General Terms and Conditions (Terma dan Syarat Umum)
GENERAL TERMS AND CONDITIONS
These terms and conditions (“Terms”) are applicable to any party that has entered into a Marketplace Agreement (Special Conditions) with Bijak Wang Planner for the use of the Services, the bijakwang.my (BIJAKWANG) website or any other Internet domain property or mobile app owned or operated by Bijak Wang Planner (“Platform”) and/or the Bijak Wang Planner Seller Center or other tool employed by Bijak Wang Planner to communicate with sellers (“Seller Center”), for the purpose of transacting in Goods.
Bijak Wang Planner (Business Registration No: 002872953-H) with its registered office at No. 10A, Jalan Tengku Ampuan Zabedah 9/A, Seksyen 9, 40100 Shah Alam (“Bijak Wang Planner”), Bijak Wang Planner and Seller may be referred to as a “Party” individually and, collectively, as “Parties”) 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 any fees, procedures, Policies governing the Services, the Platform or Seller Center. These changes will take effect at the latest seven (7) days from notification by notice to Seller or posting on the Platform, Seller Center or otherwise. Changes to 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 Seller Agreement will be terminated. For the avoidance of doubt, newer versions of the Terms and/or Schedule(s) supersede older versions.
Use of the Services, the Platform and Seller Center is limited to parties that can enter into and form contracts under applicable law. Seller represent and warrant that: i) where it is a physical person, that he/she is an adult of at least 18 years of age capable of validly entering into the Seller Agreement and performing his/her obligations hereunder; and where it is not a physical person, that a) it is, and will remain at all times, a business duly organized, registered, validly existing and in good standing under the laws of its country of registration; and b) it has all requisite right, power and authority to enter into the Seller Agreement and perform its obligations hereunder. Seller further represents and warrants that any information provided or made available to Bijak Wang Planner or its Affiliates is, and shall remain at all times, accurate, up to date and complete.
(a) Additional Service: is defined in Section 12 of the Terms.
(b) Additional Service Fee: the fee applicable to an Additional Service.
(c) Administrative Fee: is defined in Section 5 of the Terms.
(d) Affiliate: any entity directly or indirectly controlled by, or controlling, a Party or any affiliate or subsidiary thereof.
(e) Buyer: a third party purchaser of a Product.
(f) Buyer Agreement: the agreement between Seller and a Buyer concerning the purchase of a Product in fulfilment of an Order, where the execution of such agreement is attested by the Fulfilled Buyer Agreement status of the Order.
(g) Cancellation Penalty: the charge applicable for a Cancelled Order. The Cancellation Penalty amount is specified in Schedule A to the Special Conditions.
(h) Cancelled Order: an Order cancelled or rejected by Seller, or cancelled due to Seller’s lack of compliance with any provision of the Seller Agreement.
(i) Claim: any claim, action, audit, investigation, inquiry or other proceeding instituted by any person or entity.
(j) Commission: the percentage (as applicable at the time the Order is placed) of the Listing Price, as specified in the Special Conditions and/or Seller Center, the former prevailing over the latter in case of discrepancy between the two.
(k) 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.
(l) Content Material: product information, text, images, and any other relevant and/or legally required information relating to the Goods, including third party and Seller’s trademarks and other IP rights related materials.
(m) Delivery Note: is defined in Section 7 of the Terms.
(n) Dispute: a dispute regarding the provision of Additional Services by third parties.
(o) Dispute Center: the dispute resolution platform provided by Bijak Wang Planner for the resolution of Disputes.
(p) Drop-Shipping: is defined in Section 7 of the Terms.
(q) Effective Date: the date first appearing in the Special Conditions.
(r) Failed Delivery: an Order that is cancelled for unsuccessfully execution due to: i) the delivery address (either physical or email) provided by the Buyer or by Bijak Wang Planner being incorrect; ii) where acceptance of delivery of the Product is required, the Buyer being unable to accept the Product; or iii) where the Product is a physical product, the Buyer refusing to accept the delivery of the Product in accordance with the Policies. In addition to the Provision of Section 10 of the Terms, in case of Failed Delivery: iv) where received by Bijak Wang Planner, Sales Proceeds will be refunded to the Buyer and, v) where received by Seller, Payment will be refunded to Bijak Wang Planner.
(s) FBL Goods: is defined in Section 9 of the Terms.
(t) FBL Request: is defined in Section 9 of the Terms.
(u) 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 Bijak Wang Planner or of a third party); and vi) health epidemics declared by the World Health Organization.
(v) Fulfilment By Bijak Wang Planner: is defined in Section 7 of the Terms.
(w) Fulfilled Buyer Agreement: an Order the status of which is showing as “Delivered” in Seller Center, or is otherwise deemed by Bijak Wang Planner as having been executed by Seller, including instalments thereof.
(x) Fulfilment Model: the model of Order fulfilment of physical Goods agreed to by the Parties.
(y) Good: one (1), or several (if sold together) as the case may be, item(s) owned and offered for sale by Seller under the Seller Agreement.
(z) Guaranteed Delivery Time: where applicable, the date/time indicated on the Platform, Seller Center or otherwise agreed to, for the delivery of a Product or Additional Service. For the avoidance of doubt, where a Product or Additional Service is provided in instalments, the date of delivery of each instalment will constitute a Guaranteed Delivery Time.
