Terms of Service

TERMS OF SERVICE

This Terms of Service (“ToS”) is an electronic record published by Instakart Services Private Limited, a company incorporated under the Companies Act 2013, with its registered office at Buildings Alyssa, Begonia & Clover, Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, Bengaluru - 560103, Karnataka, India (“Instakart” or “Service Provider”), under the provisions of the Information Technology Act, 2000, the rules made there under (as applicable) and the provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000, and shall act as a valid agreement between Instakart and the Client, as defined hereinafter. This electronic record is generated by a computer system and does not require any physical or digital signatures.

The domain name www.ekartlogistics.in and subdomain www.elite.ekartlogistics.in (hereinafter referred to as “Platform”) is owned and operated by Instakart.

For the purpose of this ToS, wherever the context so requires, the term “Client” shall relate to any natural or legal person who has agreed to avail the Services (as defined hereinafter) from the Service Provider by providing registration data while registering on the Platform using computer/mobile/similar electronic systems.

This document is published in accordance with the applicable provisions including but not limited to Rule 3 (1) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 that require publishing the rules and regulations, privacy policy, terms of use and the ToS for access to or usage of www.ekartlogistics.in and its subdomain www.elite.ekartlogistics.in website.

BY ACCESING OR USING THE PLATFORM OR USING THE SERVICES OF THE SERVICE PROVIDER UNDER THE TERMS OF THE ToS, THE CLIENT AGREES TO THE ToS AND ENTERS INTO A LEGALLY BINDING CONTRACT WITH INSTAKART. By implicitly and/or expressly accepting the ToS, the Client also accepts and/or agrees to be bound by all of Instakart and its affiliates’ policies, as amended from time to time.

Both Instakart and the Client shall be hereinafter collectively referred to as “Parties” and individually as a “Party”.

