Vendor Agreement
ELECTROMART KENYA MARKETPLACE AGREEMENT
- INTRODUCTION
1.1. Somotex (K) Limited (“Somotex” or “we” or “our” or “us”) operates an ecommerce platform consisting of a website (“www.electromart.co.ke”) and mobile
application (hereinafter together defined as the “Platform”), together with
supporting logistics and payment infrastructure, for the sale and purchase of
consumer electronics in Kenya.
1.2. These terms and conditions (“Terms and Conditions”) constitute a legal
agreement between you (the “Seller” or “You” or “Your”) and Somotex as they
relate to your use of the Platform and sets out the rights and obligations of the
parties in relation to the use of the Platform. - ACCEPTING THESE TERMS AND CONDITIONS
2.1. By registering on the Platform as a seller, You accept these Terms and
Conditions, and the general terms and conditions of the Platform; as may be
amended from time to time with notice to You, and which form an integral part of
the terms and conditions upon which You may use the Platform.
2.2. We will ask You to expressly agree to these Terms and Conditions, the general
terms and conditions of the Platform, and our policies and guidelines. If You do
not agree to the Terms and Conditions the general terms and conditions of the
Platform, and our policies and guidelines, access to the marketplace will be
denied.
The Parties have thus agreed to enter this Agreement in good faith and based on the
terms and conditions hereunder set out. - CONDITIONS APPLICABLE TO SELLER ON SIGNING UP FOR USE OF THE
PLATFORM
3.1. Sellers who apply to use the Platform are required to meet the following
conditions:
3.1.1. The Seller is responsible for setting the prices of its products listed on
Electromart.co.ke. The price must include all relevant taxes and abide by
any pricing law in effect for the full duration of the listing. The Seller
ensures that every effort is being made to limit the number of disputes
over its products regarding quality and prices. - SELLER STORES
4.1. Electromart will provide all registered sellers with access to a seller portal – Seller
Centre. You shall be solely responsible for your store, listings and products.
4.2. You shall conduct your business on the Platform:
4.2.1. with skill and care, and by co-operating with and acting in good faith
towards Electromart and all customers;
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4.2.2. in compliance with all the Terms and Conditions, the general terms and
conditions of the Platform, and Somotex policies and guidelines as
published on the Platform from time to time;
4.2.3. in accordance with ethical business practices and industry best practice;
and
4.2.4. in compliance with all applicable laws in force from time to time.
4.3. Without prejudice to our other rights, we reserve the right to reject, unpublish
and/or delete any Seller Centre account that breaches these Terms and
Conditions, the general terms and conditions of the Platform, and Somotex
policies and guidelines. - PRODUCT LISTING
5.1. You shall be responsible for listing your products on the Platform by uploading to
the Seller Centre a completed product page which shall include prices, detailed
information about the product, specifications and images in respect of each
product.
5.2. You may not publish more than one listing in respect of one product.
5.3. You agree to be solely responsible for all listings submitted to the Platform and
You agree that all listings must:
5.3.1. constitute bona fide listings relating to products that comply with the
categories and rules set out in section 4;
5.3.2. comply with the rules on content in the general terms and conditions of
the Platform; and
5.3.3. include all such information, specifications and guidelines as may be
required pursuant to all applicable laws and regulations, including in
respect of consumer protection.
5.4. Listings that are submitted may be individually reviewed and approved, at
Somotex’s discretion, before they are published on the Platform, and You
acknowledge and agree there may be a lead time between submission of the
listing to the Seller Centre and the publishing of the listing on the Platform due to
time required for Somotex’s quality control operations.
5.5. Without prejudice to our other rights, we reserve the right to reject, unpublish
and/or delete any listings that breach these Terms and Conditions, the general
terms and conditions of the Platform, and Somotex policies and guidelines.
5.6. You acknowledge and agree that:
5.6.1. notwithstanding that we may approve any listings, You shall be fully
responsible for the same; and
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5.6.2. we reserve the right to impose penalties for breach of this section,
without prejudice to our other rights.
5.7. You must keep your listings up to date. In particular, You must deactivate any
listings in respect of products that have ceased to be available. - PRODUCTS
6.1. The only products that may be the subject of a listing on the Platform are products
falling within the product categories specified on the Platform.