(aa) Handling Fee: a fee payable for handling Goods and supplying packaging materials under Fulfilment By Bijak Wang Planner (inbound receive and putting away, outbound picking and packing, Buyer return processing).
(bb) Inadequate Product: any wrong, faulty, defective, damaged (excluding any Good or Product damaged due to mishandling by Bijak Wang Planner, a Bijak Wang Planner contractor, or the Buyer), 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.
(cc) 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.
(dd) KLRCA: is defined in Section 18 of the Terms.
(ee) Listing Price: the price, including instalments, at which a Good is offered for sale to Buyers 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 Bijak Wang Planner to the Buyer.
(ff) Order: the request placed by a Buyer to purchase a particular Good as communicated by Bijak Wang Planner to Seller. Bijak Wang Planner reserves the right to unilaterally cancel an Order for any reason.
(gg) Payment: the Sales Proceeds minus any sums owed by Seller under the Seller 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 Seller Agreement or any other agreement entered into by the Parties.
(hh) Payment Fee: a fee, calculated on the basis of a percentage of the Sales Proceeds.
(ii) (ii) Personal Data: any personal information as defined by the applicable personal data protection laws and regulations in Malaysia, pertaining, but not limited, to Bijak Wang Planner employees, agents, consultants and Buyers.
(jj) Personal Data Claims: is defined in Section 15 of the Terms.
(kk) Policies: the rules, guidelines, terms and conditions, etc. applicable to sellers and buyers for the use of the Services, Platform, Seller Center and other Bijak Wang Planner properties, as they may appear on the Platform or Seller Center or be communicated from time to time by Bijak Wang Planner.
(ll) Product: the individual item (or items where such items are bundled under on Listing Price) purchased by a Buyer among the Goods.
(mm) 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.
(nn) Replacement Value: the amount owed to Seller by Bijak Wang Planner in case any Good held by Bijak Wang Planner under the Fulfilment By Bijak Wang Planner model is wrongly delivered, damaged or lost. The Replacement Value is determined by Bijak Wang Planner and corresponds to the lowest of either the invoiced value of the Good to Seller by Seller’s supplier, the lowest wholesale price the Good is sold in Malaysia, or the price net of the costs associated with the sale (Listing Price minus the Commissionand the Payment Fee that would have applied if the product had been sold to a Buyer) of the FBL Good at the time the wrong delivery, damage or loss occurs.
(oo) Returned Product: the return of a physical Product to Bijak Wang Planner by a Buyer in accordance with the Seller Agreement and/or the Policies, including Inadequate Products. Seller will retain, or take back from the Buyer as the case may be, ownership, title and risk (save, as regards to risk, where the Product is Fulfilled By Bijak Wang Planner and is under Bijak Wang Planner’s care) of all Returned Products.
(pp) Ringgit and RM: Ringgit Malaysia.
(qq) Sales Proceeds: the gross proceeds received from Buyers by Bijak Wang Planner which consist of the Listing Price and the Shipping Fee.
(rr) 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.
(ss) Seller Agreement: is defined in the Special Conditions.
(tt) Seller Center: is defined in the preamble of the Terms.
(uu) Service Fee: the fee payable to Bijak Wang Planner for the Services, which is calculated based on:
i. the Commission calculated on the Listing Price;
ii. the Payment Fee; and,
iii. if applicable, any Shipping Cost, Cancelation Penalty, Administrative Fee and/or Additional Services Fee.
For the avoidance of doubt, coupons or other unilateral discounts provided by Bijak Wang Planner to Buyers are not considered in the Service Fee calculation. Any taxes, including GST, payable as regards the Services, will be paid by Seller.
(vv) Services: the services provided under the Seller Agreement are classified as:
i. General Services consisting in: i) the listing and publishing of Content Materials regarding the Goods; ii) the offering for sale of the Goods; iii) Buyer care services; iv) Order verification; v) management of deliveries and returns; vi) collection, reconciliation and execution of all Sales Proceeds as payment processing agent for Seller; and vii) other services ancillary to the Services; and
ii. if applicable, Additional Services that may be provided to Seller by Bijak Wang Planner or third parties.
(ww) Schedule: any schedule or annex to the Special Conditions. The Schedule(s) form(s) an integral part of the Seller Agreement.
(xx) 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 Buyer, as indicated in Seller Center, or ii) where the Product is not a physical product, emailed or otherwise made available to a Buyer in accordance with the sales stipulations applicable to such Product.
(yy) Shipping Cost: the fee charged by Bijak Wang Planner to Seller for the shipping of a Product, as calculated based on the Shipping Fee Rate Card.
(zz) Shipping Fee: the fee charged by Seller to a Buyer for the shipping of an Order, as calculated based on the Shipping Fee Rate Card.
(aaa) Shipping Fee Rate Card: is defined in Schedule A.
(bbb) Special Conditions: the executed part of the agreement entered by the Parties for the provision of the Services, which includes the Schedule.
(ccc) Storage Fee: a fee payable under the Fulfilment By Bijak Wang Planner model, for storing the Goods in the location designated by Bijak Wang Planner, 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).
(ddd) Working Day: a day other than Saturday, Sunday, or a national or State (at Seller’s working premises) public holiday in Malaysia.
