Dated as of 13th August 2020
VENDOR MASTER TERMS AND CONDITIONS
These master terms and conditions (the “Master Terms“), together with the terms set out in the applicable Purchase Order forms exchanged between the Parties from time to time shall constitute the agreement (the “Agreement“) under which Hanami Technology Pte Ltd (the “Company“) agrees to provide the Services to the Vendor (whose details are set out in the form below) (the “Vendor“).
The Company and the Vendor shall collectively be referred to as the “Parties“, and each, a “Party“.
(A) The Company, through its website / technology platform (the “Platform“), provides an online platform for the organizing, marketing, and facilitating the distribution and payment flows of various retail products by third-party sellers to consumers using the Platform (the “Platform Customers“); and
(B) the Vendor wishes to engage the Company’s Services through the Platform and will provide its Products directly to the end consumer in accordance with the terms set out in this agreement.
1.1 By entering into this Agreement on the date set out above (such date, the “Effective Date“), the Vendor represents that:
(a) if the Vendor is an individual, the Vendor is an adult of at least 18 years of age, capable of validly entering into agreements and performing their obligations hereunder;
(b) if the Vendor is a company:
(i) that it is validly incorporated, organized, or registered and in good standing under the laws of the country in which the Vendor is incorporated, registered, or so organized;
(ii) that it has full capacity, power and authority to enter into, exercise its rights and perform and comply with its obligations under this Agreement;
(iii) that all actions, conditions and things required to be taken, fulfilled or done (including the obtaining of any necessary consents) in order to enable the Vendor to lawfully enter into, exercise its rights and perform and comply with its obligations under this Agreement have been taken, fulfilled, or done; and
(iv) that the individual entering into this Agreement on behalf of the Vendor had been lawfully authorized to do so.
1.2 FOR THE AVOIDANCE OF DOUBT, BY CLICKING “I ACCEPT“, REGISTERING FOR OR USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL POLICIES OF THE PLATFORM SHALL BE INCORPORATED BY REFERENCE.
1.3 The Company reserves the right to change at any time and in its sole discretion any of the terms and conditions contained in these Master Terms, and any fees, procedures, policies governing the Services or the Platform. These changes will take effect 7 calendar days from the date that notice is given to the Vendor, either by the posting of such notice on the Platform, or through electronic means to an email address (or other electronic means) provided by the Vendor to the Company from time to time. The Vendor is responsible for reviewing any such notices, procedures, or policies, and its continued use of the Services or the Platform following the date on which the changes take effect shall constitute its acceptance of such changes. If the Vendor does not agree to any such changes, the Vendor must discontinue its use of the Services and the Platform, and the Agreement shall be terminated. For the avoidance of doubt, unless otherwise expressed, newer versions of the Master Terms or policies shall supersede older versions.
1.4 The Vendor shall provide a copy of the following documents to the Company upon entering into the Agreement by uploading them to the Platform website or sending the same to an electronic mail address provided by the Company:
(a) if the Vendor is a company, a copy of:
(i) its company or business registration statement (e.g., ACRA print-out); and
(ii) a bank statement bearing the Vendor’s name and account number,
(b) if the Vendor is an individual, a copy of:
(i) their National Registration Identity Card (or equivalent foreign national identity card or passport); and
(ii) a bank statement bearing their national identity registration number (e.g., NRIC or foreign equivalent) or passport number and bank account number.
2. THE SERVICES
2.1 The Company offers you general services (the “Services“) consisting of:
(a) the listing of the Vendor’s Products on the Platform;
(b) facilitating the offer for sale by the Vendor of the Vendor’s Products to users of the Platform;
(c) order verification and payment processing in respect of sales of the Vendor’s Products listed on the Platform; and
(d) delivery coordination in respect of sales of the Vendor’s Products listed on the Platform;
the terms of each as may be set out in the various Policies applicable to this Agreement.
3. VENDOR REPRESENTATIONS
The Vendor undertakes and warrants that all its representations, warranties and undertakings in the Agreement will be fulfilled and will remain true and correct at all times and will subsist for so long as necessary to give effect to each and every of them in accordance with the Terms and Conditions, provided that and in the event of any of them becoming or unfulfilled, untrue or incorrect, the Vendor will, upon becoming aware, promptly inform the Company of the same and rectify the situation.
