By entering into this Marketplace Agreement (“Agreement”) you (“Seller”, “you”, “your”) represent that you are an adult of at least 18 years of age, capable of validly entering into agreements and performing your obligations hereunder.
BY REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL POLICIES OF THE PLATFORM ARE INCORPORATED BY REFERENCE.
Segar2You reserves the right to notify you from time to time of changes to the terms and conditions of this Agreement.
MARKETPLACE AGREEMENT
1. Segar2You Services to You
Segar2You offers you general services consisting of:
• the listing of your products;
• customer services (for a limited time);
• order verification and payment processing; and
• delivery coordination,
and other additional services that you may request and that we may offer you.
For more information see Section 2 and 6 of the Terms.
2. Products You Can Sell
You can sell goods that are legally permitted to be sold and that comply with our Policies. Since the goods are sold by you, you are responsible for all product warranties, defects, etc. as if you had sold the goods directly to Segar2You platform users or Customers.
For more information see Section 4 of the Terms.
3. Fulfilment
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.
4. Payment
Segar2You will remit to your bank account the sales proceeds after deducting Fees due and payable to Segar2You for offering the Services to you.
For more information see Sections 2, 3 and 6 of the Terms and Schedule A.
5. Your Obligations
When listing your goods, you must ensure that you have the right to use the advertising materials (photos, text, etc.) you upload on our site.
After shipping your products, you are responsible for returns and product warranties.
For more information see Sections 4, 9 and 11 of the Terms and Annex 3.
6. How To End Our Relationship
You may end your seller relationship with Segar2You 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.
1. Acceptance
A. Any person who wants to access the Platform and use the Services to sell Goods must accept the terms and conditions of this Agreement (“Terms”) without change.
B. Segar2You reserves the right to change at any time and in its sole discretion any of the terms and conditions contained in these Terms, the Schedules and Annexes, and any fees, procedures, Policies governing the Services, the Platform or Seller Center. These changes will take effect seven (7) days from notification by notice to Seller or posting on the Platform, Seller Center or otherwise. Changes to fees and Policies may be posted without notice. Seller is responsible for reviewing notices and Policies. Seller’s continued use of the Services, the Platform and/or Seller Center following the changes taking effect will constitute Seller’s acceptance of such changes and if Seller does not agree to any changes to these Terms or to the Policies, Seller must discontinue the use of the Services, the Platform and Seller Center (except to the extent required herein) and the Agreement will be terminated. For the avoidance of doubt, newer versions of the Terms and/or Schedule(s) supersede older versions.
C. Use of the Services, the Platform and Seller Center is limited to parties that can enter into and form contracts under applicable law. You represent and warrant that: i) you are an adult of at least 18 years of age capable of validly entering into the Agreement and performing your obligations hereunder; ii) where you are a business, that a) you are, and will remain at all times, a business duly organized, registered, validly existing and in good standing under the laws of the country in which the business is registered; b) you have all requisite right, power and authority to enter into the Agreement and perform your obligations hereunder; and c) any information provided or made available by you or your Affiliates is at all times accurate and complete. You further represent and warrant that you and any person or entity that has a financial interest in your business, or any person or entity you are acting on behalf of: a) has no affiliation with any Segar2You employee which may result in a potential or actual conflict of interest; b) has not been barred or otherwise prevented from selling on Segar2You; or c) has not been involved in any lawsuit or claim that has a bearing on the Agreement.
2. Services – Fees
A. Segar2You provides a platform for third-party sellers and buyers to complete transactions. Except as set out in the Agreement, Segar2You is not involved in the actual transaction between Seller and Customers. As owner or provider of the Goods and vendor thereof, it is up to Seller to, among others, ensure the sale is legally authorised, accurately describe the Goods, package, ship, insure, warrant and fulfil all other sale and after sale obligations applicable by law or by trade. Seller uses the Services, the Platform and Seller Center, at its own risk.
B. Seller authorizes Segar2You to act as its exclusive payment processing agent for the purpose of: i) collecting the Sales Proceeds and in general any sums due or owing under the Agreement and holding the same; ii) processing customer payments, refunds and adjustments; (iii) remitting the Payment; and iv) paying to Segar2You, to Segar2You Affiliates and to third parties (including Customers) any amounts Seller owes to them. As a payment processing agent, Segar2You will have no responsibility with respect to the legality of transactions occurring between Seller and Customers and Seller undertakes that all transactions are in compliance with the Laws (including anti money-laundering regulations).
C. The services (“Services”) provided by Segar2You 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 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 Seller; and vi) other services ancillary to the Services; and
(b) if applicable, Additional Services that may be provided to Seller by Segar2You or by third parties.
D. In consideration of the provision of Services, Segar2You will be entitled to charge and invoice Seller the Fee.
E. Seller agrees that Customers satisfy their obligations to Seller as regards the Customer Agreement when Segar2You receives the Sales Proceeds. Segar2You’s obligation to remit funds received by it on Seller’s behalf is limited to the Payment.
F. Segar2You will provide to Seller information in relation to each Order as necessary under the Agreement.
G. Segar2You will provide support services to Seller by way of coordinating and answering Customer enquiries and processing returns as provided in the Policies.
H. Sellers agrees that Segar2You may provide Seller with electronic documents such as tax invoice, receipt, credit note, debit note, or any other document Segar2You may issue in compliance with the Laws.
3. Sales Proceeds – Payment
A. Sales Proceeds will represent an unsecured claim against Segar2You. Segar2You may combine Sales Proceeds and Payments with the funds of other users of its services. For the avoidance of doubt, Seller will not receive interest or any other earnings on Sales Proceeds or Payments.
B. Unless otherwise agreed in writing, Payments will be made by Segar2You to Seller in accordance with Schedule A.
C. Segar2You may delay, suspend or cancel any Payment in case Seller breaches any term of the Agreement or Customer Agreement and any Payment made to Seller will not in any way be considered as a waiver of Segar2You’s rights.
D. If Segar2You concludes that Seller’s actions and/or performance in connection with the Agreement or the Customer Agreement are likely to result, or have resulted, in Customer disputes, Disputes, chargebacks or other third party claims, or if there are any sums owed by Seller to Segar2You, then Segar2You may, at its sole discretion, withhold any Payment for the longer of: i) the Minimum Suspension Period; ii) the completion of any investigation regarding Seller’s actions or performance; or iii) the resolution of any Dispute.
E. Segar2You reserves the right to impose limits on Order or transaction values, on Customers or on Seller and will not be liable if: i) Segar2You does not proceed with an Order that would exceed said limit; or ii) Segar2You allows a Customer to cancel an Order because the Platform or the Goods are unavailable following the commencement of a transaction.
F. Without prejudice to any other rights and remedies which Segar2You has against Seller, if any sums payable by Seller to Segar2You under the provisions of the Agreement will become due and be unpaid, Seller will pay to Segar2You the Late Payment Interest.
G. To the extent required by the Laws, Segar2You will be entitled to withhold any and all taxes, duties, fees and other charges in connection with any Order, Payment or otherwise under the Agreement or the Customer Agreement. If Segar2You is required under the Laws or the law of any jurisdiction to deduct or withhold any sum as taxes imposed on or in respect of any amount due or payable to Seller, Segar2You will make such deduction or withholding as required and the amount payable to Seller will be reduced by any such amount necessary. Segar2You will provide Seller a certificate or any similar document proving that amounts deducted refer to withholding taxes applicable to Seller.
H. Any enquiry or dispute about any Payment will be made by in compliance with the claims/dispute process/policy of Segar2You, which may be changed from time to time. Notwithstanding which any such enquiry or dispute will be received by Segar2You on or before the expiration of one hundred and twenty (120) days after the Order date, failing which, Seller waives the right to dispute such Payment.
4. Seller Undertakings
A. General Undertakings:
By using the Services, Seller undertakes, represents and warrants that it will:
(a) comply with all applicable laws, treaties, ordinances, codes and regulations;
(b) comply with all Policies;
(c) be responsible and pay all taxes, duties, fees and other charges arising out of or associated with the Order, the Payment or in any other way owed by Seller under the Agreement or the Customer Agreement
(d) will issue a valid invoice to the Customer, if required by the Laws.
(e) obtain all necessary rights, licences, permits or approvals required for the offer, advertising and sale of the Goods on or through the Platform prior to their listing and will provide, as such time as Segar2You may so request, copies of these documents to Segar2You;
(f) ensure that any information provided under this Agreement, including for the listing (including the Content Materials) of the Goods, is accurate, current, and complete and is not misleading or otherwise deceptive;
(g) fulfil all Orders for Goods at their stated quantity and price to Customers who meet Segar2You’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 Segar2You may require, accurate, updated and complete information about the availability status, stock level and Listing Price of the Goods;
(j) ensure that the Listing Price for any Good offered to Customers will not exceed the price offered by Seller outside the Platform for the same product in like or lesser quantities under similar terms and conditions and, where a lower price is so offered, ensure that the Goods benefit from that lower price;
(k) give Segar2You written notice of any requirement or provision of any contract that may conflict with any requirement or provision of the Agreement; and
(l) ensure that any person filling-in or signing any document, operating the Seller Center account, or handling the Goods and Products, on behalf of Seller (other than a Segar2You employee, contractor or agent, or a third party specifically mandated by Segar2You) has full power and authority to do so on behalf of Seller. Seller may not dispute the actions of such person insofar as they are in apparent compliance with the Agreement.
