In this Agreement, the following terms shall have the following respective meanings:
“Agreement” means this Exclusive Agency Agreement and Service Quotation.
“Confidential Information” means any and all information that is disclosed by one Party to the other Party and that relates to a Party’s business or the Parties’ business relationship hereunder, including, but not limited to, information concerning finances, products, services, customers, suppliers, Marketplaces as well as online webstore’s credential.
Any Confidential Information disclosed in tangible form shall be marked as “CONFIDENTIAL” or “PROPRIETARY” or by a similar legend by the disclosing Party prior to disclosure. Any Confidential Information disclosed orally or visually shall be identified as such prior to, concurrent with or following disclosure and summarized in writing by the disclosing Party to the receiving Party within thirty (30) working days of the disclosure.
Confidential Information shall not include information which
- is in or comes into the public domain without breach of this Agreement by the receiving Party;
- was in the possession of the receiving Party prior to receipt from the disclosing Party and was not acquired by the receiving Party from the disclosing Party under an obligation of confidentiality or non-use;
- is acquired by the receiving Party from a third party not under an obligation of confidentiality or non-use to the disclosing Party; or (iv) is independently developed by the receiving Party without use of any Confidential Information of the disclosing Party.
“Effective Date” means the date first written on invoice.
“General Terms and Conditions of Sale” means the third-party Marketplace then-current general terms and conditions of sale, a current copy of which is attached under Service Quotation hereto.
“Sales Statement” means the records for Products sold via the respective third-party Marketplace generated by Red Dino Sdn Bhd to the Merchant.
“Red Dino Sdn Bhd Service” means the services provided by Red Dino Sdn Bhd to the Merchant under agreement as provided in Clause 2.2.
“Listing Price” means the selling price of Products listed on the third-party Marketplace, as determined by the Merchant in writing prior to listing.
“Products” means the items offered by the merchant for sale to customers via Marketplace.
“Order” means the request placed by a customer via the third-party platform for the purchase of a particular product.
“Term” means the period commencing on the Effective Date and terminating as set forth in this Agreement hereof.
“Trademarks” means all trademarks, service marks, logos, brand names, trade names, domain names and/or slogans used by Company in connection with the Products from time to time (whether registered or unregistered).
“Marketplace” means e-commerce trading floor website related databases and supporting software operated by any service providers, to which Red Dino Sdn Bhd may coordinate the listing of products for sale to customers.
The third-party Marketplace additional Terms and Conditions provided by Red Din Sdn Bhd shall form part of this Agreement.
- THE SERVICES
2.1 Pursuant to the Exclusive Agency Agreement, the Merchant engages the Services and hereby irrevocably appoints Red Dino Venture to provide the Services and manage the sale of Products via third-party Marketplace and to make the relevant payment thereof, in accordance with these Terms and Conditions and any procedures and policies as may be formulated from time to time by Red Dino Sdn Bhd and third-party Marketplace provider.
2.2 Without prejudice to the generality of the foregoing, the Merchant hereby irrevocably authorizes Red Dino Sdn Bhd to perform the following:
- To list the Products on Merchant preferred third-party Marketplaces platform;
- To process the sale of the Products via the third-party platform and to report payment and adjustments of Orders;
- To deal with the third-party Marketplace provider on behalf of Merchant in respect of the Products; and
- To perform any other function ancillary to the foregoing paragraphs.
2.3 Red Dino Sdn Bhd may in its sole discretion withhold for investigation and/or refuse to process and Order, stop and/or cancel any Order.
2.4 Red Dino Sdn Bhd may use services of any or more third-parties connection with the provision of the Services to the Merchant.
2.5 The capacity of Red Dino Sdn Bhd under the Agreement is strictly limited to facilitation, processing, supervision and administration of the transaction in respect of the Products on the third-party Marketplace, and the Merchant hereby irrevocably authorizes all such documents as may be necessary to give effect to any provisions of this Agreement.
3.1 Subject to Clause 7.6, in consideration of the Services, the Merchant shall pay the transaction fee, third-party Marketplace fees, shipping fees, additional services fees and any other fulfillment or penalty costs that have been incurred by Red Dino Sdn Bhd and/or third-party Marketplace provider to Red Dino Sdn Bhd.
3.2 For the avoidance of doubt, the Merchant shall pay a Minimum Monthly Service Charge to Red Dino every month.
- LISTING OF PRODUCTS
4.1 The Merchant shall determine the Products it wishes to sell via the third-party Marketplace. Notwithstanding the generality of the foregoing provision. Red Dino Sdn Bhd reserves the right at any time and from time to time, to delay or suspend the listing of or to refuse to list or to delist any of the Products from all or any of the third-party Marketplace if it deems fit, by giving a prior written notice to the Merchant.
4.2 The Merchant agrees that all of its Products listed on the third-party Marketplace as well as changes applied to the Products shall be subject to the prior approval of Red Dino Sdn Bhd before going live on the third-party Marketplace, and shall be subject from time to time to the monitoring and review by Red Dino Sdn Bhd.
