KINDERMALL AGREEMENT Confidential
By entering into this Kindermall Agreement (“Agreement“) you (“Vendor”, “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/OR 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. When you access this website/platform, you acknowledge that you have read and agree to abide by the terms described. If you do not agree to the terms discussed here, you should exit this site now.
1. Kindermall Services to You
Kindermall offers you general services consisting of:
- • the listing of your products;
- • agent/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 Agent/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 (if any) 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 vendor 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 or entity 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 Vendor Center. These changes will take effect seven (7) days from notification by notice to Vendor or posting on the Platform, Vendor Center or otherwise. Changes to fees and Policies may be posted without notice. Vendor is responsible for reviewing notices and Policies. Vendor’s continued use of the Services, the Platform and/or Vendor Center following the changes taking effect will constitute Vendor’s acceptance of such changes and if Vendor does not agree to any changes to these Terms or to the Policies, Vendor must discontinue the use of the Services, the Platform and Vendor 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 Vendor 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 vendors and buyers to complete transactions. Except as set out in the Agreement, Kindermall is not involved in the actual transaction between Vendor and Agent/customers. As owner or provider of the Goods and vendor thereof, it is up to Vendor 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. Vendor uses the Services, the Platform and Vendor Center, at its own risk.
- B. Vendor 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 agent/customer payments, refunds and adjustments; (iii) remitting the Payment; and iv) paying to Kindermall, to Kindermall Affiliates and to third parties (including Agent/customers) any amounts Vendor owes to them. As a payment processing agent, Kindermall will have no responsibility with respect to the legality of transactions occurring between Vendor and Agent/customers and Vendor undertakes that all transactions are in compliance with the Laws (including anti money-laundering regulations).
- C. The services (“Services“) provided by Kindermall under the Agreement are classified as: (a) General Services (“General Services“) consisting in: i) the listing and publishing of Content Materials regarding the Goods on the Platform; ii) limited Agent/customer care services; iii) Order verification; iv) management of deliveries and returns; v) collection, reconciliation and execution of all Sales Proceeds as payment processing agent for Vendor; and vi) other services ancillary to the Services; and
- (b) if applicable, Additional Services that may be provided to Vendor by Kindermall or by third parties.
- D. In consideration of the provision of Services, Kindermall will be entitled to charge and invoice Vendor the Fee.
- E. Vendor agrees that Agent/customers satisfy their obligations to Vendor as regards the Agent/customer Agreement when Kindermall receives the Sales Proceeds. Kindermall’s obligation to remit funds received by it on Vendor’s behalf is limited to the Payment.
- F. Kindermall will provide to Vendor information in relation to each Order as necessary under the Agreement.
- G. Kindermall will provide support services to Vendor by way of coordinating and answering Agent/customer enquiries and processing returns as provided in the Policies.
- H. Vendors agrees that Kindermall may provide Vendor with electronic documents such as tax invoice, receipt, credit note, debit note, or any other document Kindermall may issue in compliance with the Laws.
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, Vendor 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 Vendor in accordance with Schedule A.
- C. Kindermall may delay, suspend or cancel any Payment in case Vendor breaches any term of the Agreement or Agent/customer Agreement and any Payment made to Vendor will not in any way be considered as a waiver of Kindermall’s rights.
- D. If Kindermall concludes that Vendor’s actions and/or performance in connection with the Agreement or the Agent/customer Agreement are likely to result, or have resulted, in Agent/customer disputes, Disputes, chargebacks or other third party claims, or if there are any sums owed by Vendor 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 Vendor’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 Agent/customers or on Vendor and will not be liable if: i) Kindermall does not proceed with an Order that would exceed said limit; or ii) Kindermall allows a Agent/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 Vendor, if any sums payable by Vendor to Kindermall under the provisions of the Agreement will become due and be unpaid, Vendor 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 Agent/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 Vendor, Kindermall will make such deduction or withholding as required and the amount payable to Vendor will be reduced by any such amount necessary. Kindermall will provide Vendor a certificate or any similar document proving that amounts deducted refer to withholding taxes applicable to Vendor.
- H. Any enquiry or dispute about any Payment will be made by in compliance with the claims/dispute process/policy of Kindermall, which may be changed from time to time. Notwithstanding which any such enquiry or dispute will be received by Kindermall on or before the expiration of one hundred and twenty (120) days after the Order date, failing which, Vendor waives the right to dispute such Payment. A. General Undertakings: By using the Services, Vendor undertakes, represents and warrants that it will:
4. Vendor 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 Vendor under the Agreement or the Agent/customer Agreement
- (d) will issue a valid invoice to the Agent/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 Agent/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 Agent/customers will not exceed the price offered by 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 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 Vendor Center account, or handling the Goods and Products, on behalf of Vendor (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 Vendor. Vendor may not dispute the actions of such person insofar as they are in apparent compliance with the Agreement. B. Negative Covenants: Vendor 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 Vendor Center any material that is not directly connected with the Goods, or permit the use of Vendor’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 Vendor, transmit unsolicited commercial or bulk email, interfere with the proper working of the Platform or Vendor 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 Agent/customer and will not enter into any direct arrangements with the Agent/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 Agent/customer Agreement;
- (l) enrol or offer to enrol Agent/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: Vendor 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 Agent/customer any document pertaining to the sale of the Goods or Agent/customer Agreement (including sales invoice and tax invoice), as may be requested by Kindermall and/or Agent/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. 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, provided that and in the event of any of them becoming or unfulfilled, untrue or incorrect, Vendor 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 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 Kindermall, or to deactivate the vendor account/s of the Vendor.
- 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 Vendor.
- D. Kindermall may in its sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any Order. Vendor will stop and/or cancel orders of Goods if so asked by Kindermall (provided that Vendor has transferred the Goods to the applicable carrier or shipper, Vendor will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). Where Vendor has already received Payment, Vendor will refund any Agent/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 Agent/customer’s credit card information) occurring in connection with the Order, except with respect to: i) Orders that Vendor does not fulfil in accordance with the Order information, or ii) any fraud directly or indirectly linked with Vendor. Vendor will bear all other risk of fraud or loss. Vendor 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 Vendor to Sales Traffic Activities, use mechanisms that rate, or allow Agent/customers to rate or review the Goods and/or Vendor’s performance as a vendor and Kindermall may make these ratings and reviews publicly available.