2. Services – Fees
A. Bijak Wang Planner will provide the Services to Seller and invoice Seller the Service Fee.
B. Bijak Wang Planner provides a platform for third-party sellers and buyers to complete transactions. Except as set out in the Seller Agreement, Bijak Wang Planner is not involved in the actual transaction between Seller and Buyers. As owner 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 them, ship them, insure them and offer warranty and after sales service. Seller uses the Services, the Platform and Seller Center, at its own risk.
C. Seller authorizes Bijak Wang Planner to act as its exclusive agent for the purpose of: i) collecting the Sales Proceeds and in general any sums due or owing under the Seller Agreement and holding the same; ii) processing customer payments, refunds and adjustments; (iii) remitting the Payment; and iv) paying to Bijak Wang Planner, to Bijak Wang Planner Affiliates and to third parties (including Buyers) any amounts Seller owes to them. As a payment processing agent, Bijak Wang Planner will have no responsibility with respect to the legality of transactions occurring between Seller and Buyers and Seller undertakes that all transactions are in compliance with the laws of Malaysia (including anti money-laundering regulations).
D. Seller agrees that Buyers satisfy their obligations to Seller as regards the Buyer Agreement when Bijak Wang Planner receives the Sales Proceeds. Bijak Wang Planner’s obligation to remit funds received by it on Seller’s behalf is limited to the Payment.
E. Bijak Wang Planner will provide to Seller information in relation to each Order as necessary under the Seller Agreement.
F. Bijak Wang Planner will provide support services to Seller by way of coordinating and answering Buyer enquiries and processing returns as provided in the Policies.
G. Sellers agrees that Bijak Wang Planner may provide Seller with electronic documents such as tax invoice, receipt, credit note, debit note, or any other document Bijak Wang Planner may issue.
3. Sales Proceeds – Payment
A. Sales Proceeds will represent an unsecured claim against Bijak Wang Planner. Bijak Wang Planner may combine Sales Proceeds and Payments with the funds of other users of its services. 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 Bijak Wang Planner to Seller on a fortnightly basis.
C. Bijak Wang Planner may delay, suspend or cancel any Payment in case Seller breaches any term of the Seller Agreement or Buyer Agreement and any Payment made to Seller will not in any way be considered as a waiver of Bijak Wang Planner’s rights.
D. If Bijak Wang Planner concludes that Seller’s actions and/or performance in connection with the Seller Agreement or the Buyer Agreement are likely to result, or have resulted, in Buyer disputes, Disputes, chargebacks or other third party claims, or if there are any sums owed by Seller to Bijak Wang Planner, then Bijak Wang Planner may, at its sole discretion, withhold any Payment for the longer of: i) a period of sixty (60) days following the initial date of suspension; ii) the completion of any investigation regarding Seller’s actions or performance; or iii) the resolution of any Dispute.
E. Bijak Wang Planner reserves the right to impose limits on Order or transaction values, on Buyers or on Seller and will not be liable if: i) Bijak Wang Planner does not proceed with an Order that would exceed said limit; or ii) Bijak Wang Planner allows a Buyer 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 Bijak Wang Planner has against Seller, if any sums payable by Seller to Bijak Wang Planner under the provisions of the Seller Agreement shall become due and be unpaid, Seller shall pay to Bijak Wang Planner interest on such overdue sum at the rate of eight per cent (8%) per annum, such interest shall be calculated on daily basis from the date on which such money falls due for payment to the date such money is actually received by Bijak Wang Planner (as well as after judgment).
G. From time to time, Bijak Wang Planner may provisionally reduce Commission rates for certain Goods.
4. Seller Undertakings
A. By using the Services, Seller undertakes, represents and warrants to Bijak Wang Planner and to prospective Buyers that, in its performance under the Seller Agreement or any Buyer Agreement, directly or indirectly, it will:
(a) comply with all applicable laws, treaties, ordinances, codes and regulations; including the Malaysian Communications and Multimedia Content Code, anti-bribery, consumer protection, personal data protection, import and export, health, safety and environmental rules, GST rules, etc.;
(b) comply with all Policies;
(c) be responsible for 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 Seller Agreement or the Buyer Agreement. Furthermore, Seller undertakes to pay all such taxes, duties, fees and other charges on a timely manner. To the extent required by law, Bijak Wang Planner will be entitled to withhold any and all taxes, duties, fees and other charges owed by Seller in connection with any Order, Payment or otherwise under the Seller Agreement or the Buyer Agreement;
(d) 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 Bijak Wang Planner may so request, copies of these documents to Bijak Wang Planner;
(e) ensure that any information provided under this Seller Agreement, including for the listing (including the Content Materials) of the Goods, is accurate, current, and complete and is not misleading or otherwise deceptive;
(f) fulfil all Orders for Goods at their stated quantity and price to Buyers who meet Bijak Wang Planner’s eligibility conditions;
(g) contract appropriate insurance covering its obligations thereunder and the Goods regardless of the fulfilment model chosen;
(h) provide, in the format and at such times as Bijak Wang Planner may require, accurate, updated and complete information about the availability status, stock level and Listing Price of the Goods;
(i) ensure that the Listing Price for any Good offered to Buyers 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;
(j) give Bijak Wang Planner written notice of any requirement or provision of any contract that may conflict with any requirement or provision of the Seller Agreement;
(k) ensure that any person filling-in or signing any document, operating the Buyer’s Seller Center account, or handling the Goods and Products, on behalf of Seller (other than a Bijak Wang Planner employee, contractor or agent, or a third party specifically mandated by Bijak Wang Planner) has full power and authority to do so on behalf of Seller.
