The Sellers who are intending to avail the services of MSTC with respect to E-auction of their scrap / 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.
For actual implementation clauses in actual agreement duly signed by both parties will prevail upon.
SELLING AGENCY AGREEMENT |
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| 1.0 | THIS AGREEMENT made this _______________day of________, ________ between ………………………….., 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 Street No. - 175, Plot No. - CF 18/2, Action Area - 1C Newtown Kolkata – 700156, 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 MSTC has approached the PRINCIPAL with a request to engage MSTC as Selling Agents for sale of all movable/ immovable items/ services/ works/ assets and all surplus, condemned/ scrap/ obsolete materials and secondary arising (ferrous and non-ferrous) as well as equipment, Plant, Machineries and misc. articles etc.; through MSTC's Auction web site www.mstcecommerce.com. |
| 3.0 | AND WHEREAS the Principal has agreed to engage MSTC as Selling Agent for the purpose on the Terms and Conditions mentioned hereinafter; |
| 4.0 | NOW it is hereby agreed and declared by the parties hereto as follows: |
| 4.1 | This Agreement covers disposal of all movable/immovable items/services/works/assets through MSTC’s Auction web site www.mstcecommerce.com as mentioned in clause-2.0 above; |
| 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 e-auction over the Internet on its website www.mstcecommerce.com based on this agreement. |
| 5.0 | DURATION OF CONTRACT : |
| This Agreement shall remain valid from ……….. to ………… and could be extended further for such further period on such terms and conditions as mutually agreed upon by the parties hereto. | |
| 6.0 | QUANTUM OF BUSINESS: |
| This contract by itself does not commit the Principal as to the quantum of business to MSTC. |
| 7.0 | NATURE & SCOPE OF SERVICES AND 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 | Since e-Auction, is a web based system, all publicity of the sale will be made by MSTC through MSTC’s website and other internet tools and no press advertisement will be required. Individual sale notices will be sent by MSTC by email etc. to all registered customers of MSTC on all India basis. |
| 7.4 | MSTC shall arrange disposal of the materials primarily through e-auction via their website www.mstcecommerce.com. |
| 7.5 | On the close of any auction, Principal will receive a system generated Bid Sheet indicating the status of the Auction which will inter alia include Sold Lots, Subject To Approval (STA) Lots and also Lots not sold (Rejected) with highest bid received for Principal’s 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 (with its secret Password) in the website, which will be accessible by the designated/authorized officer of the Principal only, 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 prices 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 issue the digitally signed Sale Acceptance Letters to the successful bidders/ buyers/customers on behalf of the Principal through the system for the approved lots after SD receipt. |
| 7.9 | MSTC shall prepare and issue digitally signed Delivery Orders after receipt of the payments from the buyers, through the system. On production of the copy of Delivery Order along with the sale value (less MSTC Service Charge), plus Taxes and Duties, if any, the Principal will deliver materials. The Principal shall ensure credit of the said material value in its accounts before effecting delivery of materials to buyers. |
| 7.10 | MSTC shall ensure follow-up of orders booked, on behalf of the Principal. |
| 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 or entered in the website in case facility is available for notifying the prospective bidders sufficiently in advance. The Principal will indicate rate of GST for each lot while forwarding the list of material to MSTC. MSTC will indicate such rate in e-auction catalogue. |
| 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 finalized 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 be responsible for delivery of the goods and shall effect deliveries to the buyers/customers as per Delivery Orders issued by MSTC and as per terms and condition of e-auction. Any disputes arising while effecting deliveries including short deliveries to successful bidders/buyers, over which MSTC has no control, 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 | MSTC shall provide its standard terms and conditions of sale of materials to the Principal. The Principal will generally not insist on MSTC for any deviation from standard terms of sale of MSTC. |
| 9.0 | SERVICE CHARGE: |
| 9.1 | MSTC shall be entitled to a service charge as mutually decided (excluding GST) on the value of materials disposed, arrived on the basis of the value of the Delivery Order (D.O.) issued through e-auction over the Internet. GST as applicable on Service Charges shall be payable by Principal. TDS, as applicable, shall be deducted by MSTC. |