3.1 General Representations
The Vendor represents, warrants and undertakes by using the Services that:
(a) it is in compliance, and will continue to comply, with all applicable laws, treaties, ordinances, codes, regulations (including licensing requirements) that may be applicable to it;
(b) it is in compliance, and will continue to comply, with all Policies;
(c) it is responsible for and will pay: (i) all taxes, duties, fees and other charges arising out of or associated with an order of Products, any payments to it, or (ii) any other payments owed by it under the Agreement;
(d) it has, and will continue to issue valid invoices to the Platform or Platform Customers in respect of its Products, if so required by applicable law;
(e) it has and will obtain all necessary rights, licenses, permits, or approvals required for the offer, advertising and sale of the Products on or through the Platform prior to their listing and will promptly provide (within 3 business days, if so requested by the Company) to the Company copies of supporting documents satisfactorily evidencing the same (as determined by the Company) to the Company;
(f) ensure that any information provided under this Agreement, including for the listing of Products on the Platform, are accurate, current, and complete and is not misleading or otherwise deceptive;
(g) fulfil all orders for Products through the Platform at their stated quantity and price on the Platform to the relevant Platform Customers within the agreed upon timelines set out in the Delivery Policy;
(h) provide promptly, in the format and at such times as the Company may require, accurate, updated and complete information about the availability status, stock level and listing price of the Products;
(i) ensure that the listing price for any Product offered to Platform Customers will not exceed the price offered by the Vendor outside the Platform for the same product in like or lesser quantities under similar terms and conditions and, where a lower price is so offered, ensure that the Products on the Platform benefit from that lower price;
(j) promptly after becoming aware of the same, give the Company written notice of any requirement or provision of any contract that the Vendor is a party to that may conflict with any requirement or provision of the Agreement;
(k) ensure that any person filling-in or signing any document, operating the Vendor’s account on the Platform, or handling the Products, on behalf of the Vendor (other than an employee, contractor or agent of the Company, or a third party specifically mandated by the Company) has full power and authority to do so on behalf of the Vendor (and the Vendor may not dispute the actions of such person insofar as they are in apparent compliance with the Agreement).
3.2 Representations Relating to Use of the Platform
The Vendor further undertakes, represents and warrants that it will not, directly or indirectly (or, if applicable, cause the Platform to, directly or indirectly):
(a) infringe on any Intellectual Property Rights;
(b) post or display any materials that exploits or otherwise exploits persons under the age of eighteen (18) years ordisplay pornographic materials of any kind;
(c) post or display any political or religious content;
(d) post or disclose any personally identifying information or private information about minors or any third parties withouttheir consent or (where applicable) their parent’s or guardian’s consent;
(e) post any content that advocates, promotes, or otherwise encourages violence against any governments,organizations, groups or individuals or activities that leads to cruelty towards animals;
(f) conduct activities such as gambling, sweepstakes, raffles and lotteries or participate in any activities related topyramid or Ponzi schemes, or any other illegal, immoral or antisocial activities (as determined by the Company in its sole discretion);
(g) use, or access, input, or upload on, the Platform any material that is not directly connected with the Goods, or permitthe use of the Vendor’s account or offer “free space” on or other access to the account or the Platform to third parties;
(h) access content and information that concerns any party other than the Vendor, transmit unsolicited commercial orbulk email, interfere with the proper working of the Platform, transmit any viruses, Trojan horses, or other harmful code, or attempt to bypass any mechanism used to detect or prevent such activities;
(i) create liability (other than payments to be made by the Company for Goods or services in the ordinary course of business) for the Company (and its Affiliates, directors, employees, contractors, agents, subcontractors) or expose it to undue riskor otherwise engage in activities that the Company, in its sole discretion, determines to be harmful to its operations, reputation, or goodwill;
(j) contact any Platform Customer nor enter into any direct arrangements with the Platform Customer for the offer of Goods or other products or services, except where notified or permitted by the Company to do so for the purposes offulfilling a Platform Customer order in relation to a Product (in which case such arrangements shall be only to the extent necessary to fulfil the purposes permitted by the Company);
(k) enroll or offer to enroll Platform Customers in any scheme or program other than as strictly required for warrantypurposes;
(l) open multiple shops on the Platform without the Company’s prior approval;
(m) duplicate stock keeping units on the Platform; and
(n) be a party to, whether actively or otherwise, any scheme, transaction, sale or otherwise, which are not for the bona fidesale and purchase of Goods. For the avoidance of doubt, any scheme, transaction, sale or otherwise which are not bonafide sale and purchase of Goods include:
(i) any scheme, transaction, sale or otherwise, which primary or associated purpose is for the encashment ofvouchers, codes, and/or rebates;
(ii) any scheme, transaction, sale or otherwise, which primary or associated purpose is gamification for thepurpose of accumulation of any rebates, loyalty points, and/or credit; and/or cycle-selling operations etc.,
which are not done in collaboration with, or with the consent of, the Company.
“Goods” shall mean one (1), or several (if sold together under one listing price) as the case may be, item(s) owned and offered for sale by the Vendor under this Agreement.
For the avoidance of doubt, the Parties agree that the activities in (i) and (ii) are not bona fide activities for the purposes of this Agreement.