4.3 The Merchant hereby agrees that, at the request of Red Dino Sdn Bhd, the Merchant shall immediately give its full assistance to Red Dino Sdn Bhd and shall take all appropriate actions to comply with Red Dino Sdn Bhd’s obligations under agreements with the third-party Marketplace.
- LISTING FEES
5.1 The Merchant shall determine the Listing Price of its Products offered for sale on the third-party Marketplace.
5.2 The Merchant shall give a notice in writing to Red Dino Sdn Bhd in respect of any discounts, coupons, or other offers or incentives made available by the Merchant that are applicable to the third-party Marketplace, failing which Red Dino Sdn Bhd shall not be obliged to honor such offers or incentives.
- SHIPMENT OF PRODUCTS TO CUSTOMERS
6.1 Subject to Article 4, the Merchant shall, at its own cost and expense, arrange for the shipment of the Products to the customer upon the confirmation of the purchase of products.
6.2 In accordance to Clause 3.1 of the Agreement, the Merchant shall be liable to pay any liquidated damages on Products send to customer and/or late delivery of Products to customers.
6.3 Red Dino Sdn Bhd in any circumstances shall have no control and possession of the Merchants’ Products.
- SALE OF PRODUCTS
7.1 The Merchant irrevocably appoints Red Dino Sdn Bhd to coordinate, facilitate and monitor the sale of Products to customers via third-party Marketplace.
7.2 Red Dino Sdn Bhd shall send a Sales Statement to the Merchant in respect of sales for the immediately preceding month on or before the seventh working day of every month.
7.3 Upon receiving the Sales Statement, the Merchant shall inform Red Dino Sdn Bhd of any discrepancies found in the Sales Statement within three (3) working days of receipt of the Sales Statement, otherwise the Sales Statement shall be considered to be mutually agreed by the Parties.
7.4 Subject to Clause 7.6, the Net Product Sales shall be transferred by third-party Marketplace to the Merchant within agreeable period of time between Merchant and third-party Marketplace.
7.5 In the event the Merchant disputes the Sales Statement, any adjustment shall be subjected to the final determination of the disputes by the respective third-party Marketplace provider and/or Red Dino Sdn Bhd, and thereafter subject to Clause 7.6 the Net Product Sales shall be transferred by Red Dino Sdn Bhd or third-party Marketplace to the Merchant within 15 working days of the final determination of disputes by the third-party Marketplace and/or Red Dino Sdn Bhd. In the event of any conflict, contradiction or inconsistency between the decision of the third-party Marketplace provider and that of Red Dino Sdn Bhd, the decision of third-party Marketplace provider shall prevail to the extent of such conflict, contradiction or inconsistency.
7.6 For the avoidance of doubt, the Net Product Sales that shall be transferred by third-party Marketplace to the Merchant shall be calculated based on the amount of money actually received by the Merchant from the third-party Marketplace provider. The Parties acknowledge that all discounts, coupons, gift certificate or other offers or incentives made available by the third-party Marketplace provider without the concurrence of the Merchant shall be absorbed by the respective third-party Marketplace provider, and it shall not affect the Listing Price for the purpose of calculating the transaction fee and the third party platform fee.
8.1 Red Dino Sdn Bhd or the Merchant may terminate this Agreement by giving 60 days’ notice in writing to the other Party.
8.2 Red Dino Sdn Bhd or the Merchant shall be entitled to terminate this Agreement at any time with immediate effect, without giving notice of termination to either parties, in the following circumstances:
- The Merchant breaches any of its obligations under this Agreement, any policies and procedures of Red Dino Sdn Bhd, vice versa;
- The Merchant provides incomplete, inaccurate or untrue information about itself and/or the Products;
- Red Dino Sdn Bhd or the Merchant breaches or threaten to breach any warranty, undertaking or obligation given or undertaken under this Agreement;
- The Merchant has or has attempted to hack into or otherwise interfere with the third-party Marketplace;
- Red Dino Sdn Bhd in its sole discretion determines that the Merchant’s participation on the third-party Marketplace could result in legal or business liability to Red Dino Sdn Bhd, the third-party Marketplace or any third party or otherwise harm Red Dino Sdn Bhd, the third-party Marketplace or any third party;
- The Merchant becomes insolvent, or any step is taken which could result in it becoming insolvent, or a petition is presented to wind up the Merchant or a notice is given by any person to wind up the Merchant.
- Alteration without any prior consent by Merchant of Merchant’s third-party Marketplaces or online webstore’s log in credentials and business info including, but not limited to, Merchant’s password, company name, company address, bank account number, shipping info and profile setup.
8.3 For the avoidance of doubt, termination of this Agreement shall not in any manner affect the following:
- The validity of Orders made by customers before the termination;
- The rights and liabilities of the Parties accrued before the termination; and
- All of the Merchant’s warranties, representations and undertakings under this Agreement.
- GOVERNING LAW AND JURISDICTION
9.1 This Agreement shall be governed by and construed in accordance with the laws of Malaysia and the Parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of Malaysia courts.
Last revised: January 2019