6. Use of Tools – Additional Services
- A. Vendor hereby undertakes and represents that its use of the Services, Platform, Vendor 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 Vendor may be used only during the period Vendor 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 Vendor that need to use it for the execution of the Agreement. Vendor is responsible for supplying and authorizing access to its users. Vendor is responsible to terminate or reassign access to any Vendor user that Vendor deems to have become unauthorized to access the Services at any time.
- B. Vendor acknowledges that the availability of the Services, Platform, Vendor Center is subject to: (a) availability of resources, including, without limitation, resources under the control of Kindermall and availability of a suitable network infrastructure at the time at which the Service is requested or delivered;
- (b) if applicable, geographic and technical capability of communication networks and other delivery systems at the time at which the Services are requested or delivered;
- (c) provisioning time that may be required by Kindermall to provide the Services; and
- (d) Vendor meeting the technical requirements for accessing Vendor Center from time to time.
- C. Vendor will not, and will not allow anyone to, directly or indirectly, engage in any fraudulent, inappropriate or unlawful activities in connection with the Services, including: i) generating fraudulent, repetitive or otherwise invalid clicks, impressions, queries or other interactions, whether through the use of automated applications or otherwise; ii) other than through reporting offered by Kindermall under the Sales Traffic Activities, collecting any user information, indexing or caching any portion from the Platform or Vendor Center, whether through the use of automated applications or otherwise; iii) targeting communications of any kind on the basis of the intended recipient being a user of the Platform or Vendor Center; iv) interfering with the proper working of the Platform, Vendor Centre, the Services or Kindermall’s other systems; v) transmitting any viruses, Trojan horses or other harmful code; or vii) attempting to bypass any mechanism Kindermall uses to detect or prevent such activities.
- D. Under terms and conditions agreed to in the Vendor Center, the Agreement and/or in a separate agreement, Vendor 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 Vendor 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. Vendor undertakes, represents and warrants that it will use and process Personal Data: i) only for the purpose of the execution of the Agreement or Agent/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. 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 Kindermall to ensure compliance of the above warranties and to immediately inform Kindermall of any Personal Data incident it becomes aware of.
- B. Vendor 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 Agent/customer Agreement by Vendor; ii) the negligence, gross negligence, bad faith or intentional or wilful misconduct of Vendor or its subcontractors (whether or not approved by Kindermall); or iii) any security incident for which Vendor is directly or indirectly responsible.
9. Content Material, Industrial and Intellectual Property Rights
- A. Vendor 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. Vendor 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 Vendor 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 Vendor 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. Vendor 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. Vendor 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 Vendor and, other than as instructed by Kindermall, 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.
- I. This Agreement confers to 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, the Vendor Center and any API’s or other software) and data (e.g. Sales data, performance data, Agent/customer data, Vendor Center data and Vendor Center name) used, obtained or created under this Agreement. If such rights were nevertheless to have accrued to it for any reason whatsoever, Vendor 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. 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 Kindermall at any time.
- J. Vendor 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 Vendor 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 Vendor.
10. Agent/customer Information – Agent/customer Services
- A. Kindermall will be responsible for and have sole discretion to deal with Agent/customers relating to Orders and Vendor will not confirm Orders, deliveries or give any further information about the fulfilment of the Orders to the Agent/customer.
- B. Kindermall will own all information regarding Agent/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 Vendor in connection with the use of any such information.
- C. Vendor will utilise information of Agent/customers or the Platform’s users, including Personal Data, disclosed by Kindermall to Vendor or which 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 Agent/customer information and the Platform’s Users information will be disclosed by Vendor to any third party without the prior written consent of Kindermall, and will only be disclosed within Vendor’s organisation on a need-to-know basis.
11. Liability – Indemnification
- A. The Platform, Vendor 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, Vendor Center, the Services or the Additional Services will meet Vendor’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 Vendor Center will be as represented by Kindermall, available for sale on a timely manner, lawful to sell, or that Kindermall or the Agent/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. Vendor acknowledges that any information and any materials provided by or through the Platform, Vendor 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 Vendor Center is provided for Vendor’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 Vendor and Agent/customers, Vendor hereby agrees on its behalf and on behalf of Agent/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 Vendor 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, Vendor waives the right to make such claim.
- E. Vendor 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 Vendor’s undertakings, representations, warranties, or obligations set forth in the Agreement or the Agent/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 Vendor 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) Vendor’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 vendor taxes (duties, fees and other charges, etc.) or the collection, payment or failure to collect or pay vendor 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 Vendor. Vendor 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 Agent/customer Agreement, the Platform, Vendor 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 Vendor 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 Vendor and anyone claiming by or through 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 will not exceed the Fee that Kindermall is entitled to receive from Vendor 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 Vendor 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) Vendor 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 Vendor being in breach of any applicable laws or Kindermall’s Policies with respect to Goods and sales of Goods ii) Vendor 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 Vendor, or the appointment of a receiver over, or an encumbrance taking possession of, or the of selling any of, Vendor’s assets; iv) Vendor making an arrangement or composition with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or v) Vendor 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, Vendor 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, Vendor will notify Kindermall of all concluded Agent/customer Agreements which have yet to be performed. For the avoidance of doubt, notwithstanding any termination for any reason, Vendor 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 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 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. 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 Kindermall. Kindermall may assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Agreement.
- E. Vendor 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. Vendor 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 Vendor. Other than as regards the rights of Agent/customers against Vendor, 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 Vendor 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 Vendor 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 Vendor 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 Vendor.
Last updated: 15 June 2020 (effective 16 June 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 Vendor per non-compliance, or per Good or Product in contravention of the Vendor’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 Vendor, or cancelled due to Vendor’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 Vendor’s trademarks and other Intellectual Property Rights related materials.
- o. Agent/customer: a third-party, who purchases Product on the Platform.
- p. Agent/customer Agreement: the agreement between Vendor and a Agent/customer concerning the purchase of a Product in fulfilment of an Order, where the execution of such agreement is attested by the Fulfilled Agent/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 Vendor’s first use of the Services, as such date is recorded in Vendor 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 Agent/customer or by Kindermall being incorrect; ii) where acceptance of delivery of the Product is required, the Agent/customer being unable to accept the Product; iii) where the Product is a physical product, the Agent/customer refusing to accept the delivery of the Product in accordance with the Policies; or iv) where the Agent/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 Agent/customer and, v) where received by Vendor, Payment will be refunded to Kindermall.