B. Negative Covenants:
Seller further undertakes, represents and warrants that it will not, directly or indirectly:
(a) infringe on any Intellectual Property Rights;
(b) post or display any materials that exploits or otherwise exploits persons under the age of eighteen (18) years or display pornographic materials of any kind;
(c) post or display any political or religious content;
(d) post or disclose any personally identifying information or private information about minors or any third parties without their consent or the parent’s or guardian’s consent;
(e) post any content that advocates, promotes, or otherwise encourages violence against any governments, organizations, groups or individuals or activities that leads to cruelty towards animal;
(f) conduct activities such as gambling, sweepstakes, raffles and lotteries or participate in any activities related to so-called pyramid or Ponzi schemes, or any other illegal, immoral or antisocial activities;
(g) use the Platform or the Services to purchase items sold on the Platform for commercial use or for use on behalf of a third party;
(h) use, or access, input or upload on, the Platform and/or Seller Center any material that is not directly connected with the Goods, or permit the use of Seller’s account or offer “free space” on or other access to the account or the Platform to third parties;
(i) access content and information that concerns any party other than Seller, transmit unsolicited commercial or bulk email, interfere with the proper working of the Platform or Seller Center, transmit any viruses, Trojan horses or other harmful code, or attempt to bypass any mechanism used to detect or prevent such activities;
(j) create liability for Segar2You (and its Affiliates, directors, employees, contractors, agents, subcontractors, etc.) or expose it to undue risk or otherwise engage in activities that Segar2You, in its sole discretion, determines to be harmful to Segar2You’s operations, reputation, or goodwill;
(k) contact any Customer and will not enter into any direct arrangements with the Customer for the offer of Goods or other products or services, except where notified or permitted by Segar2You to do so for the purposes of fulfilling a Customer Agreement;
(l) enrol or offer to enrol Customers in any scheme or program other than as strictly required for warranty purposes;
(m) open multiple shops on the Platform without Segar2You’s prior approval; and
(n) duplicate stock keeping units on the Platform.
C. Undertakings in relation to Goods:
Seller undertakes, represents and warrants that: (a) the Goods are of merchantable quality, fit for their purpose, free from defects, and strictly conform to their listed specifications;
(b) the Goods and their offer for sale are not prohibited and comply with the Laws (including all minimum age, marking and labelling requirements, product warranties, specifications and performance criteria, etc.) and conform with Policies, including prohibited and restricted items;
(c) it has full unencumbered title in the Goods and in any materials incorporated in the Goods and all the Goods are supplied free of all liens, charges or other security interests;
(d) it will provide the Goods and Products with all legally required documentation (including warranty card, warranty information and invoice) and update the same when legally required;
(e) it will provide Segar2You and/or Customer any document pertaining to the sale of the Goods or Customer Agreement (including sales invoice and tax invoice), as may be requested by Segar2You and/or Customer;
(f) it will not, directly or indirectly, sell Inadequate Products, or expired (or soon to be expired) Products; and
(g) it will not, directly or indirectly, sell counterfeit, “replica” and name brand “knock off” products or products violating any Intellectual Property Rights.
D. Seller undertakes and warrants that all its representations, warranties and undertakings in the Agreement will be fulfilled and will remain true and correct at all times and will subsist for so long as necessary to give effect to each and every of them in accordance with the Terms, provided that and in the event of any of them becoming or unfulfilled, untrue or incorrect, Seller will promptly inform Segar2You of the same and rectify the situation.
5. Segar2You Rights
A. Notwithstanding any provision in these Terms, Segar2You will have the right, in its sole discretion, to delay or suspend listing of, or to refuse to list, or to de-list, or to require Seller not to list, any or all Goods that the Seller makes available to be listed for sale through the Platform or be subject to Sales Traffic Activities, if any, provided by Segar2You, or to deactivate the seller account/s of the Seller.
B. Segar2You may in its sole discretion withhold for investigation and/or refuse to process any Order. Segar2You 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. Segar2You reserves the right to reject any particular form of Order or payment for the Goods, and not to honour or accept any discounts, coupons, gift certificates, or other offers or incentives made available by Seller.
D. Segar2You may in its sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any Order. Seller will stop and/or cancel orders of Goods if so asked by Segar2You (provided that Seller has transferred the Goods to the applicable carrier or shipper, Seller will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). Where Seller has already received Payment, Seller will refund any Customer that has been charged for an Order that Segar2You has stopped or cancelled.
E. Segar2You (directly or through a third party) will bear the risk of credit card fraud (e.g. fraudulent purchases arising from the theft or unauthorized use of a Customer’s credit card information) occurring in connection with the Order, except with respect to: i) Orders that Seller does not fulfil in accordance with the Order information, or ii) any fraud directly or indirectly linked with Seller. Seller will bear all other risk of fraud or loss. Seller will promptly inform Segar2You 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. Segar2You may subject the Goods or Seller to Sales Traffic Activities, use mechanisms that rate, or allow Customers to rate or review the Goods and/or Seller’s performance as a seller and Segar2You may make these ratings and reviews publicly available.
6. Use of Tools – Additional Services
A. Seller hereby undertakes and represents that its use of the Services, Platform, Seller Center and the selection of its user name, store name and store in store name, will not be unlawful, inaccurate, misleading, false, fraudulent, defamatory, trade libellous, or otherwise unsuitable. Any password provided by Segar2You to Seller may be used only during the period Seller is permitted to use the Platform, manage the catalogue of Goods listed on the Platform, update information about the Goods (e.g. availability status, stock levels and Prices), electronically accept and fulfil the Orders and review the completed Orders, and may not be shared with any person other than employees of Seller that need to use it for the execution of the Agreement. Seller is responsible for supplying and authorizing access to its users. Seller is responsible to terminate or reassign access to any Seller user that Seller deems to have become unauthorized to access the Services at any time.
B. Seller acknowledges that the availability of the Services, Platform, Seller Center is subject to: (a) availability of resources, including, without limitation, resources under the control of Segar2You 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 Segar2You to provide the Services; and
(d) Seller meeting the technical requirements for accessing Seller Center from time to time.
C. Seller 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 Segar2You under the Sales Traffic Activities, collecting any user information, indexing or caching any portion from the Platform or Seller 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 Seller Center; iv) interfering with the proper working of the Platform, Seller Centre, the Services or Segar2You’s other systems; v) transmitting any viruses, Trojan horses or other harmful code; or vii) attempting to bypass any mechanism Segar2You uses to detect or prevent such activities.
D. Under terms and conditions agreed to in the Seller Center, the Agreement and/or in a separate agreement, Seller may be offered the possibility to purchase goods and services provided by Segar2You and/or third parties (“Additional Services”). Segar2You reserves the right, in its sole discretion and at any time, to amend the terms (including scheduling, suspension and termination), of Additional Services. Payment for Additional Services will be either by deduction from Sales Proceeds, by direct payment or invoice, or by any other means of payment indicated in Seller Center or agreed to by the Parties.
7. Confidential Information
A. The recipient of any Confidential Information will not disclose that Confidential Information, except to Affiliates, employees, and/or agents who need to know it and who have agreed in writing to keep it confidential. The recipient will ensure that those people and entities use Confidential Information only to exercise rights and fulfil obligations under the Agreement and keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving the discloser reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
B. Save for any copy required to be kept by the recipient of the Confidential Information for legal or regulatory reasons, the recipient will, at any time upon request from the discloser or upon the end of any relationship between the Parties, at the discloser’s option either: (i) return to the discloser all Confidential Information in its possession or control together with all information and documentation containing, comprising or relating in any way to the Confidential Information, and certify that all copies of the Confidential Information have been so returned; and/or (ii) destroy all Confidential Information in its possession or control together with all information and documentation containing, comprising or relating in any way to the Confidential Information, and certify that the Confidential Information has been destroyed.
C. The rights and obligations of the Parties under this Section will survive the termination of the Agreement.
8. Personal Data
A. Seller undertakes, represents and warrants that it will use and process Personal Data: i) only for the purpose of the execution of the Agreement or Customer Agreement and not disclose it to third parties; ii) in accordance with the requirements under the applicable personal data protection law; and iii) in such manner that ensures Segar2You remains in compliance with the requirement under the applicable personal data protection laws. Seller further warrants that it does implement sufficient security measures to ensure that the Personal Data are securely kept and maintained as required by the applicable personal data protection law and agrees to subject itself to the necessary audits undertaken by Segar2You to ensure compliance of the above warranties and to immediately inform Segar2You of any Personal Data incident it becomes aware of.
