seller within thirty (30) days of delivery to Barq.
22.1.6. The Products shall be stored at the Fulfilment Center until they are sold on the Platform or returned to the Seller. The Products shall be stored at the Fulfilment Center at the Seller’s risk. Barq may charge the seller a storage Fee and may adjust the amount of the Fee against any payments to be made to the Seller for the sale of any Product(s).
22.1.7. The Seller warrants and confirms that it shall not create any mortgage, lien, hypothecation or any other security interest over its Products, which are stored at Barq’ Fulfilment Center.
22.1.8. In case Barq decides to stop featuring any Products on the Platform for any reason whatsoever, it shall return those Products to the Seller.
22.1.9. Barq may move Products among different Fulfilment Centers at its discretion.
22.1.10. The Seller acknowledges and confirms that:
22.1.11. Barq shall have no duty as a bailee and the Seller waives all rights and remedies of bailor related to or arising out of any possession, storage or shipment of the Seller’s Products by Barq or any of its contractors or agents.
Storing its Products at a Fulfilment Center may create a tax nexus for it in any country, state, province, or other localities in which the Products are sold, and the Seller will be solely responsible for any taxes owed as a result of such storage. In case any tax is assessed against Barq as a result of acting as commission agent for the Seller in connection with the storage of the Products or otherwise, the Seller will be solely responsible for taxes and will indemnify and hold Barq harmless from such taxes.
22.2. Order Processing and Packaging:
22.2.1. Upon receipt of an order for the purchase of any Product(s) through the Platform, Barq shall be responsible for dispatching and delivering the Product(s) to the Customer.
22.2.2. Barq may, as mutually agreed between Barq and the Seller, be responsible for packing the Product(s) sold on the Platform on behalf of the Seller, and may bill that cost as a service Fee to the Seller. The Seller acknowledges and confirms that Barq may, at its option, use branding materials, such as stickers, which identify that the Product(s) was sold through the Platform.
22.3. Shipping and Order Fulfilment:
22.3.1. Seller shall remain sole and undisputed owner of the sold Product(s) until it is successfully delivered to the Customer, at which point title and ownership shall be transferred to the Customer. In case any Product is returned or rejected by a Customer, the title and ownership of the Product shall, immediately upon return or rejection, revert to the Seller who shall be the sole and undisputed owner of the Product. Title and ownership of the Products shall never pass to Barq except as provided under clause 8.8.
22.3.2. The Seller acknowledges and agrees that:
22.3.3. Barq shall be responsible for the dispatch and delivery of any sold Product(s) from the Fulfilment Center to the Customer in accordance with the rules of packaging and shipping as contained within this agreement and relevant Platform Policies.
126.96.36.199. Neither the 3PL nor Barq shall be liable for any loss including but not limited to taxes and duties levied on the consignment arising due to confiscation of shipments by any government agencies due to lack of proper documents.
188.8.131.52. The 3PL and Barq shall have the right but not the obligation, to inspect any shipment without prior intimation to the Seller for checking the contents. The Seller is responsible for ensuring the correct Product(s) are sent to Customers
184.108.40.206. All parcels shall be accompanied by the respective forms as prescribed by law to meet the requirements of any governmental authority.
22.4. Cancellations, Rejections, Returns and Refunds
22.4.1. The Seller agrees that a Customer may cancel an order for any Product in any category before it has been shipped to the Customer.
22.4.2. The Seller authorizes Barq to provide the Customer with a refund where the Customer has pre-paid for the Product and he/she cancels the order before it has been shipped or the Product is rejected and/or the Product is returned.
22.4.3. Where for any reason whatsoever, any Product in any category cannot be delivered to the Customer (“Rejected Product”), Barq may, at its discretion, charge the entire cost of shipping the Product to the Seller.
22.4.4. Given that the Product shipped to the Customer from the Fulfilment Center, the Rejected Product shall be reincorporated into the Seller’s inventory of Products at the Fulfilment Center for a subsequent order.
22.4.5. Unless stated otherwise in the Return Policy in relation to any particular category of Products, the Seller will accept returns of Products in the following cases:
Under the following conditions
- Defective/Damaged Product
- Incorrect Product
- Incomplete Product
- The Customer changes his/her mind or no longer needs the product (applicable for certain categories only)
- The product is unused, unworn, unwashed and without any flaws.
- The product includes the original tags, user manual, warranty cards, freebies and accessories.
- The product is returned in the original and undamaged manufacturer packaging / box.
22.5. In case of a return, Barq may, at its discretion, bill the Seller for the cost of shipping the Product from the Customer to Barq or to the Seller.
22.6. In case of returned products, Barq protects the Seller by conducting a quality control check at Barq’ Fulfilment Center to determine the validity of the Customer’s return claim. If the quality control identifies the customers return claim is invalid, for whatever reason, the Product is sent back to the Customer.
22.7. In case of any dispute with the Customer as to the condition of the Product when it was delivered, the Seller agrees that it shall be bound by Barq’ inquiry into and decision as to the condition of the Product at the time of delivery.
22.8. Given that the Product was shipped to the Customer from the Fulfilment Center, the Returned Product shall be reincorporated into the Seller’s inventory of Products at the Fulfilment Center.
22.9. Given that the Product was shipped to the Customer from Barq’ Fulfilment Center and the Customer requests a replacement, the Seller authorizes Barq to send a replacement Product to the Customer.
22.10. Barq may, at its discretion, bill the Seller for the cost of shipping the replacement Product to the Customer.
22.11. The Seller agrees to be bound by and act in accordance with the Return Policy. To the extent that there is any conflict between the Return Policy, the Return Policy shall prevail.