ECOMMERCE AGREEMENT Confidential
By entering into this Ecommerce Agreement (“Agreement“) you (“Seller”, “you”, “your“) represent that you are an adult of at least 18 years of age, capable of validly entering into agreements and performing your obligations hereunder. BY REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL POLICIES OF THE PLATFORM ARE INCORPORATED BY REFERENCE.
Kindermall reserves the right to notify you from time to time of changes to the terms and conditions of this Agreement.
1. Kindermall Services to You
Kindermall offers you general services consisting of:
- • the listing of your products;
- • customer services (for a limited time);
- • order verification and payment processing; and
- • delivery coordination,
and other additional services that you may request and that we may offer you.
For more information see Section 2 and 6 of the Terms.
2. Products You Can Sell
You can sell goods that are legally permitted to be sold and that comply with our Policies. Since the goods are sold by you, you are responsible for all product warranties, defects, etc. as if you had sold the goods directly to Kindermall platform users or Customers.
For more information see Section 4 of the Terms.
Depending on the mode of fulfilment, orders must be ready for collection by our delivery partners within 24 hours of the order being notified to you, or as set out in the Policies.
For more information see Annex 4.
Kindermall will remit to your bank account the sales proceeds after deducting Fees due and payable to Kindermall for offering the Services to you.
For more information see Sections 2, 3 and 6 of the Terms and Schedule A.
5. Your Obligations
When listing your goods, you must ensure that you have the right to use the advertising materials (photos, text, etc.) you upload on our site.
After shipping your products, you are responsible for returns and product warranties.
For more information see Sections 4, 9 and 11 of the Terms and Annex 3.
6. How To End Our Relationship
You may end your seller relationship with Kindermall at any time and without penalty by providing us 14 days’ written notice of your intention to discontinue the use of our services.
For more information see Section 12 of the Terms.
7. Dispute Resolution
This Agreement is governed by the Laws.
Where we are in disagreement regarding any matter, we will first try to find an amicable solution to our disagreement. If this fails, either party may refer the matter to arbitration.
For more information see Annex 2.
8. Definitions and Interpretation
See Section 13 of the Terms and Annex 1.
A. Any person who wants to access the Platform and use the Services to sell Goods must accept the terms and conditions of this Agreement (“Terms“) without change.
B. Kindermall reserves the right to change at any time and in its sole discretion any of the terms and conditions contained in these Terms, the Schedules and Annexes, and any fees, procedures, Policies governing the Services, the Platform or Seller Center. These changes will take effect seven (7) days from notification by notice to Seller or posting on the Platform, Seller Center or otherwise. Changes to fees and Policies may be posted without notice. Seller is responsible for reviewing notices and Policies. Seller’s continued use of the Services, the Platform and/or Seller Center following the changes taking effect will constitute Seller’s acceptance of such changes and if Seller does not agree to any changes to these Terms or to the Policies, Seller must discontinue the use of the Services, the Platform and Seller Center (except to the extent required herein) and the Agreement will be terminated. For the avoidance of doubt, newer versions of the Terms and/or Schedule(s) supersede older versions.
C. Use of the Services, the Platform and Seller Center is limited to parties that can enter into and form contracts under applicable law. You represent and warrant that: i) you are an adult of at least 18 years of age capable of validly entering into the Agreement and performing your obligations hereunder; ii) where you are a business, that a) you are, and will remain at all times, a business duly organized, registered, validly existing and in good standing under the laws of the country in which the business is registered; b) you have all requisite right, power and authority to enter into the Agreement and perform your obligations hereunder; and c) any information provided or made available by you or your Affiliates is at all times accurate and complete. You further represent and warrant that you and any person or entity that has a financial interest in your business, or any person or entity you are acting on behalf of: a) has no affiliation with any Kindermall employee which may result in a potential or actual conflict of interest; b) has not been barred or otherwise prevented from selling on Kindermall; or c) has not been involved in any lawsuit or claim that has a bearing on the Agreement.
2. Services – Fees
- A. Kindermall provides a platform for third-party sellers and buyers to complete transactions. Except as set out in the Agreement, Kindermall is not involved in the actual transaction between Seller and Customers. As owner or provider of the Goods and vendor thereof, it is up to Seller to, among others, ensure the sale is legally authorised, accurately describe the Goods, package, ship, insure, warrant and fulfil all other sale and after sale obligations applicable by law or by trade. Seller uses the Services, the Platform and Seller Center, at its own risk.
- B. Seller authorizes Kindermall to act as its exclusive payment processing agent for the purpose of: i) collecting the Sales Proceeds and in general any sums due or owing under the Agreement and holding the same; ii) processing customer payments, refunds and adjustments; (iii) remitting the Payment; and iv) paying to Kindermall, to Kindermall Affiliates and to third parties (including Customers) any amounts Seller owes to them. As a payment processing agent, Kindermall will have no responsibility with respect to the legality of transactions occurring between Seller and Customers and Seller undertakes that all transactions are in compliance with the Laws (including anti money-laundering regulations).