- v. FBK Goods: is defined in Annex 4.
- w. FBK Request: is defined in Annex 4.
- I. Fee: the fee payable to Kindermall for the Services, which is calculated based on: i. the Payment Fee; and,
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 Vendor.
- x. Force Majeure: any event or cause beyond a Party’s reasonable control such as, but not limited to: i) act of God, explosion, flood, tempest, fire or accident; ii) war or threat of war, sabotage, insurrection, civil disturbance or requisition, act of terrorism or civil unrest; iii) Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; iv) import or export regulations or embargoes; v) interruption of traffic, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Kindermall or of a third party); and vi) health epidemics declared by the World Health Organization.
- y. Fulfilment By Kindermall: is defined in Annex 4.
- z. Fulfilled Agent/customer Agreement: an Order the status of which is showing as “Delivered” in Vendor Center, or is otherwise deemed by Kindermall as having been executed by Vendor, including instalments thereof.
- aa. Fulfilment Model: the model of Order fulfilment of physical Goods agreed to by the Parties.
- bb. Good: one (1), or several (if sold together under one Listing Price) as the case may be, item(s) owned and offered for sale by Vendor under the Agreement.
- cc. Handling Fee: a fee payable for handling Goods and supplying packaging materials under Fulfilment By Kindermall (inbound receive and putting away, outbound picking and packing, Agent/customer return processing).
- dd. Inadequate Product: any wrong, faulty, defective, damaged (excluding any Good or Product damaged due to mishandling by Kindermall, a Kindermall contractor, or the Agent/customer), legally non-compliant Good or Product, or a Good or Product that has been publicly or privately recalled, in accordance with the law or the Policies.
- ee. 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.
- ff. Late Payment Interest: is the interest payable by Vendor on the overdue sum at the rate of eight per cent (8%) per annum, calculated on daily basis from the date on which such money falls due for payment to the date such money is actually received by Kindermall (as well as after judgment).
- gg. Laws: the laws of the Territory.
- hh. Kindermall: means Kindermall International Sdn. Bhd. (company registration number: 1371239-K) a company incorporated under the laws of Malaysia having its registered office at: No.16, Block B, Bukit Raja Business Park, Jalan Keluli 7/109, 40000 Shah Alam, Selangor, Malaysia
- ii. Listing Price: the price, including instalments, at which a Good is offered for sale to Agent/customers by 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 law, and excludes any coupons or other discounts provided by Kindermall to the Agent/customer.
- jj. Minimum Suspension Period: a period of sixty (60) days of which Kindermall is allowed to suspend the Payment to Vendor pursuant to the Sales Proceeds – Payment Section of the Terms.
- kk. Order: the request placed by a Agent/customer on the Platform for the purchase of a particular Good as communicated by Kindermall to Vendor. Kindermall reserves the right to unilaterally cancel an Order for any reason.
- ll. Payment: the Sales Proceeds minus any sums owed by 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.
- mm. Payment Fee: The payment fee is imposed by payment gateway and processors, who securely accepts payment from buyer after verifying their successful payment through online banking, credit cards processing and other payment methods.
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 Agent/customers.
- oo. Personal Data Claims: is defined in the Personal Data Section of the Terms.
- pp. Platform: The Kindermall platform, where the Vendor may list Goods for sale under the Agreement, and Agent/customer(s) may buy such goods.
- qq. Policies: the rules, guidelines, terms and conditions, etc. applicable to Vendors and Agent/customers for the use of the Services, Platform, Vendor Center and other Kindermall properties, as they may appear on the Platform or Vendor Center or be communicated from time to time by Kindermall.
- rr. Product: the individual Good purchased by a Agent/customer among the Goods.
- ss. Refurbished: means a product that has been returned to Vendor or its manufacturer and is identical to the original in all aspects including all packaging, documentation, accessories and software that are found in a new item, without additions. If repaired, it must have been inspected, cleaned and professionally restored to working order to meet manufacturer specifications with genuine spare parts. The fact that a product is refurbished must be clearly and prominently stated in the listing comments as well as he manufacturer’s or refurbisher’s warranty.
- tt. Replacement Value: the amount owed to Vendor by Kindermall in case any Good held by Kindermall is wrongly delivered, damaged or lost. Subject to any prescribed ceiling, (a) for Fulfilment by Kindermall model (where loss or damage occurs outside Kindermall’s fulfilment centre) or methods other than Fulfilment by Kindermall model, the Replacement Value amount is determined by Kindermall and using, at Kindermall’s discretion, corresponds to the lowest of either (i) the invoiced value of the Good to Vendor by Vendor’s supplier, or (ii) the price net of the costs associated with the sale (Listing Price minus the Commission, the Payment Fee, shipping fee (if any) and applicable taxes that would have applied if the product had been sold to a Agent/customer) of the Goods at the time the wrong delivery, damage or loss occurs. (b) For loss or damage of Goods while being stored in Kindermall’s fulfilment centre under the Fulfilment By Kindermall model, the Replacement Value amount is as detailed under Annex 4, clause 5K.
- uu. Returned Product: the return of a physical Product to Kindermall by a Agent/customer in accordance with the Agreement and/or the Policies, including Inadequate Products. Vendor will retain, or take back from the Agent/customer as the case may be, ownership, title and risk (save, as regards to risk, where the Product is Fulfilled By Kindermall and is under Kindermall’s care) of all Returned Products.
- vv. Ringgit and RM: Ringgit Malaysia.
- ww. Sales Proceeds: the gross proceeds received from Agent/customers by Kindermall which consist of the Listing Price and the Shipping Fee.
- xx. Sales Traffic Activities: Additional Services consisting in: i) Shop in Shop, which entails a set of specific design features on the Platform that enhance the visual representation of certain of Vendor’s Goods by means of a dedicated landing page; ii) Search Engine Marketing, which entails the bidding on relevant keywords related to the Goods and/or Vendor on electronic search engines; iii) Social Media Sales Traffic Activities, which entails the promotion of the Goods and/or Vendor on the Platform or social media platforms; and/or iv) other sales promotion services agreed to by the Parties.
- yy. Vendor: the user of the Services.
- zz. Vendor Center: any tool employed by Kindermall to operate any part of the Service, including the Kindermall Vendor University.
- aaa. Services: is defined in the Services Section of the Terms.
- bbb. Schedule: any schedule to the Agreement. The Schedule(s) form(s) an integral part of the Agreement.
