Last updated: [10 August 2022]
MARKETPLACE - SELLER TERMS & CONDITIONS
Please read these Seller Terms and Conditions carefully before clicking ‘I ACCEPT’ to be registered as a seller for purposes of the Marketplace website and/or platform.
This Marketplace website and/or platform (“Website”) is operated by HYPE DMC TRAVEL SDN. BHD (“we”, “us”, “our” or “HDT”). The services that we provide via the Website include making available the Website and the online platform “Marketplace”, as a platform for the marketing, advertising, and sale and purchase of travel and tourism related goods and services between seller(s) and buyer(s) who are registered users of the Website.
You accept this Agreement by clicking “I ACCEPT” during the Seller registration process. If you do not accept and agree to the terms of the Agreement without modification, you are not authorised to register as a Seller or sell any products and/or services through the Website. HDT may from time to time make amendments, updates or changes to the Seller T&C, and such updated version of the Seller T&C shall be effective from such date when the Seller clicks “I ACCEPT” in respect of the updated Seller T&C via the Services.
- Prevailing Terms
- Registration; Authentication; Activation
- License and access
- HDT’s Representations, Warranties and Undertakings
- Rights and obligations of HDT
- Seller’s Representations, Warranties and Undertakings
- Rights and obligations of Seller
- Risk and title; Refunds and Returns
- Limitation of Liabilities
- Fees and settlement
- Protection of intellectual property and confidentiality
- Term, effect and termination of this Agreement
- Governing law and dispute resolution
1. Prevailing Terms
2.1 Unless otherwise specified, the following terms shall have the following meanings in this Agreement:
“Applicable Law” means any (i) acts, ordinances, rules, regulations, by-laws, orders, wards, notices, directives, codes and proclamations or similar legislative or delegated legislative requirements; (ii) local government regulations, regional plans, district plans, regulations, by-laws, declarations, ministerial directions and other subordinate legislation; (iii) certificates, licences, consents, permits, approvals and other requirements of regulatory authorities; (iv)mandatory codes, standards and guidelines; (v) data privacy or data protection laws; (vi) applicable requirement of the common law; and (vii) applicable writ, order, injunction or judgment.
“Applicable Taxes” means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption and other taxes, regulatory fees, levies (including environmental levies) or charges and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products or services by Seller on or through or in connection with the Services.
“Card” means any debit, credit or bank card.
“Intellectual Property Rights” means rights in, without limitation, (i) patents, registered designs, design rights, copyright (including rights in computer software), database rights, trademarks, service marks, logos, moral rights, trade or business names, domain names, confidential information and knowledge and rights protecting goodwill and reputation, in all cases whether registered or unregistered; (ii) all other forms of protection having a similar nature or effect anywhere in the world to the right described in (i); and (iii) applications for or registrations of any of the above rights described in (i) or (ii).
“Payment Services Agreement” means the payment services agreement between HDT and the Payment Services Provider relating to the Payment System.
“Payment Services Provider” means the third party service provider authorised by HDT to provide the Payment System
“Payment System” means the payment gateway and/other payment services provided by the Payment Services Provider and made available on Marketplace to facilitate sale and purchase transactions conducted through the Services.
“Registered User” means a user of Marketplace who has a User Account, and is able to make purchases on the Website but not allowed to make any sales offerings unless registered as Seller pursuant to the Seller T&C.
“Seller Offerings” means such travel and tourism related products and services listed by the Seller on the Website, and offered for sale to Registered Users through the Services;
“Services” means the e-commerce services provided by HDT through the Website, to users who have successfully registered as Seller(s) in accordance with Clause 3, to facilitate the Sellers’ sale of the Seller Offerings through the Website.
“User Account” means the registered account of a Registered User on the Website.