Seller may not dispute the actions of such persona insofar as they are in apparent compliance with the Seller Agreement;
(l) provide the Goods and Products with all legally required documentation (including warranty card, warranty information and invoice) and update the same when legally required; and
(m) provide Bijak Wang Planner any document pertaining to the sale of the Goods or Buyer Agreement (including sales invoice and tax invoice), as may be requested by Bijak Wang Planner.
B. Seller further undertakes, represents and warrants that it will not, directly or indirectly:
(a) sell Inadequate Products, or expired (or soon to be expired) Products;
(b) sell counterfeit, “replica” and name brand “knock off” products or products violating any Intellectual Property Rights;
(c) infringe on any Intellectual Property Rights;
(d) 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;
(e) post or display any political or religious content;
(f) 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;
(g) 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;
(h) 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;
(i) 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.
(j) 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;
(k) 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;
(l) 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 Bijak Wang Planner 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;
(m) create liability for Bijak Wang Planner (and its Affiliates, directors, employees, contractors, agents, subcontractors, etc.) or expose it to undue risk or otherwise engage in activities that Bijak Wang Planner, in its sole discretion, determines to be harmful to Bijak Wang Planner’s operations, reputation, or goodwill;
(n) contact any Buyer and will not enter into any direct arrangements with the Buyer for the offer of Goods or other products or services, except where notified by Bijak Wang Planner to do so for the purposes of fulfilling a Buyer Agreement;
(o) 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 Seller Agreement or any Seller or third party marketing materials; or
(p) enrol or offer to enrol Buyers in any scheme or program other than as strictly required for warranty purposes.
C. All the aforesaid representations, warranties and undertakings 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 Bijak Wang Planner of the same and rectify the situation.
5. Provisions Applicable to the Goods and to Content Materials
A. Seller undertakes, represents and warrants that:
(a) the Goods are new (unless explicitly and prominently stated as being Refurbished in the description of the Good), of merchantable quality, fit for their purpose, free from defects, and strictly conform to their listed specifications;
(b) the Goods, their offer for sale and the Content Materials are not prohibited and comply with the laws of Malaysia (including all minimum age, marking and labelling requirements, product warranties, specifications and performance criteria, etc.) and conform with the lists of prohibited and restricted items in the Policies as posted on the Platform or Seller Centre; and
(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.
B. Seller will provide accurate and up to date Content Materials, in English and Bahasa Malaysia, in relation with the listing of Goods on the Platform. 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 Bijak Wang Planner or allowed under applicable Law), defamatory or obscene materials.
C. Bijak Wang Planner has no obligation to verify the accuracy, completeness and legality of Content Materials.
D. Seller may 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 Seller has the right to publish the Content Material.
E. Seller hereby grants Bijak Wang Planner 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 Bijak Wang Planner Affiliates, provided that Bijak Wang Planner will not alter any third party trademarks.
F. Bijak Wang Planner 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.
G. A fee of fifty Ringgit (RM50.00) per non-compliance, or per Good or Product, may be imposed by Bijak Wang Planner in case of non-compliance by Seller with any undertaking under Sections 4 and 5 of the Terms (“Administrative Fee”).
6. Provisions Applicable to the Sales of Goods on the Platform
A. Notwithstanding any provision in the Seller Agreement, Bijak Wang Planner 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, the Goods.
B. Bijak Wang Planner may in its sole discretion withhold for investigation and/or refuse to process any Order. Bijak Wang Planner 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. Bijak Wang Planner 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. Bijak Wang Planner 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 Bijak Wang Planner (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 Buyer that has been charged for an Order that Bijak Wang Planner has stopped or cancelled.
E. Bijak Wang Planner (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 Buyer’s credit ard 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 Bijak Wang Planner of any changes to the nature or specifications of the Goods or any pattern of fraudulent or other improper activity with respect to any of the Goods that may result in a higher incidence of fraud or other impropriety associated with an Order.
F. Bijak Wang Planner may subject the Goods or Seller to Sales Traffic Activities, use mechanisms that rate, or allow Buyers to rate or review the Goods and/or Seller’s performance as a seller and Bijak Wang Planner may make these ratings and reviews publicly available.
7. Fulfilment Models
A. Orders for physical products are fulfilled under the following Fulfilment Models:
(a) Drop-Shipping: where Seller is responsible for the delivery of Products to Buyers;
(b) Fulfilment by Bijak Wang Planner: where Seller is responsible for delivering the Goods to the location designated by Bijak Wang Planner, for Bijak Wang Planner to co-ordinate their storage, re-packaging (if necessary) and delivery to Buyers.
B. Bijak Wang Planner reserves the right, in its sole discretion, to decide on a specific carrier for the fulfilment of Orders, and modify, restrict or cancel the use of any carrier at any time.
C. Unless otherwise provided in the Seller Agreement, Seller will be responsible for all costs incurred for shipping the Goods or Products. Any costs assessed against or incurred by Bijak Wang Planner 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.
D. Bijak Wang Planner will not be listed on any import documentation relating to Goods and Products and Bijak Wang Planner 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 Bijak Wang Planner will be charged to Seller.
E. Bijak Wang Planner reserves the right to restrict the destinations to which Seller may ship Goods and Products.
F. Seller must comply with the carriers’ standard operating procedures, import procedures, weight restrictions, size restrictions and other shipping requirements.