- ccc. Shipped Date: the date a Product is: i) where the Product is a physical product, dropped off to a carrier by Vendor, or picked up by a carrier from Vendor, for delivery to a Agent/customer, as indicated in Vendor Center, or ii) where the Product is not a physical product, emailed or otherwise made available or provided to a Agent/customer in accordance with the sales stipulations applicable to such Product.
- ddd. Shipping Cost: the fee charged by Kindermall to Vendor for the shipping of a Product, as calculated based on the Shipping Fee Rate Card.
- eee. Shipping Fee: the fee charged by Vendor to a Agent/customer for the shipping of an Order, as calculated based on the Shipping Fee Rate Card.
- fff. Storage Fee: a fee payable under the Fulfilment By Kindermall model, for storing the Goods in the location designated by Kindermall, which fee varies based on whether the Goods are stored in a normal storage area or in a cold room (as agreed by the Parties).
- ggg. Term: is defined in the Terms and Conditions of this Agreement.
- hhh. Territory: Malaysia
- iii. USD or US Dollar: United States Dollar
- jjj. Working Day: a day other than Saturday, Sunday, or a national or State (at Vendor’s working premises) public holiday in the Territory.
ANNEX 2: DISPUTE RESOLUTION
- A. Save as provided in the Terms, any difference, controversy, or claim, arising between the Parties will be settled by arbitration, in English, in Kuala Lumpur, and in accordance with the rules of the Asian International Arbitration Centre (“AIAC“). Furthermore, the arbitral tribunal will consist of a sole arbitrator, to be designated by the Chairman of the AIAC. Any award by the arbitration tribunal will be final and binding upon the Parties. The arbitrator will award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by such Party in connection with the arbitration. If the arbitrator determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
- B. Notwithstanding the foregoing, in the event either Party believes that it may suffer irreparable harm prior to the resolution of any conflict by following the arbitration procedures established herein, such Party may apply to a court of competent jurisdiction for a restraining order or other equitable relief in order to prevent or alleviate such harm pending the arbitration. The Parties agree that this paragraph will not operate as a request that the court abstain from accepting jurisdiction or from granting appropriate orders which the court may deem necessary or appropriate to protect the interests of the Parties.
ANNEX 3: RETURNS
Returns – Failed Deliveries – Inadequate Products
- A. Vendor will accept the return of Failed Deliveries and Returned Products in accordance with the Policies. Kindermall has the right to determine at its sole discretion whether a Agent/customer will receive a refund, adjustment, or replacement, and to require Vendor to reimburse Kindermall if Kindermall determines that Vendor is liable to do so in accordance with the Agreement. Where Kindermall has refunded or paid any such aforementioned amount (whether on behalf of Vendor or otherwise), such amount will be recoverable by Kindermall from Vendor as a debt due from Vendor and Kindermall will be entitled to deduct such amount from amounts payable to Vendor, or by other methods at Kindermall’s election.
- B. Vendor will promptly notify Kindermall of any Inadequate Product (or the threat of a public or private recall) and cooperate and assist Kindermall with returns, including by initiating the procedures for returning Goods or Products to Vendor.
- C. Kindermall will refund Vendor the Commission related to any Failed Delivery or Order returned for Agent/customer convenience.
- D. In case of Failed Delivery, Kindermall will bear: i) the Payment Fee, and ii) unless the shipping has been arranged by Vendor, the Shipping Cost for the shipment of the Product to the Agent/customer and back to Vendor, all other costs being borne by Vendor.
- E. In case of an Inadequate Product, Vendor will bear all costs associated with the return and refund or replacement, including the Payment Fee, and unless the shipping has been arranged by Vendor, the Shipping Cost for the shipment of the Product to the Agent/customer, from the Agent/customer to Kindermall and from Kindermall back to Vendor, provided that, where FBK Goods are concerned, Vendor will also be debited for any additional Storage Fee and Handling Fee.
- F. Kindermall has no obligation to accept any Returned Product. Kindermall however may at its sole discretion request that the Product be returned to a designated location for further quality inspection. If Kindermall, directly or through a third party of its choice, determines during the quality inspection that the Returned Product is faulty or damaged, that it cannot be offered to other Agent/customers because of this fault or damage and that this fault or damage has been caused by the Agent/customer, Vendor will not be liable to accept the Returned Product.
- G. Unless they are FBK Goods and provided Failed Deliveries have been returned to Kindermall, subject to paragraph J below, Kindermall will organize the delivery of such Products to the address indicated by Vendor within sixty (60) days from the Shipped Date.
- H. Unless they are FBK Goods and provided Kindermall agrees to accept Returned Products at its designated location, subject to paragraph J below, Kindermall will organize the delivery of such Products to the address indicated by Vendor within forty-five (45) days from the Fulfilled Agent/customer Agreement date.
- I. Kindermall reserves the right to examine and determine at its own discretion if returned FBK Goods are saleable despite having been returned and if so, Kindermall may return such Returned Products to Vendor or place such Returned Products back in the inventory of Vendor.
- J. Subject to the Policies, Kindermall is not obliged to return any Products to the Vendor if such return would not be reasonably practicable (including if the value of Products is disproportionately low relative to the cost of returning Products).
- K. If (i) Kindermall is unable to return the Products to Vendor despite taking reasonable efforts in accordance with the Policies (for example, if Vendor refuses to pick-up the returned Products; or if Vendor’s delivery address is incorrect) or (ii) Kindermall reasonably determines that it is not reasonably practicable to return the Product to Vendor pursuant to Paragraph J above, Kindermall may, at its sole discretion, release, dispose of or sell the Products in any manner it sees fit, without any liability or payment obligations to the Vendor. The Vendor agrees that title to all Products will be passed to Kindermall prior to any release, disposal, or sale of the Products by Kindermall.
- L. Kindermall will not be responsible for any risk or 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 from Vendor.
ANNEX 4: FULFILMENT
1. Fulfilment Models
A. Orders for physical products are fulfilled under the following Fulfilment Models:
- (a) Fulfilment by Vendor: Where Vendor is responsible for the delivery of Products to Agent/customers using its own logistics services (“Fulfilment by Vendor”);
- (b) Drop-Shipping: where Vendor is responsible for delivering of Products to Kindermall’s designated location or appointed third party logistics provider, for Kindermall to coordinate delivery to Agent/customers (“Drop-Shipping”);
- (c) Fulfilment By Kindermall: where Vendor is responsible for delivering the Goods to the location designated by Kindermall, for Kindermall to co-ordinate their storage, re-packaging (if necessary) and delivery to Agent/customers (“Fulfilment by Kindermall” or “FBK ). A. Kindermall will provide last-mile delivery services (“Logistics Services”) to the Vendor, in accordance with the Policies.