3. Registration; Authentication; Activation3.1 As a condition for you to market, advertise or sell any products and/or services on the Website, you must: (a) complete the registration form to register you as a Seller (and registration for the Services), by providing all requested information, including but not limited to, the details of the company/business entity, and the full name, identification details, email address, contact number and address for Seller’s primary contact person; and (b) submit all required supporting documentation for the registration, including but not limited to, Seller’s valid licence issued by the relevant authority for the Seller to carry on business in the travel and tourism industry, Seller’s tax registration certificate (if any), and trademark registration certificate (if applicable). 3.2 You hereby authorise HDT to use any information collected by HDT during or after the registration process regardless of whether such information is provided by you or independently sourced to verify your registration information for the purposes of authentication. Prior to registering you as a Seller and throughout the term of this Agreement, HDT shall have the right, from time to time and in its sole and absolute discretion, to verify and authenticate any information provided by you under this Agreement or otherwise in connection with the Services. You shall provide any information requested by HDT and otherwise cooperate with HDT in connection with such verification and authentication processes. 3.3 Notwithstanding any other provision of this Agreement, the acceptance of your application for registration as a Seller to sell Products on the Website shall be subject at all times to the sole and absolute discretion of HDT. HDT reserves the right to reject any registration application made by you and to refuse to provide the Services to you and terminate this Agreement for any reason, in its sole and absolute discretion without being obliged to provide you with any reason or notification. 3.4 Prior to registering you as a Seller, if: (a) the registration information provided by you is false, inaccurate or incomplete; (b) you do not promptly notify HDT of any changes to your registration information; (c) you are otherwise in breach of this Agreement; or (d) HDT in its sole and absolute discretion is not satisfied with the responses or information gathered during the verification and authentication process or with the results of such verification and authentication, then HDT may notify you and either immediately terminate this Agreement, or, at its sole discretion, provide a time period during which you may correct any incorrect information or provide any outstanding information. If such correction or provision fails to occur within the specified time frame, you shall be deemed to have withdrawn your application to be registered as a Seller and rejected the use of the Services, and HDT shall have the right to terminate this Agreement immediately. HDT is under no obligation to provide you with any reason for its termination of this Agreement under this Clause. 3.5 Provided that you have complied with your obligations under this Clause 3 and HDT has not notified you of its refusal to provide the Services or its termination of this Agreement, HDT shall activate the Services for you as a Seller. 3.6 Before activation of the Services for you as a Seller, you shall not use your Marketplace User Account to conduct any marketing or selling activities. Any transaction conducted before the activation of the Services shall be null and void and HDT will not be obliged to facilitate any such transaction. A breach of this Clause 3.6 shall be a material breach of this Agreement and HDT shall have the right to immediately terminate this Agreement without any prior notice to you.
4. License and access
4.1 Subject to Seller’s successful registration for the Services and ongoing compliance with the terms of this Agreement, HDT grants Seller a limited, non-exclusive, non-transferable, non-sublicensable licence to access and make use of the Services during the term of this Agreement. This licence does not include or extend to any resale, use on behalf of a third party of the Services or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Services or its contents; any downloading or copying of account information for the benefit of another person; or any use of the Services in conjunction with any data mining tools, robots, or similar data gathering and extraction tools.
4.2 All rights not expressly granted to Seller in this Agreement are reserved and retained by HDT, its affiliates or its licensors, suppliers, publishers, rights holders, or other content providers. The Services, or any part of the Services, may not be reproduced, duplicated, copied, licensed, sold or resold without HDT’s express written consent.
5. HDT’s Representations, Warranties and Undertakings
5.1 The Services are provided on an “as is”, “where-is” basis. HDT makes no other representations or warranties of any kind, express or implied, including without limitation: (a) implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement; (b) that the Services will meet Seller’s requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error; (c) that the Services, or the offer and sale of Seller’s products using the Services, complies with applicable law; (d) that information, content, materials or products included or available through the Services will be as represented by any Registered User, available for sale at the time of listing, lawful to sell, or that any Registered User will perform as promised; (e) any implied warranty arising from the course of dealing or usage of trade; (f) any implied obligation, liability, right, claim or remedy under any contract or agreement; and (g) any obligation, liability, right, claim or remedy in tort whether or not arising from the negligence of HDT, in equity, or otherwise. To the fullest extent permissible under Applicable Law, HDT disclaims any and all such representations and warranties.
6. Rights and obligations of HDT
6.1 HDT shall be responsible for providing the Services and maintaining the normal operation of the Services. HDT shall also provide timely assistance to Seller in relation to issues arising out of Seller’s use of the Services. HDT may, from time to time, set out certain technical or other requirements applicable to Seller’s use of the Services. Seller agrees that it will comply with, and will not attempt to circumvent or breach, any such requirements.