3. Sales Proceeds – Payment
- A. Sales Proceeds will represent an unsecured claim against Kindermall. Kindermall may combine Sales Proceeds and Payments with the funds of other users of its services. For the avoidance of doubt, Seller will not receive interest or any other earnings on Sales Proceeds or Payments.
- B. Unless otherwise agreed in writing, Payments will be made by Kindermall to Seller in accordance with Schedule A.
- C. Kindermall may delay, suspend or cancel any Payment in case Seller breaches any term of the Agreement or Customer Agreement and any Payment made to Seller will not in any way be considered as a waiver of Kindermall’s rights.
- D. If Kindermall concludes that Seller’s actions and/or performance in connection with the Agreement or the Customer Agreement are likely to result, or have resulted, in Customer disputes, Disputes, chargebacks or other third party claims, or if there are any sums owed by Seller to Kindermall, then Kindermall may, at its sole discretion, withhold any Payment for the longer of: i) the Minimum Suspension Period; ii) the completion of any investigation regarding Seller’s actions or performance; or iii) the resolution of any Dispute.
- E. Kindermall reserves the right to impose limits on Order or transaction values, on Customers or on Seller and will not be liable if: i) Kindermall does not proceed with an Order that would exceed said limit; or ii) Kindermall allows a Customer to cancel an Order because the Platform or the Goods are unavailable following the commencement of a transaction.
- F. Without prejudice to any other rights and remedies which Kindermall has against Seller, if any sums payable by Seller to Kindermall under the provisions of the Agreement will become due and be unpaid, Seller will pay to Kindermall the Late Payment Interest.
- G. To the extent required by the Laws, Kindermall will be entitled to withhold any and all taxes, duties, fees and other charges in connection with any Order, Payment or otherwise under the Agreement or the Customer Agreement. If Kindermall is required under the Laws or the law of any jurisdiction to deduct or withhold any sum as taxes imposed on or in respect of any amount due or payable to Seller, Kindermall will make such deduction or withholding as required and the amount payable to Seller will be reduced by any such amount necessary. Kindermall will provide Seller a certificate or any similar document proving that amounts deducted refer to withholding taxes applicable to Seller.
4. Seller Undertakings
- (a) comply with all applicable laws, treaties, ordinances, codes and regulations;
- (b) comply with all Policies;
- (c) be responsible and pay all taxes, duties, fees and other charges arising out of or associated with the Order, the Payment or in any other way owed by Seller under the Agreement or the Customer Agreement
- (d) will issue a valid invoice to the Customer, if required by the Laws.
- (e) obtain all necessary rights, licences, permits or approvals required for the offer, advertising and sale of the Goods on or through the Platform prior to their listing and will provide, as such time as Kindermall may so request, copies of these documents to Kindermall;
- (f) ensure that any information provided under this Agreement, including for the listing (including the Content Materials) of the Goods, is accurate, current, and complete and is not misleading or otherwise deceptive;
- (g) fulfil all Orders for Goods at their stated quantity and price to Customers who meet Kindermall’s eligibility conditions;
- (h) contract appropriate insurance covering its obligations thereunder and the Goods regardless of the fulfilment model chosen;
- (i) provide, in the format and at such times as Kindermall may require, accurate, updated and complete information about the availability status, stock level and Listing Price of the Goods;
- (j) ensure that the Listing Price for any Good offered to Customers will not exceed the price offered by Seller 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 Goods benefit from that lower price;
- (k) give Kindermall written notice of any requirement or provision of any contract that may conflict with any requirement or provision of the Agreement; and
- (l) ensure that any person filling-in or signing any document, operating the Seller Center account, or handling the Goods and Products, on behalf of Seller (other than a Kindermall employee, contractor or agent, or a third party specifically mandated by Kindermall) has full power and authority to do so on behalf of Seller. Seller may not dispute the actions of such person insofar as they are in apparent compliance with the Agreement. B. Negative Covenants: Seller further undertakes, represents and warrants that it will not, 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 or display 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 without their consent or the 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 animal;
- (f) conduct activities such as gambling, sweepstakes, raffles and lotteries or participate in any activities related to so-called pyramid or Ponzi schemes, or any other illegal, immoral or antisocial activities;
- (g) use the Platform or the Services to purchase items sold on the Platform for commercial use or for use on behalf of a third party;
- (h) use, or access, input or upload on, the Platform and/or Seller Center any material that is not directly connected with the Goods, or permit the use of Seller’s account or offer “free space” on or other access to the account or the Platform to third parties;
- (i) access content and information that concerns any party other than Seller, transmit unsolicited commercial or bulk email, interfere with the proper working of the Platform or Seller Center, transmit any viruses, Trojan horses or other harmful code, or attempt to bypass any mechanism used to detect or prevent such activities;
- (j) create liability for Kindermall (and its Affiliates, directors, employees, contractors, agents, subcontractors, etc.) or expose it to undue risk or otherwise engage in activities that Kindermall, in its sole discretion, determines to be harmful to Kindermall’s operations, reputation, or goodwill;
- (k) contact any Customer and will not enter into any direct arrangements with the Customer for the offer of Goods or other products or services, except where notified or permitted by Kindermall to do so for the purposes of fulfilling a Customer Agreement;
- (l) enrol or offer to enrol Customers in any scheme or program other than as strictly required for warranty purposes;
- (m) open multiple shops on the Platform without Kindermall’s prior approval; and
- (n) duplicate stock keeping units on the Platform. C. Undertakings in relation to Goods: Seller 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 the Laws (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 the Goods and in any materials incorporated in the Goods and all the Goods are supplied free of all liens, charges 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 Kindermall and/or Customer any document pertaining to the sale of the Goods or Customer Agreement (including sales invoice and tax invoice), as may be requested by Kindermall and/or Customer;
- (f) it will not, directly or indirectly, sell Inadequate Products, or expired (or soon to be expired) Products; and
- (g) it will not, directly or indirectly, sell counterfeit, “replica” and name brand “knock off” products or products violating any Intellectual Property Rights.