B. Seller agrees to indemnify and hold harmless Segar2You and each of its respective officers, employees, directors and agents from, and at Segar2You’s option defend against, any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts’ fees and other costs of litigation) (“Personal Data Claims”), to the extent such Personal Data Claims arise from or may be in any way attributable to: i) any violation of the Agreement or the Customer Agreement by Seller; ii) the negligence, gross negligence, bad faith or intentional or wilful misconduct of Seller or its subcontractors (whether or not approved by Segar2You); or iii) any security incident for which Seller is directly or indirectly responsible.
9. Content Material, Industrial and Intellectual Property Rights
A. Seller represents and warrants to Segar2You that it is the owner or has lawful rights with respect to the use of Intellectual Property Rights concerning the Goods and the Content Materials and that it is not aware of any claims made by any third party with regard to any alleged or actual Intellectual Property Right infringement or other claim, demand or action resulting from the Content Material, advertising, publishing, promotion, manufacture, sale, distribution or use of the Goods.
B. Seller undertakes, represents and warrants that:
(a) the Content Materials are not prohibited and comply with the Laws (including all minimum age, marking and labelling requirements, product warranties, specifications and performance criteria, etc.) and conform with the Policies as posted on the Platform or Seller Centre;
(b) it will provide accurate and up to date Content Materials. The Content Materials must include all text, disclaimers, warnings, notices, labels or other indications required by law to be displayed in connection with the offer, merchandising, advertising or sale of the Goods and may not contain any sexually explicit (except as expressly permitted in written by Segar2You or allowed under applicable Laws), defamatory or obscene materials;
(c) it will not directly or indirectly include in the Content Materials, in the product listing of the Goods, or with the Goods or the Products, any terms and conditions of sale (or of provision of service) other than those agreed under the Agreement or any Seller or third-party marketing materials; and
(d) it will not provide any Content Materials, or seek to list for sale on the Platform any Goods, or provide any uniform resource locator (“URL”) marks unless it has the right to publish the Content Material;
C. Seller hereby grants Segar2You 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 Segar2You Affiliates, provided that Segar2You will not alter any third-party trademarks.
D. Segar2You has no obligation to verify the accuracy, completeness and legality of Content Materials.
E. Segar2You retains the right to determine the use and placement of Content Materials, and the structure, appearance, design, functionality and all other aspects of the Platform, the Services, and, if any, the Sales Traffic Activities.
F. As between the Parties, each Party retains all right, title and interest in and to its technology and Intellectual Property Rights. Neither Party acquires any rights in the foregoing from the other Party except as expressly granted under the Agreement; all other rights are reserved, and no implied licenses are granted. Neither Party will attempt to register any distinctive trademarks or domain names that are confusingly similar to those of the other Party.
G. Seller will not be entitled to use any intellectual property belonging to Segar2You without Segar2You’s prior approval in writing.
H. This Agreement will not be deemed or construed to create, convey or transfer any Intellectual Property Rights to Seller and, other than as instructed by Segar2You, Seller will not decompile any software or reverse engineer any software, or other product or process. This Agreement is not a license to use or distribute any software, or other product or process.
I. This Agreement confers to Seller no rights of ownership or title, license, or other Intellectual Property Rights in any tangible or intangible property, including software (e.g. the Platform, the Seller Center and any API’s or other software) and data (e.g. Sales data, performance data, Customer data, Seller Center data and Seller Center name) used, obtained or created under this Agreement. If such rights were nevertheless to have accrued to it for any reason whatsoever, Seller will assign, dispose or otherwise transfer (and effect the transfer of) the full and exclusive ownership of all such rights to Segar2You or any other party designated by Segar2You, free of charge, or for a nominal fee. Seller will use and process such software and data only for the purpose of the execution of the Agreement, will not claim any Intellectual Property Rights, sell, assign, license, publish, lease or otherwise commercially exploit such software and data, and will immediately cease their use and processing upon termination of the Agreement or if so required by Segar2You at any time.
J. Seller undertakes, represents and warrants that it will not, directly or indirectly, participate in any of the following actions such as reverse engineering, reverse compiling or otherwise deriving the underlying source code or structure or sequence of any Segar2You solution or technologies, deleting or altering author attributes or copyright notices, and/or fail to obtain all required permissions when using the Platform or Seller Center to receive, upload, display, distribute, or execute programs or perform other works protected by intellectual-property laws.
K. Nothing herein contained will be deemed to limit or restrict the rights of Segar2You or any third party to assert claims for violation of any Intellectual Property Rights against Seller.
10. Customer Information – Customer Services
A. Segar2You will be responsible for and have sole discretion to deal with Customers relating to Orders and Seller will not confirm Orders, deliveries or give any further information about the fulfilment of the Orders to the Customer.
B. Segar2You will own all information regarding Customers, Orders and the supply of the Services including payments, Fees, disbursements, refunds, Administrative Fees, Cancellation Penalties, adjustments, etc. and Segar2You will not be liable to pay any royalties or fees to Seller in connection with the use of any such information.
C. Seller will utilise information of Customers or the Platform’s users, including Personal Data, disclosed by Segar2You to Seller or which Seller has otherwise collected or obtained access to pursuant to or in connection with the Agreement, solely for purposes of the Agreement and will not sell, assign, license, publish, lease or otherwise commercially exploit any such information or utilize such information in any manner for its own benefits or carry out any data mining, data compilation or data extraction for the purposes of statistical or trade analysis or otherwise, based on or in connection with the aforesaid information. No Customer information and the Platform’s Users information will be disclosed by Seller to any third party without the prior written consent of Segar2You, and will only be disclosed within Seller’s organisation on a need-to-know basis.
11. Liability – Indemnification
A. The Platform, Seller Center, the Services and the Additional Services are provided on an “as is” basis. Except as expressly provided for in the Agreement, Segar2You makes no other representations or warranties of any kind, express or implied, including: i) the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement; ii) that the Platform, Seller Center, the Services or the Additional Services will meet Seller’s requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error; iii) that the information, content, materials, or products included on the Platform or Seller Center will be as represented by Segar2You, available for sale on a timely manner, lawful to sell, or that Segar2You or the Customers will perform as promised; iv) any implied warranty arising from course of dealing or usage of trade; and v) any obligation, liability, right, claim, or remedy in tort, unless arising from acts of fraud, negligence or wilful misconduct by Segar2You. Seller acknowledges that any information and any materials provided by or through the Platform, Seller Center, the Services and the Additional Services may contain inaccuracies or errors and Segar2You expressly excludes liability for any such inaccuracies or errors to the fullest extent permitted by the Laws. Any link found on the Platform or Seller Center is provided for Seller’s convenience to provide further information. It does not signify that Segar2You endorses the contents thereof and Segar2You has no responsibility for the content of external links.
B. Because Segar2You is not involved in transactions between Seller and Customers, Seller hereby agrees on its behalf and on behalf of Customers to release Segar2You (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 Segar2You’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 Segar2You will be subject to correction without any liability for Segar2You.
D. Any claim of Seller under the Agreement (other than claim pertaining to Sales Proceeds Payment as stipulated in Clause 3(H)), will be made by in compliance with the claims/dispute process/policy of Segar2You, which may be changed from time to time. Notwithstanding this, any such claim must be notified to Segar2You within ninety (90) days from the Order, failing which, Seller waives the right to make such claim.
E. Seller will defend, indemnify and hold harmless, and at Segar2You’s option defend against, Segar2You and its Affiliates and their employees, directors, agents and representatives, from and against any and all liens, damages, losses, liabilities, obligations, penalties, fines, fees, Claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts’ fees and other costs of litigation) arising out of, or related to: i) any actual or alleged breach of Seller’s undertakings, representations, warranties, or obligations set forth in the Agreement or the Customer Agreement; ii) any incorrect, misleading, or erroneous information provided to Segar2You or any third party in connection with the Services or Additional Services; iii) any non-compliance by the Seller with any applicable laws or the Policies, including any losses in respect of carriage or prohibited goods incurred by Segar2You or its sub-contractors; or iv) Seller’s own website or other sales channels, the Goods, the Products, any Content Materials, the advertisement, offer, sale or return of the Goods, the Products, any actual or alleged infringement of any Intellectual Property Rights by the Goods, the Products or the Content Materials, or seller taxes (duties, fees and other charges, etc.) or the collection, payment or failure to collect or pay seller taxes. If at any time Segar2You reasonably determines that any indemnified Claim might adversely affect Segar2You, Segar2You may take control of the defences at the expense of Seller. Seller may not consent to the entry of any judgment or enter into any settlement of a Claim against Segar2You without the prior consent by Segar2You in writing, which consent may not be unreasonably withheld.