6.2 Without prejudice to any other rights that HDT may have in this Agreement, HDT reserves the right in its sole and absolute discretion to refuse listings or to immediately remove any listings which HDT objects or to suspend or terminate the Services if HDT regards Seller as making inappropriate use of the Services.
6.3 HDT may, without prior notice to Seller, take such measures as deleting, screening or unlinking the following information:
(i) objectionable material, feedback, ratings, inaccurate listings, inappropriately categorised items, unlawful items or items prohibited for listing on the Services;
(ii) malicious or fraudulent information, including for evaluation or feedback;
(i) information which seeks to disturb or has already disturbed the normal functioning of the Services; or
(ii) information which may infringe the lawful rights and interests of others, including Intellectual Property Rights, confidential business information and other non-public (or previously non-public) information.
6.4 HDT shall have the sole and absolute discretion to manage, administer and amend all aspects of the Services, including the appearance, organisation, layout, categorisation, display, user interface, and promotion of Seller Offerings. Seller acknowledges and agrees that it has no right to control, manage, administer or amend any aspect of the Services unless otherwise agreed to by HDT.
6.5 Seller acknowledges and agrees that HDT shall be entitled to provide information related to Seller and to any relevant transactions conducted using the Services to any competent authorities or as otherwise required by applicable legal or judicial proceedings.mIf a court finds that Seller has committed an illegal act while using the Services or if HDT has sufficient evidence to suspect that Seller has committed an illegal act, HDT shall be entitled to terminate this Agreement immediately without any prior notice to Seller and to make a public announcement to this effect including notifying the relevant authorities.
6.6 HDT shall have the right to review each transaction conducted by Seller using the Services but this shall in no event be construed as an obligation of HDT to perform such review and Seller acknowledges and agrees that any such review shall not be deemed to be an endorsement by HDT of the relevant transaction conducted by Seller using the Services. Seller shall fully cooperate with HDT in the conduct of any such review.
7. Seller’s Representations, Warranties and Undertakings
7.1 As of the date that Seller submits the registration for the Services, and continuously until the expiration or termination of this Agreement in accordance with its terms, Seller represents, warrants and undertakes as follows:
(i) Seller is legally capable of entering into this Agreement and being bound by it;
(ii) the contact information for Seller’s contact person identified in Seller’s User Account is true and accurate, and such contact person is authorised to represent Seller in connection with its sale and purchase activities conducted through the Services. Seller shall immediately notify HDT in writing if there is any change in the contact information for Seller’s contact person;
(iii) Seller possesses all registrations, licences, certifications and other approvals that are necessary for it to sell the Seller Offerings using the Services and Seller’s User Account in the manner contemplated and to otherwise operate its business, including a business licence, tax registration certificate, trademark registration, and all such registrations, licences, certifications and other approvals are valid;
(iv) Seller’s use of the Services and sale of Seller Offerings through Seller’s User Account will comply at all times with this Agreement and does not and will not violate any Applicable Laws;
(v) Seller has provided true, valid and complete information for the purpose of its registration for the Services, and will promptly update HDT if any such information has changed;
(vi) Seller shall promptly comply with any direction or notice issued by HDT in relation to the Services; and
(vii) Seller warrants that it has the legal capacity to use Seller’s User Account, which shall be used in accordance with this Agreement and all Applicable Law.
8. Rights and obligations of Seller
8.1 Seller shall be responsible for:
(i) providing Seller Offerings to Registered Users through Seller’s User Account in accordance with the Agreement;
(ii) managing the refund and returns process in accordance with the Marketplace Refunds and Returns Policy;
(iii) providing customer support services to Registered Users; and
(iv) providing HDT with access to transaction data in accordance with the terms of this Agreement.
8.2 Seller is prohibited from gifting, lending, transferring or otherwise permitting any other person to use the Services, except that Seller may allow its employees to use the Services, subject to Clause 8.1. To the extent permitted by Applicable Law, Seller agrees to accept responsibility for all activities that occur in relation to its use of the Services, and shall be responsible for all Seller Offerings offered through Seller’s User Account, whether by Seller or by any permitted or non-permitted third parties.
8.3 Seller must take all necessary steps to ensure that any passwords, codes or information in connection with the Services are kept secure and must inform HDT immediately if it has any reason to believe that the Services are being, or are likely to be, used in an unauthorised manner. Prior to the receipt of such notice by HDT, HDT shall not be liable for any transaction conducted via Seller’s User Account.