3.3 Representations Relating to the Products
The Vendor agrees, undertakes, represents and warrants that:
(a) the Goods are of merchantable quality, fit for their purpose, free from defects, and strictly conform to their listed specifications;
(b) the Goods and their offer for sale are not prohibited and comply with all relevant law and regulations applicable to such products in Singapore or the place of manufacture of such products (including all minimum age, marking and labelling requirements, product warranties, specifications and performance criteria, etc.) and conform with Policies, including prohibited and restricted items;
(c) it has full unencumbered title in dispatched Goods and in any materials incorporated in the dispatched Goods and all the dispatched Goods are supplied free of all liens, charges, encumbrances, or other security interests;
(d) it will provide the Goods and Products with all legally required documentation (including warranty card, warranty information and invoice) and update the same when legally required;
(e) it will provide the Company and/or the Platform Customer with any document pertaining to the sale of the Goods (including sales invoices and tax invoices), as may be requested by the Company and/or the Platform Customer;
(f) it will not, directly or indirectly, sell Inadequate Products, or expired (or soon to be expired, as determined by the Company acting in a commercially reasonable manner) Products;
(g) it is the owner or has lawful rights with respect to the use of Intellectual Property Rights concerning the Goods and any content materials provided by it for marketing the Goods (the “Content Materials“) and that it is not aware of any claims made by any third party with regard to any alleged or actual Intellectual Property Right infringement or other claim, demand or action resulting from any materials provided by it, advertising, publishing, promotion, manufacture, sale, distribution or use of the Goods;
(h) it will not, directly or indirectly, sell counterfeit, “replica” and name brand “knock off” products or products violating any Intellectual Property Rights;
(i) in relation to the Content Materials:
(A) the Content Materials are not prohibited and comply with the all applicable laws and regulations (including all minimum age, marking and labelling requirements, product warranties, specifications and performance criteria, etc.) and conform with the Policies as posted on the Platform;
(B) it will provide accurate and up to date Content Materials. The Content Materials must include all text, disclaimers, warnings, notices, labels or other indications required by law to be displayed in connection with the offer, merchandising, advertising or sale of the Goods and may not contain any sexually explicit (except as expressly permitted in written by the Company or allowed under applicable laws or regulations) defamatory or obscene materials;
(C) it will not directly or indirectly include in the Content Materials, in the product listing of the Goods, or with the Goods or the Products, any terms and conditions of sale (or of provision of service) other than those agreed under the Agreement or any Seller or third-party marketing materials; and
(D) it will not provide any Content Materials, or seek to list for sale on the Platform any Goods, or provide any uniform resource locator (“URL“) marks unless it has the right to publish the Content Material;
(E) agree to grant the Company a royalty-free, non-exclusive, right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially and non-commercially exploit in any manner, any and all of the Content Materials, and to sublicense the foregoing rights to Affiliates of the Company, provided that the Company will not alter any third-party trademarks;
(j) the Vendor shall not be a party to any scheme, sale, transaction or otherwise, which are not for the bona fide sale of Goods.
4. OPERATING RESERVATION OF RIGHTS BY THE COMPANY
4.1 De-listing of Goods
Notwithstanding any other provision in these Terms and Conditions, the Company shall have the right, in its sole discretion, to delay or suspend listing of, or to refuse to list, or to de-list, or to require the Vendor not to list, any or all Goods that the Vendor makes available to be listed for sale through the Platform, or be subject to Sales Traffic Activities, if any, provided by the Company, or to deactivate the Platform account(s) of the Vendor.
The Company may in its sole discretion withhold for investigation and/or refuse to process any order or payment for such order pending such investigation.
4.3 Third Party Services
The Company may use the services of one or more third party processors or financial institutions or such other service providers in connection with the Services.
4.4 Order Prices are Final
The prices indicated in the relevant Product order will not be subject to any variations and, unless otherwise agreed in writing, will include fulfilment costs, if any (e.g., packaging, storing or delivery costs). The Company reserves the right to reject any particular form of order or payment for the Goods, and not to honour or accept any discounts, coupons, gift certificates, or other offers or incentives made available by the Vendor.
4.5 Restriction of Shipping Destinations
The Company may in its sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and /or cancel any Product order. The Vendor will stop and/or cancel orders of Goods if so requested by the Company (and if the Vendor has transferred the Goods to the applicable carrier or shipper prior to such request, the Vendor shall use all commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). Where the Vendor has already received payment for any Goods or Products, the Vendor will refund any Platform Customer that has been charged for an order that has been so stopped or cancelled.
4.6 Product Reviews
The Company may subject the Goods or the Vendor to Sales Traffic Activities, use mechanisms that rate, or allow Platform Customers to rate or review the Goods and/or the Vendor’s performance as a seller and the Company may make these ratings and reviews publicly available.
4.7 Content Materials, Marketing, and Intellectual Property Rights
(a) The Company has no obligation to verify the accuracy, completeness, and legality of Content Materials.
(b) The Company retains the right to determine the use and placement of Content Materials, and the structure, appearance, design, functionality and all other aspects of the Platform, the Services, and, if any, the Sales Traffic Activities.
(c) As between the Parties, each Party retains all right, title and interest in and to its technology and Intellectual Property Rights. Neither Party acquires any rights in the foregoing from the other Party except as expressly granted under the Agreement; all other rights are reserved, and no implied licenses are granted. Neither Party shall attempt to register any distinctive trademarks or domain names that are confusingly similar to those of the other Party.
