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TERMS AND CONDITIONS


Introduction

 

This Agreement constitutes a legally binding agreement between Poptron and you (“Merchant”) as a Seller (each a “Party”, and collectively, the “Parties”). 

 

By clicking on the ‘I Agree’ button below, you affirm that you unconditionally accept to be legally bound by this Agreement. 

 

Poptron reserves the right to modify, update, and/or amend this Agreement from time to time at its sole and absolute discretion and without prior notice to the Merchant. All modifications, updates or amendments will be notified to the Merchant via the Platform and/or other methods of communication as prescribed by Poptron and by continuing to use the Platform after such modifications, updates or amendments have been posted and/or notified, you shall be deemed to have agreed to and accepted such modifications, updates or amendments. 

 

THE PARTIES AGREE as follows:

 

1.         Definitions

 

1.1       Words importing the singular shall include the plural, words importing the masculine gender shall include the feminine and neuter genders, and words importing a person shall include their firm and corporation and vice-versa.

 

1.2       Any reference in this Agreement to any statute or statutory provision, order or regulation shall be construed as including a reference to that statute or statutory provision, order or regulation as from time to time amended modified extended or re-enacted whether before or after the date of this Agreement and to all statutory instruments, orders, regulations and directives modifying or extending the same.

 

1.3       The headings to the Clauses are inserted for convenience of reference and shall not be considered in the construction or interpretation of this Agreement. References to Recitals, Clauses, Appendices and Schedules are references to recitals, clauses of, appendices and schedules to this Agreement.

 

1.4       Unless otherwise stated, times in this Agreement shall be of the essence for the purpose of the performance of the Parties’ obligations under this Agreement.

 

1.5       No rule of construction applies to the disadvantage of any Party because it was responsible for the preparation of this Agreement.

 

2.         Relationship & Commencement of Services

 

2.1       Poptron operates and provides the Platform as an online e-commerce marketplace, providing a place and opportunity for the sale of Products between Buyers and Sellers on the Platform. The Merchant desires to use the Platform for marketing its Products, and receiving payment in respect of the Products from Buyers.

 

2.2       In providing the Services under this Agreement, the Parties agree that:

 

(a)   Poptron shall act as a facilitator to help the Merchant market the Products and accept payments from Buyers;

 

(b)   Poptron acts solely as an e-commerce marketplace operator by creating, hosting, maintaining and providing the Platform for the Merchant’s use via the internet;

 

(c)    Poptron does not have any control over the Products that are transacted by the Merchant; and

 

(d)   Poptron does not have any onus or liability whatsoever to ensure that the Buyers that transact with the Merchant will actually complete their respective Transactions.

 

2.3       The Merchant agrees and acknowledges that:

 

(a)   the Services provided by Poptron are solely in respect of facilitating the marketing and sale of the Merchant’s Products via the Platform;

 

(b)   Poptron does not act in the capacity of a trustee, fiduciary party, or escrow agent in respect of the Merchant’s funds, but it acts as a custodian only. The Merchant agrees that it shall not receive interest or other earnings on the funds handled or processed by Poptron; and

 

(c)    the Merchant shall at its own cost and expense register with the relevant financial institutions and/or credit/debit card associations to obtain a merchant account prior to the provision of the Services by Poptron.

 

2.4       Prior to the commencement of Poptron’s provision of Services to the Merchant, the Merchant shall submit an application (in such form and substance as may be prescribed by Poptron in its sole and absolute discretion) to Poptron for the opening of an Account as a Seller on the Platform, correctly and completely filled in together with such supporting documents and/or information as may be required by Poptron in its sole and absolute discretion for Poptron’s consideration.

 

2.5       The Merchant shall be entitled to open an Account and use the Services for marketing the Products and receiving the payments for Products of the Merchant only upon receiving written notification of Poptron’s approval for the Merchant’s registration for an Account.

 

2.6       The Parties agree that this Agreement shall have come into effect on the date on which the Merchant’s Account is opened on the Platform and inure until the date of termination and/or closure of the Merchant’s Account on the Platform (the “Term”).

 

3.         Obligations of Merchant

 

The Merchant agrees and undertakes to comply with the terms and conditions set forth in this Agreement and as follows:

 

3.1       General

 

(a)   to comply with all Terms and Conditions, Policies, and any other requirements imposed by Poptron in connection with the Merchant’s use of the Platform, as may be prescribed by Poptron in its sole and absolute discretion;

 

(b)   to observe and comply with all lawful regulations and directions as may be made or given to the Merchant by Poptron from time to time;

 

(c)    to ensure that the Merchant complies with all relevant rules, regulations, and laws applicable to its obligations under this Agreement, and/or the Products;

 

(d)   to conduct itself in a manner which does not result, directly or indirectly, in lowering the image, esteem, and/or reputation of Poptron at all times during and after this Agreement, and not to do any act or say anything, whether personally or through any agent, which brings Poptron into disrepute or prejudices Poptron; and

 

(e)   to deliver information regarding its Products in such form and method as stipulated by Poptron immediately when Buyers place Orders.

 

3.2       Product Listing

 

The Merchant shall ensure that all listings of its Products must contain the following information or feature(s):

 

(a)   indications of the Merchant’s accepted payment methods;

 

(b)   complete description of the Products offered by the Merchant;

 

(c)  indicate if there are any guarantees and/or warranties granted by the Merchant and/or the supplier and/or manufacturer of the Products;

 

(d)   specify or indicate the Merchant’s own Seller’s Refund Policy (hereinafter defined);

 

(e)   provide the particulars of the Merchant’s customer service contact including the Merchant's address, email address & contact number;

 

(f)    specify that the transaction currency, cost of products and/or services and the delivery and/or shipping charges shall be in the currency of Malaysia, Malaysian Ringgit (MYR);

 

(g)   specify any export restrictions (if known);

 

(h)   specify the Merchant’s estimated delivery timelines;

 

(i)     specify and/or include a link to the Merchant’s personal data privacy policy/notice in accordance with the Personal Data Protection Act 2010; and

 

(j)     specify any legal restrictions on the Products (if known).