8.4 Seller is responsible for ensuring that the information it provides to HDT are correct and complete at all times, and for promptly informing HDT of any changes to the information it has provided to HDT under this Agreement or in connection with the Services.
8.5 Seller shall be solely responsible for all Seller Offerings and shall guarantee that the quality of such Seller Offerings comply with any applicable standards and provisions under Applicable Law as well as the relevant product description provided by Seller via the Services. Seller must have the legal capacity to sell Seller Offerings via the Services, and warrants and undertakes that the information released by Seller via the Services (including but not limited to information on goods or services or information on discounts) will be true, accurate, legal and valid and that there will be no infringement of any Applicable Laws or the legitimate interests or rights of any third party.
8.6 If a dispute arises in relation to such Seller Offerings, Seller releases HDT (and its parent company, affiliates, associate companies and their respective employees, representatives and agents) from any and all claims, demands and damages (actual, direct, consequential or otherwise) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute and Seller shall indemnify HDT (and its parent company, affiliates, associate companies and their respective employees, representatives and agents) from and against any claim, demand and damages arising from any such dispute. HDT does not guarantee the legality, authenticity or quality of goods listed for sale via the Services, nor does it guarantee Seller’s ability to complete a transaction with a buyer. HDT is not liable to compensate or indemnify Seller for any loss suffered by Seller as a result of Seller’s use of the Services.
8.7 Seller shall be responsible for the collection, reporting and payment of any and all Applicable Taxes, except to the extent HDT expressly agrees to receive taxes or other transaction-based charges, if applicable. All fees payable by Seller to HDT under this Agreement are exclusive of any Applicable Taxes, except where otherwise expressly stated to the contrary, and Seller will be responsible for paying HDT any and all Applicable Taxes imposed on such fees.
8.8 The following items must not be listed on the Services by Seller:
(a) offensive material, including material that incites racial hatred or promotes discrimination based on race, sex, religion, national origin, physical ability, sexual orientation or age;
(b) obscene material including pornographic material;
(c) items that infringe another party’s copyright, patent, trademark, design right, database right, or other Intellectual Property Rights or other proprietary right;
(d) items whose sale, distribution or offering for sale is prohibited by any Applicable Law;
(e) items whose sale is subject to export restrictions;
(f) any other types of products that in HDT’s discretion are to be excluded from listing and/or sale using the Services.
(a) replicate or replace any features or experiences accessible on the User Account or Marketplace;
(b) conduct promotional or cross-promotional activities on third party platforms using Seller’s User Account without HDT’s express prior written consent;
(c) use an unreasonable amount of bandwidth;
(d) cache or store any Registered User’s content other than for reasonable periods of time and in order to provide Seller’s services to such Registered User;
(e) use Seller’s User Account for any purpose or in connection with any application that constitutes, promotes or is used with any spyware, adware or any other malicious program or code;
(f) use Seller’s User Account in any manner or for any purpose that breaches any Applicable Law or regulation, or any rights (including intellectual property and privacy rights) of any third party;
(g) use Seller’s User Account in any manner that adversely affects the stability of Marketplace, including in relation to breaches of any access rate limits and the use of any unauthorised third party tools, services or plug-ins on the Seller’s User Account or the Website;
(h) sell, lease or sublicense Seller’s User Account for any reason; or
(i) use Seller’s User Account or offer or perform Seller Offerings in a manner that is contrary to HDT’s business, reputation or operational interests.
8.10 Seller agrees that it shall not use any data or information available or obtained via the Services for any purpose other than those set out in this Agreement. Without the prior written consent of HDT, no information available via the Services shall be reproduced, disseminated or used except as permitted under this Agreement.
8.11 Where Seller collects, or receives from HDT any personal information of other Registered Users during the use of the Services and otherwise under this Agreement, Seller shall only process that personal information in compliance with the terms of this Agreement and all applicable data protection laws.