F. Segar2You will not be held liable for any damages of any kind, including direct, indirect, incidental, punitive, and consequential, arising out of or in connection with the Agreement, the Customer Agreement, the Platform, Seller Centre, the Services, the Additional Services, the inability to use the Services, the Additional Services, the Goods, the Products, or from messages received or transactions entered into, provided that Segar2You will compensate Seller for any direct damages : i) resulting exclusively, or primarily from Segar2You’s fraud, gross negligence or wilful misconduct; and ii) as provided under the Segar2You 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 Segar2You and Segar2You’s Affiliates and their respective officers, directors, partners, employees and contractors, and any of them, to Seller and anyone claiming by or through Seller, for any and all claims, losses, costs or damages, including attorneys’ fees and costs and expert-witness fees and costs of any nature whatsoever or claims expenses resulting from or in any way related to the Agreement from any cause or causes will not exceed the Fee that Segar2You is entitled to receive from Seller for the month preceding the date the liability arose, or US Dollar five thousand (USD5,000.00) (or such equivalent amount in local currencies of the Territory), whichever is greater, provided that the maximum liability of Segar2You towards Seller will be amended to: i) US Dollar ten thousand (USD10,000.00) (or such equivalent amount in local currencies of the Territory) as regards liability under the Segar2You 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.
12. Termination
A. Segar2You has the right to unilaterally and immediately terminate the Agreement upon the occurrence of any of the following: i) Seller being in breach of any provision of the Agreement and failing to remedy the same within fourteen (14) days from being so notified; ii) the Seller being in breach of any applicable laws or Segar2You’s Policies with respect to Goods and sales of Goods ii) Seller passing a winding up resolution or a court of competent jurisdiction making an order for the same; iii) the issuance of an administrative order in relation to Seller, or the appointment of a receiver over, or an encumbrance taking possession of, or the of selling any of, Seller’s assets; iv) Seller making an arrangement or composition with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or v) Seller ceasing or threatening to cease to carry on business.
B. Provided they have not been corrected by Segar2You within fourteen (14) days from notifying Segar2You of the occurrence of any of the following, Seller has the right to immediately terminate the Agreement: i) Segar2You delaying payment for more than thirty (30) days without reason; ii) Segar2You delaying returns for more than sixty (60) days without valid reason; iii) the making of an administration order in relation to Segar2You or the appointment of a receiver over Segar2You’s assets; iv) the making of an arrangement or composition by Segar2You with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or v) Segar2You ceasing or threatening to cease to carry on business.
C. Either Party may unilaterally terminate the Agreement without cause by providing fourteen (14) days’ prior written notice to the other Party.
D. Upon termination of the Agreement, Seller will notify Segar2You of all concluded Customer Agreements which have yet to be performed. For the avoidance of doubt, notwithstanding any termination for any reason, Seller will remain responsible for the fulfilment of any pending Order in according to the Fulfilment Model and Segar2You will fulfil any pending Payment obligations. Any provision of the Agreement that, by its nature, is meant to survive the term or termination.
13. Miscellaneous
A. The Agreement will prevail over any other agreement, terms or conditions regarding the subject matter, pre-contractual negotiations, and to the exclusion of all other terms submitted, proposed or stipulated by either Party (including any terms or conditions which Seller purports to apply under any purchase order, confirmation order, specification, invoice or other document) and no terms or conditions endorsed upon, delivered with or contained in any other document or with the Goods or Products, will form part of the Agreement. The actual or future invalidity or ineffectiveness of any provision hereof will not affect the validity or effectiveness of the whole document. The Agreement will apply to the relationship between the Parties in addition to any specific terms agreed to herein. In the event of any conflict or inconsistency between any provision of the Terms, Special Conditions, any Schedules or the Annexes, the provisions of each of the Terms, Special Conditions, Schedules and Annexes will prevail in that order.
B. The singular includes the plural and vice versa, as the context may require. The headings are inserted for convenience only and will be ignored when construing this Agreement. The term “including” or “include” will mean “including, without limitation”, unless the context otherwise requires.
C. Unless otherwise provided in this Agreement or agreed to between the Parties, all notices, requests, demands and other communications hereunder must be in writing and will be deemed to have been fully given and received when sent with receipt received by recognized overnight delivery service, registered mail or email one (1) Working Day after being deposited for next-day delivery with a recognized overnight delivery service or emailed, or three (3) Working Days after being mailed by registered mail, charges and postage prepaid, to the Party to receive such notice at such Party’s address set forth herein or any other address that such Party may specify by notice to the other Party.
D. Seller cannot assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Agreement, without the prior written consent of Segar2You. Segar2You may assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Agreement.
E. Seller and Segar2You are independent contractors, and nothing in the Agreement will create any partnership, joint venture, agency, franchise, sales representative relationship or exclusivity between the Parties. The Agreement will not cause the establishment of any relationship of employment between the Parties or with any person who provides services to either. Seller will have no authority to make or accept any offers or representations on behalf of Segar2You.
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 Segar2You and Seller. Other than as regards the rights of Customers against Seller, nothing in the Agreement will be construed as giving any third party any rights whatsoever.
G. Notwithstanding any other provision in the Agreement to the contrary, nothing contained herein will oblige Segar2You or Seller to engage in any action or omission to act which would be prohibited by or penalized under the Laws or of any other country.
H. The failure of a Party to exercise its rights in case of breach of contract by the other Party will not be considered as a waiver of its rights under the Terms or under the Laws.
I. No Party will be liable to the other or be deemed to be in breach of the Agreement by reason of any delay or failure to perform any of its obligations due to an event of Force Majeure. Upon the occurrence of any event of Force Majeure, Segar2You 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, Segar2You may notify Seller that it will terminate the Agreement.
J. No variation (including amendments or crossed-out provisions) of these Terms will be valid unless: a) expressly agreed to in writing and signed by authorized representative of Segar2You; or b) notified to Seller as provided in the Preamble Section of these Terms.
K. All stamp duty and registration fees (if any) in respect of the Agreement will be fully borne and paid by Seller.
ANNEX 1: DEFINITIONS
Definitions
a. Additional Service: is defined in the Use of Tools – Additional Services Section of the Terms.
b. Additional Service Fee: the fee applicable to an Additional Service.
c. Administrative Fee: the fee, if any, chargeable to the Seller per non-compliance, or per Good or Product in contravention of the Seller’s undertaking.
d. Affiliate: any entity directly or indirectly controlled by, or controlling, a Party or any affiliate or subsidiary thereof. As regards Segar2You, Affiliate is deemed to include entities which are members of the Alibaba and Segar2You groups of companies.
e. Agreement: this Marketplace Agreement.
f. Annex: any annex to the Agreement. The Annex(s) form(s) an integral part of the Agreement.
g. AIAC: is defined in Annex 2.
h. Cancellation Penalty: the charge applicable for a Cancelled Order.
i. Cancelled Order: an Order cancelled or rejected by Seller, or cancelled due to Seller’s lack of compliance with any provision of the Agreement.
j. Claim: any claim, action, audit, investigation, inquiry or other proceeding instituted by any person or entity.
k. Commission: the percentage (as applicable at the time the Order is placed) of the Listing Price.
l. Confidential Information: any information proprietary to a Party or an Affiliate thereof, that is disclosed to the other Party or an Affiliate thereof, whether marked as confidential or not, that should be considered confidential information under the circumstances. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully obtained and provided to the recipient by a third party.
m. Consumption Tax: Any prevailing consumption tax, including but not limited to any Sales Tax and Service Tax (“SST”), Goods and Services Tax (“GST”), or its equivalent or any successor thereof.
n. Content Material: product information, text, images, and any other relevant and/or legally required information relating to the listing of Goods on the Platform, including third party and Seller’s trademarks and other Intellectual Property Rights related materials.
o. Customer: a third-party, who purchases Product on the Platform.
p. Customer Agreement: the agreement between Seller and a Customer concerning the purchase of a Product in fulfilment of an Order, where the execution of such agreement is attested by the Fulfilled Customer Agreement status of the Order.
q. Delivery Note: is defined in Annex 4.
r. Dispute: a dispute regarding the provision of Additional Services by third parties.
s. Drop-Shipping: is defined in Annex 4.
t. Effective Date: the date of Seller’s first use of the Services, as such date is recorded in Seller Center.
u. Failed Delivery: an Order that is cancelled for unsuccessfully execution due to: i) the delivery address (either physical or email) provided by the Customer or by Segar2You being incorrect; ii) where acceptance of delivery of the Product is required, the Customer being unable to accept the Product; iii) where the Product is a physical product, the Customer refusing to accept the delivery of the Product in accordance with the Policies; or iv) where the Customer remain uncontactable after various attempts (the number of delivery attempts will be determined by the relevant carrier). In addition to the provision of Annex 4, in case of Failed Delivery: iv) where received by Segar2You, Sales Proceeds will be refunded to the Customer and, v) where received by Seller, Payment will be refunded to Segar2You.
v. FBL Goods: is defined in Annex 4.
w. FBL Request: is defined in Annex 4.