SCOPE OF SERVICES
The Client shall avail, and the Service Provider shall provide the services as described in Annexure 1 (“Services”) to this ToS which includes but is not limited to uploading the Manifest (as defined hereinafter), pick up of the packed goods of the Client (“Goods” or “Consignments”) from the location/(s) designated by the Client, delivery of same to the consignee’s (“Consignee”) locations as specified by the Client, and any related value-added services such as SMS notifications, real-time interface for tracking etc. availed at the option of the Client.
REGISTRATION ON THE PLATFORM
The Client shall register itself/create an account on the Platform accepting the terms specified therein ("Client’s Account” or “Account”).
VALIDITY
This ToS shall take effect and be binding as on the date on which the Client creates an Account on the Platform accepting all the terms mentioned therein and shall be applicable on the Client until the Client’s Account is deactivated/terminated as per the terms of this ToS or any other policy as applicable.
DEACTIVATION/TERMINATION OF THE CLIENT ACCOUNT
1. The Client may request for deactivation of its Account at any time through the option available on the Platform and/or by initiating a written request to the Service Provider at accounts@elite.ekartlogistics.in. Upon receipt of the request, the Service Provider shall deactivate the Account within a period of Thirty (30) days from the date of the receipt of request and the Parties shall settle the books of accounts as per Clause 4 (d) hereunder
2. The Service Provider may terminate the Client’s Account immediately without written notice to the Client if:
  1. The Client commits a Material Breach of the ToS and/or any other terms/policies as applicable on the Client and fails to cure such breach to the Service Provider’s reasonable satisfaction within Thirty (30) days after the receipt of written notice from the Service Provider. For the purposes of this ToS “Material Breach” shall include but not be limited to a default in payment of the Service Charges (as defined hereinafter), maintenance of the Deposit (as defined hereinafter), and/or breach of applicable laws; or
  2. The Client becomes insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of its creditors, permits the appointment of a receiver for its business or assets, becomes subject to any legal proceeding relating to insolvency or the protection of its creditors’ rights or otherwise ceases to conduct business in the normal course; or
  3. Change of any governing law which may adversely impact the rendering and/or availing of Services materially by a Party; or
  4. any acts/omissions of the Client, whether willingly/unwillingly, exposes the Service Provider to any liability, obligation, and/or causes the Service Provider to violate any applicable law.
3. Notwithstanding anything to the contrary contained herein, the Service Provider reserves the right to temporarily suspend the Manifesting of new orders and/or the Account forthwith without any notice upon occurrence of a Material Breach as defined in Clause 4(b)(1) hereinabove.
4. CONSEQUENCES OF TERMINATION/DEACTIVATION OF CLIENT ACCOUNT
  1. The termination/deactivation of the Client’s Account on the Platform (for whatever reason) shall not affect the respective rights and obligations of the Parties hereto accrued prior to such termination/deactivation.
  2. All clauses of this ToS including this Clause 4 which are expressly, or which by implication are intended to survive post the termination/deactivation of the Client’s Account shall so survive and continue in full force and effect.
  3. The Client’s Account on the Platform shall be immediately deactivated/terminated, and the Client will cease to use or access the Platform or shall not initiate any further services provided by the Service Provider.
  4. Subject to the terms of this ToS, the Parties shall reconcile the account statements within Ninety (90) days from the date of termination/deactivation. The full and final settlement amount (if any) payable by the Client, as agreed between the Parties, shall be adjusted against the Deposit of the Client. Post adjustment, any surplus Deposit (in INR) of the Client shall be refunded, without any interest and after deduction of the applicable taxes (if any), to the bank account of the Client registered with the Service Provider, within 30 (Thirty) days from the date of reconciliation. However, if sufficient Deposit are not available in the Client’s Account, then the Client shall pay the differential amount into the Service Provider’s bank account (as per the details shared) within 30 (Thirty) days from the date of reconciliation.
COMMERCIALS, PAYMENT TERMS, DEPOSIT, AND LOGISTICS POINTS
1. The charges for the Services provided by the Service Provider (“Service Charges”) shall as per the rate card selected and accepted by the Client upon creation of the Account, and the same can be accessed on the Account dashboard of the Client on the Platform. These Service Charges and any other payables for the Services provided shall be exclusive of any applicable statutory payments, taxes (including GST), duties etc. either present or future.
2. Upon creation of the Client Account and prior to Manifesting, the Client shall pay a deposit, as specified on the Platform, (“Deposit”) which shall be maintained as long as the Client is willing to avail the Services through the Platform.
  1. For the purpose of this ToS, the term “Manifest” or “Manifesting” shall mean the data uploaded by the Client (in the format shared by the Service Provider) on the Platform through the Client’s Account, containing the details of the Consignments for which the Service Provider is to provide the Services.
3. Upon receipt of the Deposit, Logistics Points equivalent to the value of the Deposit shall be credited to the Client against which the Services as defined Annexure 1 of this ToS, can be availed by the Client.
4. The Client shall be entitled to avail the Services to the extent of the Logistics Points credited to the Client’s Account only.
5. To reinstate the Logistics Points and avail further Services, the Client shall be obligated to pay the invoices raised by the Service Provider for the Services availed during the invoice cycle as opted by the Client, as per the terms mentioned herein.
  1. For the purposes of this ToS, “Logistics Points” is a system enabled on the Platform by the Service Provider and used to track the Services availed by the Client. Logistics Points will be reinstated as per the terms and conditions detailed in this ToS and the Client shall be bound by the same.
6. Any Deposit maintained on the Client’s Account shall be interest free and the Deposit, after adjustment against any pending invoices, will be refunded at the time of deactivation or termination or within a period of 1 (One year) from date of creation of the Client’s Account. The terms and conditions for the Deposit and Logistics Points are specified under Annexure 2 and shall govern the transactions under this ToS in addition to this Clause 5.
7. The invoice cycle applicable under this ToS will be on a monthly basis, or as per the invoice cycle opted by the Client. Invoice will be raised and sent in electronic format, on the Client’s email ID registered with the Service Provider on or before 5^th day from end of the invoice cycle (as opted) for all the Services provided in previous payment cycle.