8.13 Seller shall comply with the following obligations in respect of all Registered User Data, whether provided by HDT or collected directly from Registered Users:
(a) use the Registered User Data only as permitted under this Agreement and as otherwise necessary to perform Seller Offering;
(b) ensure that Registered User Data is appropriately flagged in Seller’s database so that it is capable of being identified as
Registered User Data and segmented or separated out as may be required;
(c) ensure that Registered User Data is processed in accordance with Applicable Laws and data protection legislation;
(d) notify HDT immediately where there are reasonable grounds to believe that Registered User Data has been accessed or acquired by any unauthorised person;
(e) not disclose Registered User Data to any person, except:
A. in accordance with express written instructions from HDT; or
B. where Seller can demonstrate that such disclosure is required by Applicable Law or any regulator having applicable jurisdiction, in which case Seller shall notify HDT prior to disclosing the Registered User Data except where prohibited by Applicable Law from doing so;
(f) not process Registered User Data obtained or processed as a result of this Agreement, except to the extent reasonably necessary in performance of its obligations under this Agreement;
(g) provide all reasonable assistance as requested by HDT to enable HDT to promptly respond to and comply with any request from a Registered User to have access to personal information or any request not to receive marketing material or any objection or complaint in respect of its data processing activities in accordance with Applicable Laws;
(h) promptly deal with enquiries from HDT in relation to the processing of Registered User Data;
(i) implement appropriate, current and industry-accepted, technical and organisational security measures against unauthorised or unlawful processing of Registered User Data against accidental or unauthorised loss, alteration, destruction, damage or access to Registered User Data; and
(j) upon the expiration or termination of this Agreement, destroy or permanently delete any Registered User Data, and shall procure the destruction and permanent deletion of any Registered User Data in the possession of any third party, and shall certify in writing that it has done so, except to the extent and to the duration that Seller is required by Applicable Law to retain copies.
8.14 Seller must not conclude any transaction that may otherwise be concluded through Seller’s User Account and the Services by any other means or measures, including but not limited to signifying or implying to Registered Users in any way that the transaction may be concluded via another medium or offline; any such act by Seller shall be a material breach of this Agreement that cannot be cured and shall allow HDT to immediately terminate this Agreement without any prior written notice to Seller.
8.15 Seller agrees that Seller will indemnify HDT (and its parent company, affiliates, associate companies and their respective employees, representatives and agents) from and against any claim, suit, action, demand, damage, debt, loss, cost, expense (including litigation costs and attorneys’ fees) and liability (each a “Claim”) arising from: (i) Seller’s use of the Services; (ii) any sale of goods or services by Seller on or using Seller’s User Account or the Services; and (iii) Seller’s breach of this Agreement. However, Seller shall not be liable for any damage, loss or harm suffered as a result of HDT’s deliberate breach of this Agreement or fraud.
8.16 Seller shall use counsel reasonably satisfactory to HDT to defend each indemnified Claim. If at any time HDT reasonably determines that any indemnified Claim might adversely affect HDT, it may take control of the defence at its expense. Seller may not consent to the entry of any judgement or enter into any settlement of an indemnified Claim without HDT’s prior written consent, which may not be unreasonably withheld.
9. Risk and title; Refunds and Returns
9.1 Risk and title to the relevant Seller Offering shall pass to buyer once Seller has received in cash or cleared funds payment in full of the price of the relevant Seller Offering.
9.2 Refunds and cancellations shall be subject to the Marketplace Refunds and Cancellations Policy.
9.3 Notwithstanding Clause 9.2, Seller shall be entitled from time to time to allow free cancellation by buyers of such Seller Offerings as Seller may determine in its sole discretion, provided that Seller shall, where such free cancellation is applicable, clearly publish and make available the applicable terms and conditions of such free cancellation policy alongside the listing of the Seller Offering, prior to and at the time of such sale of the Seller Offering.
9.4 HDT encourages the Seller and buyer to communicate with each other in the event of problems arising in the course of a transaction, including any request for refunds and/or cancellations. As HDT is a platform for Registered Users (buyer and Seller) to conduct trading, the buyer will be directed to contact the Seller directly for any issue relating to any Seller Offerings.
9.5 In the event of a dispute in relation to any refund or cancellation request by a buyer, the approval of the buyer’s request for refund and cancellation will be made by HDT in its sole discretion. The Seller acknowledges and agrees that HDT’s decision is final, conclusive and binding, and covenants and agrees that it will not bring suit or otherwise assert any claim against HDT or its affiliates in relation to such decision. Seller undertakes and agrees to fullfill any refunds or cancellation to the buyer in accordance with HDT’s decision pursuant to this clause, and HDT is not liable to compensate or indemnify Seller for any loss suffered by Seller as a result of any refunds or cancellations.