- D. Seller 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, provided that and in the event of any of them becoming or unfulfilled, untrue or incorrect, Seller will promptly inform Kindermall of the same and rectify the situation.
5. Kindermall Rights
- A. Notwithstanding any provision in these Terms, Kindermall will 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 Seller not to list, any or all Goods that the Seller makes available to be listed for sale through the Platform or be subject to Sales Traffic Activities, if any, provided by Kindermall, or to deactivate the seller account/s of the Seller.
- B. Kindermall may in its sole discretion withhold for investigation and/or refuse to process any Order. Kindermall may use the services of one or more third party processors or financial institutions or such other service providers in connection with the Services.
- C. The prices indicated in the Order will not be subject to any variations and, unless otherwise agreed in writing, will include fulfilment costs (e.g., packaging, storing or delivery costs) according to the Fulfilment Model. Kindermall 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 Seller.
- D. Kindermall may in its sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any Order. Seller will stop and/or cancel orders of Goods if so asked by Kindermall (provided that Seller has transferred the Goods to the applicable carrier or shipper, Seller will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). Where Seller has already received Payment, Seller will refund any Customer that has been charged for an Order that Kindermall has stopped or cancelled.
- E. Kindermall (directly or through a third party) will bear the risk of credit card fraud (e.g. fraudulent purchases arising from the theft or unauthorized use of a Customer’s credit card information) occurring in connection with the Order, except with respect to: i) Orders that Seller does not fulfil in accordance with the Order information, or ii) any fraud directly or indirectly linked with Seller. Seller will bear all other risk of fraud or loss. Seller will promptly inform Kindermall of any changes to the nature or specifications of the Goods or any pattern or behavior of fraudulent or other improper activity with respect to any of the Goods that may result in a suspicion or higher incidence of fraud or other impropriety associated with transactions involving the Goods.
- F. Kindermall may subject the Goods or Seller to Sales Traffic Activities, use mechanisms that rate, or allow Customers to rate or review the Goods and/or Seller’s performance as a seller and Kindermall may make these ratings and reviews publicly available.
6. Use of Tools – Additional Services
- A. Seller hereby undertakes and represents that its use of the Services, Platform, Seller Center and the selection of its user name, store name and store in store name, will not be unlawful, inaccurate, misleading, false, fraudulent, defamatory, trade libellous, or otherwise unsuitable. Any password provided by Kindermall to Seller may be used only during the period Seller is permitted to use the Platform, manage the catalogue of Goods listed on the Platform, update information about the Goods (e.g. availability status, stock levels and Prices), electronically accept and fulfil the Orders and review the completed Orders, and may not be shared with any person other than employees of Seller that need to use it for the execution of the Agreement. Seller is responsible for supplying and authorizing access to its users. Seller is responsible to terminate or reassign access to any Seller user that Seller deems to have become unauthorized to access the Services at any time.
- D. Under terms and conditions agreed to in the Seller Center, the Agreement and/or in a separate agreement, Seller may be offered the possibility to purchase goods and services provided by Kindermall and/or third parties (“Additional Services“). Kindermall reserves the right, in its sole discretion and at any time, to amend the terms (including scheduling, suspension and termination), of Additional Services. Payment for Additional Services will be either by deduction from Sales Proceeds, by direct payment or invoice, or by any other means of payment indicated in Seller Center or agreed to by the Parties.
7. Confidential Information
- A. The recipient of any Confidential Information will not disclose that Confidential Information, except to Affiliates, employees, and/or agents who need to know it and who have agreed in writing to keep it confidential. The recipient will ensure that those people and entities use Confidential Information only to exercise rights and fulfil obligations under the Agreement and keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving the discloser reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
- B. Save for any copy required to be kept by the recipient of the Confidential Information for legal or regulatory reasons, the recipient will, at any time upon request from the discloser or upon the end of any relationship between the Parties, at the discloser’s option either: (i) return to the discloser 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 (ii) 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.
- C. The rights and obligations of the Parties under this Section will survive the termination of the Agreement.
8. Personal Data
- A. Seller undertakes, represents and warrants that it will use and process Personal Data: i) only for the purpose of the execution of the Agreement or Customer Agreement and not disclose it to third parties; ii) in accordance with the requirements under the applicable personal data protection law; and iii) in such manner that ensures Kindermall remains in compliance with the requirement under the applicable personal data protection laws. Seller 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 Kindermall to ensure compliance of the above warranties and to immediately inform Kindermall of any Personal Data incident it becomes aware of.
