SELLER SPECIFIC TERMS & CONDITIONS
The Sellers who are intending to avail of the services of
MSTC with respect to E-auction for effecting their disposals, will be required to sign a
specific and formal Selling Agency agreement with MSTC in the following lines or as near
thereto as the circumstances permit.
SELLING AGENCY AGREEMENT
1.0 THIS AGREEMENT made this
_______________day of________BETWEEN M/s. ___________________________ incorporated under
the Companies Act, 1956 and having its registered office at
_________________________________________________________, hereinafter called "the
Principal"(which expression shall unless excluded by or repugnant to the context be
deemed to include its successors and assigns) on the ONE PART; AND MSTC Limited (A Govt.
of India Enterprise) incorporated under the Companies Act, 1956 and having its registered
office at 225-C, Acharya Jagadish Chandra Bose Road, Calcutta-700 020, hereinafter called
"MSTC" (which expression shall unless excluded by or repugnant to the context be
deemed to include its successors and assigns) on the Other part ;
2.0 WHEREAS the Principal has viewed the contents as
displayed in the web site of MSTC and is desirous of engaging MSTC as its Selling Agents
for disposal of Scrap and rejected/condemned/obsolete secondary arising (ferrous and
non-ferrous) as well as surplus obsolete stores, equipments and misc. articles etc.;
through MSTCs Auction web site
3.0 AND WHEREAS the Principal has agreed to engage MSTC as
Selling Agent for the above purpose on the terms and conditions displayed in the Auction
web site Viz., www.mstcecommerce.com and also the Terms and Conditions mentioned
4.0 NOW it is hereby agreed and declared by the parties
hereto as follows:
4.1 This Agreement covers disposal of all scraps, secondary
arising, surplus stores and equipment, misc. articles etc. as mentioned in clause-2.0
4.2 In addition to the above, add-ons to
the category of disposals may be effected through this agreement on mutual consent.
4.3 MSTC shall act as Selling Agent for
disposal of all items covered under Clauses 4.1 & 4.2 hereof in the home/indigenous
market by way of public auction over the Internet through www.mstcecommerce.com based on
5.0 DURATION OF CONTRACT :
The Contract will remain valid for
__________________years from the date of this Agreement which could be extended for such
further period on such terms and conditions as mutually agreed upon by the parties hereto.
6.0 QUANTUM OF BUSINESS:
If the volume of business is
anticipated to be below Rs.5 lacs(Rupees five lacs), MSTC will request the Principal for
accumulation of disposal items till disposal becomes economically viable. This contract by
itself does not commit the Principal as to the quantum of business to MSTC. However, in
the event of the quantum of business being such as would attract a higher rate of service
charges as stipulated in Clause (9) below, the higher rate of Service Charge would be paid
by the Principal.
7.0 NATURE & SCOPE OF SERVICE &
RESPONSIBILITY OF MSTC:
7.1 MSTC shall conduct auction sale directly and in no
case the appointment of any dealer/trader/auctioneer for the purpose will be considered.
7.2 MSTC will offer guidance in regard to making of lots
for the purpose of Auction and will act on the basis of the list of disposable materials
received from the Principal.
7.3 MSTC may arrange publicity for disposal through E-auctions by way of occasional advertisements in leading dailies / Newspapers / Websites and other Internet Tools. In addition the system shall notify automatically to all the buyers who are registered with the auction website i.e www.mstcecommerce.com regarding all the forthcoming E-auctions specifying therein all relevant details about the materials / Lots / date & time of opening & closing of auctions etc. In case the Principal desires publicity through a particular publication or media, the same would be arranged on receipt of written request and the additional cost has to be borne by the Principal.
7.4 MSTC shall arrange disposal of the materials primarily
through auction via the website www.mstcecommerce.com.
7.5 On the close of any auction Principal will receive a
system generated Email indicating the status of the Auction which will inter alia include
Sold Lots, Subject To Approval (STA) lots and also lots not sold with highest bid received
for Principals record. The Principal shall have the option to visit the website in
order to obtain a full report of any particular auction, which will normally depict the
replica of the Bid Sheet of a particular auction.
7.6 Reserve Price must be fixed and entered by the
Principal in the website, which will be only accessible by the Principal and none else,
for the disposable materials. In case the Reserve price is not entered by the principal
prior to commencement of the Auction, the lots for which the reserve price have not been
entered, shall stand automatically withdrawn by the system.
7.7 If, in respect of any item(s) covered under the Selling
Agency Agreement, it is desired by the Principal to have a market survey, the costs for
the same will have to be borne by the Principal. The market survey could be done by MSTC
themselves or by engaging consultants.