 

3.3       Transactions

           

(a)   The Merchant shall issue receipts/tax invoices or any evidence of receipt to Buyers as prescribed by law.

 

(b)   If the Merchant intends to modify its payment type and/or amend the method or conditions for selling of goods, engaging of services or performing of works, affecting Poptron’s performance of Services hereunder, the Merchant agrees to notify Poptron of such modification and/or amendment in writing fourteen (14) days in advance.

 

(c)    The Merchant acknowledges and agrees that in case any damages or errors occur as a result of Poptron’s performance of Services according to information as delivered by the Merchant, the Merchant shall not claim any damages against Poptron and/or shall be solely responsible for such damages or errors with Buyers.

 

3.4       Delivery

 

(a)   The Merchant must make the necessary arrangements to have purchased Products delivered to Buyers within such delivery timelines as specified in the Product listing and relevant Order confirmation issued to Buyers, and provide details such as the name of the delivery company, the tracking number, and such other information as may be required and/or directed by Poptron.

 

(b)   As soon as it is anticipated by the Merchant that an agreed delivery timeline for a particular Product may not be met, the Merchant shall contact the relevant Buyer to agree for a substituted time for delivery of the Product, and inform Poptron regarding the same.

 

(c)    Where a Buyer has submitted an Order and made full payment for the same, and the Merchant fails to deliver the Product within the period specified on the Product page or Order confirmation without any proper, reasonable and acceptable justification, the Buyer may request for the Order to be cancelled and request for a refund. In such instance, the Merchant shall refund payments made by a Buyer in accordance with the Seller’s Refund Policy (hereinafter defined) and Poptron’s Refund Policy (hereinafter defined).

 

(d)   The Merchant shall bear all risk attached to the delivery of purchased Products and warrants that the Merchant has or will obtain adequate insurance coverage for the delivery of purchased Products.

 

(e)   In the event where purchased Products are damaged, lost or failure of delivery during the course of delivery, the Merchant acknowledges and agrees that Poptron will not be liable for any damage, expense, cost or fees resulted therefrom and the Merchant will reach out to the relevant delivery service provider to resolve such dispute.

 

(f)    The Merchant shall comply with all local laws and regulations relating to importation and exportation of the Products.

 

3.5       Refunds

 

(a)   The Merchant must create its own refund/return/replacement policy in respect of their Products on the Platform, or use one of the standard available refund/return/replacement policy formats which will be made available to the Merchant for the Merchant’s use on the Platform (“Seller’s Refund Policy”). The Seller’s Refund Policy will be made available to Buyers on the Platform before Buyers place an Order.

 

(b)   The Merchant acknowledges that Poptron has an overarching return policy (“Poptron’s Refund Policy”), which applies to all Products listed on the Platform, and in the event of any conflict or inconsistency between the Merchant’s Seller’s Refund Policy and Poptron’s Refund Policy or any amendment thereof, the terms of Poptron’s Refund Policy shall prevail.

 

(c)    The Merchant undertakes to strictly comply with its Seller’s Refund Policy and Poptron’s Refund Policy.

 

3.6       Price of Products

 

(a)   The Merchant shall ensure that the price of a Product listed on the Platform and shipping charges shall include the entire amount to be charged to a Buyer such as sales tax, value-added tax, tariffs, etc. and the Merchant shall not charge a Buyer such amount additionally and separately.

 

(b)   The Merchant shall properly manage and ensure that relevant information published by the Merchant on the Platform, such as the price and the details of Products, inventory amount and terms and conditions for sales is accurate and updated on the Merchant’s listing on the Platform, and the Merchant and shall not post inaccurate or misleading information.

 

(c)    The Merchant agrees to bear full responsibility and liability for all Products offered by the Merchant on the Platform.

 

(d)   The Merchant agrees that Poptron may at its discretion engage in promotional activities to induce transactions between the Merchant and Buyers by reducing, discounting or refunding fees, or in other ways. The final price that a Buyer will pay will be the price that such adjustment is applied to.

 

(e)   For the purpose of promoting the sales of the items listed by the Merchant, Poptron may post such items (at adjusted prices) on third-party websites (such as portal platforms and price comparison platforms) and other websites (domestic or foreign) operated by Poptron.

 

4.         Acknowledgment of Risks in Electronic Transactions

 

4.1       The Merchant has carefully considered and realizes that electronic transactions are of risk and accepts any consequent damages incurred from such electronic transactions.

 

4.2       The Merchant agrees to strictly comply with the following:

 

(a)   The Merchant must keep, not less than six (6) months, sales records or proof of trade, delivery of goods/services and receipt of payments such as tax invoice, shipping slip, receipt, etc. as proof in the event of any disputes occurring thereafter.

 

(b)   If Poptron desires to verify the Merchant’s Transactions, the Merchant agrees to provide Poptron with all relevant information and documents immediately or within such period as may be specified by Poptron in writing.

 

(c)    The Merchant also agrees to assist Poptron in order to acquire such information and documents and shall not, in any circumstances, obstruct, weaken, destroy or hinder Poptron from acquiring such information and documents.

 

4.3       The Merchant agrees and acknowledges that while Poptron may use various techniques to identify its Users when they register an Account on the Platform, Poptron does not guarantee the authentication of any Buyer's identity nor shall Poptron be held liable in any way whatsoever to the Merchant or any third party for any fraud in connection with any Buyer’s identity.

 

5.         Remittance of Payments by Poptron

 

5.1       The Merchant hereby irrevocably authorizes Poptron to cause all funds received on behalf of the Merchant by Poptron in connection with the sale of Product to Buyers to be deposited on its behalf in Poptron’s banking accounts.