- B. Seller agrees to indemnify and hold harmless Kindermall and each of its respective officers, employees, directors and agents from, and at Kindermall’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 or the Customer Agreement by Seller; ii) the negligence, gross negligence, bad faith or intentional or wilful misconduct of Seller or its subcontractors (whether or not approved by Kindermall); or iii) any security incident for which Seller is directly or indirectly responsible.
9. Content Material, Industrial and Intellectual Property Rights
- A. Seller represents and warrants to Kindermall that it is the owner or has lawful rights with respect to the use of Intellectual Property Rights concerning the Goods and 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 the Content Material, advertising, publishing, promotion, manufacture, sale, distribution or use of the Goods.
- B. Seller undertakes, represents and warrants that:
- (a) the Content Materials are not prohibited and comply with the Laws (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 or Seller Centre;
- (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 Kindermall or allowed under applicable Laws), 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;
- C. Seller hereby grants Kindermall 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 Kindermall Affiliates, provided that Kindermall will not alter any third-party trademarks.
- D. Kindermall has no obligation to verify the accuracy, completeness and legality of Content Materials.
- E. Kindermall 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.
- F. 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 will attempt to register any distinctive trademarks or domain names that are confusingly similar to those of the other Party.
- G. Seller will not be entitled to use any intellectual property belonging to Kindermall without Kindermall’s prior approval in writing.
- H. This Agreement will not be deemed or construed to create, convey or transfer any Intellectual Property Rights to Seller and, other than as instructed by Kindermall, Seller 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.
- I. This Agreement confers to Seller no rights of ownership or title, license, or other Intellectual Property Rights in any tangible or intangible property, including software (e.g. the Platform, the Seller Center and any API’s or other software) and data (e.g. Sales data, performance data, Customer data, Seller Center data and Seller Center name) used, obtained or created under this Agreement. If such rights were nevertheless to have accrued to it for any reason whatsoever, Seller will assign, dispose or otherwise transfer (and effect the transfer of) the full and exclusive ownership of all such rights to Kindermall or any other party designated by Kindermall, free of charge, or for a nominal fee. Seller 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 Kindermall at any time.
- J. Seller undertakes, represents and warrants that it will not, directly or indirectly, participate in any of the following actions such as reverse engineering, reverse compiling or otherwise deriving the underlying source code or structure or sequence of any Kindermall solution or technologies, deleting or altering author attributes or copyright notices, and/or fail to obtain all required permissions when using the Platform or Seller Center to receive, upload, display, distribute, or execute programs or perform other works protected by intellectual-property laws.
- K. Nothing herein contained will be deemed to limit or restrict the rights of Kindermall or any third party to assert claims for violation of any Intellectual Property Rights against Seller.
10. Customer Information – Customer Services
- A. Kindermall will be responsible for and have sole discretion to deal with Customers relating to Orders and Seller will not confirm Orders, deliveries or give any further information about the fulfilment of the Orders to the Customer.
- B. Kindermall will own all information regarding Customers, Orders and the supply of the Services including payments, Fees, disbursements, refunds, Administrative Fees, Cancellation Penalties, adjustments, etc. and Kindermall will not be liable to pay any royalties or fees to Seller in connection with the use of any such information.
- C. Seller will utilise information of Customers or the Platform’s users, including Personal Data, disclosed by Kindermall to Seller or which Seller 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 Customer information and the Platform’s Users information will be disclosed by Seller to any third party without the prior written consent of Kindermall, and will only be disclosed within Seller’s organisation on a need-to-know basis.
11. Liability – Indemnification
- A. The Platform, Seller Center, the Services and the Additional Services are provided on an “as is” basis. Except as expressly provided for in the Agreement, Kindermall makes no other representations or warranties of any kind, express or implied, including: i) the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement; ii) that the Platform, Seller Center, the Services or the Additional Services will meet Seller’s requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error; iii) that the information, content, materials, or products included on the Platform or Seller Center will be as represented by Kindermall, available for sale on a timely manner, lawful to sell, or that Kindermall or the Customers will perform as promised; iv) any implied warranty arising from course of dealing or usage of trade; and v) any obligation, liability, right, claim, or remedy in tort, unless arising from acts of fraud, negligence or wilful misconduct by Kindermall. Seller acknowledges that any information and any materials provided by or through the Platform, Seller Center, the Services and the Additional Services may contain inaccuracies or errors and Kindermall expressly excludes liability for any such inaccuracies or errors to the fullest extent permitted by the Laws. Any link found on the Platform or Seller Center is provided for Seller’s convenience to provide further information. It does not signify that Kindermall endorses the contents thereof and Kindermall has no responsibility for the content of external links.
- B. Because Kindermall is not involved in transactions between Seller and Customers, Seller hereby agrees on its behalf and on behalf of Customers to release Kindermall (and its agents 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 therewith, provided such release will not apply where actual claims, demands or damages arise due to Kindermall’s fraud, negligence or wilful misconduct.