| 9.2 | Service Charge will be calculated on the amount realised excluding GST on material. |
| 9.3 | Buyer shall be directed by MSTC to make the payment as mutually decided between MSTC and Principal. TDS or any other statutory levy, as applicable, shall be deducted by MSTC. |
| 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 only act as Selling Agent/Service Provider to the Principal who is the Owner/Seller of the materials, all litigations including arbitration, if any invoked by the Bidders/Buyers shall be exclusively dealt with by the Principal irrespective of whether MSTC is joined in such proceedings as a party or not. It shall be responsibility of the Principal to handle all suits/legal proceedings including arbitration that may be initiated by or against any buyer/bidder and to defend itself in all such proceedings at its own costs and expenses. The competent officials of the Principal shall be also required to appoint the Sole Arbitrator in case request for such appointment is made by Bidder/Customer in terms of the relevant Tender/Auction/e-Auction Clauses. If any court case arises out of the specific fault of MSTC, then responsibility will be of MSTC. | |
| 13.0 | JURISDICTION OF THE COURT : |
| Parties to this Agreement agree that any dispute arising out of this agreement shall be subject to exclusive jurisdiction of the ____ court(s) only. | |
| 14.0 | AMENDMENT : |
| 14.1 | Any amendment to this Agreement would be enforceable only if made in writing and duly signed by authorised representatives of the parties hereto. |
| 15.0 | FORCE MAJEURE CLAUSE : |
| 15.1 | 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, curfew, Technical and/or connectivity failure which is entirely beyond the control of either party 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 by 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, either party may terminate this Agreement at its sole discretion and at such event MSTC shall be bound to pay all the expenses and other monies recovered from the bidders to the Principal forthwith. |
| 16.0 | TERMINATION : |
| 16.1 | This Agreement shall be subject to termination with clear 3(three) calendar months' notice in writing from either side. |
| 17.0 | ARBITRATION CLAUSE : |
| 17.1 | For Central and State Government Departments / Public Sector Enterprises In the event of any dispute or difference relating to the interpretation and application of the provisions of commercial contract(s) between Central Public Sector Enterprises (CPSEs)/ Port Trusts inter se and also between CPSEs and Government Departments/Organizations (excluding disputes concerning Railways, Income Tax, Customs & Excise Departments), such dispute or difference shall be taken up by either party for resolution through AMRCD as mentioned in DPE OM No. 4(1)/2013-DPE(GM)/FTS-1835 dated 22-05-2018. |
| 17.2 | For Private Parties Any dispute or difference whatsoever arising between the parties out of or relating to the construction, meaning, scope operation or effect of this contract, shall be settled through arbitration by a sole arbitrator. The Parties shall jointly appoint the Sole Arbitrator. If the Parties do not agree on a Sole Arbitrator within thirty (30) days of the date of service of notice of arbitration by the Party initiating arbitration, either Party shall be entitled to approach the Court of competent jurisdiction at ……………………… for appointment of the Sole Arbitrator as per the provisions of the Arbitration & Conciliation Act, 1996 (as amended). The Sole Arbitrator so appointed, either by the Parties or by the Court, shall conduct the proceedings in English language and the venue of arbitration proceedings shall be ………………. The costs and expenses of the arbitration shall be shared equally by the Parties. The Sole Arbitrator may pass reasoned awards, both interim and/or final which shall be final and binding upon the Parties. |
| 18.0 | OTHER CONDITIONS : |
| (i) | MSTC LTD shall act only as a Service Provider for conducting e-auction and shall not be a party to the Sale Contract(s) between the Principal/Seller and the buyer(s). |
| (ii) | Since materials to be sold shall never come under the custody or possession of the MSTC Ltd, no complaint from the bidders/buyers on account of quality,, quantity or delivery of the goods shall lie against MSTC LTD. |
| (iii) | MSTC shall not be responsible for any inconvenience caused due to any disruption in internet service at bidders’ end. |
| (iv) | In case of any aberration/contradiction between Hindi and English versions of the clauses in this Agreement, English version will prevail. |
| (v) | In case of any deviation from the conditions mentioned above in the actual physical agreement, terms in the latter will prevail. |
| 19.0 | APPLICABILITY OF LAWS : |
| 19.1 | 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. | |
| For and on behalf of M/s MSTC Limited | For and on behalf of PRINCIPAL |
| Signature with Address | Signature with Address |
| (Designation) | (Designation) |
| (Signature with seal) | (Signature with seal) |
| In the presence of : | |
| 1. | 1. |
| 2. | 2. |