8. The invoices shall be paid within the completion of the succeeding invoice cycle, as per the instructions provided by the Service Provider. However, if the invoices are not paid, the amounts under such invoices will be adjusted against the Deposit maintained, upon completion of the succeeding invoice cycle and/or at the time of deactivation/termination of the Client’s Account.
9. Once the Deposit (whether partial or in full) is adjusted, the Client shall not be entitled to avail any Services until fresh Deposit is remitted.
10. The Client shall intimate any discrepancies or inconsistencies in any invoice received from the Service Provider within seven (7) days of the receipt of such invoice, failing which such invoice shall be deemed accepted and undisputed by the Client and all amounts under such invoices shall become payable within the agreed timelines. The Client shall not be entitled raise any dispute or claim with respect to any invoice post the aforesaid stipulated timeline. The Parties shall settle any disputes under the invoices amicably upon mutual discussion and if Parties fail to settle the dispute in the aforesaid manner, the dispute shall be settled between the Parties in accordance with the dispute resolution procedure provided in this ToS.
11. Any proven claims/disputes related to the damages/ shortage/ loss of the Consignments shall be settled upon mutual agreement of the Parties and any amounts owed to the Client by the Service Provider for such proven damage/shortage/loss of the Consignments, shall be settled through the issuance of a credit note or a Certificate of Fact, subject to Clause 15 of this ToS. The value of the credit note shall be adjusted into the Deposit and additional Logistics Points against such additional Deposit shall be credited to the Client’s Account.
12. The Client shall be required to maintain the Deposit (as specified on the Platform) at all times, failing which the Service Provider shall temporarily suspend the Account until the Deposit is replenished. Upon suspension of the Account the Client shall not be able to further Manifest any Consignment for Services and the Service Provider shall not be obliged to provide any Services as defined in Annexure 1 of this ToS.
13. Subject to Clause 5(d) and 5(e) of this ToS, in the event, the Client fails to pay any invoice raised for availing additional Services beyond the Logistics Points allocated against the Deposit, the Service Provider shall notify the Client regarding such default/delay and if the Client does not clear the invoices within Seven (7) days, then the Service Provider shall have the right to suspend and/or terminate the Client’s Account at its sole discretion till the entire outstanding payment is remitted. Further, the Service Provider shall also have the absolute right to withhold the Cash-On-Delivery (“COD”) payment/Customer payment in the Service Provider’s possession until the clearance of the entire outstanding dues by the Client or avail appropriate legal recourses against the Client, as the Service Provider deems fit and proper, without any further obligations and/or liabilities, whatsoever in nature.
14. For all payments made by either Party as per this ToS, the following clauses on taxes shall be applicable:
  1. All amounts due for the Services exclude any applicable indirect taxes including Central Goods and Services Tax, State Goods and Services Tax, Union Territory Goods and Services Tax, Integrated Goods and Services Tax (“GST”). Such amounts (including but not limited to service fee, damages, interest payments on overdue amounts) shall be charged additionally to the Client and the Client shall be required to pay such amounts. However, in exceptional circumstances, the Client shall raise the invoice along with GST if applicable and ensure that the GST credit is available to the Service Provider.
  2. It is hereby clarified that the Service Provider has the right to raise an invoice from a single state or from multiple states where it is registered under the Goods and Services Tax Act. Further, unless otherwise agreed in writing, the invoices to the Client shall be issued to the registered address of the Client as specified in the GST Certificate. Client shall be required to communicate any discrepancies in respect of the invoices (with respect to price or quantum of services) within 7 (Seven) days, beyond which, if any discrepancy is noticed, the Service Provider shall not be required to pass over the benefit of any credit or benefit related to such discrepancy.
  3. It is further clarified that if any Party incurs any loss of credit, or any penalties or other regulatory liabilities, due to any act or omission of the other Party (including but not limited to providing incomplete details in the invoice, delay in payment of Service Charges beyond the stipulated time period, all such losses and interest thereon would be paid by the defaulting Party and non-defaulting Party shall not be liable for the same.
  4. Either Party shall indemnify and hold harmless the other Party, its promoters, officers, directors, employees, Affiliates, agents, sub-contractors and other representatives from any losses, claims, demands, liabilities, suits, proceedings, penalties, costs or expenses of any kind (including, attorneys’ fees and expenses) on account of violation of applicable indirect tax laws.
  5. The Service Provider shall be entitled to exercise its right of lien on the products/Consignment to the extent of outstanding amounts in case of non-receipt of any payments.
  6. The Client shall be responsible for deduction and deposit of TDS @ 2% (or at applicable rates from time to time) as per the provisions of Income Tax Act. The Service Provider shall remit the TDS amount to the Client’s registered bank account after receipt of TDS Certificate from the Client.
PROOF OF DELIVERY (POD)
1. The proof of delivery of Consignments under this ToS shall be as follows:
  1. For prepaid and RTO Consignments, the POD shall be the OTP authentication carried out at the time of delivery to the Consignee/Client.
  2. For COD Consignments, the POD shall be the remittance of the COD amount into the designated account of the Client.
2. A digital POD for each delivered Consignment can be accessed and downloaded from the dashboard of the Client’s Account on the Platform.
3. However, if any further dispute arises with respect to the delivery of the Consignment, then the Client shall notify the dispute to the Service Provider in writing within 48 hours from delivery and the Service Provider will strive to carry out appropriate investigations and provide the closure within 45 (Forty-Five) days of such notification by the Client.
OBLIGATIONS OF THE SERVICE PROVIDER
1. The Service Provider shall ensure that the Services are provided by competent personnel with requisite training ensuring the best possible service quality as per the industry standards.
2. Except for the Service Charges for a particular Consignment, the freight information (which shall include the date of booking, the weight and volume, and the date of delivery/return of the Consignment) will be shared at the time of invoicing.
3. The Service Provider shall provide online and real-time interface for tracking the Goods such that adequate information is available to the Client to satisfy its customers’/Consignee’s queries in respect of delivery of the Goods.
4. If Service Provider is unable to deliver the Goods/collect the Goods for return from the end-customer/Consignee for any reason, the Service Provider shall immediately notify the reason for such non-delivery/non-pickup to the Client, so that the Client can take appropriate measures.
5. The Service Provider shall observe all applicable laws while providing the Services.