- C. Any typographical clerical or other error or omission in any acceptance, invoice, Content Material or other document on the part of Kindermall will be subject to correction without any liability for Kindermall.
- D. Any claim of Seller under the Agreement (other than claim pertaining to Sales Proceeds Payment as stipulated in Clause 3(H)), will be made by in compliance with the claims/dispute process/policy of Kindermall, which may be changed from time to time. Notwithstanding this, any such claim must be notified to Kindermall within ninety (90) days from the Order, failing which, Seller waives the right to make such claim.
- E. Seller will defend, indemnify and hold harmless, and at Kindermall’s option defend against, Kindermall 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: i) any actual or alleged breach of Seller’s undertakings, representations, warranties, or obligations set forth in the Agreement or the Customer Agreement; ii) any incorrect, misleading, or erroneous information provided to Kindermall or any third party in connection with the Services or Additional Services; iii) any non-compliance by the Seller with any applicable laws or the Policies, including any losses in respect of carriage or prohibited goods incurred by Kindermall or its sub-contractors; or iv) Seller’s own website 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 Kindermall reasonably determines that any indemnified Claim might adversely affect Kindermall, Kindermall may take control of the defences at the expense of Seller. Seller may not consent to the entry of any judgment or enter into any settlement of a Claim against Kindermall without the prior consent by Kindermall in writing, which consent may not be unreasonably withheld.
- F. Kindermall 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 Customer 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 Kindermall will compensate Seller for any direct damages : i) resulting exclusively, or primarily from Kindermall’s fraud, gross negligence or wilful misconduct; and ii) as provided under the Kindermall Rights Section of the Terms.
- G. To the fullest extent permitted by the Laws, and not withstanding any other provision of this Agreement, the total liability, in the aggregate, of Kindermall and Kindermall’s Affiliates and their respective officers, directors, partners, employees and contractors, and any of them, to Seller and anyone claiming by or through Seller, 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 will not exceed the Fee that Kindermall is entitled to receive from Seller for the month preceding the date the liability arose, or US Dollar five thousand (USD5,000.00) (or such equivalent amount in local currencies of the Territory), whichever is greater, provided that the maximum liability of Kindermall towards Seller will be amended to: i) US Dollar ten thousand (USD10,000.00) (or such equivalent amount in local currencies of the Territory) as regards liability under the Kindermall Rights Section of the Terms, and ii) such maximum liability as specified in the Fulfilment Section as regards liability under the Fulfilment Section of the Terms. 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 Laws.
- A. Kindermall has the right to unilaterally and immediately terminate the Agreement upon the occurrence of any of the following: i) Seller being in breach of any provision of the Agreement and failing to remedy the same within fourteen (14) days from being so notified; ii) the Seller being in breach of any applicable laws or Kindermall’s Policies with respect to Goods and sales of Goods ii) Seller passing a winding up resolution or a court of competent jurisdiction making an order for the same; iii) the issuance of an administrative order in relation to Seller, or the appointment of a receiver over, or an encumbrance taking possession of, or the of selling any of, Seller’s assets; iv) Seller making an arrangement or composition with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or v) Seller ceasing or threatening to cease to carry on business.
- B. Provided they have not been corrected by Kindermall within fourteen (14) days from notifying Kindermall of the occurrence of any of the following, Seller has the right to immediately terminate the Agreement: i) Kindermall delaying payment for more than thirty (30) days without reason; ii) Kindermall delaying returns for more than sixty (60) days without valid reason; iii) the making of an administration order in relation to Kindermall or the appointment of a receiver over Kindermall’s assets; iv) the making of an arrangement or composition by Kindermall with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or v) Kindermall ceasing or threatening to cease to carry on business.
- C. Either Party may unilaterally terminate the Agreement without cause by providing fourteen (14) days’ prior written notice to the other Party.
- D. Upon termination of the Agreement, Seller will notify Kindermall of all concluded Customer Agreements which have yet to be performed. For the avoidance of doubt, notwithstanding any termination for any reason, Seller will remain responsible for the fulfilment of any pending Order in according to the Fulfilment Model and Kindermall will fulfil any pending Payment obligations. Any provision of the Agreement that, by its nature, is meant to survive the term or termination.
- A. 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 Seller 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 Terms, Special Conditions, any Schedules or the Annexes, the provisions of each of the Terms, Special Conditions, Schedules and Annexes will prevail in that order.
- B. 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” will mean “including, without limitation”, unless the context otherwise requires.
- C. 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) Working Day after being deposited for next-day delivery with a recognized overnight delivery service or emailed, or three (3) Working 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.
- D. Seller cannot assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Agreement, without the prior written consent of Kindermall. Kindermall may assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Agreement.
- E. Seller and Kindermall 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 between the Parties or with any person who provides services to either. Seller will have no authority to make or accept any offers or representations on behalf of Kindermall.
- F. 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 Kindermall and Seller. Other than as regards the rights of Customers against Seller, nothing in the Agreement will be construed as giving any third party any rights whatsoever.
- G. Notwithstanding any other provision in the Agreement to the contrary, nothing contained herein will oblige Kindermall or Seller to engage in any action or omission to act which would be prohibited by or penalized under the Laws or of any other country.