10. Limitation of Liabilities
10.1 HDT will use commercially reasonable efforts to ensure that the Services will be generally uninterrupted and that transmissions or transactions on the Services will be error-free. However, due to the nature of the internet, HDT is unable to provide any guarantees in this regard. In addition, Seller acknowledges and agrees that Seller’s access to the Services may also be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services. HDT will not be responsible, to the fullest extent permitted by Applicable Law, for any losses that were not directly caused by its breach of this Agreement, including:
(a) any business loss (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure);
(b) any indirect or consequential losses (regardless of whether or not such indirect or consequential losses are foreseeable to HDT during Seller’s use of the Services);
(c) any liabilities in relation to the following risks which Seller may encounter: (i) information with threatening, defamatory or illegal content from an anonymous source or someone using a false or fictitious name; (ii) Seller being misled or deceived by any person which results in psychological or physical harm and/or economic loss; or (iii) other risks caused by improper conduct of any Registered User of the Services;
(d) any liability for the interruption or disruption of the Services in case of: (i) malfunction of the computer software, systems, hardware and communication networks of Seller, Registered User or HDT; (ii) malfunction of the banking system or banking network; (iii) suspension of the Services due to law or regulation; or (iv) any other circumstance which is not reasonably foreseeable by HDT (which exemption includes liability that would otherwise arise for any direct loss) or which even if reasonably foreseeable, could not reasonably have been avoided or was otherwise beyond HDT’s reasonable control;
(e) any currency depreciation, foreign exchange loss, loss of interest and other risks in relation to the amount kept, collected or paid on Seller’s behalf or incurred as a result of using the Services; or
(f) any liability arising under the Payment Services Agreement or in connection with the Payment System.
10.2 When using the Services, the price a buyer will pay for his purchase is a fixed price denominated in Malaysian Ringgit (“MYR”). The buyer may also be informed of an approximate value in their local currency of the actual MYR price. The approximate local currency price uses historical, not real-time, currency exchange rates and is only an approximation of the value of the actual local currency price for the buyer’s purchase. The Card that the buyer will use to pay for his purchase may not be denominated in MYR. In such case, the amount the buyer will be charged for his purchase will be his local currency equivalent (as determined by the buyer’s Card issuer) of the actual MYR price. The buyer’s Card issuer may also charge the buyer other fees (including but not limited to currency conversion and/or transaction fees) for the buyer making a purchase in MYR rather than the buyer’s local currency. The buyer is solely responsible for any charges or fees imposed by the buyer’s Card issuer for the buyer’s use of the Services. HDT and the Payment Services Provider shall not be responsible or liable for any exchange rate used by the buyer’s Card issuer or other fees charged by the buyer’s Card issuer.
10.3 To the extent permitted by Applicable Law, the total aggregate liability of HDT and its affiliated companies for all claims in connection with these terms and conditions or the Services, arising out of any circumstances, shall be limited to the greater of the following amounts: (i) the amount that Seller has paid to HDT for Seller’s use of the Services in the 6 months immediately preceding the date of the most recent claim; and (ii) MYR500.
10.4 HDT is not responsible for any third party charges Seller incurs (including any charges from Seller’s internet and telecommunication service providers) in relation to or arising from Seller’s use of the Services.
10.5 Nothing in these terms and conditions limits or excludes any of the following liabilities, except to the extent that such liabilities may be waived, limited or excluded under Applicable Law:
(a) any liability for death or personal injury caused by either party’s negligence;
(b) liability for fraud or fraudulent misrepresentation;
(c) any liability for wilful misconduct; or
(d) any other liability to the extent that such liability cannot be waived, limited or excluded under Applicable Law.
11. Fees and settlement
11.1 The fees payable by the Registered Users for Seller Offerings will be agreed between the parties from time to time. In consideration for the Services used by Seller, Seller shall pay (collectively, the “Service Fee”):
(a) to HDT such setup fee which is payable per annum (“Setup Fee”) and such transaction fee which is payable for each transaction completed by the Seller (“Transaction Fees”), the rate and calculation of which shall be notified to Seller from time to time; and
(b) to the Payment Services Provider or its authorised nominee, such charges for the use of the Payment System as agreed under Payment Services Agreement and notified to Seller from time to time.
Failure of Seller to pay the Service Fees shall entitle HDT to suspend or terminate the Services immediately.