G. 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.
H. Prior to shipment, Seller will provide adequate packaging to protect the Goods and Products, and their original packaging, during transport and storage. Unless approved by Bijak Wang Planner in writing, Seller will not include any advertising or other materials in the Products, unless said materials have been included by their manufacturer.
A. Seller will prepare and ship the Order within twenty-four (24) hours from the Order being placed (taking into account Working Days), provided that, where Seller fails to comply with the deadline, Bijak Wang Planner reserves the right to modify the deadline and/or to cancel the Order.
B. Seller will include with all Goods and Products all documents required by Law, including the tax invoice of Seller as well as a Bijak Wang Planner tax invoice for any goods or services provided by Bijak Wang Planner to the Buyer.
C. Bijak Wang Planner may, in its sole discretion, allow Seller to ship Goods at Seller’s expense using discounted shipping rates that Bijak Wang Planner is able to procure from any carrier. Seller will not use the carrier account information of Bijak Wang Planner, 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.
D. Seller will ensure that Bijak Wang Planner 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 Bijak Wang Planner will have no liability whatsoever related to the Goods and Products including their shipping, storage, delivery delays, damage or loss.
9. Fulfilment By Bijak Wang Planner
A. Bijak Wang Planner may offer as Additional Services the option for Seller to request through Seller Center that Bijak Wang Planner accepts the fulfilment of certain Goods, or quantities of certain Goods, under the Fulfilment By Bijak Wang Planner model.
B. Seller will only ship for Fulfilment By Bijak Wang Planner the Goods (and quantities thereof) expressly accepted by Bijak Wang Planner in Seller Center (“FBL Request”). The Goods will be shipped by Seller to the location designated by Bijak Wang Planner in the agreed packaging and, in any case, in a packaging guaranteeing the integrity of the delivered Goods. If Goods are required to be shipped on pallets, they will be 100x120cm and have a maximum overall weight of 450kg. Goods can only be accepted by Bijak Wang Planner until 4pm on weekdays, excluding Public holidays. Bijak Wang Planner will not be required to physically mark or segregate items from other inventory and Bijak Wang Planner may move Goods among facilities.
C. The shipping of Goods to the location designated by Bijak Wang Planner will be made Delivery Duties Paid (DDP Incoterm 2010) and will be accompanied by the printout of the FBL Request and a delivery note (“Delivery Note”) containing: Seller’s name, FBL Request number, description of Goods (including a list of codes for inbound Goods, list of bar codes for inbound Goods, warranty status), quantity, cold storage requirement, address of Seller and place of delivery and addressee of the Goods, as well as any other information expressly required by Law. Any price provided on the Delivery Note or the FBL Request is for Seller’s own use and does not have a bearing on the Listing Price or the determination of their replacement value.
D. Bijak Wang Planner reserves the right to refuse to accept the delivery any FBL Request shipment or any Goods deemed unsuitable. Bijak Wang Planner may return at the expense of Seller, or dispose of, any such unsuitable Goods in the following cases: i) immediately if Bijak Wang Planner determines in its sole discretion that the Goods create a safety, health or liability risk to Bijak Wang Planner, its personnel or any third party; ii) if the Goods do not correspond (in quantity, quality, required specifications, or delivery date) to the FBL Request or to any Bijak Wang Planner instructions; or ii) if Seller fails to direct Bijak Wang Planner to return or dispose of any unsuitable Goods within seven (7) days of the date on which Bijak Wang Planner gives notice of refusal.
E. Bijak Wang Planner’s confirmed receipt of delivery of an FBL Request by Seller to the location designated by Bijak Wang Planner (“FBL Goods”, or Goods, if the context so requires) does not: i) indicate or imply that any Goods have been delivered free of loss or damage; ii) indicate or imply that Bijak Wang Planner actually received the number of units of Goods specified in the FBL Request or in the Delivery Note; or iii) waive, limit or reduce any of Bijak Wang Planner’s rights under the Seller Agreement.
F. The FBL Goods stored at the location designated by Bijak Wang Planner will be shipped by Bijak Wang Planner to the Buyer. Bijak Wang Planner may carry out, in its sole discretion, further packaging or modify the packaging of the FBL Goods, in order to secure the integrity of the FBL Goods for delivery to Buyers. Bijak Wang Planner may ship FBL Goods together with other products.
Bijak Wang Planner will include with all Products it ships official tax invoices as required by Law. This includes Seller’s tax invoice as printed by Bijak Wang Planner based on the information supplied to Bijak Wang Planner by Seller, as well as, if applicable, a Bijak Wang Planner tax invoice (for goods or services provided by Bijak Wang Planner to the Buyer directly).
G. Subject to Section 13. G., unless Bijak Wang Planner determines that the issue was caused directly or indirectly by Seller, or any of its agents or contractors, in the event FBL Goods are lost or damaged, Bijak Wang Planner will:
(a) pay Seller the Replacement Value of the FBL Goods for FBL Goods lost or damaged while in the Bijak Wang Planner warehouse (i.e. where there is no Order concerning theparticular FBL Goods that are lost or damaged);
(b) issues a refund to the Buyer for FBL Goods, and pay Seller the Replacement Value of the FBL Goods where Bijak Wang Planner elects to cancel the Order; or
(c) provide the Buyer with replacement FBL Goods (i.e. from among the FBL Goods), and pay Seller the Replacement Value of the FBL Goods (for the lost or damaged FBL Goods) and the Payment (for the replacement FBL Goods), where Bijak Wang Planner elects to fulfil the Order.
