1.1. ‘Mamacliqs’ is a digital marketplace platform owned by Mamacliqs which operates and trades under a website and a mobile site with the domain name http://www.mamacliqs.com and a mobile application under the name of ‘Mama Net’ (the “Mamacliqs Platform”), through which customers, end-users, buyers, purchasers and consumers using the Mamacliqs Platform (“Customers”) are able to purchase and place orders on a wide range of maternity, childcare, and other products approved by Mamacliqs (“Products”) and maternity and childcare related services, and other services approved by Mamacliqs (“Services”) listed and made available on the Mamacliqs Platform and to be fulfilled by Vendors, sellers, vendors, service providersand the like (including the Vendor, a “Vendor”) and where applicable, by Mamacliqs’ third-party logistics service providers (“3PL”) (the Products and Services shall hereinafter be collectively referred to in these Terms of Service as, the “Items”).
1.2. Through the Mamacliqs Platform, Mamacliqs and its Affiliates make available certain services that facilitate the marketing and listing of Vendor’s Items, sale and fulfilment of orders for Items from Vendor to Customers, including Products and Services listing, lead generation, payment processing, marketing, advertising and promotional services, appointment and booking services, Customers’ onboarding, operational and other support services (such as handling of customer complaints and enquiries, refund services, etc.) (“Platform Services”).
1.3. To facilitate the sale and fulfilment of Items through the Mamacliqs Platform, Mamacliqs will make available to Vendor a website, mobile application and/or other technology interface for Vendor to access and update the Items for sale on the Mamacliqs Platform, including the proprietary digital platform referred to as ‘Mamacliqs Vendor Store Manager’ (“Vendor Platform”), through which Vendor is provided with access to consolidated lists and information on orders for Items received from Customers on the Mamacliqs Platform.
1.4. These Vendor Terms of Service governs and regulates the Vendor’s engagement with Mamacliqs as a Vendor on the Mamacliqs Platform. The Vendor is required to accept these Terms of Service before using the Vendor Platform and the Mamacliqs Platform (collectively, the “Platforms”), as it contains important information regarding the Vendor’s legal obligations, rights and remedies.
1.7. Mamacliqs reserves the right to change, modify, suspend or discontinue all or any part of this Site or the Services at any time or upon notice as required by local laws. Mamacliqs may release certain Services or their features in a beta version, which may not work correctly or in the same way the final version may work, and we shall not be held liable in such instances. Mamacliqs may also impose limits on certain features or restrict your access to parts of, or the entire, Site or Services in its sole discretion and without notice or liability.
1.8. Mamacliqs reserves the right to refuse to provide you access to the Site or Services or to allow you to open an Account for any reason.
1.9. By using Mamacliqs services or opening an account, you give your irrevocable acceptance of and consent to the terms of these Terms of Service, including those additional terms and conditions and policies referenced herein and/or linked hereto.
1.10. If you do not agree to these terms, please do not use our services or access the site.
2. INTERPRETATION AND DEFINITIONS
2.1. In these Terms of Service, unless the subject or context otherwise requires, the following words and expressions shall have the following meanings:
|Actual weight (Kg)||Weight of the Products in Kg.|
|Affiliates||With respect to any entity, any other entity controlling, controlled by or under common control with such entity. For the purpose of this definition, “control”|
(including the terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
|Terms of Service||The Commercial Terms (to which these General Terms are appended) and any amendments hereto as the same may be amended, varied, modified or supplemented by the Parties by Terms of Service in writing from time to time.|
|Business Day||A day (excluding Saturdays and Sundays, and Public Holidays) on which banks are generally open for business in Selangor, Malaysia.|
|Commercial Terms||The commercial (listing and trading) terms and conditions agreed in writing between Mamacliqs and the Vendor.|
|Confidential Information||Any information having been designated in writing to be confidential or proprietary or if given orally, is confirmed promptly in writing as having been disclosed as|
confidential or proprietary or otherwise by the Disclosing Party to the Receiving Party and, including any Personal Data as defined in this Agreement, all Customers’ information (including viewing patterns, viewing details, quantity, time or duration of usage of equipment or viewing of the content), details (including contact details, telephone numbers, network configuration, location information, billing name, billing amounts, credit history and other payment details), information of a commercial, technical or financial nature relating to this Agreement, the Disclosing Party or any of its Affiliates including all trade secrets, know-how, show-how, patents research, development or technical information, confidential and proprietary product or information, Intellectual Property Rights, business plans, operations or systems, financial and trading positions, details of Customers, suppliers, debtors or creditors, information relating to the officers, directors or employees of the Disclosing Party or any of its Affiliates, marketing information, printed matter, rates and rate tables, contracts, all regardless of form, format or media whether machine readable or human readable, including written, oral or tangible form and also includes information communicated or obtained through meetings, documents, correspondence or inspection of tangible items.