6. The Service Provider agrees that it shall be liable for proven gross, willful negligence, and/or any wrongful act or omission of its employees or sub-contractors.
7. The Service Provider agrees that, in the event, any Consignment for delivery is marked as ‘Cash On Delivery’ (COD), it shall collect the invoice value of the Consignment as specified on the invoice of the Consignment or as notified by the Client in writing against delivery of the Consignment to the Consignee by cash or card through POS devices in favour of the Client (“COD Payment”), which shall be remitted weekly once (at D+7), to the Client without any kind of deduction or adjustment. Any delivery of a COD Consignment shall be completed only on receipt of the COD Payment. In case of non-remittance or deficit in the COD remitted, the Service Provider shall be liable only the extent to the COD amount/deficit in COD amount to be remitted and such liability shall cease upon remittance of the owed COD amount to the Client.
OBLIGATIONS OF THE CLIENT
1. The Client shall ensure that the Manifest shared for initiation of the Services is correct and complete in all respects as per the requirements shared by the Service Provider. In the event, the delivery cannot be completed due to paucity or incorrect information shared in the Manifest, the Consignment would be returned to origin and the Service Charges for such return/RTO would be automatically deducted from the Logistics Points. Any request for the further forward delivery of such Consignment would require a new Manifest to be uploaded by the Client and the Service Charges for the new Manifest would be applicable.
2. The Client shall provide all the instructions/approvals that are required for the performance of Services as envisaged in this ToS in a timely manner.
3. SAID TO CONTAIN BASIS: All Consignments, agreed to be transported and delivered by the Service Provider, shall be on “SAID TO CONTAIN BASIS” i.e., the Service Provider shall be under no obligation and is not expected to cross verify the description and contents of the Consignments with the declaration provided on the docket/shipping label of the Consignments and as such, the Client shall ensure to make proper, true, fair, correct, and factual declaration on the docket regarding description and value of the Consignments. The Client shall be solely liable for the contents of the Consignments received at the Consignee’s end. The Service Provider shall not be liable for the product(s) received from the Client and should not be held responsible for any issues including any product mismatch, fake product, and incomplete product, whatsoever in nature.
4. The Client shall ensure that the Consignments handed over to the Service Provider and/or its personnel are in a tamper-proof, safe, and proper packaging, in order to withstand the normal transportation hazards. The Service Provider shall have the right, but not the obligation, to check and reject the Consignments if the Consignments do not have adequate packaging. The Client shall ensure that the invoices containing the required details (as required under the applicable laws) are enclosed along with the Consignments prior to being handed over to the Service Provider. The Client shall provide all applicable regulatory/ statutory approvals, if any, in electronic/ physical format as required by the Service Provider to perform Services under this ToS. The Service Provider will not be liable to verify any documentation provided by the Client. Liability for providing the correct and complete documentation will lie solely with the Client. Notwithstanding anything contained herein, the Service Provider shall not be liable and/or responsible for any loss and/or damage of the Consignment, if the Client is not in strict compliance with the requirements stipulated in this clause.
5. The Client shall provide/display prominently on the invoice(s) the following details:
  1. order number/Consignment number;
  2. consignor/Client and Consignee details;
  3. Details of the contents of the Consignment;
  4. gross value and net value of the contents of the Consignment; and
  5. any and all other details required as per the applicable laws.
6. Two helpline numbers of the Client shall be provided to enable the Service Provider to connect to an authorized representative at any time, in case of emergencies.
7. The Client shall, at all times, abide by and be in compliance with all applicable laws, rules, and regulations as applicable including but not limited to Legal Metrology Act, 2009 and the Legal Metrology (Packaged Commodities) Rules, 2011, Bureau of India Standards Act 1986, Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order 2012, ISI Mark Scheme, Energy Conservation Act 2001, the Bureau of Energy Efficiency (established in March 2002) and BIS CRS/ BIS- ISI BEE Product Safety and Standards Regulations.
8. In case, if the Consignments are detained by the concerned authorities due to any non-compliance of applicable laws and/or any deficiency in the licenses/permits, the Service Provider shall not be held responsible for any delays or loss on account of any delay in delivery of the Consignment(s). Further, if any personnel of the Service Provider is detained by authorities due to the aforementioned, the Client shall ensure that any and all such issues are resolved forthwith at its own responsibility and cost and subsequently inform the Service Provider in writing. If any information is needed and/or any certificate/license/additional documents is demanded by any authorities for the Consignments in transit, the Client shall facilitate to provide such information forthwith.
9. The Client acknowledges that the Service Provider shall not obtain any insurance coverage for the Consignments handed over to the Service Provider. However, the Client may, at its own discretion and expense, obtain and maintain any insurance policies for its Consignments.
10. In the event, if any loss or damage is caused to the assets or property of the Service Provider, and/or any injury/death is caused to the Service Provider’s personnel due to any inherent vice/flaw or manufacturing defect in the products/Consignments handed over by the Client, the Client shall conduct a Root Cause Analysis process (“RCA Process”), identify the cause of the aforesaid loss/damage and provide an action plan to the Service Provider to prevent similar events in future.
11. The Client shall ensure compliance with and shall comply with all obligations and responsibilities laid out in the Terms of Service, Privacy Policy and other guidelines, specification or policies issued by Instakart and its affiliates from time to time.
12. Upon written request of the Service Provider or its authorised representatives/auditors for the purposes of its audit and review, the Client shall share the required information only pertaining to the scope of business arrangement between the Parties as per this ToS, within a reasonable timeline as mutually agreed in writing.
LIABILITY OF THE CLIENT FOR THE NATURE OF CONSIGNMENTS
1. The Client shall not handover any Goods that are banned, restricted, illegal, stolen, infringing of any third-party rights, in breach of any tax laws, hazardous in nature, harmful chemicals, inflammables, currency notes, bullion, letters, financial and/or security instruments and/or any articles/commodities which are not permissible for carriage under the applicable laws. The Service Provider shall not be liable for the delivery of any such Goods or Consignments. The liability for any error/mismatch in the declaration on the docket of the Consignments and the actual Consignment handed over to the Service Provider would be solely borne by the Client.