(d) The Vendor will not be entitled to use any intellectual property belonging to the Company without the Company’s prior approval in writing.
(e) This Agreement will not be deemed or construed to create, convey or transfer any Intellectual Property Rights to the Vendor and, other than as instructed by the Company, the Vendor will not decompile any software or reverse engineer any software, or other product or process. This Agreement is not a license to use or distribute any software, or other product or process.
(f) This Agreement confers to the Vendor no rights of ownership or title, license, or other Intellectual Property Rights in any tangible or intangible property, including software (e.g. the Platform, any API’s or other software) and data (e.g. Sales data , performance data, Platform Customer data) used, obtained or created under this Agreement. If such rights were nevertheless to have accrued to it for any reason whatsoever, the Vendor will assign, dispose or otherwise transfer (and effect the transfer of) the full and exclusive ownership of all such rights to the Company or any other party designated by the Company free of charge, or for a nominal fee. The Vendor will use and process such software and data only for the purpose of the execution of the Agreement, will not claim any Intellectual Property Rights, sell, assign, license, publish, lease or otherwise commercially exploit such software and data, and will immediately cease their use and processing upon termination of the Agreement or if so required by the Company at any time.
(g) The Vendor undertakes, represents and warrants that it will not, directly or indirectly, participate in any of the following actions: reverse engineering, reverse compiling or otherwise deriving the underlying source code or structure or sequence of any Platform solution or technologies, deleting or altering author attributes or copyright notices, and/or fail to obtain all required permissions when using the Platform to receive, upload, display, distribute, or execute programs or perform other works protected by intellectual property laws.
(h) Nothing herein contained will be deemed to limit or restrict the rights of the Company or any third party to assert claims for violation of any Intellectual Property Rights against the Vendor.
5. USE OF THE PLATFORM, INDEMNITY, AND LIMITATION OF LIABILITY
5.1 The Platform, the Services and any Additional Services are provided on an “as is” basis. Except as expressly provided for in the Agreement, the Company makes no other representations or warranties of any kind, express or implied, including: (a) the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement; (b) that the Platform, the Services or the Additional Services will meet the Vendor’s requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error; (c) that the information, content, materials, or products included on the Platform will be as represented by the Company, available for sale on a timely manner, lawful to sell, or that the Company or the Platform Customers will perform as promised; (d) any implied warranty arising from course of dealing or usage of trade; and (e) any obligation, liability, right, claim, or remedy in tort, unless arising from acts of fraud, negligence or wilful misconduct by the Company. The Vendor acknowledges that any information and any materials provided by or through the Platform, the Services or the Additional Services may contain inaccuracies or errors and the Company expressly excludes liability for any such inaccuracies or errors to the fullest extent permitted by applicable law. Any link found on the Platform is provided for the Vendor’s convenience to provide further information. It does not signify that the Company endorses the contents thereof and the Company has no responsibility for the content of external links.
5.2 Because the Company is not privy to transactions between the Vendor and Platform Customers, the Vendor hereby agrees on its behalf and on behalf of Platform Customers to release the Company (and its directors, agents, contractors and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected there with, provided such release will not apply where actual claims, demands or damages arise due to the Company’s own fraud, gross negligence or wilful misconduct.
5.3 Any typographical clerical or other error or omission in any acceptance, invoice, Content Material or other document on the part of the Company shall be subject to correction without any liability for the Company.
5.4 Any claim of the Vendor under the Agreement must be notified to the Company within three (3) months from the order date relating to such claim. For the avoidance of doubt, the Company will not be liable for any claim made by the Vendor after said deadline. Any claim of the Vendor shall comply/follow the claims/dispute process/Policies of the Company, which may be changed from time to time.
5.5 The Vendor will defend, indemnify and hold harmless, and at the Company’s option defend, the Company and its Affiliates and their employees, directors, agents and representatives, from and against any and all liens, damages, losses, liabilities, obligations, penalties, fines, fees, Claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts’ fees and other costs of litigation) arising out of, or related to: (a) any actual or alleged breach of the Vendor’s undertakings, representations, warranties, or obligations set forth in the Agreement; (b) any incorrect, misleading, or erroneous information provided to the Company or any third party in connection with the Services; (c) any non-compliance by the Vendor with any applicable laws or the Policies, including any losses in respect of carriage or prohibited goods incurred by the Company or its sub-contractors; or (d) the Vendor’s own website (if any) or other sales channels, the Goods, the Products, any Content Materials, the advertisement, offer, sale or return of the Goods, the Products, any actual or alleged infringement of any Intellectual Property Rights by the Goods, the Products or the Content Materials, or seller taxes (duties, fees and other charges, etc.) or the collection, payment or failure to collect or pay seller taxes. If at any time the Company reasonably determines that any indemnified Claim might adversely affect the Company, the Company may take control of the defence of such Claim at the expense of the Vendor. The Vendor may not consent to the entry of any judgment or enter into any settlement of a Claim against the Company without the prior consent by the Company in writing, which consent may not be unreasonably withheld.