- B. The Vendor will request for and use the Logistics Services in accordance with the Policies, in particular:
- C. The responsibility of Kindermall and Vendor in relation to packaging, handling, deliveries, returns, warranties and Orders will be in accordance with the chosen Fulfilment Model.
- D. Kindermall reserves the right, in its sole discretion, to use any method or route to perform the Logistics Services, including to sub-contract all or part of the Logistics Services, and to use any sub-contractor which Kindermall deems appropriate.
- E. Unless otherwise provided in the Agreement, Vendor will be responsible for all costs incurred for shipping the Goods or Products. Any costs assessed against or incurred by Kindermall in relation to shipping will be debited to Vendor. Vendor will also be responsible for payment of all customs duties, and taxes and any other charges related to the shipping and custom clearance of Goods and Products.
- F. Kindermall will not be listed on any import documentation relating to Goods and Products and Kindermall reserves the right to refuse to accept Goods or Products, and to cancel Orders, where it is listed on the import documentation, and any costs, penalties, taxes or duties assessed against or incurred by Kindermall will be charged to Vendor.
- G. Kindermall reserves the right to restrict the destinations to which Vendor may ship Goods and Products. Kindermall has no obligation to provide the Logistics Services to collect or deliver Goods or Products to or from any PO Box, overseas address, addresses without proper postal codes, or any non-delivery locations set out in the Policies.
- H. Vendor must comply with the standard operating procedures, import procedures, weight restrictions, size restrictions and other shipping requirements.
- I. Estimated shipping costs, if any, provided prior to shipment are not binding and Vendor agrees that it will be liable for: i) for the actual shipping costs; or ii) the estimated shipping costs, even if the carrier determines them to be lower than the estimate submitted to Vendor.
- J. Except as expressly provided by these Terms, at no point in time will title to Goods or Products pass to Kindermall or its sub-contractors (if any). Kindermall or its sub-contractors will not be or deemed to be the merchant on record of the Goods or Products.
- K. Risk of loss or damage to the Goods or Products will remain with the Vendor unless risk is transferred in accordance with these Terms.
- L. Kindermall may, in its sole discretion or at the direction of any government or law enforcement authority, at any time and without notice, open and inspect any Good or Product.
- M. Kindermall may, in its sole discretion, reject or re-package (at the Vendor’s expense) any Goods or Products for the provision of the Logistics Services, and return such Goods or Products.
- N. Vendor will inform Kindermall within 24 hours, or such other timing set out in the Policies, if any Goods or Products which are the subject of the Logistics Services are perishable, frozen, refrigerated, or temperature controlled, or require any form of special handling. Kindermall may choose to provide Logistics Services in respect of such Goods or Products at its sole discretion and subject to any additional fees and expenses agreed between the Parties for such Logistics Services.
- O. Service Fees in respect of the Logistics Services completed by each reconciliation cut-off date will be deducted from any Sales Proceeds of the Vendor prior to Payment of such Service Fees in accordance with this Agreement.
- P. Kindermall will, subject to any applicable law, have a lien on any Goods or Products in Kindermall’s possession for any Service Fees due and owing to Kindermall from the Vendor.
- Q. The total liability of Kindermall to the Vendor if there is any loss or damage to Goods or Products which are the subject of the Logistics Services and where Kindermall is responsible for the risk will be limited to the lower of:
- R. Kindermall may, in its sole discretion, allow Vendor to ship Goods at Vendor’s expense using discounted shipping rates that Kindermall is able to procure from any carrier. Vendor will not use the carrier account information of Kindermall, including, without limitation, carrier account number and shipping rates, for any purpose other than for the fulfilment of an Order, nor disclose such information to any third party, and Vendor will protect such information as Confidential Information.
2. General terms for Logistics Services applicable for Drop-Shipping & Fulfilment By Kindermall models
- (a) The Vendor will include all information and supporting documents required by law, Kindermall, or as set out in the Policies, including tax invoices for the Products, or, if required by Kindermall or by law, to send such information and/or supporting documents to the Agent/customer directly;
- (b) All Goods and Products will be packaged in accordance with the packaging guidelines in the Policies, and in such manner to protect the Goods / Products and their original packaging during transport and storage;
- (c) The Vendor will not use the Logistics Services in respect of any prohibited or dangerous goods, as set out in the Policies; and
- (d) The Vendor will not include any advertising or other materials in the Goods or Products, unless included by the manufacturer, or permitted by the Policies.
(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 Vendor’s instructions, the Vendor 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 Vendor, its agents or contractors, Kindermall will not be liable for any such loss or damage.
3. Fulfilment by Vendor
- A. Vendor will prepare and ship the Order to the address specified in the Order within the lead times set out in the Policies, provided that, where the Vendor fails to comply with the deadline, Kindermall reserves the right to modify the deadline and/or to cancel the Order.
- B. Vendor will stop or cancel any Orders if directed by Kindermall.
- C. Vendor will ensure that Kindermall is at all times supplied with updated Order shipment tracking information.
- D. Title and risk of loss for Goods and Products will remain with Vendor, and Kindermall will have no liability whatsoever related to the Goods and Products including without limitation their shipping, storage, delivery delays, damage or loss, or any claim or liability from Third Parties or Users relating to the Goods and Products, or the delivery and handling thereof.
- E. Vendor will be responsible for obtaining appropriate insurance covering any damage or loss to the Goods.
- F. Vendor shall be responsible for, and bears all risk and liability for the sourcing, sale, packaging, labelling, product quality, and product warranties (if applicable) for all Goods and Products delivered using the Fulfilment-by-Vendor model. All claims in relation to such Goods and Products, whether raised by any relevant authorities, the Agent/customer or any third party, shall be the responsibility of the Vendor. For the avoidance of doubt, Vendor shall be responsible to meet all legal and regulatory requirements in relation to such Goods and Products, including without limitation, their preparation, labelling, packaging, handling, storage, transportation, and delivery.
- G. If required by law, Vendor shall be responsible to take out appropriate insurance covering the events mentioned above as well as any other obligation under this Agreement.