- H. 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 Terms or under the Laws.
- I. 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, Kindermall 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, Kindermall may notify Seller that it will terminate the Agreement.
- J. No variation (including amendments or crossed-out provisions) of these Terms will be valid unless: a) expressly agreed to in writing and signed by authorized representative of Kindermall; or b) notified to Seller as provided in the Preamble Section of these Terms.
- K. All stamp duty and registration fees (if any) in respect of the Agreement will be fully borne and paid by Seller.
Last updated: 23 April 2020 (effective 1 April 2020)
ANNEX 1: DEFINITIONS
- a. Additional Service: is defined in the Use of Tools – Additional Services Section of the Terms.
- b. Additional Service Fee: the fee applicable to an Additional Service.
- c. Administrative Fee: the fee, if any, chargeable to the Seller per non-compliance, or per Good or Product in contravention of the Seller’s undertaking.
- d. Affiliate: any entity directly or indirectly controlled by, or controlling, a Party or any affiliate or subsidiary thereof. As regards Kindermall, Affiliate is deemed to include entities which are members of the Alibaba and Kindermall groups of companies.
- e. Agreement: this Ecommerce Agreement.
- f. Annex: any annex to the Agreement. The Annex(s) form(s) an integral part of the Agreement.
- g. AIAC: is defined in Annex 2.
- h. Cancellation Penalty: the charge applicable for a Cancelled Order.
- i. Cancelled Order: an Order cancelled or rejected by Seller, or cancelled due to Seller’s lack of compliance with any provision of the Agreement.
- j. Claim: any claim, action, audit, investigation, inquiry or other proceeding instituted by any person or entity.
- k. Commission: the percentage (as applicable at the time the Order is placed) of the Listing Price.
- l. Confidential Information: 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.
- m. Consumption Tax: Any prevailing consumption tax, including but not limited to any Sales Tax and Service Tax (“SST”), Goods and Services Tax (“GST”), or its equivalent or any successor thereof.
- n. Content Material: product information, text, images, and any other relevant and/or legally required information relating to the listing of Goods on the Platform, including third party and Seller’s trademarks and other Intellectual Property Rights related materials.
- o. Customer: a third-party, who purchases Product on the Platform.
- p. Customer Agreement: the agreement between Seller and a Customer concerning the purchase of a Product in fulfilment of an Order, where the execution of such agreement is attested by the Fulfilled Customer Agreement status of the Order.
- q. Delivery Note: is defined in Annex 4.
- r. Dispute: a dispute regarding the provision of Additional Services by third parties.
- s. Drop-Shipping: is defined in Annex 4.
- t. Effective Date: the date of Seller’s first use of the Services, as such date is recorded in Seller Center.
- u. Failed Delivery: an Order that is cancelled for unsuccessfully execution due to: i) the delivery address (either physical or email) provided by the Customer or by Kindermall being incorrect; ii) where acceptance of delivery of the Product is required, the Customer being unable to accept the Product; iii) where the Product is a physical product, the Customer refusing to accept the delivery of the Product in accordance with the Policies; or iv) where the Customer remain uncontactable after various attempts (the number of delivery attempts will be determined by the relevant carrier). In addition to the provision of Annex 4, in case of Failed Delivery: iv) where received by Kindermall, Sales Proceeds will be refunded to the Customer and, v) where received by Seller, Payment will be refunded to Kindermall.
- v. FBK Goods: is defined in Annex 4.
- w. FBK Request: is defined in Annex 4.
ii. if applicable, the Commission calculated on the Listing Price, any Shipping Cost, Cancelation Penalty, Administrative Fee and/or Additional Services Fee.
For the avoidance of doubt, coupons or other unilateral discounts provided by Kindermall to Buyers are not considered in the Service Fee calculation. Any taxes, including any prevailing consumption tax, payable as regards the Services, will be imposed on top of the Fee and paid by Seller.
- _____________________ Sdn. Bhd. (company ____________________) a company incorporated under the laws of Malaysia having its registered office at: _________________________________address__________________________________________.
nn. Personal Data: any personal information as defined by the applicable personal data protection laws and regulations in the Territory, pertaining, but not limited, to Kindermall employees, agents, consultants and Customers.
ANNEX 2: DISPUTE RESOLUTION
ANNEX 3: RETURNS
Returns – Failed Deliveries – Inadequate Products
ANNEX 4: FULFILMENT
1. Fulfilment Models
A. Orders for physical products are fulfilled under the following Fulfilment Models:
2. General terms for Logistics Services applicable for Drop-Shipping & Fulfilment By Kindermall models
(a) US$100 (or such amount set out in the policies or Schedule A) per parcel (regardless of the number of Goods or Products in such parcel); except for items lost or damaged in Kindermall’s fulfilment centre under Fulfilment by Kindermall model where compensation amount is as published by Kindermall from time to time; or
(b) The Replacement Value of such Goods or Products,
Provided that, if the loss or damage is caused by the Seller’s instructions, the Seller failing to comply with the terms of this Agreement or the Policies, or related to the decay of perishable Goods, or otherwise directly or indirectly caused by Seller, its agents or contractors, Kindermall will not be liable for any such loss or damage.