|Customer(s)||A customer, who purchases goods on the platform. Shall have the meaning ascribed to it in Clause 1.1.|
|Customer Feedback||Shall have the meaning ascribed to it inClause 20.2 .|
|Delivery Method||The delivery method applicable for the fulfilment of Product Orders, which is stated in the Commercial Terms according to each Vendor.|
|Disclosing Party||Either Party who discloses the Confidential Information under these Terms of Service.|
|Feedback||Shall have the meaning ascribed to it in Clause 20.1.|
|Force Majeure Event||Shall have the meaning ascribed to it in Clause 23.1.|
|Handling Time Limit||Shall have the meaning ascribed to it in Clause 10.3.|
|Industry Partners||Shall have the meaning ascribed to it in Clause 7.3.|
|In Writing/ Written|
|Includes electronic mail to the e-mail address firstname.lastname@example.org and any comparable means of communication, so long as such form results in a permanent record being made.|
|Intellectual Property Rights||All intellectual property rights, including but not limited to rights to patents, trademarks, service marks, trade names, registered designs, copyrights, and other forms of intellectual property or industrial property, know-how, inventions, formulae, confidential or secret processes, trade secrets and Confidential Information, any other protected rights and assets and any licenses and permissions in connection therewith, in each case in any part of the world and whether or not registered or registrable and for full period thereof, and all extensions and renewals thereof, and all applications for registration in connection with the foregoing.|
|Items||Collectively, the Products and Services.|
|Items Revenue||Shall have the meaning ascribed to it in Clause 20.1.|
|Late Dispatch Cancellation||Shall have the meaning ascribed to it in Clause 10.4.|
|Listing Price||Listing price of the Items on the Mamacliqs Platform, as may be updated from time to time.|
|Listing Quantity||Listing quantity of the Items available for sale by the Vendor or order by the Customers on the Mamacliqs Platform.|
|Mamacliqs Platform||Shall have the meaning ascribed to it in Clause 1.1.|
|Vendor||Shall have the meaning ascribed to it in Clause 1.1.|
|Vendor Account||Shall have the meaning ascribed to it in Clause 4.1.|
|Vendor Materials||Shall have the meaning ascribed to it in Clause 30.7.|
|Vendor Platform||Shall have the meaning ascribed to it in Clause 1.1.|
|Missed Booking||Shall have the meaning ascribed to it in Clause 11.3.|
|MYR / Ringgit Malaysia (RM)||Malaysian Ringgit, being the lawful currency of Malaysia.|
|Products / Services||The goods (including any installment of the goods or any parts for them, whether products / services or services) which the Vendor intends tosell to customers over the platform.|
|Personal Data||(a) information that directly or indirectly identifies or can be used to identify, contact or locate the Customer to whom such information pertains (including but not limited to mobile phone number, email address and/or any necessary information for the benefit of providing the Platform|
Services subject to the terms and conditions of this Agreement), or (b) information from which identification or contact information of an individual person can be derived (c) information regarding, such as but not limited to, name, address, phone number, email address, other account information (to the extent such other account information includes information described in subsections (a) or (b) above), or other government-issued identifier, and credit
card information and (d) any other information (such as, but not necessarily limited to, a personal profile, unique identifier, biometric information and/or IP address) which is associated or combined with the Personal Data shall also be considered as Personal Data.