 

5.2       The Merchant acknowledges that payment processing fees may be payable for successful Transactions completed via bank transfer, credit card or debit card on the Platform (“Payment Fee”) and is calculated according to the rates as notified to the Merchant by Poptron from time to time on the Platform, rounded up to the nearest cent. The Merchant irrevocably and unconditionally agrees to bear the Payment Fee.

 

5.3       The Merchant acknowledges and agrees that the Payment Fee may be subject to sales tax and/or services tax (“Tax Amount”), and that the Merchant is responsible for such Tax Amount. All taxes, customs, duties and other charges imposed or to be imposed by the governments or such other competent authorities in respect of the sale of the Products or transfer of funds to the Merchant or in connection with this Agreement shall be borne by the Merchant and the Merchant shall reimburse and indemnify Merchant for the payment of the same in respect of the provision of the Services or in connection with this Agreement. If as a result of the introduction of new laws, by-laws rules or regulations or the amendment of the existing laws, by-laws rules or regulations which may be levied by the relevant authorities, the Parties hereto shall comply with the new laws and pay at such rate as may be determined by the relevant authorities. The Parties agree to use reasonable efforts to do everything required by the relevant tax law or tax law of similar nature to enable or assist the other Party to claim or verify any input tax credit, set off, rebate or refund in respect of any Tax Amount or tax of similar nature paid or payable in connection with Products, and/or in respect of Services supplied under this Agreement.

 

5.4       If the Merchant is located outside of Malaysia, additional fees may be payable for all successful transactions completed via bank transfer, credit card or debit card on the Platform (“Cross Border Fee”). The Cross Border Fee is borne by the Merchant, and is calculated according to the rates as notified to the Merchant from time to time on the Platform.

 

5.5       Poptron shall issue receipts or tax invoices for the Payment Fee, Tax Amount, and/or Cross Border Fee paid by the Merchant on request.

 

5.6       Funds received by Poptron from sale of a Product to a Buyer shall be held by Poptron for a period of seven (7) days from the date of confirmation of delivery of the relevant Product to the relevant Buyer.

 

5.7       Thereafter, such funds shall be remitted free of interest less any Payment Fee, Tax Amount and/or Cross Border Fee to the Merchant’s account maintained by the Merchant with Poptron (“Merchant Account”) on the 4th day of each and every succeeding week.

 

5.8       Poptron may vary the frequency of payment and date of payment as set out in Clause 5.3 above in its sole and absolute discretion by way of notification to the Merchant.

 

5.9       The Merchant hereby agrees that Poptron and/or financial institutions in which Poptron holds funds on behalf of the Merchant (“Bank”) has absolute discretion not to remit all such funds received by Poptron and/or the Bank to the Merchant if Poptron and/or the Bank reasonably believe that any of the following events has or might have occurred:-

 

(a)   Products are returned by the Buyer for any reason whatsoever;

 

(b)   disputes exist between the Merchant and Buyers, and/or the existence of nay chargebacks and/or fraud and/or forgery and/or suspicious transactions;

 

(c)    the Merchant is unable to furnish any document or record related to the relevant Transaction upon request of the Bank and/or Poptron;

 

(d)   there has been a breach of this Agreement by the Merchant or the Merchant is suspected, expected, assumed or believed to be in breach of any of its obligations under this Agreement, or of any security measures or guidelines issued by the Bank;

 

(e)   non-compliance by the Merchant with regard to the Transaction that may damage the goodwill of Poptron or reflect negatively on Poptron; and/or

 

(f)    if this Agreement is terminated by Poptron for any reason whatsoever.

 

6.         Accounts

 

6.1       Upon registering an Account as a Seller on the Platform, the Merchant shall be granted access to a Merchant Account on the Platform. Poptron may prescribe such terms and conditions and/or Policies applicable to the Merchant Account as it deems fit and necessary in its sole and absolute discretion and may post such terms and conditions on the Platform.

 

6.2       If any of the following events occur:

 

(a)   the Merchant commits a breach of any of the terms of this Agreement as provided herein;

 

(b)   Poptron is unable to verify or authenticate any information provided by the Merchant to Poptron and the Merchant refuses to co-operate or assist Poptron to verify and authenticate such information;

 

(c)   Poptron believes with reasonable cause that the Merchant Account or activities pose a significant credit or fraud risk to Poptron; or

 

(d)   Poptron believes with reasonable cause that the Merchant’s actions may cause financial loss or legal liability for Poptron or its Users,

 

Poptron shall be entitled at its discretion to take any of the following actions and remedies: (i) to hold on the funds in the Merchant Account; (ii) to limit the funding sources and payments; (iii) to limit access to the Merchant Account and any or all of the Merchant Account's functions (including but not limited to the ability to send money or making withdrawals from the Merchant Account); (iv) to limit withdrawals; (v) to indefinitely suspend or close the Merchant Account; and/or (vi) refuse to provide the Services to the Merchant.

 

6.3       In addition thereto, Poptron reserves the right to hold the funds beyond the normal distribution periods stated herein for Transactions it reasonably deems suspicious or for Merchant Accounts conducting high transaction volumes to ensure integrity of the funds.

 

6.4       If Poptron closes the Merchant’s Account pursuant to this Clause, Poptron will notify the Merchant by giving a written notice and pay to the Merchant all of the unrestricted funds held in its Merchant Account. In addition thereto, Poptron shall have a lien over the Merchant Account and Poptron shall set-off against the monies in such Merchant Accounts held with Poptron in respect of all sums due and owing to Poptron and/or to Buyers pursuant to the terms of this Agreement.

 

6.5       Upon the termination of this Agreement, the following provisions shall apply:

 

(a)   Any pending Transactions to be performed will be cancelled.