- H. All fresh food (including but not limited to hot food, cooked food, eggs and milk) and frozen food shall be on Fulfilment-by-Vendor model, unless otherwise agreed by the Parties in writing.
4. Drop-Shipping ECOMMERCE AGREEMENT
A. Vendor 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 Vendor fails to comply with the deadline, Kindermall reserves the right to modify the deadline and/or to cancel the Order.
- B. Kindermall may, at its sole discretion, offer to pick up Products from mutually agreed pick up points, in accordance with the Policies.
- C. Vendor will stop or cancel any Orders if directed by Kindermall.
- D. Vendor will ensure that Kindermall is at all times supplied with updated Order shipment tracking information.
- E. Title and risk of loss for Goods and Products will remain with Vendor, and Kindermall will have no liability whatsoever related to the Goods and Products including without limitation their shipping, storage, delivery delays, damage or loss, or any claim or liability from Third Parties or Users relating to the Goods and Products or the delivery and handling thereof, except where these acts are directly handled by Kindermall as part of the Drop-Shipping process.
- F. Upon receiving Products that are the subject of an Order, Kindermall will deliver the Products to the delivery address and designated recipient, in accordance with the Policies.
- G. Vendor shall be responsible for, and bears all risk and liability for the sourcing, sale, packaging, labelling, product quality, and product warranties (if applicable) for all Goods and Products delivered using the Drop-Shipping model. All claims in relation to such Goods and Products, whether raised by any relevant authorities, the Agent/customer or any third party, shall be the responsibility of the Vendor. For the avoidance of doubt, Vendor shall be responsible to meet all legal and regulatory requirements in relation to such Goods and Products, including without limitation their preparation, labelling, packaging, handling, storage, transportation and delivery, prior to the receipt of such Goods and Products by Kindermall.
- H. If required by law, Vendor shall be responsible to take out appropriate insurance covering the events mentioned above as well as any other obligation under this Agreement.
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, Vendor 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), agent/customer service and returns and failed delivery processing in respect of the Goods.
(c) Notwithstanding the FBK services provided to the Vendor, the title to all Goods handed over to Kindermall for FBK shall remain with the Vendor until the title to such Goods is transferred to (i) the Agent/customer in accordance with the Agent/customer Agreement; or (ii) to Kindermall or its Affiliates in the manner contemplated under these FBK Terms.
B. Enrolment in FBK
(a) Vendor 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, Vendor may be required to meet certain minimum requirements (such as vendor 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 Vendor fulfilling additional requirements relating to training and enrolment formalities.
(c) If Vendor’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
- (a) Vendor shall submit to Kindermall all information required by Kindermall in respect of the FBK Goods. Kindermall shall have sole discretion to accept or reject any inbound request for FBK Goods submitted by the Vendor.
- (b) The agreed details of the FBK Goods shall be set out in an Inbound Order, which shall accompany each shipment of FBK Goods to Kindermall’s appointed fulfilment centre or pick-up point.
- (c) All FBK Goods shall be shipped to Kindermall’s appointed fulfilment centre on Delivery Duty Paid (Incoterm DDP 2010) basis unless otherwise agreed in writing. If the FBK Goods are shipped from overseas, the Vendor shall appoint its own importer-of-record and customs broker, and shall not name or list Kindermall or any of its Affiliates as the importer, exporter or customs broker for the FBK Goods.
- (d) Unless otherwise agreed with Kindermall, the Vendor shall ship the FBK Goods specified in the Inbound Order to Kindermall’s appointed fulfilment centre, at the appointment date and time specified in the Inbound Order. If FBK Goods arrive at Kindermall’s appointed fulfilment centre outside of the specified appointment dated and time, Kindermall shall be entitled to either accept the FBK Goods, or reject and them to Vendor at the expense of Vendor.
- (e) Kindermall may, at its discretion, provide the Vendor with pick-up services for the FBK Goods from the pick-up location agreed with the Vendor. If such pick-up services are offered and accepted by the Vendor, the Vendor shall comply with the processes and supply the information required for Kindermall to provide such services, including standard operating procedures, weight and size restrictions and packaging requirements.
- (f) Kindermall may also inform the Vendor in of any restrictions on scheduling or volumes, and Vendor will comply with such restrictions.
- (g) Kindermall may, at its discretion and prior to or at the time of agreement on the Inbound Order, request the Vendor to have its delivery personnel or representative attend at Kindermall’s appointed fulfilment centre for the time period required by Kindermall to inbound the FBK Goods (“Vendor Attended Inbound Request”), which attendance period shall not exceed four (4) hours.
- i) If the Vendor complies with a Vendor 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 Vendor via its delivery personnel or representative.
- ii) If Vendor complies with a Vendor 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.
- iii) If Vendor elects not to comply with a Vendor 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 Vendor 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 Vendor.
D. Requirements for FBK Goods
- (a) FBK Goods shall comply with Kindermall’s requirements as notified. These requirements include (but are not limited to):
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.
- (b) All FBK Goods shall correspond strictly with the details of the Inbound Order. Vendor shall further provide any other additional information required by Kindermall to accompany every shipment of FBK Goods, such as list of barcodes for each item, warranty details, expiry date for each item, as well as gross and net weight.
- (c) Kindermall reserves the right to reject any shipment of FBK Goods which is not accompanied by a valid and corresponding Inbound Order, as well as any other additional information which the Vendor is required to provide.
- (d) In the event that FBK Goods shipped to Kindermall’s appointed fulfilment centre do not comply with the Inbound Order or the requirements applicable to FBK Goods, or are not accompanied by the additional information required by Kindermall, Kindermall reserves the right to refuse such shipment of FBK Goods. Kindermall will notify the Vendor of such refusal in writing within ten (10) working days. Upon receipt of said written notice, Vendor shall retrieve at Vendor’s expense such rejected shipment within the following timelines:
- i) 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;
- ii) within two (2) working days, if the FBK Goods do not comply with the requirements relating to minimum expiry dates or periods;
- iii) within seven (7) working days, if the refusal is due to any other reason.
- (e) If Vendor fails to retrieve any rejected FBK Goods within the timelines above, the rejected FBK Goods will be deemed abandoned and Kindermall may dispose of the 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 Vendor.
- (f) Alternatively, Kindermall may elect to return the rejected shipment to the Vendor, or accept the FBK Good for inbounding subject to re-packaging or re-labelling of any FBK Goods which do not comply with the packaging or labelling requirements, and reserves the right to recover all incurred expenses from the Vendor.