|Product Order(s)||Shall have the meaning ascribed to it in Clause 10.1.|
|Products||Shall have the meaning ascribed to it in Clause 1.1.|
|Platforms||Collectively, the Mamacliqs Platform and the Vendor Platform.|
|Receiving Party||Either Party who receives the Confidential Information under these Terms of Service.|
|Renewal Term||The period of time as stated in Item 3 of the Commercial Terms.|
|Platform Services||Shall have the meaning ascribed to it inClause 1.2.|
|Service Order(s)||Shall have the meaning ascribed to it in Clause 11.1.|
|Services||Shall have the meaning ascribed to it in Clause 1.1.|
|Tax Authority||Any taxing or other authority competent to impose any liability in respect of Taxes or responsible for the administration and/or collection of Taxes or enforcement of any law in relation to Taxes.|
|Taxes||All forms of taxation whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or other reference and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions, rates and levies, whenever and wherever imposed (whether imposed by way of a withholding or deduction for or on account of tax or otherwise) and all penalties, charges, costs and interest relating thereto.|
|Term||Collectively, the initial Term and the Renewal Terms.|
|3PL||Third party logistics provider. Collectively, the Initial Term and the Renewal Term.|
2.2. In these Terms of Service:
2.2.1. unless the context otherwise requires:
(i) a gender shall include the other genders and references to the singular shall include the plural and vice versa;
(ii) natural persons shall include bodies corporate and vice versa;
(iii) a person (which for the purposes of these Terms of Service means any individual, corporation, partnership, association, limited liability company, trust, governmental or quasi-governmental authority or
body or other entity or organisation (whether or not having a separate legal personality)) shall include its successors in title;
(iv) a “Party” is to a party to these Terms of Service, and “Parties” shall be construed accordingly;
(v) a “day”, “week”, “ month” or “year” is a reference to a day, week, month or year respectively in the Gregorian calendar;
2.2.2. any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
2.2.3. references to “in writing” or “ written”, or cognate expressions, include any communication effected electronically by electronic mail to the e-mail addresses of the Parties, or any other comparable means of communication, so long as such form results in a permanent record being made.
2.2.4. general words are not given a restrictive meaning:
(i) if they are introduced by the word “other” by reason of the fact that they are preceded by words indicating a particular class of act, matter or thing; or
(ii) by reason of the fact that they are followed by particular examples intended to be;
2.2.5. if any period of time is specified from a given day, or the day of a given act or event, it is to be calculated exclusive of that day and if any period of time falls on a day, which is not a Business Day, then that period is to be deemed to only expire on the next Business Day; and
2.2.6. any reference in these Terms of Service to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
These Terms of Service shall come into force subjectto Clause 1.9, and subject to Clause 26, shall continue in full force and effect for the period of the Term.
4. SETTING UP A VENDOR ACCOUNT
4.1. Vendor is required to create and sign up for a Vendor account with us on the Vendor Platform (“ Vendor Account”) for Vendor to access the Mamacliqs Platform and to use the Platform Services.
4.2. Each Vendor may only register and use one Vendor Account on the Platforms.
4.3. By creating a Vendor Account, you agree and confirm that all Personal Data and contact details submitted during the registration process or thereafter throughout the continuation of the use of the Platforms are
accurate, up to date, not misleading, and complete at all times, and that you shall at all times be responsible to keep your Vendor Account information and Items information accurate, up to date, not misleading, and
4.4. If Mamacliqs has any reason to believe that the Vendor Account’s information is untrue, inaccurate, out of date, misleading or incomplete, Mamacliqs reserves the right, and sole and absolute discretion, to suspend or terminate your Vendor Account, cancel any transactions associated with your Vendor Account, temporarily withhold any Items Revenue, or take any other actions as Mamacliqs may deem necessary or appropriate in our sole discretion by giving you a notice in writing to the email address maintained in the Vendor Account.
4.5. You agree to provide us with all required documentation or information upon request for us to comply with our internal policies and any applicable laws or guidelines or for any other reason as we may consider necessary or desirable from time to time.
4.6. By using the Platforms as a Vendor, you agree that:
4.6.1. you will only use the Platforms for lawful purposes only;
4.6.2. you will not permit or enable third parties to access or use your Vendor Account, other than your authorised employees, officers or agents;
4.6.3. you will not assign, transfer or otherwise render accessible your Vendor Account to any other person, except with the express permission of Mamacliqs;
4.6.4. you will not use the Vendor Account of a third party;
4.6.5. you will comply with all relevant legislations when using the Platforms, and will only use the Platforms for the purpose for which it is intended to be used;
4.6.6. you will not use the Platforms to cause annoyance or disruption to other users; and
4.6.7. you will not impede the correct operation of the network to the Platforms.