11.2 Seller agrees and acknowledges that the Service Fees are exclusive of Applicable Taxes and that the calculation of the Service Fees shall be rounded up to two decimal places. HDT is entitled to adjust the Service Fees in its sole and absolute discretion. HDT shall notify Seller of such adjustment by giving no less than 5 business days’ notice to Seller of the adjustment. If Seller does not accept such adjusted Services Fees it shall promptly notify HDT accordingly and immediately cease all use of the Services.
11.3 Seller agrees and acknowledges that HDT shall be entitled to receive or collect the Service Fees by any means as may be designated by HDT from time to time, including by submitting to the Payment Services Provider a request for payment from Seller’s Payment System account.
11.4 The pricing for each Seller Offering shall be determined and clearly published by Seller on the Website, alongside any terms and conditions that may be applicable to the sale of such Seller Offerings. For each transaction for the sale and purchase of Seller Offering on the Website, Seller acknowledges that the settlement of the payment for the Seller Offerings will be processed through the Payment System(s) made available on the Website from time to time. Seller hereby authorises any payment by buyer for the Seller Offerings to be processed and completed by HDT and/or the Payment Service Provider, as the case may be.
11.5 All monies collected from buyer and received by Payment Service Provider shall be processed, settled and transferred into the Seller’s designated bank account within such time frame as may be determined by HDT from time to time, after deduction of any fees or charges due and payable to HDT and/or Payment Service Provider including any applicable taxes. It may take several days for payment to arrive in Seller’s account, depending on the relevant bank’s clearance policy. Seller agrees to be responsible for all the costs, expenses, fees and/or bank charges applicable to the settlement and transfer of payment by HDT and/or Payment Service Provider.
11.6 If any payment received by HDT and/or Payment Service Provider (as the case may be) in respect of any specific Seller Offering sold on the Website, is subject to a free cancellation policy as described in Clause 9.3, Seller hereby authorises HDT to withhold the full amount of any payment made by the buyer in relation to such Seller Offering, until such date when the free cancellation period has lapsed in accordance with the relevant free cancellation policy published at the time of sale, after which the said payment will be processed and released to buyer or Seller, as the case may be.
11.7 Seller further acknowledges and agrees that the receipt of a payment into Seller’s account does not amount to the receipt of cleared funds. Seller shall remain liable to HDT for the full amount of the payment and any applicable third-party chargeback or reversal fee deducted therefrom if the payment is later reversed for any reason whatsoever (“Reversal Amount”). [In the event of a payment reversal, Payment Service Provider is entitled to debit Seller’s account with the Reversal Amount.] If Payment Service Provider is unable to fully recover the Reversal Amount from Seller’s account, Seller shall upon receipt of written notification from HDT and/or Payment Service Provider, be liable to pay the Reversal Amount or any outstanding amount thereto, by depositing additional funds into Seller’s account to ensure that the Reversal Amount or such outstanding amount can be fully recovered by Payment Service Provider from Seller’s account. Failure by Seller to pay the entire Reversal Amount or to make available such funds in its accounts for the payment of the entire Reversal Amount, shall constitute a breach under this Agreement. HDT and/or Payment Service Provider reserves the right at any time to demand such payment from Seller for the outstanding amount.
12. Protection of intellectual property and confidentiality
12.1 Subject to the licence granted under Clause 4.1, HDT reserves all right, title and interest in its and its affiliates’ Intellectual Property Rights in the Services.
12.2 With respect to any data and information in relation to the parties to the Agreement which is not available to the public, including the contents of this Agreement, Seller shall keep all such confidential information confidential and accessible only by Seller and not use such confidential information for any purpose other than those set out in this Agreement until the expiry of 3 years after the date of termination of this Agreement. Without the prior written consent of HDT, Seller shall not disclose such confidential information to any person except its employees (or employees of its affiliates), lawyers, accountants or other advisers on a need-to-know basis.
12.3 If Seller intends to make any press release, announcement, statement, advertisement or promotion in relation to the Services or Seller Offering, this Agreement or any matter arising from this Agreement, Seller shall obtain the prior written consent of HDT before the publication of such press release, announcement, statement, advertisement or promotion.
13. Term, effect and termination of this Agreement
13.1 This Agreement will continue in full force and effect until terminated by either party in accordance with the terms of this Agreement.