I. Fee: the fee payable to Segar2You 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 Segar2You to Buyers are not considered in the Service Fee calculation. Any taxes, including any prevailing consumption tax, payable as regards the Services, will be imposed on top of the Fee and paid by Seller.
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 Segar2You or of a third party); and vi) health epidemics declared by the World Health Organization.
y. Fulfilment By Segar2You: is defined in Annex 4.
z. Fulfilled Customer Agreement: an Order the status of which is showing as “Delivered” in Seller Center, or is otherwise deemed by Segar2You as having been executed by Seller, 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 Seller under the Agreement.
cc. Handling Fee: a fee payable for handling Goods and supplying packaging materials under Fulfilment By Segar2You (inbound receive and putting away, outbound picking and packing, Customer return processing).
dd. Inadequate Product: any wrong, faulty, defective, damaged (excluding any Good or Product damaged due to mishandling by Segar2You, a Segar2You contractor, or the 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 Seller 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 Segar2You (as well as after judgment).
gg. Laws: the laws of the Territory.
hh. Segar2You: means Ecart Services Malaysia Sdn. Bhd. (company number 983365-K) a company incorporated under the laws of Malaysia having its registered office at: Unit No. 17-2, Level 17, Wisma UOA II, No. 21Jalan Pinang, Kuala Lumpur, Wilayah Persekutuan, 50450, Kuala Lumpur, Wilayah Persekutuan, 50450.
ii. Listing Price: the price, including instalments, at which a Good is offered for sale to Customers by Seller 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 Segar2You to the Customer.
jj. Minimum Suspension Period: a period of sixty (60) days of which Segar2You is allowed to suspend the Payment to Seller pursuant to the Sales Proceeds – Payment Section of the Terms.
kk. Order: the request placed by a Customer on the Platform for the purchase of a particular Good as communicated by Segar2You to Seller. Segar2You reserves the right to unilaterally cancel an Order for any reason.
ll. Payment: the Sales Proceeds minus any sums owed by Seller 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: a fee, calculated on the following basis : 5% x (Item Price Credit + Shipping Fee Paid By Customer – Promotional Charge Vouchers – Promotional Charge Flexi-Combo/Bundle)
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 Segar2You employees, agents, consultants and Customers.
oo. Personal Data Claims: is defined in the Personal Data Section of the Terms.
pp. Platform: The Segar2You platform, where the Seller may list Goods for sale under the Agreement, and Customer(s) may buy such goods.
qq. Policies: the rules, guidelines, terms and conditions, etc. applicable to Sellers and Customers for the use of the Services, Platform, Seller Center and other Segar2You properties, as they may appear on the Platform or Seller Center or be communicated from time to time by Segar2You.
rr. Product: the individual Good purchased by a Customer among the Goods.
ss. Refurbished: means a product that has been returned to Seller 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 Seller by Segar2You in case any Good held by Segar2You is wrongly delivered, damaged or lost. Subject to any prescribed ceiling, (a) for Fulfilment by Segar2You model (where loss or damage occurs outside Segar2You’s fulfilment centre) or methods other than Fulfilment by Segar2You model, the Replacement Value amount is determined by Segar2You and using, at Segar2You’s discretion, corresponds to the lowest of either (i) the invoiced value of the Good to Seller by Seller’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 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 Segar2You’s fulfilment centre under the Fulfilment By Segar2You model, the Replacement Value amount is as detailed under Annex 4, clause 5K.
uu. Returned Product: the return of a physical Product to Segar2You by a Customer in accordance with the Agreement and/or the Policies, including Inadequate Products. Seller will retain, or take back from the Customer as the case may be, ownership, title and risk (save, as regards to risk, where the Product is Fulfilled By Segar2You and is under Segar2You’s care) of all Returned Products.
vv. Ringgit and RM: Ringgit Malaysia.
ww. Sales Proceeds: the gross proceeds received from Customers by Segar2You 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 Seller’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 Seller on electronic search engines; iii) Social Media Sales Traffic Activities, which entails the promotion of the Goods and/or Seller on the Platform or social media platforms; and/or iv) other sales promotion services agreed to by the Parties.
yy. Seller: the user of the Services.
zz. Seller Center: any tool employed by Segar2You to operate any part of the Service, including the Segar2You Seller 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 Seller, or picked up by a carrier from Seller, for delivery to a Customer, as indicated in Seller Center, or ii) where the Product is not a physical product, emailed or otherwise made available or provided to a Customer in accordance with the sales stipulations applicable to such Product.
ddd. Shipping Cost: the fee charged by Segar2You to Seller for the shipping of a Product, as calculated based on the Shipping Fee Rate Card.
eee. Shipping Fee: the fee charged by Seller to a 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 Segar2You model, for storing the Goods in the location designated by Segar2You, 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 Seller’s working premises) public holiday in the Territory.
ANNEX 2: DISPUTE RESOLUTION
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. Seller will accept the return of Failed Deliveries and Returned Products in accordance with the Policies. Segar2You has the right to determine at its sole discretion whether a Customer will receive a refund, adjustment, or replacement, and to require Seller to reimburse Segar2You if Segar2You determines that Seller is liable to do so in accordance with the Agreement. Where Segar2You has refunded or paid any such aforementioned amount (whether on behalf of Seller or otherwise), such amount will be recoverable by Segar2You from Seller as a debt due from Seller and Segar2You will be entitled to deduct such amount from amounts payable to Seller, or by other methods at Segar2You’s election.
B. Seller will promptly notify Segar2You of any Inadequate Product (or the threat of a public or private recall) and cooperate and assist Segar2You with returns, including by initiating the procedures for returning Goods or Products to Seller.
C. Segar2You will refund Seller the Commission related to any Failed Delivery or Order returned for Customer convenience.
D. In case of Failed Delivery, Segar2You will bear: i) the Payment Fee, and ii) unless the shipping has been arranged by Seller, the Shipping Cost for the shipment of the Product to the Customer and back to Seller, all other costs being borne by Seller.
E. In case of an Inadequate Product, Seller will bear all costs associated with the return and refund or replacement, including the Payment Fee, and unless the shipping has been arranged by Seller, the Shipping Cost for the shipment of the Product to the Customer, from the Customer to Segar2You and from Segar2You back to Seller, provided that, where FBL Goods are concerned, Seller will also be debited for any additional Storage Fee and Handling Fee.
F. Segar2You has no obligation to accept any Returned Product. Segar2You however may at its sole discretion request that the Product be returned to a designated location for further quality inspection. If Segar2You, 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 Customers because of this fault or damage and that this fault or damage has been caused by the Customer, Seller will not be liable to accept the Returned Product.
G. Unless they are FBL Goods and provided Failed Deliveries have been returned to Segar2You, subject to paragraph J below, Segar2You will organize the delivery of such Products to the address indicated by Seller within sixty (60) days from the Shipped Date.
H. Unless they are FBL Goods and provided Segar2You agrees to accept Returned Products at its designated location, subject to paragraph J below, Segar2You will organize the delivery of such Products to the address indicated by Seller within forty-five (45) days from the Fulfilled Customer Agreement date.
I. Segar2You reserves the right to examine and determine at its own discretion if returned FBL Goods are saleable despite having been returned and if so, Segar2You may return such Returned Products to Seller or place such Returned Products back in the inventory of Seller.
J. Subject to the Policies, Segar2You is not obliged to return any Products to the Seller 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) Segar2You is unable to return the Products to Seller despite taking reasonable efforts in accordance with the Policies (for example, if Seller refuses to pick-up the returned Products; or if Seller’s delivery address is incorrect) or (ii) Segar2You reasonably determines that it is not reasonably practicable to return the Product to Seller pursuant to Paragraph J above, Segar2You 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 Seller. The Seller agrees that title to all Products will be passed to Segar2You prior to any release, disposal, or sale of the Products by Segar2You.
L. Segar2You 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 Seller.
ANNEX 4: FULFILMENT
1. Fulfilment Models
A. Orders for physical products are fulfilled under the following Fulfilment Models:
(a) Fulfilment by Seller: Where Seller is responsible for the delivery of Products to Customers using its own logistics services (“Fulfilment by Seller”);
(b) Drop-Shipping: where Seller is responsible for delivering of Products to Segar2You’s designated location or appointed third party logistics provider, for Segar2You to coordinate delivery to Customers (“Drop-Shipping”);
(c) Fulfilment By Segar2You: where Seller is responsible for delivering the Goods to the location designated by Segar2You, for Segar2You to co-ordinate their storage, re-packaging (if necessary) and delivery to Customers (“Fulfilment by Segar2You” or “FBL ). A. Segar2You will provide last-mile delivery services (“Logistics Services”) to the Seller, in accordance with the Policies.