6.2. You must not advertise, buy, sell or supply through the Platform any product that:
6.2.1. breaches any laws or regulations, or infringes any person’s intellectual
property rights or other rights, or gives rise to a cause of action against
any person, in each case in any jurisdiction and under any applicable
law;
6.2.2. consists of or contains material that would, if published on the Platform
by You, contravene the rules on content in the general terms and
conditions of the Platform, and Somotex policies and guidelines; or
6.2.3. relates to: drugs, alcohol, narcotics, steroids or controlled substances;
pornography; obscene, indecent or sexually explicit materials; swords,
firearms or other weapons and ammunition for any weapon;
6.2.4. uses deceptive, unfair, or misleading advertising or marketing practices,
or has products or services with unsubstantiated claims; hazardous
materials, combustibles, corrosives; moneymaking schemes e.g. matrix,
multi-level marketing, pyramid schemes; online betting and gambling or
items that are otherwise prohibited under any applicable law.
6.3. You hereby agree to indemnify and keep indemnified Somotex on a full and
unqualified basis against all actions, claims or proceedings or loss, damage,
cost or expense suffered or incurred by Somotex as a result of Your breach of
the terms stipulated in clause 6.2 above.
6.4. We operate a zero-tolerance approach to counterfeit products and any attempt
to sell counterfeit products on the Platform, or other breach of our [AntiCounterfeit Policy] may result in the penalties, legal remedies or equitable
remedies specified in the [Seller Penalty Policy] which include financial penalties,
permanently prohibiting You from accessing the Platform, and potentially in
prosecution.
6.5. Promptly, following receipt of a written request from us, You must supply to us
any information and documentation that we may reasonably request in order to
verify the authenticity of products. - PRICING
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7.1. All prices of products shall be stated inclusive of VAT and any other tax
applicable to the transaction and in Kenyan currency.
7.2. You shall be solely responsible for setting the price of your products on the
Platform, which may be amended through the Seller Centre from time to time,
including for the purpose of any seasonal or other discounts.
7.3. The pricing of your products shall comply with all applicable laws, including
competition laws. - PACKAGING AND DELIVERY
8.1. Upon receipt of a confirmation of sale from Somotex, You shall:
8.1.1. process the order by packing and labelling the product(s) in accordance
with the [Packaging Guidelines]; and
8.1.2. deliver the products to our drop off point in accordance with the timelines,
opening hours and procedures specified in the [Delivery Guidelines].
8.2. Section 8.1. above shall not apply in the event that You request, and we approve
in writing, delivery by consignment, which shall be managed in accordance with
[Packaging Guidelines or the Delivery Guidelines].
8.3. We may inspect any or all products we receive, and we reserve the right to return
to You any product that fails to meet the packaging requirements set out in the
[Packaging Guidelines] or that fails to pass our quality control checks or any other
product requirements set out at sections 5 and 6 above.
8.4. You shall retain title to and ownership of the products until such time as the
products are paid for in full by the buyer to Somotex and delivered to the buyer.
Upon delivery to the buyer, ownership of the products shall vest in the buyer.
8.5. We shall bear the risk of loss or damage to the products upon receipt and until
delivery to the buyer. Our liability to You in respect of your products in our
possession pursuant to this section 8 shall be limited to the cost price of the
products and shall be subject to the further limitations and exclusions on liability
provided in the general terms and conditions of the Platform.
8.6. Without prejudice to all our legal rights, we may charge You penalties in respect
of breaches of the [Packaging Guidelines or the Delivery Guidelines]. The
amount of the penalties that may be charged pursuant to this section 8.6 shall
be stated in the [Seller Penalty Policy]. - INTELLECTUAL PROPERTY RIGHTS
It is expressly agreed between the parties that each party shall retain all interest,
right, and title in their respective trademarks, logos or any other form of
intellectual property and that nothing contained in these Terms and Conditions,
nor the use of the intellectual property on the advertising, publicity, promotional
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or other material in relation to the Platform shall be construed as giving to any
party any interest, right, and title of any nature whatsoever to any of the other
party’s intellectual property. - REPRESENTATIONS AND WARRANTIES
10.1.The Seller represents and warrants that:
a. it has the power to authorize the sale and/or display of its products online
on the Platform;
b. all product information, data, images, and/or intellectual property provided
by the Seller complies with all applicable laws; are accurate and that all
claims contained therein have been substantiated; and have been cleared
for the uses contemplated hereunder; and
c. it has secured all clearances, permissions, approvals, authorizations, rights
and licenses necessary for the use or display of all product information,
data, images, and/or intellectual property provided to Somotex. - COMMISSION AND FEES
11.1.We shall charge You a commission in respect of each sale made on the Platform
and fees in respect of all Platform services and any value-added services, as
further particularized in the commissions and fees page of Seller Centre or the
relevant value-added service agreement.
11.2.In case of promotion funded by Somotex, commission may be calculated based
on the selling price, being the price set by the Seller at the time of the order.