Except as otherwise provided in the Seller Agreement, the sums mentioned in this sub-Section represent the total liability of, and Sellers only rights and remedies against, Bijak Wang Planner, its agents, representatives and contractors, for any duties, liabilities or obligations they may have for loss or damage of FBL Goods (including but not limited to warehousing, selling and shipping). At all other times, Seller will be solely responsible for any loss of, or damage to, the FBL Goods.
H. Seller may request at any time the return of FBL Goods that are not the object of an Order. Bijak Wang Planner may refuse, reject, revoke or cancel the Fulfilment By Bijak Wang Planner or the FBL Request for any Good or FBL Goods at any time, for any reason, including upon termination of the Seller Agreement. Seller will be responsible for the pick-up from Bijak Wang Planner of such FBL Goods returns within seven (7) Working Days from the return notification. In case of failure by Seller to pick-up the returned FBL Goods within the allotted time-frame the FBL Goods will be deemed abandoned and Bijak Wang Planner may elect, at Seller’s risk and cost, to either: i) send the FBL Goods to the designated shipping address of Seller in Malaysia; or ii) dispose of the FBL Goods.
I. Bijak Wang Planner reserves the right to direct, and change from time to time, scheduling restrictions and volume limitations on the delivery and storage of Bijak Wang Planner’s inventory in the location designated by Bijak Wang Planner, and Seller will comply with such restrictions or limitations.
10. Returns – Failed Deliveries – Inadequate Products
A. Seller will accept the return of Failed Deliveries and Returned Products in accordance with the Policies and Bijak Wang Planner will have the right to determine at its sole discretion whether a Buyer will receive a refund, adjustment, or replacement, and to require Seller to reimburse Bijak Wang Planner if Bijak Wang Planner determines that Seller is liable to do so in accordance with the Seller Agreement. Where Bijak Wang Planner has refunded or paid any such aforementioned amount (whether on behalf of Seller or otherwise), such amount will be recoverable by Bijak Wang Planner from Seller as a debt due from Seller and Bijak Wang Planner will be entitled to deduct such amount from amounts payable to Seller, or by other methods at Bijak Wang Planner’s election.
B. Seller will promptly notify Bijak Wang Planner of any Inadequate Product (or the threat of a public or private recall) and cooperate and assist Bijak Wang Planner with returns, including by initiating the procedures for returning Goods or Products to Seller.
C. Bijak Wang Planner will refund Seller the Commission related to any Failed Delivery or Order returned for Buyer convenience.
D. In case of Failed Delivery, Bijak Wang Planner 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 Buyer 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 Buyer, from the Buyer to Bijak Wang Planner and from Bijak Wang Planner back to Seller, provided that, where FBL Goods are concerned, Seller will also be debited for any additional Storage Fee and Handling Fee.
F. Bijak Wang Planner has no obligation to accept any Returned Product. Bijak Wang Planner however may at its sole discretion request that the Product be returned to a designated location for further quality inspection. If Bijak Wang Planner, 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 Buyers because of this fault or damage and that this fault or damage has been caused by the Buyer, Seller will not be liable to accept the Returned Product.
G. Unless they are FBL Goods and provided Failed Deliveries have been returned to Bijak Wang Planner, Bijak Wang Planner 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 Bijak Wang Planner agrees to accept Returned Products at its designated location, Bijak Wang Planner will organize the delivery of such Products to the address indicated by Seller within forty-five (45) days from the Fulfilled Buyer Agreement date. Bijak Wang Planner reserves the right to examine and determine at its own discretion if returned FBL Goods are sellable despite having been returned and Bijak Wang Planner may dispose of, or return to Seller, such returned FBL Goods, or if they are saleable, place such Returned Products back in the inventory of Seller.
I. Bijak Wang Planner 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.
11. Buyer Information and Buyer Services
A. Bijak Wang Planner will be responsible for and have sole discretion to deal with Buyers relating to Orders and Seller will not confirm Orders, deliveries or give any further information about the fulfilment of the Orders to the Buyer.
B. The responsibility of Bijak Wang Planner and Seller in relation to packaging, handling, deliveries, returns, warranties and Orders will be in accordance with the chosen Fulfilment Model.
C. Bijak Wang Planner will own all information regarding Buyers, Orders and the supply of the Services including payments, Service Fees, disbursements, refunds, Administrative Fees, Cancellation Penalties, adjustments, etc. and Bijak Wang Planner will not be liable to pay any royalties or fees to Seller in connection with the use of any such information. Bijak Wang Planner will use and process Personal Data only for the purpose of the execution of the Seller Agreement and in compliance with its obligations under the applicable personal data protection laws.
D. Seller will utilise Buyer information, including Personal Data, disclosed by Bijak Wang Planner to Seller or which Seller has otherwise collected or obtained access to pursuant to or in connection with the Seller Agreement, solely for purposes of the Seller Agreement and will not sell, assign, license, publish, lease or otherwise commercially exploit any
Buyer information or utilize Buyer information in any manner for its own benefits or carry out any data mining, data compilation or data extraction for the purposes ostatistical or trade analysis or otherwise, based on or in connection with the Buyer information. No Buyer information will be disclosed by Seller to any third party without the prior written consent of Bijak Wang Planner, and will only be disclosed within Seller’s organisation on a need-to-know basis.