B. The Seller will request for and use the Logistics Services in accordance with the Policies, in particular:
C. The responsibility of Segar2You and Seller in relation to packaging, handling, deliveries, returns, warranties and Orders will be in accordance with the chosen Fulfilment Model.
D. Segar2You 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 Segar2You deems appropriate.
E. Unless otherwise provided in the Agreement, Seller will be responsible for all costs incurred for shipping the Goods or Products. Any costs assessed against or incurred by Segar2You in relation to shipping will be debited to Seller. Seller 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. Segar2You will not be listed on any import documentation relating to Goods and Products and Segar2You 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 Segar2You will be charged to Seller.
G. Segar2You reserves the right to restrict the destinations to which Seller may ship Goods and Products. Segar2You 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. Seller 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 Seller 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 Seller.
J. Except as expressly provided by these Terms, at no point in time will title to Goods or Products pass to Segar2You or its sub-contractors (if any). Segar2You 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 Seller unless risk is transferred in accordance with these Terms.
L. Segar2You 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. Segar2You may, in its sole discretion, reject or re-package (at the Seller’s expense) any Goods or Products for the provision of the Logistics Services, and return such Goods or Products.
N. Seller will inform Segar2You 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. Segar2You 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 Seller prior to Payment of such Service Fees in accordance with this Agreement.
P. Segar2You will, subject to any applicable law, have a lien on any Goods or Products in Segar2You’s possession for any Service Fees due and owing to Segar2You from the Seller.
Q. The total liability of Segar2You to the Seller if there is any loss or damage to Goods or Products which are the subject of the Logistics Services and where Segar2You is responsible for the risk will be limited to the lower of:
R. Segar2You may, in its sole discretion, allow Seller to ship Goods at Seller’s expense using discounted shipping rates that Segar2You is able to procure from any carrier. Seller will not use the carrier account information of Segar2You, 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 Seller will protect such information as Confidential Information.
2. General terms for Logistics Services applicable for Drop-Shipping & Fulfilment By Segar2You models
(a) The Seller will include all information and supporting documents required by law, Segar2You, or as set out in the Policies, including tax invoices for the Products, or, if required by Segar2You or by law, to send such information and/or supporting documents to the 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 Seller will not use the Logistics Services in respect of any prohibited or dangerous goods, as set out in the Policies; and
(d) The Seller 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 Segar2You’s fulfilment centre under Fulfilment by Segar2You model where compensation amount is as published by Segar2You on the BMS Portal, ,Seller Centre or Segar2You University from time to time; or
(b) The Replacement Value of such Goods or Products,
Provided that, if the loss or damage is caused by the Seller’s instructions, the Seller failing to comply with the terms of this Agreement or the Policies, or related to the decay of perishable Goods, or otherwise directly or indirectly caused by Seller, its agents or contractors, Segar2You will not be liable for any such loss or damage.
3. Fulfilment by Seller
A. Seller 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 Seller fails to comply with the deadline, Segar2You reserves the right to modify the deadline and/or to cancel the Order.
B. Seller will stop or cancel any Orders if directed by Segar2You.
C. Seller will ensure that Segar2You is at all times supplied with updated Order shipment tracking information.
D. Title and risk of loss for Goods and Products will remain with Seller, and Segar2You 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. Seller will be responsible for obtaining appropriate insurance covering any damage or loss to the Goods.
F. Seller 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-Seller model. All claims in relation to such Goods and Products, whether raised by any relevant authorities, the Customer or any third party, shall be the responsibility of the Seller. For the avoidance of doubt, Seller 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, Seller 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-Seller model, unless otherwise agreed by the Parties in writing.
4. Drop-Shipping
A. Seller will prepare and ship the Order to Segar2You’s designated location (including any applicable drop-off boxes offered by Segar2You or to Segar2You’s appointed third party logistics provider) within twenty-four (24) hours from the Order being placed (taking into account Working Days) or according to the lead times specified in the Policies, provided that, where Seller fails to comply with the deadline, Segar2You reserves the right to modify the deadline and/or to cancel the Order.
B. Segar2You may, at its sole discretion, offer to pick up Products from mutually agreed pick up points, in accordance with the Policies.
C. Seller will stop or cancel any Orders if directed by Segar2You.
D. Seller will ensure that Segar2You is at all times supplied with updated Order shipment tracking information.
E. Title and risk of loss for Goods and Products will remain with Seller, and Segar2You 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 Segar2You as part of the Drop-Shipping process.
F. Upon receiving Products that are the subject of an Order, Segar2You will deliver the Products to the delivery address and designated recipient, in accordance with the Policies.
G. Seller 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 Customer or any third party, shall be the responsibility of the Seller. For the avoidance of doubt, Seller 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 Segar2You.
H. If required by law, Seller 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 Segar2You
A. Overview
(a) These FBL Terms form part of the Agreement and apply if the method of fulfilment of Orders is Fulfilment by Segar2You (“FBL”).
(b) Where the method of fulfilment of Orders is FBL, Seller is responsible for the sourcing and delivery of the Goods to Segar2You’s appointed fulfilment centre or pick-up point. The services provided by Segar2You under the FBL model (“FBL Services”) comprise:
i) If offered by Segar2You at its sole discretion, pick-up of Goods and transportation to Segar2You’s fulfilment centre;
ii) Short-term storage of the Goods for the purpose of fulfilment of Orders;
iii) Picking and packing of Goods for fulfilment of Orders;
iv) After-sales services such as invoice printing (if available), customer service and returns and failed delivery processing in respect of the Goods.
(c) Notwithstanding the FBL services provided to the Seller, the title to all Goods handed over to Segar2You for FBL shall remain with the Seller until the title to such Goods is transferred to (i) the Customer in accordance with the Customer Agreement; or (ii) to Segar2You or its Affiliates in the manner contemplated under these FBL Terms.
B. Enrolment in FBL
(a) Seller may submit a request to enrol in FBL through the designated request channel as notified by Segar2You from time to time. In order to enrol in FBL, Seller may be required to meet certain minimum requirements (such as seller account tenure, and minimum sale quantities), as notified in writing by Segar2You. Segar2You reserves the right to revise such minimum requirements from time to time.
(b) Acceptance of any enrolment request shall be at Segar2You’s sole discretion and may be conditional on Seller fulfilling additional requirements relating to training and enrolment formalities.
(c) If Seller’s enrolment request is accepted by Segar2You, these FBL Terms shall apply to the Goods in respect of which the FBL Services are provided (“FBL Goods”).
C. Inbound Process of FBL Goods
(a) Seller shall submit to Segar2You all information required by Segar2You in respect of the FBL Goods. Segar2You shall have sole discretion to accept or reject any inbound request for FBL Goods submitted by the Seller.
(b) The agreed details of the FBL Goods shall be set out in an Inbound Order, which shall accompany each shipment of FBL Goods to Segar2You’s appointed fulfilment centre or pick-up point.
(c) All FBL Goods shall be shipped to Segar2You’s appointed fulfilment centre on Delivery Duty Paid (Incoterm DDP 2010) basis unless otherwise agreed in writing. If the FBL Goods are shipped from overseas, the Seller shall appoint its own importer-of-record and customs broker, and shall not name or list Segar2You or any of its Affiliates as the importer, exporter or customs broker for the FBL Goods.
(d) Unless otherwise agreed with Segar2You, the Seller shall ship the FBL Goods specified in the Inbound Order to Segar2You’s appointed fulfilment centre, at the appointment date and time specified in the Inbound Order. If FBL Goods arrive at Segar2You’s appointed fulfilment centre outside of the specified appointment dated and time, Segar2You shall be entitled to either accept the FBL Goods, or reject and them to Seller at the expense of Seller.
(e) Segar2You may, at its discretion, provide the Seller with pick-up services for the FBL Goods from the pick-up location agreed with the Seller. If such pick-up services are offered and accepted by the Seller, the Seller shall comply with the processes and supply the information required for Segar2You to provide such services, including standard operating procedures, weight and size restrictions and packaging requirements.
(f) Segar2You may also inform the Seller in of any restrictions on scheduling or volumes, and Seller will comply with such restrictions.