5.6 The Company will not be held liable for any damages of any kind, including direct, indirect, incidental, punitive, and consequential, arising out of or in connection with the Agreement, the Platform, Seller Centre, the Services, the Additional Services, the inability to use the Services, the Additional Services, the Goods, the Products, or from messages received or transactions entered into, provided that the Company will compensate the Vendor for any direct damages resulting exclusively, or primarily from the Company’s fraud, gross negligence or wilful misconduct.
5.7 To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of the Company and the Company’s Affiliates and their respective officers, directors, partners, employees and contractors, and any of them, to the Vendor and anyone claiming by or through the Vendor, for any and all claims, losses, costs or damages, including attorneys’ fees and costs and expert-witness fees and costs of any nature whatsoever or claims expenses resulting from or in any way related to the Agreement from any cause or causes shall not exceed USD2,000.00. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by the any applicable law or regulation.
6. PERSONAL DATA
6.1 The Vendor undertakes, represents and warrants that it will use and process Personal Data: (a) only for the purpose of the execution of the Agreement and not disclose it to third parties; (b) in accordance with the requirements under the applicable personal data protection law; and (c) in a manner that ensures the Company remains in compliance with the requirement under the applicable personal data protection laws. The Vendor further warrants that it does implement sufficient security measures to ensure that the Personal Data are securely kept and maintained as required by the applicable personal data protection law and agrees to subject itself to the necessary audits undertaken by the Company to ensure compliance of the above warranties and to immediately inform the Company of any Personal Data incident it becomes aware of.
6.2 The Vendor agrees to indemnify and hold harmless the Company and each of its respective officers, employees, directors and agents from, and at the Company s option defend against, any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts’ fees and other costs of litigation) (“Personal Data Claims“), to the extent such Personal Data Claims arise from or may be in any way attributable to: (i) any violation of the Agreement by the Vendor; (ii) the negligence, gross negligence, bad faith or intentional or wilful misconduct of the Vendor or its subcontractors (whether or not approved by the Company); or (iii) any security incident for which the Vendor is directly or indirectly responsible.
7. PLATFORM CUSTOMER ORDERS AND USE OF INFORMATION
7.1 The Company will own all information regarding Platform Customers, orders and the supply of the Services including payments, fees, disbursements, refunds, administrative fees, cancellation penalties, adjustments, etc. and the Company will not be liable to pay any royalties or fees to the Vendor in connection with the use of any such information.
7.2 The Vendor will utilise information of Platform Customers or the Platform’s users, including Personal Data, disclosed by the Company to the Vendor or which the Vendor has otherwise collected or obtained access to pursuant to or in connection with the Agreement, solely for purposes of the Agreement and will not sell, assign, license, publish, lease or otherwise commercially exploit any such information or utilize such information in any manner for its own benefits or carry out any data mining, data compilation or data extraction for the purposes of statistical or trade analysis or otherwise, based on or in connection with the aforesaid information. No Platform Customer information or Platform’s users’ information will be disclosed by the Vendor to any third party without the prior written consent of the Company, and will only be disclosed within the Vendor’s organisation on a need-to-know basis.
8. CONFIDENTIAL INFORMATION
8.1 The Vendor agrees that it will not disclose any Confidential Information, except to Affiliates, employees, and/or agents on a need to know basis and who have agreed in writing to keep it confidential.
8.2 The Vendor will ensure that those people and entities use such Confidential Information only to exercise rights and fulfil obligations under the Agreement and keep the Confidential Information confidential. The Vendor may also disclose Confidential Information when required by law or regulation after giving the Company reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
8.3 Save for any copy required to be kept by the Vendor of the Confidential Information for legal or regulatory reasons, the Vendor will, at any time upon request from the Company or upon the end of any relationship between the Parties, at the Company’s option either: (a) return to the Company all Confidential Information in its possession or control together with all information and documentation containing, comprising or relating in any way to the Confidential Information, and certify that all copies of the Confidential Information have been so returned; and/or (b) destroy all Confidential Information in its possession or control together with all information and documentation containing, comprising or relating in any way to the Confidential Information, and certify that the Confidential Information has been destroyed.
8.4 The rights and obligations of the Parties under this Clause 8 will survive the termination of the Agreement.
“Affiliate” means any entity directly or indirectly controlled by, or controlling, a Party or any affiliate or subsidiary thereof.
“Confidential Information” means any information proprietary to a Party or an Affiliate thereof, that is disclosed to the other Party or an Affiliate thereof, whether marked as confidential or not, that should be considered confidential information under the circumstances. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully obtained and provided to the recipient by a third party.
9.1 The Company has the right to unilaterally and immediately terminate the Agreement upon the occurrence of any of the following:
(a) The Vendor being in breach of any provision of the Agreement and (provided such breach is capable of remedy) failing to remedy the same within seven (7) days from being so notified;
(b) the Vendor being in breach of any applicable laws or Policies with respect to Goods and sales of Goods
(c) the Vendor passing a winding up resolution or a court of competent jurisdiction making an order for the same;
(d) the issuance of an administrative order in relation to the Vendor, or the appointment of a receiver over, or an encumbrance taking possession of, or the of selling any of, the Vendor’s assets;
(e) the Vendor making an arrangement or composition with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors;
(f) the Vendor ceasing or threatening to cease to carry on business; or
(g) the Vendor breaching any of its representations, undertakings, or warranties under this Agreement.