4.7. By using the Platforms, you represent and warrant that you have the right, authority and capacity to use the Platforms, and you agree to be bound by these Terms of Service. You agree that, in the event you are the authorised representative of an individual, partnership, agent, sole proprietor, company or entity, you (a) have obtained the lawful authority via written authorisation or consent from such individual, partnership, agent, sole proprietor, company or entity; and (b) agree to be bound by these Terms of Service on behalf of that individual, partnership, agent, sole proprietor, company or entity. You agree not to impersonate or represent intentionally or unintentionally, in any way whatsoever, any third party, individual, partnership, agent, sole proprietor, company or
entity without lawful authority; or otherwise provide, submit or present any false and/or misleading information to us.
4.8. If, after your electronic acceptance of these Terms of Service, we find that you do not have the legal authority to bind such individual, partnership, agent, sole proprietor, company or entity, you will be personally responsible for the obligations contained in these Terms of Service, including, but not limited to, the contract performance
obligations. We shall not be liable for any loss or damage resulting from our reliance on any instruction, notice, document or communication reasonably believed by us to be genuine. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication from your Vendor Account, we reserve the right to (but undertake no duty to) require additional authentication from you.
4.9. A set of user ID and password is unique to a Vendor Account, and you should take all necessary steps to ensure that your user ID and password for the Vendor Account are kept confidential and secure at all times from third parties, including but not limited to, not disclosing or cause to be disclosed your user ID and password through any means, and by restricting access to any device(s) linked to your Vendor Account,including but not limited to, computers, laptops and any mobile devices and tablets owned by you or any third party. You must ensure that you log out from your account at the end of each session on the Platforms. Further, you should inform us immediately if you have any reason to believe that your user ID or password for the Vendor Account has become inadvertently known to anyone else, or if the password is being, or is likely to be, used in an unauthorised manner.
4.10. You are responsible for all activities that occur under your Vendor Account regardless of whether you are the one who undertakes such activities. This includes any unauthorised access and/or use of the Vendor Account.
4.11. You acknowledge that allowing users outside of your business entity to use your Vendor Account may cause irreparable harm to Mamacliqs. You shall indemnify Mamacliqs, our Affiliates, directors, employees, agents and representatives against any losses or damages (including but not limited to loss of profits) suffered as a result of or in connection with the use of your Vendor Account. You further agree that in the case of your failure to maintain the security of your Vendor Account, Mamacliqs shall not be liable for any losses or damages arising from such a breach and shall have the right to suspend or terminate your Vendor Account and/or take any other actions as we may deem necessary or appropriate in our sole discretion.
4.12. If we have reason to believe that there is likely to be a breach of security, unauthorised use or misuse of your Vendor Account, we may require you to change your password to your Vendor Account or we may suspend your Vendor Account pending investigation. You further release and hold us harmless from any and all claims and causes of action arising out of or resulting from any unauthorised use of your Vendor Account, including our suspension or termination of your Vendor Account due to such unauthorised use.
4.13. Without prejudice to any other rights or remedies available to Mamacliqs, Mamacliqs reserves the right to suspend, block or deny your access to your Vendor Account, or any services or features available on the Platforms in the event:
4.13.1. Mamacliqs deems, in its sole discretion, that you have violated any term of these Terms of Service or any other Terms of Service, rule, policy, code of conduct, procedure and/or regulation published on the Platforms;
4.13.2. during the period of investigation in respect of any dispute or complaint made by Customers against you;
4.13.3. you owe any money to Mamacliqs;
4.13.4. these Terms of Service is terminated for any reason whatsoever; and/or
4.13.5. Mamacliqs deems reasonable in its sole discretion.
5. USE OF THE PLATFORMS
5.1. Provided always that Vendor shall at all times adhere to the terms and conditions of these Terms of Service, Mamacliqs agrees to provide the Platform Services to Vendor to feature the Vendor’s Items for sale and order by Customers on the Mamacliqs Platform.