11.3.We reserve the right to charge commissions and/or fees in the event that the sale
is not completed, by way of consideration for the costs of our services rendered.
11.4.We may vary commissions and/or fees from time to time, with prior notice to You,
and by updating the commissions and fees page of the Seller Centre. This will
not affect any liability to pay commission that accrues before the new rates are
posted or for services that have been previously paid. - VAT AND TAXES
12.1.All amounts stated on the Platform are stated inclusive of VAT and any other
taxes applicable to the transaction. The Seller acknowledges that:
12.1.1. commissions shall be calculated as a percentage of the selling price
(being the price set by the Seller at the time of the order) inclusive of VAT
and any other taxes charged to the buyer;
12.1.2. commissions are inclusive of VAT and all other taxes thereon; and
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12.1.3. in the event of any upwards revision in the rate of VAT or any other
applicable taxes, the amount of the commission shall be automatically
adjusted to ensure that Somotex’s net revenues remain constant. The
Seller may, in its discretion, revise prices accordingly.
12.2.The Seller shall be exclusively liable in respect of all taxes applicable to the
transactions entered into on the Platform with buyers, including VAT, and shall
therefore be responsible for the reporting, filing and payment of the same.
12.3.In the event any transaction consists of the importation of products for delivery
to the buyer and such transaction may result in the recognition of a permanent
establishment for the Seller, the Seller shall be responsible for complying with its
tax obligations in the territory where it has created a current or future tax nexus.
The Seller understands and acknowledges that consignment fulfillment may
create tax nexus e.g. permanent establishment.
12.4.If a competent tax authority determine that Somotex is liable for payment of any
taxes (including stamp, excise or customs duties) in respect of the transactions,
You hereby indemnify and hold harmless Somotex in respect of the same. We
may make tax-related deductions to payments processed by us on Your behalf
and remit such deducted amounts to the relevant government or tax authority.
12.5. Promptly following receipt of a written request from us, You must supply to us
any information and documentation that we may reasonably request in order to
identify You or facilitate our compliance with our legal obligations relating to the
taxation of payments made to us or processed by us. We may supply such
information and/or documentation to relevant government and tax authorities. - REMITTANCES
13.1.We shall collect payments from buyers in respect of each product purchased
from the Platform, and we shall deduct from the same our commissions and, as
may be applicable, any fees, charges, taxes, penalties, refunds and any other
amounts that You owe to us in respect of any business whatsoever.
13.2.We shall remit the proceeds of sale of the products, after all deductions pursuant
to section 14.1 above, to You in Kenyan currency and using such payment
mechanism as we may notify to You from time to time in accordance with our
guidelines.
13.3.Evidence of payment to your nominated account shall constitute conclusive
evidence of payment and receipt.
13.4.You shall be entirely responsible for ensuring that the account details that You
upload to the Seller Centre are accurate and up to date, and that the account is
secure. We shall not be liable for any loss or damage to You that may result from
fraud or error in respect of your account.
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13.5.We shall provide You with an account statement, via the Seller Center, which
shall include details of all proceeds of sale of the products, deductions and
remittances.
13.6.Subject to the applicable laws of the territory where the product is purchased, we
may at any time set off any amount that You owe to us against any amount that
we owe to You, by sending You written notice of the set-off. For the avoidance
of any doubt, the account statement in the Seller Centre shall serve as such
notice of set-off.
13.7.In the event that we hold insufficient funds on your behalf for payment of any
amounts that You owe us (your account is in debit):
13.7.1. You shall pay the amounts You owe to us by such payment method as
we may request; and
13.7.2. in the event that we hold any of your products that have not been sold or
that have been returned, we may dispose of such products and apply all
proceeds of sale to discharge any amounts that You owe us.
13.8.We may delay or suspend payment to You in the event of investigation of a
potential fraud or other breach of these Terms and Conditions.
13.9. In the event that the Seller disputes any transaction or statement of account it
must report its claim to Somotex within one (1) month of the date of the relevant
transaction, failing which such claim shall be deemed to be waived. - BREACH OF TERMS AND CONDITIONS
14.1.If we reasonably determine that You have breached these Terms and Conditions,
the general terms and conditions of the Platform, and Somotex’s policies and
guidelines, we may:
14.1.1. send You one or more formal warnings;
14.1.2. suspend, prohibit or block your access to the Platform as provided in
the general terms and conditions of the Platform;
14.1.3. apply penalties for breach as provided in our [Seller Penalty Policy];
and/or
14.1.4. commence legal action against You, whether for breach of contract or
otherwise.
14.2.We may vary the amount of the penalties for breach from time to time by updating
the [Seller Penalty Policy], but this will not affect any liability to pay penalties that
accrue before the new amounts are posted.