9.2 Either Party may unilaterally terminate the Agreement without cause by providing one calendar month’s prior written notice to the other Party.
9.3 Upon termination of the Agreement, the Vendor will promptly notify the Company of all concluded purchase orders for Platform Customers which have yet to be performed. For the avoidance of doubt, notwithstanding any termination for any reason, the Vendor will remain responsible for the fulfilment of any such pending order and the Company will fulfil any pending payment obligations.
10.1 Entire Agreement
The Agreement will prevail over any other agreement, terms or conditions regarding the subject matter, pre-contractual negotiations, and to the exclusion of all other terms submitted, proposed or stipulated by either Party (including any terms or conditions which the Vendor purports to apply under any purchase order, confirmation order, specification, invoice or other document) and no terms or conditions endorsed upon, delivered with or contained in any other document or with the Goods or Products, will form part of the Agreement.
The actual or future invalidity or ineffectiveness of any provision hereof will not affect the validity or effectiveness of the whole document. The Agreement will apply to the relationship between the Parties in addition to any specific terms agreed to herein. In the event of any conflict or inconsistency between any provision of the Purchase Orders, Policies, Master Terms, and Vendor Product Lists, the provisions of each of the Purchase Orders, Policies, Master Terms, and Vendor Product Lists will prevail in that order.
The singular includes the plural and vice versa, as the context may require. The headings are inserted for convenience only and will be ignored when construing this Agreement. The term “including” or “include” shall mean “including, without limitation”, unless the context otherwise requires.
Unless otherwise provided in this Agreement or agreed to between the Parties, all notices, requests, demands and other communications hereunder must be in writing and will be deemed to have been fully given and received when sent with receipt received by recognized overnight delivery service, registered mail or email one (1) business day after being deposited for next-day delivery with a recognized overnight delivery service or emailed, or three (3) business days after being mailed by registered mail, charges and postage prepaid, to the Party to receive such notice at such Party’s address set forth herein or any other address that such Party may specify by notice to the other Party.
The Vendor cannot assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Agreement, without the prior written consent of the Company. The Company may assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Agreement.
10.6 No Partnership
The Company and the Vendor are independent contractors, and nothing in the Agreement will create any partnership, joint venture, agency, franchise, sales representative relationship or exclusivity between the Parties. The Agreement will not cause the establishment of any relationship of employment or partnership between the Parties or with any person who provides services to either. The Vendor will have no authority to make or accept any offers or representations on behalf of the Company.
10.7 No Third Party Rights
The Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of the Company and Vendor. Other than as regards the rights of Platform Customers against the Vendor, nothing in the Agreement will be construed as giving any third party any rights whatsoever.
10.8 No Illegal Acts
Notwithstanding any other provision in the Agreement to the contrary, nothing contained herein will oblige the Company or the Vendor to engage in any action or omission to act which would be prohibited by or penalized under the laws of Singapore or any other country.
10.9 No Waiver
The failure of a Party to exercise its rights in case of breach of contract by the other Party will not be considered as a waiver of its rights under the Agreement.
10.10 Force Majeure
No Party will be liable to the other or be deemed to be in breach of the Agreement by reason of any delay or failure to perform any of its obligations due to an event of Force Majeure. Upon the occurrence of any event of Force Majeure, the Company may, at its option, fully or partially suspend delivery/performance of its obligations hereunder while such event or circumstance continues. If any of the events of Force Majeure will continue for a period exceeding one (1) month, the Company may notify Vendor that it will terminate the Agreement.
“Force Majeure” means any event or cause beyond a Party’s reasonable control such as, but not limited to: (a) an act of God, explosion, flood, tempest, fire or accident; (b) war or threat of war, sabotage, insurrection, civil disturbance or requisition, act of terrorism or civil unrest; (c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; (d) import or export regulations or embargoes; (e) interruption of traffic, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party); and (f) health epidemics declared by the World Health Organization.
No variation (including amendments or crossed-out provisions) of these Terms will be valid unless: (a) expressly agreed to in writing and signed by an authorized representative of the Company; or (b) notified by the Company to the Vendor as provided in Clause 1 (Acceptance) of these Master Terms.
10.12 Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws of Singapore and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of Singapore and waive any objection to proceedings in any such court on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum. The submission by the Parties herein shall not affect the right of any Party to take proceedings in any other jurisdiction nor shall the taking of proceedings in any jurisdiction preclude any Party from taking out proceedings in any other jurisdiction.
This Agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any Party may enter into this Agreement by signing any such counterpart (which may include counterparts delivered by facsimile and/or electronic transmission) and each counterpart shall be as valid and effectual as if executed as an original.