13.2 In addition to any other rights to suspend the Services or terminate this Agreement provided elsewhere in this Agreement, HDT shall be entitled to terminate this Agreement or to suspend, interrupt or terminate the Services and/or the Seller’s use of its User Account:
(a) by giving ten (10) business days’ prior notice in writing to Seller;
(b) if HDT believes it is necessary or desirable to protect the security of Seller’s User Account and/or the Services;
(c) if any transactions are made which HDT in its sole discretion deems to be (i) made in breach hereof or in breach of the security requirements of Seller’s User Account and/or the Services; or (ii) suspicious, unauthorized or fraudulent, including but without limitation to, money laundering, terrorism financing, fraud or other illicit activities;
(d) upon the insolvency, liquidation, winding up, bankruptcy, entry into receivership or dissolution of the Seller, or where HDT considers that there is a reasonable likelihood for any of the foregoing to occur; or
(e) in connection with HDT’s compliance with any applicable laws and regulations.
13.3 If Seller fails to pay any Service Fees, sells any products and/or services that infringe any third party’s Intellectual Property Rights, violates Applicable Law, or repeatedly receives complaints from buyers regarding the quality of its products and/or services, HDT shall be entitled to suspend the Services for the Seller and/or terminate this Agreement immediately.
13.4 For the avoidance of doubt, the exercise by HDT of any of its termination rights under this Agreement shall be without any liability to Seller and without prejudice to any other right or remedy available to HDT under this Agreement or Applicable Law.
13.5 The provisions of this Agreement, which by their nature and content, are intended, expressly or impliedly, to continue to have effect notwithstanding the completion, rescission, termination or expiration of this Agreement shall survive and continue to bind Seller and HDT.
13.6 If any Force Majeure event occurs such as to prevent HDT from providing the Services or performing any of its obligations under this Agreement, HDT shall be entitled to terminate the Services and this Agreement without any liability. For the purposes of this Agreement, “Force Majeure” means any circumstance beyond the reasonable control of a party (including, without limitation, epidemic, or pandemic such as COVID-19, acts of God, civil commotion, act of war, strike, lockout, riot, loss or damage by fire, ship wreck, flood or tempest, government-imposed quarantine, national or regional emergency order or any form of industrial action).
14.1 Any notice given by Seller to HDT shall be in writing by email to [[email protected]]. The notice shall be deemed to have been delivered when such email is sent.
14.2 HDT may give notice to Seller by sending it via the Services or to an email address provided by Seller when registering for the Services. HDT may also give notice to Seller by way of an announcement via the Services. The notice shall be deemed to have been delivered when such email is sent or such announcement is posted.
15. Governing law and dispute resolution
15.1 This Agreement shall be governed by and construed in accordance with Malaysian laws and Parties irrevocably submit to the exclusive jurisdiction of the courts of Malaysia.
16.1 If any provision of this Agreement shall be deemed as void or unenforceable, such provision shall be severed and the remaining provisions of this Agreement shall remain in force.
16.2 Any delay or failure by HDT to enforce the terms of this Agreement shall not constitute a waiver of those terms or HDT’s rights thereunder, and such failure shall not affect HDT’s rights to enforce such terms and rights at a later time.
16.3 Any agreement amending, supplementing, novating or restating this Agreement shall form an integral part of this Agreement and have the same legal effect.
16.4 This Agreement constitutes the entire agreement between HDT and Seller with respect to the subject matter and supersedes any and all prior agreements, understandings, or arrangements, whether oral or written.
16.5 Seller shall not assign its rights or transfer by way of novation its rights and obligations under this Agreement without the prior written consent of HDT. HDT shall have the right to assign its rights or transfer by way of novation its rights and obligations under this Agreement without the prior written consent of Seller and Seller hereby consents to such transfer.
16.6 Nothing in this Agreement is intended to or creates any type of joint venture, employee-employer, creditor-debtor, escrow, partnership, or any fiduciary relationship between HDT and Seller or its affiliates. Neither party shall be deemed to be an agent or representative of the other by virtue of this Agreement, neither party is authorised to, or will attempt to, create or assume any obligation or liability, express or implied, in the name of or otherwise on behalf of the other party, and without limiting the generality of the foregoing, neither party will enter into any contract, agreement, or other commitment, make any warranty or guarantee, or incur any obligation or liability in the name or otherwise on behalf of the other party.