- (g) Kindermall’s acceptance of the FBK Goods at the appointed fulfilment centre does not:
- i) 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
- ii) indicate or imply that Kindermall actually received the number of units of FBK Goods specified by Vendor or in the Inbound Order for such shipment; or
- iii) waive, limit or reduce any of Kindermall’s rights under the terms of the applicable Agreement or these FBK Terms.
E. Vendor Obligations
- (a) Vendor shall be responsible for, and bears all risk and liability for the sourcing, sale, original packaging, labelling, product quality and product warranties (if applicable) for all FBK Goods. All claims in relation to the FBK Goods, whether raised by any relevant authorities, the Agent/customer or any third party, shall be the responsibility of the Vendor, save for any responsibility of Kindermall in respect of the FBK Services expressly specified in these FBK Terms. For the avoidance of doubt, Vendor shall be responsible to meet all legal and regulatory requirements in relation to such Goods and Products, including without limitation their preparation, labelling, original packaging, handling, storage, transportation and delivery, prior to the receipt of these Goods and Products by Kindermall.
- (b) If required by law, Vendor shall be responsible to take out appropriate insurance covering the events mentioned above as well as any other obligation under this Agreement.
- (c) Unless expressly agreed to be provided by Kindermall, Vendor shall produce a tax or sales invoice (in accordance with the applicable law) and send it to the Agent/customer for every successful sale. It is Vendor’s responsibility to determine whether Vendor Taxes apply to the transactions and to collect, report, and remit the applicable Vendor Taxes to the appropriate tax authority. “Vendor Taxes” means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by Vendor.
- (d) Vendor will process, fulfil and cancel Orders in accordance with Kindermall’s policies, as notified on the Vendor Centre, Kindermall University or other written means from time to time.
- (e) Vendor shall promptly notify Kindermall of any actual or potential recall, or safety alert, relating to the FBK Goods, and provide all necessary assistance to Kindermall in connection with such recall or safety alert. All expenses incurred by Kindermall in connection with such recall or safety alert of the FBK Goods shall be borne by the Vendor.
F. Storage for Fulfilment
- (a) Kindermall will provide temporary storage services for FBK Goods once it confirms inbounding of the FBK Goods at the appointed fulfilment centres, and will keep electronic records that track inventory of FBK Goods by identifying the number of FBK Goods stored in Kindermall’s fulfilment centres.
- (b) Kindermall will not be required to physically mark or segregate items from other inventory Goods owned by Vendor. If Kindermall elects to commingle the FBK Goods with other products of Vendor, both Parties agree that the records of Kindermall will be sufficient to identify which products are the FBK Goods of Vendor. Kindermall may, at its discretion, move and distribute the FBK Goods between its local fulfilment centres.
- (c) Kindermall reserves the right to impose storage fees for FBK Goods which have been stored in Kindermall’s fulfillment centres above a certain aging period. Kindermall will notify Vendor of the details of the storage fees at least one (1) month prior to implementation of such storage fees.
G. Fulfilment of Orders
- (a) Where a Agent/customer places an Order to an FBK Good, Kindermall will pick and pack the FBK Goods and ship the Order to the Agent/customer at the address specified in the Order. Kindermall may ship FBK Goods together with products sold by Kindermall or other vendors.
- (b) Where the Order is delivered from Kindermall’s fulfilment centre to the Agent/customer by Kindermall or any of its sub-contractors, Kindermall shall be responsible for any loss or damage to the FBK Goods in the Order suffered during the delivery in accordance with the terms of the Agreement.
H. Failed Deliveries & Returns
- (a) Vendor shall accept and process refunds and adjustments in respect of FBK Goods in accordance with the applicable returns and failed delivery policies published by Kindermall from time to time.
- (b) Returns and failed deliveries of any FBK Goods will be received and processed by Kindermall at its appointed fulfilment centres. Any sellable returns and failed deliveries of any FBK Goods will be placed back into the inventory of the FBK Goods of Vendor. For the avoidance of doubt, all returns and failed deliveries of any FBK Goods which are placed back into the Vendor’s inventory are the property of the Vendor. Kindermall reserves the right to examine and determine at its sole discretion, acting reasonably, if returns and failed deliveries of any FBK Goods are suitable for selling.
- (c) If Kindermall provides replacement FBK Goods or a refund to a Agent/customer and that Agent/customer returns the original FBK Goods to Kindermall’s appointed fulfilment centre, Kindermall will be entitled to dispose of the returned original FBK Goods, or, if they are saleable, Kindermall may, at its option place such returned original FBK Goods back in the inventory of Vendor. If the returned original FBK Goods will be put in the inventory, Vendor will reimburse Kindermall for the Replacement Value of the returned original FBK Goods.
- (d) If Kindermall reasonably determines that any returns and failed deliveries of any FBK Goods is not in sellable condition, Kindermall shall either return such returns and failed deliveries of FBK Goods to the Vendor or dispose of such returns and failed deliveries of FBK Goods without any compensation to Vendor, and Kindermall reserves the right to recover any incurred expenses from the Vendor.
I. Outbound Process
- (a) Vendor may, at any time, request that FBK Goods be returned to Vendor by submitting a request on any channels designated by Kindermall from time to time.
- (b) Kindermall may return FBK Goods to Vendor for any reason, such as:
- i) the FBK Goods have expired or are close to their expiry date;
- ii) 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, Vendor 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 Vendor in writing to collect the outbounded FBK Goods. Kindermall may, at its sole discretion, agree to deliver the outbounded FBK Goods to the Vendor’s delivery address in the same country, at Vendor’s expense.
- (d) Vendor shall be responsible for any inspection, check or reconciliation of the quantity and condition of the FBK Goods. Upon the Vendor’s collection (or, in the case of delivery to the Vendor, confirmed receipt at its designated delivery location) of the outbounded FBK Goods, they deemed to have been fully returned to Vendor 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 Vendor has failed to collect outbounded FBK Goods within thirty (30) days of the expiry of any written notification to Vendor, 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 Vendor.
- (f) Vendor 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 Vendor.
- (g) Vendor 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
- (a) The service fees for the FBK Services (“FBK Fees”) shall be set out in the rate cards published from time to time.