2. Without prejudice to the generality of the aforesaid, an indicative list of restricted/banned Goods is provided on the Service Provider’s website at https://www.ekartlogistics.in/dangerous-and-restricted-goods-policy. The Service Provider reserves the right, but not the obligation to modify this list from time to time. However, the Client shall presume that any goods that are banned or prohibited under any applicable laws is a part of this list.
3. Subject to Clause 9 (a) mentioned hereinabove, in the event the Client hands over any banned or restricted Goods to the Service Provider, the Service Provider shall not be liable for any loss, damage, or misappropriation of such Goods and/or for any actions taken by any authorities regarding such Consignments which are banned or restricted in nature.
REPRESENTATIONS AND WARRANTIES
1. Each Party hereby warrants and represents to and for the benefit of the other Party that:
  1. it has the full authority, capacity and has taken all necessary actions to authorize the execution and performance of its respective obligations under this ToS, which, when executed, will constitute its valid and binding obligations, in accordance with its terms;
  2. it holds, at all times, all licenses, approvals, registrations, and permits, consents etc. necessary under all applicable laws, and regulations for it to perform or receive (as applicable) the Services hereunder;
  3. it will not, in performing its obligations under this ToS, put itself or the other Party in breach of any applicable laws, rules, or regulations; and
  4. it is not, at the time of accepting this ToS, insolvent and knows of no circumstance which would entitle any creditor to appoint a receiver or file petition for winding up or bankruptcy (as the case may be) or to exercise any other rights over or against its assets or any event analogous to any of the foregoing under the laws of any applicable jurisdiction.
2. In addition to the above, the Client represents, and warrants to the Service Provider that:
  1. it has complete legal rights over the products contained in each Consignment handed over to the Service Provider to provide the Services as stipulated hereunder.
CONFIDENTIALITY
1. The receiving Party (“Recipient”) shall keep in strict confidence and shall not, without the prior written consent of the disclosing Party (the “Discloser”), (i) use for a purpose other than for the purpose of this ToS; or (ii) disclose to any third party, any Confidential Information shared by the Discloser.
2. The term “Confidential Information” shall mean and include:
  1. any information relating to this ToS and its terms;
  2. any data/information pertaining to Discloser and/or its affiliate that may come into Recipient’s possession in any form during the course of performance of the Services;
  3. any information having commercial value;
  4. any intellectual property of Discloser; and
  5. any information which would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
3. The Recipient shall disseminate the Confidential Information strictly on a need-to-know basis, to such of its officers, employees, or sub-contractors, provided such persons are bound by confidentiality restrictions no less protective than those set forth in this ToS.
4. The above obligations of confidentiality shall not apply to Confidential Information that:
  1. is, as on the date hereof, or hereafter becomes, public knowledge through no fault of the Recipient; or
  2. is already known to the Recipient at the time of disclosure by the Discloser; or
  3. has been rightfully and lawfully received by the Recipient from a third party who is authorized to make such disclosure; or
  4. has been independently developed by the Recipient without the use of, or reference to any Confidential Information of the Discloser.
5. Confidential Information may be disclosed by the Recipient (with prior written intimation to the Discloser (if legally permissible) to any government or judicial authority, pursuant to any applicable law or an order, only to the extent necessary for the purposes under this ToS, or as is required by law.
6. Return of Confidential Information: Upon termination or deactivation of the Client’s Account on the Platform, the Recipient shall promptly return/destroy to Discloser all materials, in any form, containing the Confidential Information, including all copies thereof as per the mutual agreement of the Parties.
DATA PRIVACY AND PROTECTION
1. Notwithstanding anything to the contrary contained in the ToS, the Parties shall comply with the applicable data protection laws of India governing the protection and processing of any personally identified or identifiable information such as name, age, gender, email address, postal address, telephone number, government identification number, financial information, health information, biometric information, behavioural information or geolocation information, in any form that can be linked to specific individual (“Personal Data)”.
2. The Service Provider shall process such information as a data processor in accordance with the specific instructions of the Client as agreed upon by the Parties in writing prior to the receipt of such information. The Client warrants that any Personal Data disclosed to the Service Provider under this ToS was collected lawfully, the Client has required consent to disclose it to the Service Provider, and there is no restriction legal or otherwise on the Client from providing such information to the Service Provider or any processing by the Service Provider under this ToS.
3. If the Client is located in a non-India jurisdiction, for example in the European Economic Area ("EEA") / European Union ("EU") / US, the Client agrees that the Client has the required consent for onward disclosure or transfer of such data/information, including Personal Data, to India, a jurisdiction that may not provide an equivalent level of data protection to the laws in the Client’s home country, however, the Service Provider has implemented and maintains reasonable security practices and procedures for protection of data it processes.
INTELLECTUAL PROPERTY RIGHTS
1. For the purposes of this ToS, the term “Intellectual Property” or “IP” shall include, without limitation, any inventions, technological innovations, discoveries, designs, formulas, know-how, processes, business methods, patents, trademarks, service marks, copyrights, computer software, ideas, creations, writings, lectures, illustrations, photographs, motion pictures, scientific and mathematical models, improvements to all such property, and all recorded material defining, describing, or illustrating all such property, whether in hard copy or electronic form.
2. All rights in the Intellectual Property (“IPR”) existing prior to the signing of this ToS, will belong to the Party that owned such rights immediately prior to the signing. Neither Party shall gain, by virtue of this ToS, any rights of ownership on the Intellectual Property owned by the other Party.
3. Either Party hereby agrees that it will not infringe any Intellectual Property of any third party while performing its obligations under this ToS.
4. Either Party shall not use the name or Intellectual Property of the other Party in its advertising or other publications or in any other manner without the prior written consent of the other Party.
INDEMNITY