 

(b)   The Merchant may not use closure of its Account or Merchant Account as a means of evading investigation. If an investigation is pending at the time the Merchant closes its Account or Merchant Account, Poptron may continue to hold its funds for up to ninety (90) days as appropriate to protect Poptron against the risk of reversals. If the Merchant is later determined to be entitled to some or all of the funds in dispute, Poptron will release those funds to the Merchant within seven (7) days. The Merchant will remain liable for all obligations related to its Account and/or Merchant Account even after such Account and/or Merchant Account is closed.

 

6.6       If the Merchant does not access its Account and/or Merchant Account for a period of  six (6) months, it will be terminated by Poptron without further notice. After the date of termination, Poptron will use the Account and/or Merchant Account and/or address information provided to Poptron to try to send the Merchant any funds that Poptron is holding in custody for the Merchant. If that information is not correct, and Poptron is unable to complete the payment to the Merchant, its funds will be subject to the laws applicable to unclaimed property and monies.

 

6.7       Unless otherwise provided herein, Poptron reserves the right to open only one (1) Merchant Account for the Merchant. If it appears that the Merchant has or obtains more than one (1) Merchant Account, Poptron is entitled to cancel the other Merchant Account(s) and retain only one of them for the Merchant.

 

7.         Intellectual Property Rights

 

7.1       The Merchant acknowledges that all proprietary content, trademarks, service marks, brand names, logos and other Intellectual Property of Poptron displayed  on the Platform are the property of Poptron and where applicable, third party proprietors identified in the Platform.

 

8.         Marketing Activities

 

8.1       Poptron may advertise and publicize in connection with the Services provided to the Merchant and the Merchant shall provide cooperation with Poptron in the advertisement and publication through various media or other networks from time to time as mutually agreed by both Parties.

 

8.2       The Merchant agrees to advertise and publicize its Products as well as its use of Poptron’s Services in accordance with the provisions of this Agreement.

 

9.         Representations and Warranties

 

9.1           The Merchant hereby represents and warrants in favour of Poptron as follows:

 

(a)            the Merchant has the full right, power and authority to enter into and perform this Agreement and to grant to and vest in Poptron all the rights herein set forth, free and clear of any and all claims, rights and obligations whatsoever and that this Agreement will be valid and binding on the Merchant;

 

(b)            all information provided to Poptron under this Agreement is true, correct, accurate, and not misleading;

 

(c)             the Merchant is engaged in a lawful business that includes the sale of Products, and shall comply with all laws, policies, guidelines, regulations ordinances or rules applicable to the Merchant’s business and this Agreement;

 

(d)            all Products in respect of which Poptron may receive payments on behalf of the Merchant pursuant to this Agreement are not goods and/or services which are prohibited by law and good morals or that would expose Poptron’s image to risk;

 

(e)        all Products and each and every part thereof delivered and to be delivered by the Merchant hereunder shall not violate or infringe upon any applicable law, or any common law or statutory rights of any party including, without limitation, contractual rights, copyrights and rights of privacy and there shall not be contained in or incorporated into the Products and each and every part thereof delivered and to be delivered by the Merchant hereunder, anything which would infringe or misappropriate any patent, mask work, design, copyright, trademark, trade name, service mark, database right, any application for any of the foregoing, moral right, trade secret right, any other proprietary right, or any publicity or privacy right of any third party and no third party shall have any right to assert any claim of ownership or for infringement or misappropriation of any intellectual property right as to any portion of the Products and shall not be obscene or defamatory and the Products will not expose Poptron to any civil or criminal proceedings;

 

(f)        the Merchant has obtained and will continue to maintain all related permit(s) and/or licence(s) and/or consent(s) and/or authorisation(s) required for the provision of the Services, including but not limited to permits and licenses which shall be obtained from authorized government officials or pursuant to such applicable laws and requirements and shall submit copies of such permit(s) and/or licence(s) to Poptron, where required, and the Merchant will obtain all written releases, consents and/or licenses for the Products;

 

(g)            the Merchant will acknowledge, execute and deliver all such further instruments or documents and perform all such further acts and things as Poptron may from time to time reasonably deem necessary or desirable to give effect to the terms and provisions of this Agreement; and

 

(h)           the Merchant will hold Poptron free and harmless from and against any and all claims, demands, damages, expenses, losses or costs (including legal costs on an indemnity basis) or any sums paid in settlement arising out of or incurred as a direct or indirect result of any breach of the representations, warranties, agreements and undertakings of the Merchant contained in this Agreement.

 

9.2       Each Party hereby represents and warrants that:

 

(a)            it has the power to enter into, exercise its rights, and perform and comply with its obligations under this Agreement;

 

(b)            the performance of its obligations under this Agreement does not and will not contravene or constitute a default under any provision contained in any contract, deed or licence by which it is bound or affected or to which it is a party;

 

(c)             its obligations under this Agreement are valid, binding and enforceable in accordance with their terms;

 

(d)            no litigation, arbitration or administrative proceedings is current, pending or threatened, so far as it is aware:-

 

(i)              to restrain the entry into, exercise of its rights, or the performance or enforcement of or compliance with its obligations under this Agreement; or

 

(ii)        to have a material adverse effect on any such obligation; and

 

            (e)        it shall conduct its obligations under this Agreement in compliance with any and               all applicable laws, rules and regulations as may be imposed by the relevant                        authorities.

 

10.       Termination

 

10.1     A Party shall be entitled by notice in writing to the other Party to terminate this Agreement with immediate effect if:

 

(a)            the other Party is in breach of its obligations or any terms or warranties of this Agreement and where such breach is capable of remedy, fails to remedy the same within the time period reasonably stipulated by the non-defaulting Party in writing;

 

(b)       if winding up or bankruptcy proceedings have been instituted or are being instituted against other Party or the other Party commits any act that may result in any action for winding up being taken against the non-defaulting Party;

 

(c)        the development, production, performance of the Services is prevented or interrupted by an event of Force Majeure for more than fifteen (15) consecutive days or an aggregate of thirty (30) days;

 

(d)       the other Party commits a breach of this Agreement and such breach constitutes a breach which is material and incapable of remedy; and/or

 

(e)            if the other Party engages in any conduct prejudicial to the first mentioned Party’s business or the Services generally.