- (b) The FBK Fees are exclusive of any taxes applicable to the FBK Services (such as consumption tax), unless otherwise stated in the rate cards. All payments to be made by Vendor to Kindermall shall be made free and clear of, and without deduction for or on account of, any taxes unless Vendor is required to make such a payment subject to the deduction or withholding of taxes, in which case the sum payable by Vendor shall be increased to the extent necessary to ensure that Kindermall receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made. If Kindermall is required under 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 Vendor, Kindermall will make such deduction or withholding as required, and Kindermall will provide Vendor with a certificate or any similar document proving that amounts deducted refer to withholding taxes
- (c) All FBK Fees and other sums due and payable to Kindermall under these FBK Terms will be deducted from Sales Proceeds in the Vendor Account in accordance with the Agreement. Any invoice or payment error will be reversed and corrected in the next payment cycle. In the event the Sales Proceeds are insufficient to pay the FBK Fees or other sums due and payable to Kindermall under these FBK Terms, Vendor will pay the outstanding amounts within ten (10) working days after receipt of Kindermall’s invoice.
- (d) Any enquiry or dispute in respect of FBK Fees or any payment of the same shall be made to Kindermall within the time period stated in the Agreement, or one hundred and twenty (120) days from the date of the invoice or payment, whichever is the earlier.
- (e) From time to time, Kindermall may offer promotions, rebates or discounts to the Vendor in respect of the FBK Fees at its sole discretion. The terms of such promotions, rebates or discounts will be determined solely by Kindermall. If required by law, Kindermall may generate an invoice by the Vendor to give effect to such rebate or discount.
- (f) In the event any amount due and payable to Kindermall is unpaid by the Vendor for at least thirty (30) days after the due date of such amount, Kindermall reserves the right to suspend any further FBK Services pending receipt of full payment.
- (a) If there is loss or damage caused by Kindermall to any FBK Goods while they are being stored at any of Kindermall’s fulfilment centres, Kindermall will pay Vendor the Replacement Value of the FBK Goods and Vendor will, at Kindermall’s request, provide Kindermall with a valid tax or sales invoice for the Replacement Value paid to Vendor. For the purpose of these FBK Terms, Replacement Value of an FBK Good is determined by Kindermall based on (at Kindermall’s discretion)the lower of either: (i) the invoiced value of the FBK Good to Vendor by Vendor’s supplier, (ii) the average selling price of the FBK Goods on the Platform over the specified Reference Period, or (iii) the average Listing Price over the specified Reference Period, in each case net of any Commission, the Payment Fee, shipping fee (if any) and any Vendor Taxes that would have applied if the FBK Goods had been sold to a Buyer. Details of the calculation of the Replacement Value and Reference Period will be published by Kindermall from time to time.
- (b) Kindermall shall not be liable for any loss or damage to FBK Goods if such loss or damage arises in connection with the decay or degradation by reason of the goods’ perishable nature, improper original packaging of the goods, or the Vendor’s non-compliance with Kindermall’s notified policies.
- (c) Payment of the Replacement Value shall be the Vendor’s sole remedy against Kindermall, its Affiliates and sub-contractors in respect of the FBK Services. Kindermall shall not be responsible for any other losses suffered by the Vendor, in particular any indirect or consequential losses, loss of sales or profits, loss of goodwill and loss of reputation.
(d) All claims by Vendor 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 Vendor’s review and decision on whether to submit the claim. If the claim is submitted by Vendor, Kindermall will inform Vendor of the claim outcome and Vendor shall have an opportunity to dispute the claim outcome within a timeline stipulated by Kindermall. While there is a pending claim submitted by Vendor or a pending dispute to the claim outcome, no further claim can be made by Vendor until the pending claim or dispute to the claim outcome is completely resolved.
(f) Vendor 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, Vendor 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 Vendor which fail to comply with the communicated process and platform requirements, as well as the timelines stipulated by Kindermall, shall be deemed waived by Vendor.
(h) Kindermall may, without notice to the Vendor, 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
- (a) Kindermall may provide tools, to the Vendor, in order for Vendor to access and manage its FBK Goods inventory and the FBK Services.
- (b) The Vendor is responsible for supplying and authorising access to the tools to its authorised personnel or representatives, to allow such personnel or representatives to access and manage the FBK Services and FBK Goods inventory. Vendor shall not share the password to such
- tools with any unauthorised personnel or representative, or use the tools for any other purpose other than in accordance with these FBK Terms.
- (c) The Vendor shall not dispute any action on the tools, made on the Vendor’s account, unless Kindermall has been given prior written notice that the access to the Vendor’s account resulting in such action is unauthorised.
- (d) The tools are provided on an “as is” basis. Vendor acknowledges that any information and any materials provided by or through the tools, may contain inaccuracies or errors, and Kindermall and its Affiliates expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law. Any link found on the tools is provided for Vendor’s convenience to provide further information. Unless otherwise stated, it does not signify that Kindermall endorses the contents thereof and Kindermall has no responsibility for the content of external links.
M. Force Majeure
(a) In addition to the Force Majeure provisions of the Agreement, Kindermall shall have no liability to Vendor 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 Vendor.
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 Vendor for at least sixty (60) days after the due date, Kindermall may terminate the FBK Services immediately upon written notice to the Vendor.
- A. Unless otherwise agreed in writing, Payments will be made by Kindermall to Vendor on a weekly basis in respect of Orders that have been delivered or completed by the reconciliation cut-off date. The Order status on Vendor Center may be subject to delays on weekends, public holidays, caused by third parties, or factors outside of Kindermall’s reasonable control.
- B. From time to time, Kindermall may offer promotional and goodwill rebates or discounts to Vendor in respect of any part of the Fee. The terms of such rebate or discount are determined by Kindermall at its sole discretion. Where required by law, Kindermall may generate an invoice by the Vendor to give effect to the rebate or discount. If Kindermall 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 Kindermall for such tax liability or compliance costs, irrespective of when the tax liability is assessed.
SCHEDULE A: PAYMENTS
C. Kindermall shall have the right to set off any amounts owed by Kindermall to Vendor against any amounts owed by Vendor to Kindermall, including any such amounts under other accounts or shops owned by the same Vendor.
2. Commission and Payment Fee
- A. Commission rates are as indicated herein or in Vendor Center. Kindermall may provisionally reduce Commission rates for certain Goods from time to time.
- B. The Payment Fee shall be a spesific percent (%) upon discussion between Kindermall and Vendor (exclusive of any taxes such as Consumption Tax which shall also be borne by Vendor).