No remedy conferred by any of the provisions of this Agreement 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 any Party shall not constitute a waiver by such Party of the right to pursue any other available remedies.
10.15 No Disclosure of this Agreement
The Vendor shall not divulge to any third party (except to their respective professional advisers or except as required by applicable law or the rules of any stock exchange) any information regarding the existence or subject matter of this Agreement without the prior written consent of the other Party.
APPENDIX – DEFINITIONS
|business day:||a day other than Saturday, Sunday, or a national or public holiday in Singapore.|
|Fee:||the service fee payable by the Vendor to the Company under the Order and Payment Policy in consideration for the provision of Services and shall be calculated as set out in such Policy.|
|Inadequate Product:||any wrong, faulty, defective, damaged (excluding any Good or Product damaged due to mishandling by the Company, its contractors, or the Platform Customer), legally non-compliant Goods or Products, or a Good or Product that has been publicly or privately recalled, in accordance with the law or the Policies.|
|Intellectual Property Rights:||all copyright, moral rights, trade marks, design rights, rights in or relating to databases, rights in or relating to confidential information, rights in relation to domain names, and any other intellectual property rights (registered or unregistered) throughout the world.|
|Listing Price:||the price, including instalments, at which a Good is offered for sale to Platform Customers by the Vendor as indicated on the Platform at the time the Order is placed. For the avoidance of doubt, the Listing Price includes any tax applicable by applicable law, and excludes any coupons or other discounts provided by the Company to the Platform Customer.|
|Order:||an order of Goods in the quantity and description as set out in a Purchase Order.|
|Personal Data:||any personal information as defined by the applicable personal data protection laws and regulations in Singapore, pertaining, but not limited, to the Company’s directors, employees, agents, contractors, consultants and Platform Customers.|
|Purchase Order:||each purchase order sent out by the Company to the Vendor for an order of Goods by a Platform Customer, in such written form as may be determined by the Company from time to time.|
|Policy:||each of the Order and Payment Policy, Delivery Policy, Returns Policy, and Sales Traffic Activities Policy as set out in the Annexes to the Agreement.|
|Shipping Fee:||where applicable, the fee charged by the Vendor to a Platform Customer for the shipping of an Order, as may be notified by the Vendor to the Company and the Platform Customer.|
ANNEX I – ORDER AND PAYMENT POLICY
- Orders placed by Platform Customers will be communicated by the Company to the Vendor via a Purchase Order which may be sent by electronic means, or otherwise.
- Unless otherwise agreed in writing, and subject to the Returns Policy, Payments will be made by the Company to the Vendor on the second business day of each calendar month (each such date, a “Vendor Payment Date“), in respect of Orders that have been delivered or completed by the Reconciliation Cut-Off Date.
- For the avoidance of doubt, coupons or other unilateral discounts provided by the Company to Platform Customers are not considered in the Fee calculation. Any taxes, including GST, payable as regards the Services, will be paid by the Vendor.
- From time to time, the Company may offer promotional and goodwill rebates or discounts to the Vendor in respect of any part of the Fee. The terms of such rebate or discount are determined by the Company at its sole discretion. Where required by law, the Company may generate an invoice to the Vendor to give effect to the rebate or discount. If the Company is held liable for any taxes on behalf of the Vendor, or as a tax agent of the Vendor, in connection with any Order or Payment, the Vendor will indemnify the Company for such tax liability or compliance costs, irrespective of when the tax liability is assessed.
- If a Platform Customer informs the Company within the Applicable Period and the Company determines (acting in a commercially reasonable manner) that there may be a potential Inadequate Product or Returned Product, the Company shall withhold any Payment relating to such Product (or Order relating to such Product) until a determination can be made as to whether there is an Inadequate Product or Returned Product. For the avoidance of doubt, no interest shall accrue on any amounts that have been withheld (the “Withheld Amounts“) in accordance with this provision. Inadequate Products or Returned Products shall be handled in accordance with the Returns Policy. If the Company determines that there is no Inadequate Product or Returned Product, it shall notify the Vendor of the same, and such Withheld Amount shall be paid out to the Vendor on or before the Vendor Payment Date immediately following such determination.
|Applicable Period:||7 calendar days from (and including) the day that a Platform Customer has received a Product, or such other time as may be set out in the relevant policy of the Company applicable to Platform Customers.|
|the fee payable to the Company in respect of each Order, as may be agreed between the Company and the Vendor in the relevant Vendor Product List.|
|GST:||goods and services tax.|
|Payment:||the Sales Proceeds minus any Fees or sums owed by the Vendor under the Agreement or any other agreement entered into by the Parties and subject to any chargeback, reversal, refund, withholding for anticipated claims, deduction due to a dispute, in accordance with the Agreement or any other agreement entered into by the Parties.|
|Reconciliation Cut-Off Date:
|the 10th calendar day of each month, unless otherwise agreed notified by the Company to the Vendor.|
|Product:||each Good to be delivered to a Platform Customer by the Vendor.|
|Sales Proceeds:||the gross proceeds received from the Platform Customers by the Company (whether directly or indirectly through a third party payment services provider) which consists of the Listing Price and the Shipping Fee (if applicable).|
|Vendor Product List:||the list of Goods to be supplied by the Vendor, as agreed between the Company and the Vendor from time to time in such written form as may be determined by the Company.|
For the avoidance of doubt, terms capitalized in this Annex but not otherwise defined shall have the meanings ascribed to them in the Agreement or the Appendix, as the case may be.