1. The Client shall indemnify, keep indemnified, defend, and hold harmless the Service Provider and its promoters, officers, agents, sub-contractors, affiliates, and employees from any direct and proven claims, demands, liabilities, suits, proceedings, penalties, costs, or expenses of any kind (including reasonable attorneys' fees and expenses) arising out of or in connection with:
  1. any violation of applicable laws and statutory obligations by the Client;
  2. any claims including third party claims arising out of any misuse of the Platform the Logistics Points or otherwise by the Client; and/or
  3. Consignments containing banned, restricted, illegal, prohibited, contraband, stolen, spurious products, products infringing of any third-party proprietary rights, hazardous products, dangerous products, or Consignments in breach of any tax or statutory requirements, Consignments containing currency, bullion, letters, financial and security instruments handed over to Service Provider.
2. The Service Provider agrees to notify the Client in writing of any third-party claim, suit, pleading, demand letter, or otherwise served on the Service Provider (“Claim”) and agrees to co-operate in a reasonable manner with the Client and at the expense of the Client, with respect to the defense and disposition of such Claim. The Service Provider shall have the control of the defense or settlement of the Claim, provided the Service Provider shall not enter into any settlement that obligates the Client to take any action or incur any expense, without the Client’s prior written consent. The Client shall have the right to be represented by independent counsel of its own choice, at its own expense, in connection with such Claim, if the Client is impleaded as a party to such Claim.
3. In the event the Service Provider fails to defend such Claim, then the Client, through its counsel, shall, at its own expense, have the right to defend such Claim, provided the Client shall not enter into any settlement that obligates the Service Provider to take any action or incur any expense, without the prior written consent of the Service Provider.
4. This Clause 14 shall survive the expiration or termination of this ToS.
LIMITATION OF LIABILITY
1. In no event shall either Party be liable to the other Party or to any person claiming under or through it in contract, tort, or otherwise for indirect, special, incidental, exemplary, punitive, or consequential damages of any kind whatsoever, even if either Party is advised of the possibility of such damages.
2. Notwithstanding anything to the contrary contained elsewhere in this ToS or any other policy applicable to the Client, the total cumulative liability of the Service Provider to the Client or to any person claiming under or through it for any loss of/or damage to a Consignment shall be as follows:
  1. If the invoice value of the Consignment marked as lost/damaged is less than or equal to INR 2000/- (Indian National Rupees Two Thousand Only), the Service Provider will issue a credit note equivalent to the aforesaid value or the invoice value of the Consignment, whichever is lesser, to the Client.
  2. If the invoice value of the Consignment marked as lost/damaged is more than INR 2000/- (Indian National Rupees Two Thousand Only), a Certificate of Fact (COF) will be issued to the Client to claim the loss amount from its insurance provider, which can be downloaded from the Platform.
  3. Notwithstanding anything contained above, the total cumulative liability of the Service Provider for any Consignment lost during reverse pick up shall be limited to INR 1000/- (Indian National Rupees One Thousand only) or 50% of the Consignment invoice value of the product/Consignment whichever is lesser, and the Service Provider will provide a credit note amounting to the applicable value. There shall be no liability for damaged Consignments during reverse pick up.
  4. The Service Provider’s liability and responsibility with respect to such lost or damaged Consignment shall end upon payment of the aforesaid amounts for such Consignment.
  5. Notwithstanding anything contained in this ToS, the Service Provider shall not be liable for any damage to the Consignments that contain any form of liquid (regardless of the quantity of liquid present or its present state) and for Consignments containing fragile items.
  6. Notwithstanding anything to the contrary contained in this ToS, the maximum aggregate liability of the Service Provider for any loss/damage of the Consignment or otherwise, in a payment cycle, shall not exceed the average of the cumulative Service Charges paid/to be paid by the Client in three (03) preceding payment cycles and such aggregated liability shall be effective from the fourth payment cycle.
  7. Furthermore, the Parties have agreed that for the first three payment cycles, the maximum aggregate liability of the Service Provider for any loss/damage of the Consignment or otherwise, shall be limited to the cumulative Service Charges paid/to be paid by the Client for the respective payment cycle in which such claim has arisen.
3. The value of any credit note issued by the Client shall be adjusted into the Deposit and Logistics Points against such additional Deposit shall be credited to the Client’s Account.
4. A Consignment shall be considered to be “Lost” when the Service Provider is unable to deliver the Consignment to the Client within a period of Sixty (60) days from date of handover of the Consignment to the Service Provider in case of forward delivery or reverse pick up of the Consignments, including but not limited to scenarios where the Consignment is found untraceable, stolen, seized, hijacked in any manner while under the custody of the Service Provider, other than when the delivery is delayed/the Consignment is lost due to an Event of Force Majeure (as defined under Clause 17 hereunder), or acts of competent authorities in discharge of their official duties.
5. In the event any Consignment is unclaimed/rejected by the Consignee/Client beyond the stipulated period of 60 (Sixty) days from the date of handover by the Client, the Service Provider shall be entitled to dispose of/liquidate such a Consignment in the manner it deems fit, at its sole discretion, without any liability or responsibility to the Client or the Consignee whatsoever.
6. Both Parties agree and understand, in cases where the Client, their agents, or the Consignee rejects the Consignments or fails to take delivery of the Consignments and/or if the Service Provider has made payments and dues as provided in this Clause, then the Service Provider has the absolute right and liberty to:
  1. To dispose of the contents of such Consignments by way of sale or transfer title of the contents of the said Consignment to any third parties or otherwise as may be reasonable; and
  2. The Client or the Consignee waive any claims on the Goods/Consignments and transfer fully any rights, title, or interest in favor of the Service Provider or their agents and representatives on all those Goods detailed in the concerned invoices.
7. The Parties also agree that for the purpose of records and for books of accounts, the Service Provider can treat these aforesaid products/Consignments, as damaged or as 2^nd hand products received from the Client.
ANTI CORRUPTION & ANTI MONEY LAUNDERING POLICY
1. The Parties agrees to be in full compliance with the Service Provider’s Global Anti-Corruption Policy (the “Policy”, available at https://flipkartethics.com) and all applicable anti-corruption laws and regulations, including but not limited to the U.S. Foreign Corrupt Practices Act and the UK Bribery Act.