 

10.2     Without prejudice to the rights of Poptron above, Poptron shall be entitled to terminate this Agreement by notice in writing to the Merchant if the Merchant:

 

(a)            shall go into voluntary liquidation otherwise than for the purpose of reconstruction or amalgamation or an Order of Court is made for its compulsory liquidation or being an individual shall become bankrupt or have a receiving order made against any of his assets;

 

(b)            shall enter into any composition or arrangement with its creditors;

 

(c)            shall have a receiver appointed over the whole or any part of its undertaking or assets;

 

(d)            shall suffer any encumbrances taking possession of or a receiver or trustee being appointed over the whole or any part of its undertaking, property or assets;

 

(e)            shall have an order made against it or have a resolution passed for its winding-up;

 

(f)             or any of its directors and/or business owners has been blacklisted by a Bank;

 

(g)            is involved in or is suspected to be involved in fraudulent, counterfeit, suspicious and/or wrongful and/or unlawful activities;

 

(h)            carries out activities which cause Poptron to violate any applicable laws; or

 

(i)             performs any other activity that may result in undue economic hardship or damage to the goodwill of Poptron;

 

(j)             carries out irregular Transactions, excessive chargebacks, fails to comply with any applicable data security standards, as determined by Poptron , or is subject to an actual or suspected data security breach, or any other circumstances which, in the discretion of Poptron, may increase the risk exposure of Poptron or otherwise present a direct or indirect financial or security risk to Poptron;

 

(k)            violates any applicable laws, rules, and/or regulations;

 

(l)             consistently fails to satisfactorily meet Buyers’ expectations of professionalism in selling the Products, including consistently selling defective and/or faulty and/or dangerous and/or counterfeit and/or unlicensed Products;

 

(m)          fails to comply with Poptron’s Terms and Conditions and/or Policies and/or fails to consistently deliver the Products in a timely fashion; and/or

 

(n)            breaches this Agreement and where such breach is capable of remedy, fails to remedy such breach within fourteen (14) days following the date of a written notice from Poptron specifying in detail the material breach and requiring its cure.

 

10.3     The following provisions shall apply upon termination of this Agreement howsoever arising:

 

(a)            the Merchant shall continue to comply with all of the obligations on the part of the Merchant under this Agreement which are not affected by termination;

 

(b)           all Transactions between the Merchant and Buyers shall be terminated;

 

(c)            the Merchant shall not be entitled to claim from Poptron any cooperation, damages or payment for or in respect of by reason of such termination;

 

(d)           subject to Clause 6, the Merchant may withdraw all monies due to the Merchant in the Merchant’s Account as at the date of such termination;

 

(e)        any claim which either Party may have against the other in respect of any breach or non-performance or repudiation of any of the provisions of this Agreement which shall have occurred prior to such termination shall not be affected or prejudiced and all rights of termination under this Agreement are in addition to and separate from any other rights of the Parties at law.

 

10.4     Any delay by Poptron in exercising any right of termination shall not constitute a waiver of that right.

 

11.       Confidentiality

 

11.1     Each Party to this Agreement shall at all times keep confidential the terms and conditions of this Agreement, any confidential information, documents and/or materials which it may acquire in relation to the other Party, the business and financial affairs of either Party and either Party’s dealings with any third parties (collectively referred to as “Confidential Information”), and shall not use or disclose such Confidential Information except with the prior written consent of the Party affected by the use or disclosure and shall further agree to take reasonable precautions to ensure that its employees, agents, contractors, sub­contractors, sub-licensees, solicitors and other advisers (collectively referred to as “Approved Third Parties”) keep all such information confidential and such disclosure of Confidential Information is disclosed only to the extent necessary to enable the discharge of duties and responsibilities by such Approved Third Parties and provided always that each of the Approved Third Parties shall undertake the same level of confidentiality herein stated and shall and shall segregate or otherwise maintain Confidential Information so as to prevent any comingling of the same with the confidential or proprietary materials of other. The Parties shall ensure that all their Approved Third Parties comply with the level of confidentiality stipulated in this Agreement and shall undertake appropriate measures to protect Confidential Information received by them hereunder from loss and each Party shall ensure that no part of the Confidential Information is copied or reproduced in any form without the express written permission of the other Party except for such copies and to such extent as may be necessary for the conclusion of the Services and the Parties agree that each Party is not permitted to sell, licence, develop or otherwise exploit any parts, products, services, documents or information which embody in whole or in part any Confidential Information save and except as contemplated by this Agreement. Upon the termination of this Agreement for whatever reason, the Merchant shall return and deliver up to Poptron all Confidential Information of Poptron.

 

11.2     The Merchant acknowledges that it shall not issue any press release or make any statement, or any public announcement to the trade or general public relating to or concerning this Agreement, the Merchant’s association with Poptron and/or its related companies or any Confidential Information related to the Services and/or Poptron’s Intellectual Property Rights without the express prior written consent of Poptron. The Merchant undertakes to use the Confidential Information solely for the purpose of this Agreement and the Merchant agrees not to discuss any matters relating to the Services with the media or with third parties in such circumstances where the media may obtain information relating to the Services from such third parties. In addition, the Merchant agrees that the Merchant will not pass to or release to any person (other than persons authorized by Poptron to render services in connection with the Services) any information or any item whatsoever that comes into the Merchant’s possession.