7.8 MSTC shall enter into sale contracts with the
successful bidders/ buyers/customers by issuing Sale Orders/Acceptance Letters on behalf
of the Principal through the system for the sold lots.
7.9 MSTC shall accept sale price/bid money for onward
submission to the Principal, off line. The successful buyers will have the option to remit
their money to any of the offices of MSTC. The principals will be able to access data of
payments etc., at the website.
7.10 Wherever the Principal is not registered under the
appropriate Sales Tax Act, MSTC shall collect Sales Tax as applicable and other
declaration forms and submit the same to the Appropriate Authority. For such service, an
additional Service Charge of 0.5% will be payable by the Principal to MSTC.
7.11 MSTC shall prepare and issue Delivery Orders after
receipt of the payments from the buyers, through the system. On production of the Delivery
Order the Principal will deliver materials.
7.12 MSTC shall also be responsible for follow-up of orders
8.0 NATURE & SCOPE OF
RESPONSIBILITY OF THE PRINCIPAL :
8.1 The Principal shall provide MSTC with the list of
materials with detailed specifications and descriptions, locations, quantity, quality and
special remarks or any sort of restriction, if any, for disposal. The Principal shall not
amend/alter or modify the quantity of the lot after the auction is declared open and live.
All such amendments/alterations/modifications shall be made prior to commencement of
auction and intimated to MSTC in writing for notifying the prospective bidders
sufficiently in advance.
8.2 The Principal shall indicate the annual availability of
scrap and other items for disposal as far as possible for each category. The auction
programme shall be finalised between MSTC and Principal for each quarter as per mutual
convenience. Depending upon their convenience Principal will combine the list of
disposable items of its various units.
8.3 The Principal shall cause to effect deliveries to the
buyers/customers as per Delivery Orders issued by MSTC and as per directions given by MSTC
from time to time. Any disputes arising while effecting deliveries to successful
bidders/buyers shall be dealt with by the Principal.
8.4 The Principal shall be responsible for raising invoices
as per the terms and Sale Orders/Delivery Orders issued by MSTC.
8.5 The Principal may monitor the auction and will be able
to view the bid history etc., during the continuation of the E-auction.
8.6 If the Principal is a registered dealer under
appropriate sales Tax Act, the Principal will indicate rate of tax for each lot however
MSTC collect necessary Sales Tax and other declaration form etc. at its end and forward
the same to the Principal for necessary action at their end. In case the Principal is not
a registered dealer, the Principal may not indicate the rate of levies item-wise, in such
case MSTC would indicate rate of taxes and collect the same and deposit with appropriate
authority for which the additional service charges is payable as indicated in clause 7.10
here in before. However in case of such unregistered principals for whom MSTC deposits tax
with the appropriate authority, in these cases, the principal would be responsible to bear
all other related statutory duties and taxes eg. turnover tax / surcharges which could not
be received from the buyers as per statute of the respective state. However, the Principal
must indicate the item which will attract excise duties and also amount/rate of Excise
8.7 MSTC shall provide its standard terms
and conditions of sale of materials to the Principal. The Principal will not insist on
MSTC for any deviation from standard terms of sale of MSTC.
8.8 Monthly Delivery/Despatch Statement
customer-wise and item-wise along with the copies of Invoices shall be submitted to MSTC
by the Principal latest by 10th of each succeeding month. The Principal shall
also provide N.O.C. for each lot within 15 days of completion of delivery to enable MSTC
to release Security Deposit.
9.0 SERVICE CHARGE
MSTC shall be entitled to a service charge as specified in the contract
on the value of materials disposed, arrived on the basis of the value of the
Delivery Order (D.O.) issued through this auction over the Internet..
For Ad hoc/One time disposal a lump sum
service charge will be levied on the seller based on negotiations between the seller and
MSTC. Service charge in this case will in no case be less than 10% of the material value.
The above service charges are to be read
along with Clause 7.10 hereto above.
The service chare is exclusive of any other
taxes and duties levied by the Statutory Authorities of different States and Central
1. If any organisation has more than one
unit, the sales from all units will be taken together for the purpose of calculating
2. Year referred to above, shall be reckoned as anniversary
year i.e. for 12 months from the date of Agreement.
3. Above Service Charges are to be read
along with [Cl.no.7.12] hereto above.
4. The Service Charge is exclusive of any
other taxes and duties levied by the statutory authorities of different State and Central
9.2 Service Charge will be calculated on the amount
realised excluding Excise Duty and Sales Tax, if applicable.