2. No Government Interaction: Each Party agrees that no Party nor any of its employees, agents and representatives, and any persons associated with such Party are authorized to engage or interact with any government entity or official for or on behalf of the other Party, directly or indirectly, in any transaction or business activity for any purpose, including but not limited to obtaining a permit, license or other types of authorization, whether at a local, regional, or national level. In the event that any form of interaction with a government entity or government official is required in relation to a Party’s engagement, directly and/or indirectly, with the other Party, such Party shall obtain prior written authorization from other Party before proceeding with the engagement or interaction.
3. The Parties will fully comply with all applicable laws and regulations including but not limited to anti-money laundering (including know your customer and customer due-diligence) and applicable sanctions (economic and trade) rules and regulations. Neither Party will engage in a transaction pursuant to this ToS that will cause the other Party to violate such laws and regulations applicable to both Parties. To the best of its knowledge, the Client agrees that the Consignments that it requests the Service Provider to deliver under this ToS, are not grown, produced, manufactured, extracted, processed in, sourced from, or transported through any of the following jurisdictions: Belarus, Cuba, Iran, North Korea, Russia, Syria, and the following regions of Ukraine: Luhansk People’s Republic, Donetsk People’s Republic, and Crimea. Any change in the list of countries mentioned herein shall be notified to the Client in writing. The Client shall not request, and the Service Provider shall not deliver any products to the embassies/consulates in India of the following jurisdictions: Cuba, Iran, North Korea, Syria, and Ukraine.
FORCE MAJEURE
1. In the event, either Party (“Prevented Party”) is prevented from performing its obligations under this ToS by an event of force majeure, including but not limited to earthquake, typhoon, flood, torrential rains, heavy winds, storms, plagues, other epidemics, or other acts of nature, public commotion, lockdown, fire, terrorist acts, threatened terrorists acts, explosion, acts of civil or military authority including, strikes, riots, war, or other unforeseen events beyond the Prevented Party’s reasonable control (each “an Event of Force Majeure”), the Prevented Party shall notify the other Party promptly and thereafter shall provide detailed information concerning such Event of Force Majeure.
2. If an Event of Force Majeure occurs, neither Party shall be responsible for any damage, increased costs, or any loss which the other Party may sustain by reason of such any failure or delay of performance arising due to the Event of Force Majeure, and such failure or delay shall not be deemed a breach of this ToS. The date for performance of any obligation under the ToS which is delayed or prevented by an Event of Force Majeure, shall be suspended for a period equal to the delay caused by such Event of Force Majeure.
3. The Prevented Party shall take reasonable means to minimize or remove the effects of an Event of Force Majeure to the extent possible, including through the use of alternate sources, workaround plans or other means and, within the shortest reasonable time, attempt to resume performance of the obligations delayed or prevented by the Event of Force Majeure.
4. If the period of non-performance exceeds thirty (30) days from the receipt of the notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may give written notice to terminate this ToS.
GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION
1. GOVERNING LAW AND JURISDICTION
  This ToS, the enforcement of its terms, and the interpretation of the rights and duties of the Parties hereto shall be governed by the laws of India and shall be subject to the sole and exclusive jurisdiction of courts in Bengaluru, Karnataka. This ToS, executed in English language, shall prevail over any translation thereof.
2. DISPUTE RESOLUTION
  1. All disputes arising out of or in relation to this ToS (whether before or after the termination/deactivation of this ToS), including any question regarding its existence, validity, or termination, which cannot be amicably resolved by the Parties within 15 (Fifteen) days of being brought to their attention, shall be referred to the respective senior executives of the Parties for resolution. In the event, the senior executives of the Parties are unable to amicably resolve the dispute within 7 (Seven) days, either Party may approach the courts in Bengaluru, Karnataka to resolve the same.
ASSIGNMENT
This ToS cannot be assigned, or transferred, whether by operation of law or otherwise, by either Party without the written consent of the other Party. At any time, the Service Provider shall be entitled to enter into any similar arrangement or agreement with any other party to provide similar services in same area of operation.
NOTICE
1. Any notice, approval, consent, or other communication required or permitted under this ToS shall be in writing, in English language, and shall be deemed to be validly given and effectively served upon when:
  1. delivered personally and acknowledged;
  2. sent by registered post/speed post with acknowledgement to the registered address of either Party;
  3. transmitted by email or similar electronic communication.
2. Either Party may change its address by giving written notice thereof to the other Party. Notice given by a Party’s counsel shall be considered notice given by that Party.
SEVERABILITY
If any provision/clause of this ToS is be deemed by any court having jurisdiction thereon to be illegal, invalid, or unenforceable, it shall in no way affect or prejudice the legality, validity or enforceability of any other provision/clause of this ToS. If any provision/clause of this ToS shall be deemed by such court to be unenforceable because such provision/clause is too broad in scope, such provision/clause shall be construed to be limited in scope to the extent as required necessary to make it enforceable, and if any provision/clause shall be deemed inapplicable by such court to any person or circumstances, it shall nevertheless be construed to apply to all other persons and circumstances.
AMENDMENT
No modification, amendment, and/or supplement of this ToS or any of its provisions shall be binding upon the Parties hereto unless made in writing and duly signed by the Parties.
WAIVER
A failure or delay of any Party to this ToS to enforce any of the provisions of this ToS at any time or to exercise any option which is herein provided, or to require performance of any of the provisions hereof at any time, shall in no way be construed to be a waiver of such provisions of this ToS.
RELATIONSHIP
This ToS has been entered into on a principal-to-principal basis and nothing contained in this ToS shall be deemed to constitute either Party as the agent, employee, partner, or legal representative of the other Party for any purpose whatsoever. Neither Party is granted any express or implied right/authority to assume or to create any obligation/responsibility on behalf of or in the name of the other Party in any manner whatsoever.
ENTIRE AGREEMENT
This ToS together with all Recitals, and Annexures attached hereto constitute the entire agreement between the Parties and supersedes all previous agreements, promises, representations, understandings, and negotiations, whether written or oral, between the Parties with respect to the subject matter hereof.