 

11.3     Nothing contained in this Clause shall prevent any Party from disclosing any Confidential Information to its officers, employees, agents, service providers and contractors, involved in the performance of this Agreement, provided that such disclosure shall be made in confidence and only to the extent necessary to enable the discharge of duties and responsibilities owed to such Party. Nothing contained in this Clause shall prevent any Party from disclosing any information to the extent required in connection with legal proceedings amongst one or more of the Parties in relation to this Agreement, or as required pursuant to law or an order of court, or the requirements of any governmental, statutory or regulatory authority, or any stock exchange regulations. Further, any information described in Clause 11 shall not be deemed proprietary or confidential if:

 

(a)            it is or becomes publicly known through no wrongful act by any third party or by the Party disclosing or seeking to disclose;

 

(b)            it is already known to the Party disclosing through lawful means; or

 

(c)             it is rightfully received by the Party disclosing or seeking to disclose from a third party having the right to disclose.

 

11.4     Personal Data

 

(a)            The Parties agree to comply with all data protection provisions including, without limitation, the Personal Data Protection Act 2010 (“PDPA”) and any other applicable legislation relating to data protection and in this respect, the Parties agree that each other shall be permitted to collect and store the Personal Data of its employees and/or independent contractors for administrative purposes and purposes relating to this Agreement. Each Party hereby consents to the:-

 

(i)    processing of the Personal Data by the other Party and the transfer to and subsequent processing thereof, locally and outside Malaysia, by any companies related to that Party; and

 

(ii)   transfer of the Personal Data by the other Party to third parties authorised by the other Party, locally and outside Malaysia, and the processing of the Personal Data by such third parties who, in the normal course of their business, require such access to, and carry out the processing of, the Personal Data.

 

(b)            Where either Party receives any Personal Data from a Buyer, it shall ensure that it fully complies with the provisions of the PDPA and only deals with the Personal Data to fulfil its obligations under this Agreement.

 

(c)            The Merchant shall indemnify Poptron for any breach of the PDPA by the Merchant which renders Poptron liable for any costs, fines, claims or expenses howsoever rising.

 

(d)            Each Party shall take all reasonable steps to ensure that all its partners, contractors, employees or agents comply with this clause and the provisions of the PDPA where they are processing any Personal Data of a Buyer.

 

(e)            The Merchant must ensure the security and confidentiality of a Buyer’s information at all time and protect from any unauthorized access or the use of such confidential information that could result in substantial harm to the Buyer and violation of the PDPA.

 

For the purpose of this Clause 11:-

 

Personal Data” includes all information arising from or relating to the performance of the employees and/or independent contractors of each Party’s duties hereunder that relates directly or indirectly to the employee and/or independent contractor, which such employee and/or independent contractor is identified or identifiable from including, without limitation, information in respect of the employee and/or independent contractors’ physical or mental health, racial or ethnic origin and religious or similar beliefs and/or in respect of criminal or civil proceedings involving the employee and/or independent contractor;

 

process” means the collection, recording, organization, storage, adaptation, alteration, retrieval, use, disclosure whether by transmission, dissemination or otherwise making available, alignment, combination, blocking, erasure, destruction and other operation or set of operations as prescribed in the PDPA; and

 

third parties” includes but is not limited to the Parties’ authorised service providers, the Parties’ future principal, government or quasi-governmental organisations and the potential purchaser of the Parties or their businesses or part thereof.

 

The consent granted to the other Party, whether represented or not, does not replace any other consent and authorization that was already provided to the other Party (if any), and shall continue in effect notwithstanding the termination of this Agreement. The Merchant agrees to comply with the provisions of Poptron’s Personal Data Protection/Privacy Notice/Policy.

 

11.5     The obligations of each of the Parties herein shall continue in effect notwithstanding the termination of this Agreement.

 

11.6     Without the prior written consent of the other Party, a Party may not use the names, designs, trademarks, copyrighted materials, or any other intellectual property of the other Party, its agents, or any of either’s related companies, employees, assigns, successors, or licensors/ees (a) in any advertising, publicity, or promotion of the Parties; (b) to express or imply any endorsement of any work of the Parties; or (c) in any manner other than in accordance with this Agreement or as otherwise expressly authorized by the other Party in writing.

 

11.7      The Merchant acknowledges that a breach of any of its undertakings or obligations under this Clause may cause Poptron irreparable damage for which monetary compensation will not be sufficient or adequate. The Merchant accordingly agrees that Poptron shall be entitled to seek injunctive relief and other equitable relief to prevent or curtail any actual or threatened breach by the Merchant of the provisions of this Clause.

 

9.         Notices

 

9.1       Any notices or demands served under this Agreement shall be in writing and shall be delivered personally or despatched by prepaid registered mail or transmitted by facsimile or email (with requested acknowledgement of receipt) to, in the case of the Merchant, the details provided by the Merchant to Poptron in its application for registration of an Account, and in the case of Poptron, to Poptron’s details as set out on the Platform.

 

9.2       Any Party may change its address or facsimile for the purposes hereof by written notice to the others. Notices shall be effective:-

 

(a)            if delivered personally, on the date of delivery;

 

(b)        in the case of domestic mail, if transmitted by prepaid registered mail, on the date falling seven (7) days after posting; provided that it shall be sufficient to show that the envelope containing such notice or information was properly addressed and sent by prepaid post and that it has not been so returned to the sender, to prove that such notice or information has been duly sent;

 

(c)        in the case of international mail, if transmitted by prepaid registered air-mail, on the date falling fourteen (14) days after posting; provided that it shall be sufficient to show that the envelope containing such notice or information was properly addressed and sent by prepaid post and that it has not been so returned to the sender, to prove that such notice or information has been duly sent;

 

(d)        if transmitted by facsimile, on the date of transmission, provided that it shall be sufficient to show that the facsimile has been despatched with the appropriate delivery receipt received to prove that such facsimile has been duly sent; and

 

(e)            if transmitted by electronic mail (“email”) or other electronic communication methods, on the date of transmission, provided that it shall be sufficient to show that the email has been despatched with the appropriate delivery receipt received to prove that such email has been duly sent.