14.3.The consequences of breach provided at section 15.1. above shall also apply if:
You fail to satisfy a minimum level of operational performance in order to provide
a satisfactory buyer experience on the Platform; or if You receive negative ratings
and reviews. - TERMINATION
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15.1.Either party can terminate this agreement upon 30 days’ written notice to the
other party for any reason.
15.2.Somotex may stop the Seller from using the Platform immediately in any of the
following instances:
15.2.1. The Seller provides false qualification documents, expired documents,
or conceals important information about the seller’s business changes;
15.2.2. The Seller’s product prices, specifications, and other information are
incorrectly marked, leading to related penalties and disputes;
15.2.3. The Seller’s product quality and labelling are not up to standard, or the
product is suspected of smuggling, counterfeiting, used goods, or
repaired products;
15.2.4. The Seller sells unauthorized brand goods;
15.2.5. The Seller has not logged into the Seller Centre account for more than
one month; or
15.2.6. Other violations of the laws and regulations of the Republic of Kenya,
these Terms and Conditions and other violations that Somotex believes
to infringe the rights and interests of its consumers. - INDEMNIFICATION
16.1.Notwithstanding anything to the contrary in these Terms and Conditions, the
Seller shall indemnify, defend, and hold harmless Somotex, its parents, affiliates,
subsidiaries, officers, managers, partners, employees, and agents from and
against any and all claims, lawsuits, judgements, losses, civil penalties, liabilities,
damages, costs, and expenses, including reasonable attorney’s fees and court
costs, arising out of or related to any:
a) alleged defect in or injury from Seller’s products;
b) alleged failure of the Seller or Seller’s products to comply with these Terms
and Conditions or any laws, regulations, warranties, guarantees, or
representations of the Seller;
c) allegations concerning Seller content;
d) negligent or grossly negligent action, inaction, omission or intentional
misconduct of the Seller; and/or
e) infringement of any intellectual property rights or use of or infringement
upon any intellectual property right of a third party because of any Seller’s
product listed on the Platform. - INSURANCE
You shall maintain in force a policy of insurance with an appropriate level of
coverage in respect of your liabilities under these Terms and Conditions. A copy
of the said policy shall be provided to Somotex upon its request. - CONFIDENTIALITY AND DATA PRIVACY
18.1.Information and documents concerning the conduct of business pursuant to
these Terms and Conditions, including information relating to business methods,
procedures, policies and sales information, is strictly confidential unless it is
already in the public domain. You shall not use Somotex’s confidential
information for any purpose other than to perform your obligations under these
Terms and Conditions and You shall not disclose Somotex’s confidential
information without our prior written consent.
18.2.Sellers may not send any advertising or promotional communications to buyers
on the Platform without the prior written consent of Somotex and shall be directly
responsible to the Platform users for any misuse of their personal data.
18.3.If Somotex is sued, fined, or otherwise incurs expenses as a result of the Seller’s
handling of personal data obtained through the Platform contrary to applicable
laws, the Seller shall indemnify Somotex in respect of the same. - MISCELLANEOUS
19.1.These Terms and Conditions shall be governed by and construed in accordance
with the laws of Kenya.
19.2.In respect of Sellers operating across multiple marketplaces operated by
Somotex affiliates, each transaction shall be subject to the governing laws and
jurisdiction of the territory of the marketplace on which the transaction took place.
19.3.We will ask for your express agreement to any revisions of these Terms and
Conditions the general terms and conditions of the Platform within such period
as we may specify; and if You do not give your express agreement to the revised
versions within such period as we may specify, You shall be deemed to have
consented. If You expressly reject any such revisions, You may be deemed by
us to have terminated the agreement and we may disable or delete your account
on the Platform.
19.4.These Terms and Conditions, the general terms and conditions of the Platform,
and Somotex’s policies and guidelines shall constitute the entire agreement
between You and us in relation to your use of the Platform and shall supersede
all previous agreements between You and us in relation to your use of the
Platform
20.5 Failure, delay or neglect to enforce at any time any of the provisions hereof shall
not be construed nor be deemed to be a waiver of any party’s rights hereunder
nor in any way affect the validity of the whole or any part of these Terms and
Conditions nor prejudice any party’s rights to take subsequent action. No remedy
conferred by any of the provisions of these Terms and Conditions is intended to
be exclusive of any other remedy which is otherwise available at law, in equity,
by statute or otherwise, and each and every other remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law, in equity, by statute or otherwise. The election of any
one or more of such remedies by a party shall not constitute a waiver by such
party of the right to pursue any other available remedies.