3. Fulfilment by Seller
4. Drop-Shipping ECOMMERCE AGREEMENT
A. Seller will prepare and ship the Order to Kindermall’s designated location (including any applicable drop-off boxes offered by Kindermall or to Kindermall’s appointed third party logistics provider) within twenty-four (24) hours from the Order being placed (taking into account Working Days) or according to the lead times specified in the Policies, provided that, where Seller fails to comply with the deadline, Kindermall reserves the right to modify the deadline and/or to cancel the Order.
5. Fulfilment By Kindermall
(a) These FBK Terms form part of the Agreement and apply if the method of fulfilment of Orders is Fulfilment by Kindermall (“FBK”).
(b) Where the method of fulfilment of Orders is FBK, Seller is responsible for the sourcing and delivery of the Goods to Kindermall’s appointed fulfilment centre or pick-up point. The services provided by Kindermall under the FBK model (“FBK Services”) comprise:
i) If offered by Kindermall at its sole discretion, pick-up of Goods and transportation to Kindermall’s fulfilment centre;
ii) Short-term storage of the Goods for the purpose of fulfilment of Orders;
iii) Picking and packing of Goods for fulfilment of Orders;
iv) After-sales services such as invoice printing (if available), customer service and returns and failed delivery processing in respect of the Goods.
(c) Notwithstanding the FBK services provided to the Seller, the title to all Goods handed over to Kindermall for FBK shall remain with the Seller until the title to such Goods is transferred to (i) the Customer in accordance with the Customer Agreement; or (ii) to Kindermall or its Affiliates in the manner contemplated under these FBK Terms.
B. Enrolment in FBK
(a) Seller may submit a request to enrol in FBK through the designated request channel as notified by Kindermall from time to time. In order to enrol in FBK, Seller may be required to meet certain minimum requirements (such as seller account tenure, and minimum sale quantities), as notified in writing by Kindermall. Kindermall reserves the right to revise such minimum requirements from time to time.
(b) Acceptance of any enrolment request shall be at Kindermall’s sole discretion and may be conditional on Seller fulfilling additional requirements relating to training and enrolment formalities.
(c) If Seller’s enrolment request is accepted by Kindermall, these FBK Terms shall apply to the Goods in respect of which the FBK Services are provided (“FBK Goods”).
C. Inbound Process of FBK Goods
- If the Seller complies with a Seller Attended Inbound Request and the inbound process is completed within the attendance period, any FBK Goods which is rejected for inbounding due to the FBK Goods’ failure to comply with Clause 5D(a) and 5D(b) below shall be immediately returned to Seller via its delivery personnel or representative.
- If Seller complies with a Seller Attended Inbound Request but the inbound process is not completed within the agreed attendance period, any FBK Goods which is rejected for inbounding after the end of the agreed duration due to the FBK Goods’ failure to comply with Clause 5D(a) and 5D(b) below shall be processed in accordance with Clause 5D(d) below.
- If Seller elects not to comply with a Seller Attended Inbound Request, any FBK Goods which is rejected for inbounding due to the FBK Goods’ failure to comply with Clause 5D(a) and 5D(b) below shall be processed in accordance with Clause 5D(d) below, save that Kindermall shall have no liability to Seller for any loss or damage to such rejected FBK Goods from the time they were shipped to Kindermall’s appointed fulfilment centre until the time that such FBK Goods are retrieved by the Seller.
D. Requirements for FBK Goods
i) minimum expiry dates or periods;
ii) packaging requirements to ensure the integrity of the FBK Goods delivered to Kindermall’s appointed fulfilment centre.
iii) labelling requirements (in addition to any mandatory requirements under the applicable law);
iv) prohibitions and exclusions of certain types of goods, such as illegal or prohibited, hazardous, toxic or radioactive goods, or goods which require special storage or handling.
- within one (1) day, if Kindermall reasonably determines that the FBK Goods create a safety, health or liability risk to Kindermall, its personnel or sub-contractors;
- within two (2) working days, if the FBK Goods do not comply with the requirements relating to minimum expiry dates or periods;
- within seven (7) working days, if the refusal is due to any other reason.
- indicate or imply that any FBK Goods have been delivered in accordance with Kindermall’s inbound requirements set out above and are free of loss or damage; or
- indicate or imply that Kindermall actually received the number of units of FBK Goods specified by Seller or in the Inbound Order for such shipment; or
- waive, limit or reduce any of Kindermall’s rights under the terms of the applicable Agreement or these FBK Terms.
E. Seller Obligations
F. Storage for Fulfilment
G. Fulfilment of Orders
H. Failed Deliveries & Returns
I. Outbound Process
- no Orders for the FBK Goods of the same SKU have been processed in the past twenty-eight (28) days and more than one hundred and fifty (150) days have elapsed since the particular FBK Goods were inbounded in to Kindermall’s appointed fulfillment centres;
- iii) the FBK Goods are reasonably determined by Kindermall to be unsuitable for FBK Services;
- iv) the FBK Goods are reasonably determined by Kindermall to be non-compliant with Kindermall’s notified policies (such as counterfeit items, inadequate or unsuitable packaging);
- v) the Agreement is being terminated for any reason; or
- vi) the FBK Services are being terminated by either Party for any reason.