ANNEXURE 1

Scope of Services, and Delivery Network

Forward

The Service Provider will pick and deliver from within its serviceable areas or territories, all the Client’s Shipments which are Manifested on time.
The Service Provider will attempt to pick-up the Consignments 3 times, beyond which if the same has not been handed over, the Consignments will be marked as ‘Pickup Cancelled’.

Last Mile & NDR

Service Provider shall make at most 3 delivery attempts and shall update unsuccessful attempts through timely dashboard updates.
The Client shall provide alternate instructions for further attempts if any to the Service Provider within 24 hours of unsuccessful attempt made.
If a Customer rejects a Consignment in the first attempt, no further attempt will be made.
This Consignment can be included in the NDR and post Client confirmation can be RTOed back.
For undelivered Consignment apart from reason of Customer rejection (if the customer is not responding on call/ not available at location, at maximum three attempts will be made. The Client can reschedule the attempts to deliver, basis input from Customer, up to maximum of 2 times.
The following would be the expected NDR Responses based on the undelivered reasons.

Exception / Undelivered event reason	Description	System marking of RTO in	Remarks	Part of NDR
COD not ready	Customer informs cash unavailability for COD Consignment	Post-delivery attempts exhaustion	Subsequent attempts will be made on ground & RTO marking happens post all attempts exhaustion.	Yes
No response	Customer does not respond to calls	Post-delivery attempts exhaustion	Subsequent attempts will be made on ground & RTO marking happens post all attempts exhaustion.	Yes
Incomplete address	No attempts will be made	72 hours	Consignment is held in delivery hub for further instructions before OFD	Yes
Same city misroute	Address-pin code mismatch, Consignment gets moved between delivery hubs	10 days if the Consignment is in movement among DH	Correct address/pin code to be shared by customer care for attempts to happen	Yes
Non-serviceable pin code	Address belongs to non-serviceable area	72 hours	Consignment is held in delivery hub for self-collect option	Yes
Consignment Rejected-Open Delivery	Customer demands open delivery at time of delivery	48 hours	Consignment is held in delivery hub for further instructions before next OFD	Yes
Consignment Rejected By Customer	Consignment rejected on ground	48 hours	Consignment is held in delivery hub for further instructions before next OFD	Yes
Other State Misroute	Address - pin code mismatch	48 hours	Inter-state movement basis correct address-pin code is not viable, so RTO confirmation needed with fresh order as service recovery	Yes
Security Instability	COD/Consignment snatching reported / external factors risking delivery	Post-delivery attempts exhaustion	Subsequent attempt made until exhaustion	Yes
Consignment Damage	Damaged in supply chain - delivery attempt will not happen	Post RAD	Service Provider acknowledges as damage in transit and shipment is RTOed back / Loss taken	Yes
Door Lock / Customer not available	Unavailability	Post-delivery attempts exhaustion	Consecutive attempts made	Yes
Request For Reschedule	Customer requests	Post-delivery attempts exhaustion	Attempts on requested date. Part of NDR	Yes

Value Added Services
Others
1. A Consignment will be attempted to return to the Client, or the Client specified location post RTO marking for a maximum of 3 attempts.
2. For Seller dependencies which might be highlighted over email or API or any other form, the Client will share a response within 48 hours after the first or second attempt.
3. After the third attempt, the Service Provider will not be held liable if no inputs had been shared in a timely manner.
4. Dispute Resolution
  1. All disputes to be raised in the internal ticketing system only.
  2. Forward Leg - For Consignments delivered to the Customer, any dispute has to be raised within a maximum of 48 hours from the time the Consignment was marked as delivered, and the Service Provider would share an update and resolution within a maximum of 10 days from the date the dispute was raised
  3. Return/Reverse Leg - For Consignment returned to the Seller/warehouse, any dispute has to be raised within a maximum of 72 hours from the time the Consignment was marked as returned, and the Service Provider would share an update and resolution within a maximum of 10 days from the date the dispute was raised.
  4. For Disputes : SOP for Dispute & Best Practices added Link Link
  5. Client to inform its representatives to accept all the RTO Consignments as per the summary in the Service Provider’s Personnel’s device/physical proof of delivery. In case of any shortage or damage, the Client representative shall provide remarks on the physical proof of delivery at the time of signing and take a photo as an evidence to raise any dispute on the Platform. For the Service Provider to consider any claim, a dispute should be mandatorily raised on the Platform.
Demurrage: All Consignments picked up by the Service Provider from the Client/consignor specified by Client will be returned to the Client/consignor at the location(s) as specified by the Client in the Manifest uploaded by the Client at the time of initiation of such pickup. In case of non-acceptance of such Consignments by the Client except for reasons such as damage of the Consignment where such damage is attributable solely to the acts or omissions of the Service Provider, the Service Provider reserves the right to levy suitable demurrage charges for extended storage of such Consignments for any period exceeding 7 (seven) days from initiation of the return of Consignments and up to 30 (Thirty) days from such date.

ANNEXURE 2

Terms and Conditions for Deposit and Logistics Points

The Client is required to maintain the Deposit at all times during which the Client’s Account is active. The Client shall be entitled to avail the Services only if sufficient Logistics Points is available. In the event, the Deposit is adjusted, fully or partially, against any pending invoices, the Client shall not be able to avail any further Services until and unless the Deposit is replenished as per the mutual agreement of the Parties.
The Client can remit/replenish the Deposit in its Account by using its Debit Card/ Credit Card/ Online Bank Transfer/UPI.
In case the Deposit as specified on the Platform are not maintained, the Account would temporarily be suspended forthwith, and the Client shall not be able to further Manifest through the Client’s Account and the Service Provider shall not provide any Services. The amount of the Deposit (in INR) may be modified at the Service Provider’s sole discretion, as communicated to the Client from time to time.
The balance of Logistics Points shall be as updated on the Service Provider’s Platform at the time of Manifesting any Consignments by the Client.
To reinstate the Logistics Points and avail further Services, the Client shall be obligated to pay the invoices raised by the Service Provider for the Services availed during the invoice cycle as opted by the Client, as per the terms mentioned herein.
Any Deposit maintained on the Client’s Account shall be interest free and the Deposit, after adjustment against any pending invoices, will be refunded at the time of deactivation or termination or within a period of 1 (One year) from date of creation of the Client’s Account.
Any variations in the actual Service Charges shall be determined in accordance with rate card applicable to the Client (as accessible on the dashboard of the Client’s Account) and the Service Charges paid by the Client shall be settled between the Client and Service Provider at the end of month or at a time mutually decided by the Parties.
The Service Provider shall not be liable for any loss in business/customer/ customer complaints/damages suffered by the Client as a consequence of the Client’s inability to maintain the required Deposit or retaining sufficient Logistics Points and in such circumstances the Service Provider shall have the right to temporarily suspend all Services and refusal to accept any further orders.
The Service Provider shall be authorized to adjust the Client’s Logistics Points if:
1. Any Logistics Points are credited by error;
2. Any Logistics Points are credited due to invalid transactions.