12. Use of Tools Provided to Seller – 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 Bijak Wang Planner 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 Seller 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 Bijak Wang Planner 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 Bijak Wang Planner 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 but not limited to: 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 Bijak Wang Planner 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 Bijak Wang Planner’s other systems; v) transmitting any viruses, Trojan horses or other harmful code; or vii) attempting to bypass any mechanism Bijak Wang Planner uses to detect or prevent such activities.
D. Under terms and conditions agreed to in the Seller Center, the Seller Agreement and/or in a separate agreement, Seller may be offered the possibility to purchase goods and services provided by Bijak Wang Planner and/or third parties (“Additional Services”). Bijak Wang Planner 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.
13. No Warranties – Indemnification – Limitation of liability
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 Seller Agreement, Bijak Wang Planner 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 a non+represented by Bijak Wang Planner, available for sale on a timely manner, lawful to sell, or that Bijak Wang Planner or the Buyers 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 Bijak Wang Planner. 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 Bijak Wang Planner expressly excludes liability for any such inaccuracies or errors to the fullest extent permitted by Law. Any link found on the
Platform or Seller Center is provided for Seller’s convenience to provide further information. It does not signify that Bijak Wang Planner endorses the contents thereof and Bijak Wang Planner has no responsibility for the content of external links.
B. Because Bijak Wang Planner is not involved in transactions between Seller and Buyers, Seller hereby agrees on its behalf and on behalf of Buyers to release Bijak Wang Planner (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 Bijak Wang Planner’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 Bijak Wang Planner shall be subject to correction without any liability for Bijak Wang Planner.
D. Any claim of Seller under the Seller Agreement must be notified to Bijak Wang Planner within ninety (90) days from the Order. For the avoidance of doubt, Bijak Wang Planner will not be liable or any claim made by Seller after said deadline.
E. Seller will defend, indemnify and hold harmless, and at Bijak Wang Planner’s option defend against, Bijak Wang Planner and its employees, directors, agents and representatives, from and 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) arising out of, or related to: i) any actual or alleged breach of Seller’s undertakings, representations, warranties, or obligations set forth in the Seller Agreement or the Buyer Agreement; or ii) 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 IP 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 Bijak Wang Planner reasonably determines that any indemnified Claim might adversely
affect Bijak Wang Planner, Bijak Wang Planner 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 Bijak Wang Planner without the prior consent by Bijak Wang Planner in writing, which consent may not be unreasonably withheld.
F. Bijak Wang Planner 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 Seller Agreement, the Buyer 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 Bijak Wang Planner will compensate Seller for any direct damages : i) resulting exclusively, or primarily from Bijak Wang Planner’s fraud, gross negligence or wilful misconduct; and ii) as provided under Sections 6. E. (risk of credit card fraud) and 9 (Fulfilment By Bijak Wang Planner) of the Terms. Unless they are directly or indirectly the result of fraud, negligence or wilful misconduct of Seller, its agents or contractors, Seller will not be held liable for any indirect, incidental, punitive, and consequential damages arising out of or in connection with the Seller Agreement.
G. To the fullest extent permitted by law, and not withstanding any other provision of this Agreement, the total liability, in the aggregate, of Bijak Wang Planner and Bijak Wang Planner’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 shall not exceed the Service Fee that Bijak Wang Planner is entitled to receive from Seller for the month preceding the date the liability arose, or five thousand Ringgit (RM5,000.00), whichever is greater, provided that the maximum liability of Bijak Wang Planner towards Seller will increase to: i) fifty thousand Ringgit (RM50,000.00) as regards liability under Section 6. E. of the Terms (risk of credit card fraud), and ii) the Replacement Value of each of the FBL Goods as regards liability under Section 9 of the Terms (Fulfilment By Bijak Wang Planner). It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.
14. 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 Seller 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. The rights and obligations of the Parties under this Section will survive the termination of the Seller Agreement.
15. 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 Seller Agreement or Buyer Agreement and not disclose it to third parties; ii) in accordance with the requirements under the applicable personal data protection law; and iii) in manner that ensures Bijak Wang Planner 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 Bijak Wang Planner to ensure compliance of the above warranties and to immediately inform Bijak Wang Planner of any Personal Data incident it becomes aware of.
B. Seller agrees to indemnify and hold harmless Bijak Wang Planner and each of its respective officers, employees, directors and agents from, and at Bijak Wang Planner’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 Seller Agreement or the Buyer 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 Bijak Wang Planner); or iii) any security incident for which Seller is directly or indirectly responsible.
16. Industrial and Intellectual Property Rights
A. Seller represents and warrants to Bijak Wang Planner 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. 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 Seller Agreement; all other rights are reserved, and no implied licenses are granted. Neither Party shall attempt to register any distinctive trademarks or domain names that are confusingly similar to those of the other Party.
C. Seller will not be entitled to use any intellectual property belonging to Bijak Wang Planner without Bijak Wang Planner’s prior approval in writing.
D. This Seller Agreement will not be deemed or construed to create, convey or transfer any Intellectual Property Rights to Seller and, other than as instructed by Bijak Wang Planner, Seller will not decompile any software or reverse engineer any software, or other product or process. This Seller Agreement is not a license to use or distribute any software, or other product or process.