5.2. Once a Vendor’s Items are listed on the Platforms, Customers would be able to purchase the Items via the Mamacliqs Platform. Mamacliqs will process each order made by Customers and forward the processed orders
to the Vendor, which can be accessible via the Vendor Platform. For the avoidance of doubt, each Terms of Service or contract entered into for the sale of Items on the Mamacliqs Platform shall be an Terms of Service
entered into between the Customer and the Vendor directly, with Mamacliqs acting as an intermediary only.
5.3. Vendor agrees that Mamacliqs shall not be involved in any Terms of Services, terms and conditions or rights and obligations between the Vendor and Customers. If there is any dispute arising out of or in connection with the delivery (if applicable) or sale of the Items or any other dispute in relation to the Vendor’s Items provided to Customers via the Platforms, the Vendor agrees that it shall fully indemnify Mamacliqs and directly resolve such dispute with Customers without Mamacliqs’ liability and/or involvement.
5.4. Vendor shall at all times be responsible to monitor the Vendor Platform for the status of the sale and delivery of its Items.
5.5. Vendor acknowledges and agrees that the relationship of the Vendor and Mamacliqs established under these Terms of Service shall be solely that of independent contractors. Vendor expressly agrees that nothing contained in these Terms of Service shall be construed to make one Party the employee, agent, worker or representative for the other Party for any purpose, and neither of the Parties hereto shall have any right whatsoever to incur any obligations or liabilities on behalf of or binding on the other party.
6. FEES AND CHARGES
By using the Platform Services, the Vendor will agree on the Commercial Terms with Mamacliqs separately and the agreed Terms shall apply to the Vendor respectively.
7. SCOPE OF SERVICES
7.1. The Vendor shall be required to submit to Mamacliqs a list of Items together with its description and proposed Listing Price to allow Mamacliqs to determine and recommend which Items are suitable to be listed
on the Mamacliqs Platform. Mamacliqs and Vendor shall mutually agree to the Items and the Listing Price to be listed on the Mamacliqs Platform before listing the Items on the Platforms.
7.2. No Items shall be listed on the Platforms without prior approval of Mamacliqs.
7.3. The Vendor acknowledges and agrees that the Platforms are provided by Mamacliqs in collaboration with certain relevant industry partners, such as Friends of Mama Net and such other industry partners as Mamacliqs may be in collaboration with at any given point of time (“ Industry Partners”).
7.4. Mamacliqs reserves the right at all times to control the look and feel of the Platforms and the listing of Items, and shall be entitled to, at its sole and absolute discretion and taking into account the best interests of the Industry Partners, remove or restrict the listing of certain Items on the Platforms or amend the description of certain Items listed on the Platforms if, in Mamacliqs’ sole opinion, the listing of the Items do not conform with Mamacliqs’ Platforms requirements, or are found harmful, unsuitable to Mamacliqs’ target market and customers, deemed inappropriate or unsuitable by Mamacliqs or when a Vendor is deemed by Mamacliqs as operationally incapable of fulfilment.
8. PROHIBITED ITEMS
8.1. Mamacliqs strives to provide a safe and trustworthy buying experience for its Customers.
8.2. The following Items are prohibited for sale on the Mamacliqs Platform:
8.2.1. illegal and contraband Products;
8.2.2. stolen or counterfeit Products;
8.2.3. used Products which are unfit for reuse and resale;
8.2.4. recalled or defective Products;
8.2.5. Products or Services which is or may potentially be dangerous, hazardous or harmful to the health of the Customers;
8.2.6. Products or Services using the name or brand of a third party in the title or description which is not lawfully made or authorised by the named third party;
8.2.7. Products or Services that infringe any intellectual property or personal rights of others;
8.2.8. Products or Services that contain offensive, violent, obscene, cruel or inappropriate content in its names, descriptions, logos, or images, including but not limited to:
(i) profanity or symbols/signs representing profanity;
(ii) pornographic, sexually explicit, or sexually violent content;
(iii) promotion, depiction or glorification of illegal activity;
(iv) promotion, depiction or glorification of violence towards others or self;
(v) promotion, depiction or glorification of hatred, intolerance, violence, ridicule, and/or bigotry toward a group of people or the promotion of organisations fostering these views; and
(vi) promotion or glorification of cruelty towards animals; and/or
8.2.9. Products or Services which have not received the approval or certification from the relevant authorities (governmental or otherwise) to which such approval or certification is required by the applicable laws.