(g) Segar2You may, at its discretion and prior to or at the time of agreement on the Inbound Order, request the Seller to have its delivery personnel or representative attend at Segar2You’s appointed fulfilment centre for the time period required by Segar2You to inbound the FBL Goods (“Seller Attended Inbound Request”), which attendance period shall not exceed four (4) hours.
i) If the Seller complies with a Seller Attended Inbound Request and the inbound process is completed within the attendance period, any FBL Goods which is rejected for inbounding due to the FBL Goods’ failure to comply with Clause 5D(a) and 5D(b) below shall be immediately returned to Seller via its delivery personnel or representative.
ii) If Seller complies with a Seller Attended Inbound Request but the inbound process is not completed within the agreed attendance period, any FBL Goods which is rejected for inbounding after the end of the agreed duration due to the FBL Goods’ failure to comply with Clause 5D(a) and 5D(b) below shall be processed in accordance with Clause 5D(d) below.
iii) If Seller elects not to comply with a Seller Attended Inbound Request, any FBL Goods which is rejected for inbounding due to the FBL Goods’ failure to comply with Clause 5D(a) and 5D(b) below shall be processed in accordance with Clause 5D(d) below, save that Segar2You shall have no liability to Seller for any loss or damage to such rejected FBL Goods from the time they were shipped to Segar2You’s appointed fulfilment centre until the time that such FBL Goods are retrieved by the Seller.
D. Requirements for FBL Goods
(a) FBL Goods shall comply with Segar2You’s requirements as notified on the BMS Portal, Seller Centre or Segar2You University. These requirements include (but are not limited to):
i) minimum expiry dates or periods;
ii) packaging requirements to ensure the integrity of the FBL Goods delivered to Segar2You’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 FBL Goods shall correspond strictly with the details of the Inbound Order. Seller shall further provide any other additional information required by Segar2You to accompany every shipment of FBL Goods, such as list of barcodes for each item, warranty details, expiry date for each item, as well as gross and net weight.
(c) Segar2You reserves the right to reject any shipment of FBL Goods which is not accompanied by a valid and corresponding Inbound Order, as well as any other additional information which the Seller is required to provide.
(d) In the event that FBL Goods shipped to Segar2You’s appointed fulfilment centre do not comply with the Inbound Order or the requirements applicable to FBL Goods, or are not accompanied by the additional information required by Segar2You, Segar2You reserves the right to refuse such shipment of FBL Goods. Segar2You will notify the Seller of such refusal in writing within ten (10) working days. Upon receipt of said written notice, Seller shall retrieve at Seller’s expense such rejected shipment within the following timelines:
i) within one (1) day, if Segar2You reasonably determines that the FBL Goods create a safety, health or liability risk to Segar2You, its personnel or sub-contractors;
ii) within two (2) working days, if the FBL 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 Seller fails to retrieve any rejected FBL Goods within the timelines above, the rejected FBL Goods will be deemed abandoned and Segar2You may dispose of the FBL Goods in any manner it deems appropriate. Title to abandoned refused FBL Goods will transfer to Segar2You at no cost to Segar2You for the purpose of such disposal, and Segar2You will retain all proceeds, if any, received from the disposal of any abandoned refused FBL Goods. If the proceeds of the disposal are insufficient to cover the costs of such disposal, Segar2You shall be entitled to recover such uncovered costs from the Seller.
(f) Alternatively, Segar2You may elect to return the rejected shipment to the Seller, or accept the FBL Good for inbounding subject to re-packaging or re-labelling of any FBL Goods which do not comply with the packaging or labelling requirements, and reserves the right to recover all incurred expenses from the Seller.
(g) Segar2You’s acceptance of the FBL Goods at the appointed fulfilment centre does not:
i) indicate or imply that any FBL Goods have been delivered in accordance with Segar2You’s inbound requirements set out above and are free of loss or damage; or
ii) indicate or imply that Segar2You actually received the number of units of FBL Goods specified by Seller or in the Inbound Order for such shipment; or
iii) waive, limit or reduce any of Segar2You’s rights under the terms of the applicable Agreement or these FBL Terms.
E. Seller Obligations
(a) Seller 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 FBL Goods. All claims in relation to the FBL Goods, whether raised by any relevant authorities, the Customer or any third party, shall be the responsibility of the Seller, save for any responsibility of Segar2You in respect of the FBL Services expressly specified in these FBL Terms. For the avoidance of doubt, Seller 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 Segar2You.
(b) If required by law, Seller 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 Segar2You, Seller shall produce a tax or sales invoice (in accordance with the applicable law) and send it to the Customer for every successful sale. It is Seller’s responsibility to determine whether Seller Taxes apply to the transactions and to collect, report, and remit the applicable Seller Taxes to the appropriate tax authority. “Seller 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 Seller.
(d) Seller will process, fulfil and cancel Orders in accordance with Segar2You’s policies, as notified on the Seller Centre, Segar2You University or other written means from time to time.
(e) Seller shall promptly notify Segar2You of any actual or potential recall, or safety alert, relating to the FBL Goods, and provide all necessary assistance to Segar2You in connection with such recall or safety alert. All expenses incurred by Segar2You in connection with such recall or safety alert of the FBL Goods shall be borne by the Seller.
F. Storage for Fulfilment
(a) Segar2You will provide temporary storage services for FBL Goods once it confirms inbounding of the FBL Goods at the appointed fulfilment centres, and will keep electronic records that track inventory of FBL Goods by identifying the number of FBL Goods stored in Segar2You’s fulfilment centres.
(b) Segar2You will not be required to physically mark or segregate items from other inventory Goods owned by Seller. If Segar2You elects to commingle the FBL Goods with other products of Seller, both Parties agree that the records of Segar2You will be sufficient to identify which products are the FBL Goods of Seller. Segar2You may, at its discretion, move and distribute the FBL Goods between its local fulfilment centres.
(c) Segar2You reserves the right to impose storage fees for FBL Goods which have been stored in Segar2You’s fulfillment centres above a certain aging period. Segar2You will notify Seller 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 Customer places an Order to an FBL Good, Segar2You will pick and pack the FBL Goods and ship the Order to the Customer at the address specified in the Order. Segar2You may ship FBL Goods together with products sold by Segar2You or other sellers.
(b) Where the Order is delivered from Segar2You’s fulfilment centre to the Customer by Segar2You or any of its sub-contractors, Segar2You shall be responsible for any loss or damage to the FBL Goods in the Order suffered during the delivery in accordance with the terms of the Agreement.
H. Failed Deliveries & Returns
(a) Seller shall accept and process refunds and adjustments in respect of FBL Goods in accordance with the applicable returns and failed delivery policies published by Segar2You from time to time.
(b) Returns and failed deliveries of any FBL Goods will be received and processed by Segar2You at its appointed fulfilment centres. Any sellable returns and failed deliveries of any FBL Goods will be placed back into the inventory of the FBL Goods of Seller. For the avoidance of doubt, all returns and failed deliveries of any FBL Goods which are placed back into the Seller’s inventory are the property of the Seller. Segar2You reserves the right to examine and determine at its sole discretion, acting reasonably, if returns and failed deliveries of any FBL Goods are suitable for selling.
(c) If Segar2You provides replacement FBL Goods or a refund to a Customer and that Customer returns the original FBL Goods to Segar2You’s appointed fulfilment centre, Segar2You will be entitled to dispose of the returned original FBL Goods, or, if they are saleable, Segar2You may, at its option place such returned original FBL Goods back in the inventory of Seller. If the returned original FBL Goods will be put in the inventory, Seller will reimburse Segar2You for the Replacement Value of the returned original FBL Goods.
(d) If Segar2You reasonably determines that any returns and failed deliveries of any FBL Goods is not in sellable condition, Segar2You shall either return such returns and failed deliveries of FBL Goods to the Seller or dispose of such returns and failed deliveries of FBL Goods without any compensation to Seller, and Segar2You reserves the right to recover any incurred expenses from the Seller.
I. Outbound Process
(a) Seller may, at any time, request that FBL Goods be returned to Seller by submitting a request on the BMS Portal or other channels designated by Segar2You from time to time.
(b) Segar2You may return FBL Goods to Seller for any reason, such as:
i) the FBL Goods have expired or are close to their expiry date;
ii) no Orders for the FBL 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 FBL Goods were inbounded in to Segar2You’s appointed fulfillment centres;
iii) the FBL Goods are reasonably determined by Segar2You to be unsuitable for FBL Services;
iv) the FBL Goods are reasonably determined by Segar2You to be non-compliant with Segar2You’s notified policies (such as counterfeit items, inadequate or unsuitable packaging);
v) the Agreement is being terminated for any reason; or
vi) the FBL Services are being terminated by either Party for any reason.
(c) Unless otherwise agreed, Seller shall be responsible for the pick-up of such FBL Goods from Segar2You’s appointed fulfilment centre within seven (7) working days (which Segar2You may extend at its sole discretion) after Segar2You has notified the Seller in writing to collect the outbounded FBL Goods. Segar2You may, at its sole discretion, agree to deliver the outbounded FBL Goods to the Seller’s delivery address in the same country, at Seller’s expense.