E. This Seller 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, Buyer data, Seller Center data and Seller Center name) used, obtained or created under this Seller 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 Bijak Wang Planner or any other party designated by Bijak Wang Planner, 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 Seller 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 Seller Agreement or if so required by Bijak Wang Planner at any time.
F. Nothing herein contained will be deemed to limit or restrict the rights of Bijak Wang Planner or any third party to assert claims for violation of any Intellectual Property Rights against Seller.
17. Termination – Survival
A. Bijak Wang Planner has the right to unilaterally and immediately terminate the Seller Agreement upon the occurrence of any of the following: i) Seller being in breach of any provision of the Seller Agreement and failing to remedy the same within fourteen (14) days from being so notified; 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 Bijak Wang Planner within fourteen (14) days form notifying Bijak Wang Planner of the occurrence of any of the following, Seller has the right to immediately terminate the Seller Agreement: i) Bijak Wang Planner delaying payment for more than thirty (30) days without valid reason; ii) Bijak Wang Planner delaying returns for more than sixty (60) days without valid reason; iii) the making of an administration order in relation to Bijak Wang Planner or the appointment of a receiver over Bijak Wang Planner’s assets; iv) the making of an arrangement or composition by Bijak Wang Planner with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or v) Bijak Wang Planner ceasing or threatening to cease to carry on business.
C. Either Party may unilaterally terminate the Seller Agreement without cause by providing fourteen (14) days’ prior written notice to the other Party.
D. Upon termination of the Seller Agreement, Seller will notify Bijak Wang Planner of all concluded Buyer Agreements which have yet to be performed. For the avoidance of doubt, notwithstanding any termination for any reason, Seller will remain responsibility for the fulfilment of any pending Order in according to the Fulfilment Model and Bijak Wang Planner will fulfil any pending Payment obligations. Any provision of the Seller Agreement that, by its nature, is meant to survive the term or termination, including Sections 3, 4, 5, 9 to 11, 13 to 16 and 18, will so survive.
18. Applicable Law – Disputes – Jurisdiction
A. The Seller Agreement is governed by the laws of Malaysia.
B. Notwithstanding the provisions of Section 18 C. of the Terms, in case of disagreement regarding the execution of Additional Services, Seller agrees to adhere to the decision of Bijak Wang Planner, provided that, where Additional Services provided by third parties are concerned, Disputes will be settled by the Dispute Center and Seller agrees to adhere to the findings and decisions of the Dispute Center including any refund, adjustment, replacement, etc. Seller must file Disputes with the Dispute Center within seven (7) Working Days of the Guaranteed Delivery Time of the Additional Service by submitting to the Dispute Center all relevant and appropriate materials relating to such Dispute. For the avoidance of doubt, Seller will have no recourse regarding the execution of Additional Services if it fails to adhere to the provisions of the previous sentence.
C. Save as provided as regards Disputes in Section 18 B. of 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 Kuala Lumpur Regional Centre for Arbitration (“KLRCA”). Furthermore, the arbitral tribunal will consist of a sole arbitrator, to be designated by the Chairman of the KLRCA. 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.
D. 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 shall 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.
A. The Seller 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 Seller Agreement. The actual or future invalidity or ineffectiveness of any provision hereof will not affect the validity or effectiveness of the whole document. The Seller Agreement will apply to the relationship between the Parties in addition to any specific terms agreed to except to the extent, if any, expressly excluded in the Special Conditions. In the event of any conflict or inconsistency between any provision of the Special Conditions, any Schedule to the Special Conditions or the Terms, the provisions of each of the Special Conditions, any Schedule to the Special Conditions, and the Terms 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 Seller Agreement.
C. Unless otherwise provided in this Seller Agreement or agreed to between the Parties, all notices, requests, demands and other communications hereunder must be in writing, in English, and will be deemed to have been fully given and received when sent with receipt received by recognized overnight delivery service or registered mail one (1) Working Day after being deposited for next-day delivery with a recognized overnight delivery service, 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 Seller Agreement, without the prior written consent of Bijak Wang Planner.
Bijak Wang Planner may assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Seller Agreement.
E. Seller and Bijak Wang Planner are independent contractors, and nothing in the Seller Agreement will create any partnership, joint venture, agency, franchise, sales representative relationship or exclusivity between the Parties. The Seller 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 Bijak Wang Planner.
F. The Seller 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 Bijak Wang Planner and Seller. Other than as regards the rights of Buyers against Seller, nothing in the Seller Agreement will be construed as giving any third party any rights whatsoever.
G. Notwithstanding any other provision in the Seller Agreement to the contrary, nothing contained herein will oblige Bijak Wang Planner or Seller to engage in any action or omission to act which would be prohibited by or penalized under the laws of Malaysia 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 Law.
I. No Party will be liable to the other or be deemed to be in breach of the Seller 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, Bijak Wang Planner 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, Bijak Wang Planner may notify Seller that it will terminate the Seller Agreement.
J. Time whenever mentioned in the Seller Agreement will be of the essence of the Seller Agreement.
K. No variation (including amendments or crossed-out provisions) of these Terms will be valid unless: a) included in the Special Conditions; b) written in a separate amendment in writing entered into by the Parties; or c) notified to Seller as provided in the second paragraph of these Terms.
L. All stamp duty and registration fees (if any) in respect of the Seller Agreement will be fully borne and paid by Seller.