9.3 Service Charge payable to MSTC shall be deducted from
the EMD in each auction and from material value recovered in each tender due and payable
to the Principal. The details thereof shall be forwarded along with the signed bill and
receipt within three days of the succeeding month.
9.4 Whenever any auction is cancelled/deferred/postponed
under the advice/instruction of Principal, the actual cost of advertisement etc. shall be
reimbursed to MSTC by the Principal.
9.5 The above Service Charges shall also be
payable on the amount of forfeited Security Deposit.
10.0 STANDING COMMITTEE FOR
IMPLEMENTATION OF THE AGREEMENT
10.1 The Principal and MSTC will
nominate one official each for dealing with all matters relating to this Agreement. The
working arrangements for implementing the provisions of this Agreement shall be mutually
discussed and decided upon.
11.0 EXECUTION OF SALE CONTRACT :
11.1 Sale Contract(s) of the Principal
existing at the time of execution of this Agreement will continue to operate and will not
come under the purview of this Agreement. Similarly, at the expiry of this Agreement, the
orders booked by MSTC will continue to operate as if this Agreement continues till the
execution of those orders.
12.0 HANDLING OF SUITS :
Since MSTC will merely act as the Selling
Agent of the Principal, the Principal shall reimburse to MSTC the legal expenses incurred
in connection with any litigation arising out of any Sale/Tender/Auction under this
Agreement. However, if the litigation arises out of any fault on the part of MSTC alone,
MSTC shall refund the amount reimbursed by the Principal to that extent.
MSTC shall take prior permission of the
Principal for instituting case in any Court of Law in the matters arising out of any
sale/auction under this Agreement.
13.0 A M E N D M E N T :
13.1 Any amendment to this Agreement would be
enforceable only if made in writing and duly signed by authorised representatives of the
14.0 FORCE MAJEURE CLAUSE :
14.1 If, any time during the continuance of this
Agreement, the performance, in whole or in part by either party, of any obligation under
this Agreement be prevented or delayed by reason of any war, hostility, act of public
enemy, civil commotion, sabotage, fires, floods, explosions, epidemics, quarantine
restrictions, strikes, lock-outs, Technical and / or Connectivity failure which is
entirely beyond the control of MSTC etc. or acts of God (hereinafter referred to as
'events') provided notice of happening of any such eventuality is given by the affected
party to the other within 21 days from the date of occurrence thereof, neither party shall
be reason of such event have any claim for damages against the other in respect of such
non-performance or delay in performance, provided further that if the performance in whole
or part of any obligation under this Agreement is prevented or delayed by reasons of any
such event for a period exceeding sixty days, the parties shall try to arrive at an
amicable settlement, failing such settlement the Principal may terminate this Agreement at
its sole discretion and at such event MSTC shall be bound to pay all the expenses and
other moneys recovered from the bidders to the Principal forthwith.
15.0 T E R M I N A T I O N :
15.1 This Agreement shall be subject to
termination with clear 3(three) calendar months' notice in writing from either side before
the expiry of the contract.
16.0 ARBITRATION CLAUSE :
16.1 In the event of any dispute or
difference relating to the interpretation and/or application of the provisions of this
Agreement, such dispute or difference shall be referred by either party to the Arbitration
of one of the Arbitrators in the Department of Public Enterprises to be nominated by the
Secretary to the Government of India, In Charge of the Bureau of Public Enterprises. The
Arbitration Act, 1940 shall not be applicable to the arbitration under this clause. The
award of the Arbitration shall be binding upon the parties to the dispute, provided,
however, any party aggrieved by such award may make a further reference of setting aside
or revision of the award to the Law Secretary, Department of Legal Affairs, Ministry of
Law & Justice, Government of India. Upon such reference the dispute shall be decided
by the Law Secretary, or the Special Secretary/Additional Secretary when so authorised by
the Law Secretary, whose decision shall bind the parties finally and conclusively. The
parties to the dispute will share equally the cost of arbitration as intimated by the
17.0 APPLICABILITY OF LAWS :
17.1 The Agreement shall be governed by
the Indian Laws for the time being in force.
IN WITNESS WHEREOF the parties hereto have
subscribed their respective hands on the day, month and year first above written.
Signed and delivered
For and on behalf of
(Designation) (Signature with seal)
In the presence of :
1. (Signature with Address)
Signed and delivered
For and on behalf of
M/S. MSTC LIMITED
(Designation) (Signature with seal)
In the presence of :
1. [Signature with Address]