ANNEX II – DELIVERY POLICY
- The Vendor will prepare and ship each Order to the address specified in the relevant Purchase Order within the Delivery Timeline, provided that, where the Vendor fails to comply with the deadline, the Company reserves the right to modify the deadline and/or to cancel the Order.
- The Vendor shall stop or cancel any Orders if so directed by the Company.
- The Vendor will ensure that the Company and the Platform Customer are at all times supplied with updated Order shipment tracking information. The Platform Customer is deemed to have been supplied with such information upon the Vendor making such information available on the Platform.
- Ownership / title and risk of loss for Goods and Products will remain with the Vendor at all times, and the Company will have no liability whatsoever related to the Goods and Products including their shipping, storage, delivery delays, damage or loss through Vendor Shipping Arrangements.
- The Vendor shall be responsible for obtaining appropriate insurance covering any damage or loss to the Goods or Products.
|Delivery Timeline:||3 business days from the date of the relevant Purchase Order.|
|Vendor Shipping Arrangements:||where the Vendor is responsible for the delivery of Products to Platform Customers using domestic or international postal services (whether arranged through the Company or not) or using its own logistics services.|
For the avoidance of doubt, terms capitalized in this Annex but not otherwise defined shall have the meanings ascribed to them in the Agreement or the Appendix, as the case may be.
ANNEX III – SALES TRAFFIC ACTIVITIES POLICY
The Company aims to facilitate the marketing of the Vendor’s Goods and Products through the use of social media and other online retail channels (collectively, the “Sales Traffic Activities“). This Service includes (but may not be limited to):
(a) Invest necessary resources to scope and engage social media ‘influencers’ (“Influencers“) to promote the Vendor’s Goods and Products on social media channels;
(b) organizing workshops to educate such Influencers on the Products and their uses;
(c) providing an online venue for such Influencers to conduct ‘live’ sessions to promote the Products.
For the avoidance of doubt, terms capitalized in this Annex but not otherwise defined shall have the meanings ascribed to them in the Agreement or the Appendix, as the case may be.
ANNEX IV – RETURNS POLICY
Returns – Failed Deliveries – Inadequate Products
- The Vendor shall accept the return of Failed Deliveries and Returned Products. The Company may determine at its sole discretion whether a Platform Customer will receive a refund, adjustment, or replacement (as the case may be).
- The Vendor will promptly notify the Company of any Inadequate Product (or the threat of a public or private recall) and cooperate and assist the Company with returns, including by initiating the procedures for returning Goods or Products to the Vendor.
- In case of a Failed Delivery: (a) where received by the Company, Sales Proceeds will be refunded to the Platform Customer and (b) where received by the Vendor, Payment will be refunded by the Vendor to the Company, and such amount will be recoverable by the Company from the Vendor as a debt due from the Vendor and the Company will be entitled to set-off such amount from amounts payable to the Vendor (if any), or by other methods at the Company’s election, provided that the Company shall do so in good faith acting in a commercially reasonable manner.
- In case of an Inadequate Product, the Vendor shall bear all costs associated with the return and refund or replacement, including the Payment Fee.
- The Company has no obligation to accept any Returned Product.
- The Company will not be responsible for any risk or be liable for any claims, demands, liabilities, expenses, losses, cost or damage in connection with any Failed Delivery and Returned Products (including due to a threatened recall) and will claim all costs incurred in that respect (if so incurred) from the Vendor, who shall indemnify and hold harmless the Company in respect of such costs.
|Failed Delivery:||an Order that is cancelled for unsuccessfully execution due to: (i) the delivery address (either physical or email) provided by the Platform Customer or by the Company being incorrect; (ii) where acceptance of delivery of the Product is required, the Platform Customer being unable to accept the Product; (iii) where the Product is a physical product, the Platform Customer refusing to accept the delivery of the Product in accordance with the relevant Company policies applying to them; or (iv) where the Platform Customer remain uncontactable after various attempts (the number of delivery attempts shall be determined by the relevant carrier).|
|Payments:||as set out in Annex I (Order and Payment Policy).|
|Payment Fee:||a fee, calculated on the basis of a percentage of the Sales Proceeds, as set out in Annex I (Order and Payment Policy).|
|Returned Product:||the return of a physical Product to the Vendor by a Platform Customer in accordance with the Agreement and/or the Policies, including Inadequate Products. The Vendor will retain, or take back from the Platform Customer as the case may be, ownership, title and risk of all Returned Products.|
|Sales Proceeds:||as set out in Annex I (Order and Payment Policy).|