- (c) Unless otherwise agreed, Seller shall be responsible for the pick-up of such FBK Goods from Kindermall’s appointed fulfilment centre within seven (7) working days (which Kindermall may extend at its sole discretion) after Kindermall has notified the Seller in writing to collect the outbounded FBK Goods. Kindermall may, at its sole discretion, agree to deliver the outbounded FBK Goods to the Seller’s delivery address in the same country, at Seller’s expense.
- (d) Seller shall be responsible for any inspection, check or reconciliation of the quantity and condition of the FBK Goods. Upon the Seller’s collection (or, in the case of delivery to the Seller, confirmed receipt at its designated delivery location) of the outbounded FBK Goods, they deemed to have been fully returned to Seller in full and good condition, unless any loss or damage of outbounded FBK Goods is notified in writing to Kindermall at the time of the collection (or confirmed receipt at its designated delivery location, as the case may be).
- (e) If no delivery arrangement has been agreed with Kindermall and Seller has failed to collect outbounded FBK Goods within thirty (30) days of the expiry of any written notification to Seller, the FBK Goods will be deemed abandoned and Kindermall may elect to dispose of the FBK Goods as provided herein in any manner it deems appropriate. Title to abandoned refused FBK Goods will transfer to Kindermall at no cost to Kindermall for the purpose of such disposal, and Kindermall will retain all proceeds, if any, received from the disposal of any abandoned refused FBK Goods. If the proceeds of the disposal are insufficient to cover the costs of such disposal, Kindermall shall be entitled to recover such uncovered costs from the Seller.
- (f) Seller may, at any time, request that Kindermall dispose of FBK Goods. Kindermall may dispose of FBK Goods in any manner it deems appropriate. Title to abandoned refused FBK Goods will transfer to Kindermall at no cost to Kindermall for the purpose of such disposal, and Kindermall will retain all proceeds, if any, received from the disposal of any abandoned refused FBK Goods. If the proceeds of the disposal are insufficient to cover the costs of such disposal, Kindermall shall be entitled to recover such uncovered costs from the Seller.
- (g) Seller shall comply with instructions that Kindermall may give in relation to any potential suspension of the work in Kindermall’s appointed fulfilment centre.
J. FBK Fees
(d) All claims by Seller to Kindermall in relation to FBK Goods in Kindermall’s fulfilment centres shall be made via the FBK Claims Module on any channel specified by Kindermall from time to time (“System”).
(e) On the first calendar day of each month, the System will generate a draft claim based on a previous inventory cycle for Seller’s review and decision on whether to submit the claim. If the claim is submitted by Seller, Kindermall will inform Seller of the claim outcome and Seller shall have an opportunity to dispute the claim outcome within a timeline stipulated by Kindermall. While there is a pending claim submitted by Seller or a pending dispute to the claim outcome, no further claim can be made by Seller until the pending claim or dispute to the claim outcome is completely resolved.
(f) Seller must further submit claims or disputes to a claim outcome (if any) in accordance with the timelines stipulated in the System. Unless expressly specified to the contrary, Seller must raise claims in respect of the FBK Services within twelve (12) months from the date the claim first arose.
(g) Any claims or disputes to a claim outcome for FBK Goods by Seller which fail to comply with the communicated process and platform requirements, as well as the timelines stipulated by Kindermall, shall be deemed waived by Seller.
(h) Kindermall may, without notice to the Seller, dispose of any FBK Goods that are: (i) marked as damaged by Kindermall under the System; and (ii) listed in the System claims report, and may carry out such disposal in any manner Kindermall deems appropriate. Title to these FBK Goods will transfer to Kindermall at no cost to Kindermall and Kindermall shall be entitled to retain all proceeds, if any, received from the disposal of these FBK Goods.
L. Other Tools
M. Force Majeure
(a) In addition to the Force Majeure provisions of the Agreement, Kindermall shall have no liability to Seller in respect of FBK Goods in Kindermall’s custody that are lost or damaged by reason of floods, storms, natural calamities and/or other acts of God. If Kindermall successfully makes any claims against its own insurance policies in respect of such lost or damaged FBK Goods and receives payment from its insurers in respect of the same, Kindermall shall pass on the proceeds it receives from such claims to Seller.
N. Termination of FBK Services
(a) Either Party may terminate the FBK Services without cause by providing at least fourteen (14) days’ prior written notice to the other Party.
(b) If any amount due and payable to Kindermall remains unpaid by the Seller for at least sixty (60) days after the due date, Kindermall may terminate the FBK Services immediately upon written notice to the Seller.
SCHEDULE A: PAYMENTS
C. Kindermall shall have the right to set off any amounts owed by Kindermall to Seller against any amounts owed by Seller to Kindermall, including any such amounts under other accounts or shops owned by the same Seller.
2. Commission and Payment Fee
- _______ percent (__%) (exclusive of any taxes such as Consumption Tax which shall also be borne by Seller).