 

10.       Liability & Indemnity

 

10.1     Poptron will not be liable for any damages, compensation, medical or hospitalisation costs incurred, in respect of any injury and/or loss sustained by the Merchant in the course of Poptron’s performance of the Services.

 

10.2     The Merchant acknowledges and agrees that in the event the Services hereunder have any disruption, error or delay or have been temporally suspended, arising from service connection system issues or computer system issues or any relevant system or virus attack or electronic equipment problems and/or any causes beyond Poptron’s control, Poptron shall not be liable for such disruption, error, or delay and the Merchant shall not have any claim against Poptron in connection with the same and shall notify Poptron immediately regarding such disruption, error, or delay. Poptron will use its best efforts to resolve the issue, and the Merchant agrees to fully assist and cooperate with Poptron to resolve such issue.

 

10.3     The Parties hereby agree that Poptron shall not be held liable in any manner whatsoever in the event there is a dispute between the Merchant and any Buyers, unless it can be reasonably proven by the Merchant that such dispute arose, directly or indirectly, from the negligence, fraudulent act, default, breach and/or omissions committed by Poptron in the provision of the Services under this Agreement.

 

10.4     The Merchant shall not hold Poptron and its holding company, affiliates, subsidiaries, employees and its suppliers liable in any way for any losses or liabilities and shall indemnify Poptron against any claims brought by any regulatory body, any governmental or non-governmental authorities or any third party for matters caused by, directly or indirectly, by the Merchant or any third parties related to the Merchant in connection with the use of or access to the Services. The Merchant shall forthwith reimburse Poptron for any fine imposed and all costs (legal or otherwise) and/or damages incurred by Poptron.

 

10.5     Poptron shall under no circumstances be liable to the Merchant, its holding company, subsidiaries, employees and its suppliers for:

 

(a)   any online services offered by third parties and accessible from the Platform;

 

(b)   any exposure of Users to third parties’ online services providing prohibited material or other undesired experiences through the use of the Platform; or

 

(c)    any act or omission on the part of any third parties not within the control of Poptron.

 

10.6     The Merchant will indemnify and hold Poptron, its respective successors, licensees and assigns officers, directors, shareholders, members, managers, employees and agents of each of them, harmless from and against (a) any and all liabilities, actions, proceedings, claims, demands, judgements and expenses (including legal fees on a solicitor and own client basis) whatsoever which may be made against or suffered or incurred by them, individually and/or collectively, in consequences of any circumstance or allegation which, if assumed as true, would also constitute a breach of any covenant, agreement, obligation, representation or warranty of any breach of the aforesaid warranties or undertakings of the Merchant; (b) any claim of ownership of the Products, elements thereof, or rights in respect of same which is adverse to the rights and claims of Poptron hereunder; (c) the Products or the Merchant’s withdrawal or failure to deliver the Products during the Term and for clarity, the Merchant shall indemnify Poptron for the acts and omissions of the individuals engaged by the Merchant; or (d) any claim of any negligent act, omission, or wilful conduct of the Merchant and/or its employee(s) (any of the foregoing, a “Claim”). The Merchant’s obligations under this Clause 10 shall survive the termination or expiration of this Agreement. For the avoidance of doubt, the Merchant shall also indemnify Poptron against any and all liability, loss, damage, costs and expenses which Poptron or a third party may incur or suffer whether direct or consequential (including but without limitation any economic loss or other loss of profits, business or goodwill) as a result of any dispute or contractual, tortious or other claims or proceedings brought against Poptron by a third party alleging infringement of its Intellectual Property Rights by reason of the use or exploitation of the Products.

 

10.7     Poptron shall promptly notify the Merchant of any Claim and permit the Merchant to control the defence and settlement of any Claim, except that the Merchant shall not enter into any settlement that affects Poptron's rights or interest without the Poptron's prior written approval, which shall not be unreasonably withheld or delayed. Poptron shall reasonably cooperate, at the Merchant’s expense, in the defence of any Claim by the Merchant.

 

10.8     In the event that the Services are terminated prior to the completion of the Term, the Merchant shall have not have any claim against Poptron, its respective successors, licensees, assigns or clients for any matter whatsoever.  

 

11.       Miscellaneous

 

11.1     This Agreement constitutes the complete understanding of the Parties and supersedes any and all other contracts, representations, and arrangements, whether oral or in writing, heretofore made by the Parties with reference to the subject matter hereof. No modification or waiver of any provision shall be valid unless made in writing.

 

11.2     If any provision of this Agreement is determined to be invalid or unenforceable, it shall be deemed amended to conform to applicable laws or if it cannot be amended, it shall be stricken from this Agreement and the remainder of this Agreement will nevertheless be deemed valid and binding.

 

11.3     Notwithstanding anything else herein, Parties agree that the Merchant may not subcontract, assign, or delegate this Agreement nor any rights or duties hereunder to any third party, including by operation of law, without the prior written consent of Poptron. Subject to the foregoing, this Agreement shall inure to the benefit of the Parties and their respective successors and permitted assigns.

 

11.4     No breach of any provision hereof can be waived unless done so in writing. Waiver of any one breach of any provision hereof shall not be deemed to be a waiver of any other breach of the same or any other provision hereof.

 

11.5     Nothing in this Agreement shall be construed as creating a partnership, joint venture, employment relationship or any other relationship between the Parties hereto or their successors or assigns  or renders any Party liable for the debts or liabilities of any other Party.  For the avoidance of doubt, the Merchant shall not have any authority to enter into any agreements, arrangements, contracts, or execute any instrument of dealing on Poptron’s behalf and shall have no authority whatsoever to bind Poptron to any of the foregoing, unless expressly authorised to do so in writing by Poptron.

 

11.6     Each Party shall bear its own costs and expenses in relation to the execution of this Agreement.

 

11.7     This Agreement may be signed electronically. The words “execute,” “execution,” “signed,” “signature,” and words of like import in this Agreement shall be deemed to include electronic signatures, and electronic signatures shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Electronic Commerce Act 2006.