(d) Seller shall be responsible for any inspection, check or reconciliation of the quantity and condition of the FBL Goods. Upon the Seller’s collection (or, in the case of delivery to the Seller, confirmed receipt at its designated delivery location) of the outbounded FBL Goods, they deemed to have been fully returned to Seller in full and good condition, unless any loss or damage of outbounded FBL Goods is notified in writing to Segar2You 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 Segar2You and Seller has failed to collect outbounded FBL Goods within thirty (30) days of the expiry of LEL’s written notification to Seller, the FBL Goods will be deemed abandoned and Segar2You may elect to dispose of the FBL Goods as provided herein in any manner it deems appropriate. Title to abandoned refused FBL Goods will transfer to Segar2You at no cost to Segar2You for the purpose of such disposal, and Segar2You will retain all proceeds, if any, received from the disposal of any abandoned refused FBL Goods. If the proceeds of the disposal are insufficient to cover the costs of such disposal, Segar2You shall be entitled to recover such uncovered costs from the Seller.
(f) Seller may, at any time, request that Segar2You dispose of FBL Goods. Segar2You may dispose of FBL Goods in any manner it deems appropriate. Title to abandoned refused FBL Goods will transfer to Segar2You at no cost to Segar2You for the purpose of such disposal, and Segar2You will retain all proceeds, if any, received from the disposal of any abandoned refused FBL Goods. If the proceeds of the disposal are insufficient to cover the costs of such disposal, Segar2You shall be entitled to recover such uncovered costs from the Seller.
(g) Seller shall comply with instructions that Segar2You may give in relation to any potential suspension of the work in Segar2You’s appointed fulfilment centre.
J. FBL Fees
(a) The service fees for the FBL Services (“FBL Fees”) shall be set out in the rate cards published on the BMS Portal, Seller Centre or Segar2You University from time to time.
(b) The FBL Fees are exclusive of any taxes applicable to the FBL Services (such as consumption tax), unless otherwise stated in the rate cards. All payments to be made by Seller to Segar2You shall be made free and clear of, and without deduction for or on account of, any taxes unless Seller is required to make such a payment subject to the deduction or withholding of taxes, in which case the sum payable by Seller shall be increased to the extent necessary to ensure that Segar2You 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 Segar2You 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 Seller, Segar2You will make such deduction or withholding as required, and Segar2You will provide Seller with a certificate or any similar document proving that amounts deducted refer to withholding taxes
(c) All FBL Fees and other sums due and payable to Segar2You under these FBL Terms will be deducted from Sales Proceeds in the Seller 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 FBL Fees or other sums due and payable to Segar2You under these FBL Terms, Seller will pay the outstanding amounts within ten (10) working days after receipt of Segar2You’s invoice.
(d) Any enquiry or dispute in respect of FBL Fees or any payment of the same shall be made to Segar2You 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, Segar2You may offer promotions, rebates or discounts to the Seller in respect of the FBL Fees at its sole discretion. The terms of such promotions, rebates or discounts will be determined solely by Segar2You. If required by law, Segar2You may generate an invoice by the Seller to give effect to such rebate or discount.
(f) In the event any amount due and payable to Segar2You is unpaid by the Seller for at least thirty (30) days after the due date of such amount, Segar2You reserves the right to suspend any further FBL Services pending receipt of full payment.
K. Claims
(a) If there is loss or damage caused by Segar2You to any FBL Goods while they are being stored at any of Segar2You’s fulfilment centres, Segar2You will pay Seller the Replacement Value of the FBL Goods and Seller will, at Segar2You’s request, provide Segar2You with a valid tax or sales invoice for the Replacement Value paid to Seller. For the purpose of these FBL Terms, Replacement Value of an FBL Good is determined by Segar2You based on (at Segar2You’s discretion)the lower of either: (i) the invoiced value of the FBL Good to Seller by Seller’s supplier, (ii) the average selling price of the FBL 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 Seller Taxes that would have applied if the FBL Goods had been sold to a Buyer. Details of the calculation of the Replacement Value and Reference Period will be published by Segar2You on the BMS Portal, Seller Centre or Segar2You University from time to time.
(b) Segar2You shall not be liable for any loss or damage to FBL 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 Seller’s non-compliance with Segar2You’s notified policies.
(c) Payment of the Replacement Value shall be the Seller’s sole remedy against Segar2You, its Affiliates and sub-contractors in respect of the FBL Services. Segar2You shall not be responsible for any other losses suffered by the Seller, in particular any indirect or consequential losses, loss of sales or profits, loss of goodwill and loss of reputation.
(d) All claims by Seller to Segar2You in relation to FBL Goods in Segar2You’s fulfilment centres shall be made via the FBL Claims Module on the BMS Portal or such other channel specified by Segar2You from time to time (“System”).
(e) On the first calendar day of each month, the System will generate a draft claim based on a previous inventory cycle for Seller’s review and decision on whether to submit the claim. If the claim is submitted by Seller, Segar2You will inform Seller of the claim outcome and Seller shall have an opportunity to dispute the claim outcome within a timeline stipulated by Segar2You. While there is a pending claim submitted by Seller or a pending dispute to the claim outcome, no further claim can be made by Seller until the pending claim or dispute to the claim outcome is completely resolved.
(f) Seller must further submit claims or disputes to a claim outcome (if any) in accordance with the timelines stipulated in the System. Unless expressly specified to the contrary, Seller must raise claims in respect of the FBL Services within twelve (12) months from the date the claim first arose.
(g) Any claims or disputes to a claim outcome for FBL Goods by Seller which fail to comply with the communicated process and platform requirements, as well as the timelines stipulated by Segar2You, shall be deemed waived by Seller.
(h) Segar2You may, without notice to the Seller, dispose of any FBL Goods that are: (i) marked as damaged by Segar2You under the System; and (ii) listed in the System claims report, and may carry out such disposal in any manner Segar2You deems appropriate. Title to these FBL Goods will transfer to Segar2You at no cost to Segar2You and Segar2You shall be entitled to retain all proceeds, if any, received from the disposal of these FBL Goods.
L. BMS Portal or Other Tools
(a) Segar2You may provide tools, including the BMS Portal, to the Seller, in order for Seller to access and manage its FBL Goods inventory and the FBL Services.
(b) The Seller 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 FBL Services and FBL Goods inventory. Seller 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 FBL Terms.
(c) The Seller shall not dispute any action on the tools, including the BMS Portal, made on the Seller’s account, unless Segar2You has been given prior written notice that the access to the Seller’s account resulting in such action is unauthorised.
(d) The tools are provided on an “as is” basis. Seller acknowledges that any information and any materials provided by or through the tools, including the BMS Portal, may contain inaccuracies or errors, and Segar2You 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 Seller’s convenience to provide further information. Unless otherwise stated, it does not signify that Segar2You endorses the contents thereof and Segar2You has no responsibility for the content of external links.
M. Force Majeure
(a) In addition to the Force Majeure provisions of the Agreement, Segar2You shall have no liability to Seller in respect of FBL Goods in Segar2You’s custody that are lost or damaged by reason of floods, storms, natural calamities and/or other acts of God. If Segar2You successfully makes any claims against its own insurance policies in respect of such lost or damaged FBL Goods and receives payment from its insurers in respect of the same, Segar2You shall pass on the proceeds it receives from such claims to Seller.
N. Termination of FBL Services
(a) Either Party may terminate the FBL 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 Segar2You remains unpaid by the Seller for at least sixty (60) days after the due date, Segar2You may terminate the FBL Services immediately upon written notice to the Seller.
A. Unless otherwise agreed in writing, Payments will be made by Segar2You to Seller on a weekly basis in respect of Orders that have been delivered or completed by the reconciliation cut-off date. The Order status on Seller Center may be subject to delays on weekends, public holidays, caused by third parties, or factors outside of Segar2You’s reasonable control.
B. From time to time, Segar2You may offer promotional and goodwill rebates or discounts to Seller in respect of any part of the Fee. The terms of such rebate or discount are determined by Segar2You at its sole discretion. Where required by law, Segar2You may generate an invoice by the Seller to give effect to the rebate or discount. If Segar2You is held liable for any taxes on behalf of the Seller, or as a tax agent of the Seller, in connection with any Order or Payment, the Seller will indemnify Segar2You for such tax liability or compliance costs, irrespective of when the tax liability is assessed.
SCHEDULE A: PAYMENTS
1. Payment
C. Segar2You shall have the right to set off any amounts owed by Segar2You to Seller against any amounts owed by Seller to Segar2You, including any such amounts under other accounts or shops owned by the same Seller.
2. Commission and Payment Fee
A. Commission rates are as indicated herein or in Seller Center. Segar2You may provisionally reduce Commission rates for certain Goods from time to time.
B. The Payment Fee shall be Five percent (5%) (exclusive of any taxes such as Consumption Tax which shall also be borne by Seller).
C. Payment settlement to Seller will be between three (3) to five (5) days once request has been initiated from the panel.