 

11.8     The English language version of this Agreement shall be the controlling version. Any translations made of this Agreement shall be for convenience purposes only and shall have no legal effect.

 

12.       Force Majeure

 

12.1     No failure or omission by any Party to carry out its obligations or observe any of the stipulations or conditions of this Agreement, shall give rise to any claims against the Party in question or be deemed a breach of this Agreement, if such failure or omission arises from a cause of Force Majeure.

 

12.2     Upon the occurrence of any Force Majeure event, the Parties shall for the duration of such event(s) be relieved of any obligation under this Agreement as is affected by the event(s) save that the provisions of this Agreement shall remain in force with regards to all other obligations under this Agreement which are not affected by the event(s).

 

12.3     If any Force Majeure event shall continue for a period exceeding thirty (30) days, any Party may at any time thereafter, upon giving notice to the other Party, elect to terminate this Agreement whereupon Clause 10.3 shall apply mutates mutandis.

 

13.       Anti-Bribery, Anti-Money Laundering & Whistle-Blowing

 

13.1        Each Party will implement, maintain and enforce adequate procedures designed to prevent persons associated with that Party engaging in conduct which contravenes the Malaysian Anti-Corruption Commission Act 2009 (“MACCA”), and/or the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (“AMLA”).

 

13.2        The Parties shall undertake all necessary measures to comply with the MACCA and/or AMLA, and the Parties agree that no agent, representative, affiliate, officer, employee or other person acting on behalf of the Parties has, and shall not directly or indirectly breach any law or regulation relating to anti-corruption and/or anti-money laundering and/or anti-terrorism financing (including but not limited to the MACCA and/or AMLA) or directly or indirectly or by or in conjunction with any other person corruptly give, promise, or offer to any person whether for the benefit of that Party or of another person, any Gratification in relation to the provision of the Services or any subject matter related to the Services or otherwise in connection to any dealing the Parties may have with each other, as an inducement to or a reward for, or otherwise on account of any person doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place, or any officer of a public body (and/or foreign public official) doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place, in which the public body (and/or foreign state or public international organization for which the foreign public official performs any official duties) is concerned.

 

13.3        Nothing in this Agreement shall prohibit a Party from reporting possible violations of law or regulation made by the other Party or any Gratification sought or made, or making disclosures that are protected under the Whistleblower Protection Act 2010 or performing duties to report bribery transactions under the MACCA and/or money laundering and terrorism financing activities under the AMLA. Prior authorization or notification shall not be required for a Party to make any such reports or disclosures.

 

13.4        Further to Clause 13.2 above, Poptron shall be entitled to terminate this Agreement immediately and to be indemnified by the Merchant for any and all liability, losses, damages, costs and expenses arising from any breach by the Merchant as contemplated under Clause 13.2 above.

 

13.5     For the purposes of this Agreement, “Gratification” shall mean any (i) money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage; (ii) any office, dignity, employment, contract of employment or services, and agreement to give employment or render services in any capacity; (iii) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part; (iv) any valuable consideration of any kind, any discount, commission, rebate, bonus, deduction or percentage; (v) any forbearance to demand any money or money's worth or valuable thing; (vi) any other service or favour of any description, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty; and (vii) any offer, undertaking or promise, whether conditional or unconditional, of any Gratification within the meaning of any of the preceding items (i) to to (vi).

 

14.       Dispute Resolution

 

14.1     In the event of any dispute between the Parties regarding this Agreement:

 

(a)         Unless any Party to this Agreement has done all acts, matters and things necessary on its part to be done to comply with Clauses 14.1(c) to 14.1(f) and Clause 14.2, that Party may not commence Court proceedings relating to any dispute arising from this Agreement except where that Party seeks urgent interlocutory relief in which case that Party need not comply with Clauses 14.1(c) to 14.1(f) and Clause 14.2.

 

(b)        Where a Party to this Agreement fails to comply with Clauses 14.1(c) to 14.1(f) and Clause 14.2, the other Party to this Agreement need not comply with Clauses 14.1(c) to 14.1(f) and Clause 14.2 before commencing Court proceedings relating to any dispute or difference.

 

(c)         In the event that the Parties are in dispute regarding any matter relating to or arising out of this Agreement, then each Party may by notice in writing to the other Party refer the dispute to the authorized representatives of the Parties who shall consult with one another in good faith and use their best endeavours to resolve such dispute to the mutual satisfaction of both Parties without the resort to litigation or arbitration.

 

(d)        In the event the aforesaid representatives fail to resolve the dispute in accordance with Clause 14.1(c) above, either representative may by notice in writing to the other Party refer the dispute to the Chief Executive Officers of Poptron and the Merchant who shall consult with one another in good faith and use their best endeavours to resolve such dispute to the mutual satisfaction of both Parties without the resort to litigation or arbitration.

 

(e)        In the event that the dispute cannot be resolved pursuant to Clause 14.1(c) and Clause 14.1(d) within a reasonable time the Parties agree that the dispute between them shall be determined by mediation without resort to litigation or arbitration.

 

(f)         The Parties agree to do all things required to facilitate the mediation, including agreeing on the choice of mediator. In the event that the Parties fail to agree on a mediator, the President of the Malaysian Bar Council shall appoint the mediator. Cost associated with the mediation shall be borne equally between the Parties.

 

14.2     In the event all attempts to resolve a dispute relating to or arising out of this Agreement shall fail pursuant to Clauses 14.1(c) to 14.1(f), the Parties agree that any controversy or claim arising out of or related to this Agreement, or the breach, termination or invalidity thereof, shall be decided by the Malaysian Courts.

 

15.       Governing Law

 

            This Agreement shall be construed in accordance with and shall be governed by the laws of Malaysia and the Parties agree submit to the non-exclusive jurisdiction of the courts of Malaysia.

 

 

 

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