8.3. It is the Vendor’s responsibility to be familiar with all Items that are listed for sale, order or booking on the Platforms, and to understand all the laws governing their sale, distribution and/or performance. All Items must at all times comply with these Terms of Service. If you sell Items that are deemed to be in violation of these
Terms of Service, Mamacliqs may, in its sole and absolute discretion, immediately remove your Items listings, suspend your sale or any order made by Customers, terminate your Vendor Account or take any action as we shall
deem necessary and appropriate. Furthermore, if you are selling illegal Items, Mamacliqs may withhold payment, including payment of Items Revenue.
8.4. If you engage in a business activity that is governed by industry or governmental restrictions or regulations in connection with your use of the Platforms, you acknowledge and agree that we are not engaged in any such activity and are not responsible for your obligations under such regulations. In this respect, you agree that such obligations to comply with any industry or governmental restrictions or regulations shall be solely yours and you undertake to indemnify the Platforms for any losses incurred or suffered by the Platforms in connection with or as a result of your non-compliance of such obligations.
9. INVENTORY AND PRICING OF ITEMS
9.1. Once the Items are approved to be listed on the Platforms, the Vendor shall be obliged to maintain an inventory of all Items sold on the Mamacliqs Platform and to keep the Listing Price updated, and shall solely
be responsible to login to Mamacliqs Vendor Platofrm to update the inventory of all Items on a daily basis. For any updates on the Listing Price, vendor is responsible to update the Mamacliqs team or contact person. All changes are subjected to Mamacliqs approval before being published.
9.2. The Vendor shall use its best endeavours to ensure that the Products listed on the Platforms shall be kept in adequate quantity and stock, and stored in a condition suitable for the relevant Products, and that it is able to perform the Services and deliver the Products offered on the Platforms at all times, and in any event the Vendor anticipates that any Products listed on the Platform by the Vendor may go out of stock or that the Vendor is no longer able to offer any such Products or Services, the Vendor is required to promptly update and inform Mamacliqs team or contact person accordingly.
9.3. It is the Vendor’s responsibility to maintain and keep the Platforms updated on the Items listings, Listing Price and Listing Quantity available for sale on the Platforms via the Vendor Platform to avoid incorrect pricing on Items or certain unavailable Items being sold.
9.4. All Products listed on the Mamacliqs Platform must have available stocks at the Vendor’s store or warehouse ready for delivery. Mamacliqs strictly shall not be responsible to cover any losses made from
incorrect pricing and out of stocks orders.
9.5. Vendor is also responsible to provide accurate description in terms of the Actual Weight and Applicable Weight of the Products for the purpose of delivery cost calculations, and any dispute on the difference in
price of the listed and actual 3PL charges shall be borne by Vendor, if any.
10. SALE OF PRODUCTS
10.1. Upon receipt of an order for the purchase of Products from the Customers on the Mamacliqs Platform (“ Product Order(s)”), Mamacliqs will process the orders and furnish the Vendor with details relating to the ordered Products via email and/or the Vendor Platform.
10.2. The Vendor is responsible to frequently check its dedicated email address that has been provided to Mamacliqs and/or the Vendor Platform on the received Product Orders for fulfilment purposes in accordance with the agreed Delivery Method, and the Vendor further covenants and undertakes to Mamacliqs that it shall:
10.2.1. process all received Product Orders with reasonable care, including ensuring that all orders are appropriately handled, stored, labelled and packaged taking into consideration the nature of the Products in accordance with applicable laws and regulations;
10.2.2. bear all costs in relation to packaging of the Products and ensure that the packaging of the Products is sealed to a commercially acceptable standard, and using opaque type packaging to ensure anonymity of the Products;
10.2.3. as may be mutually agreed between the Parties from time to time, in liaison with Mamacliqs, apply the appropriate Mamacliqs stickers or other branding material provided by Mamacliqs to the packaging of the Products, the costs of which (including the production, supply and delivery of the branding materials to the Vendor) will be borne by Mamacliqs;
10.2.4. ensure that all Product Orders are fulfilled in a timely manner within the Handling Time Limit;
10.2.5. ensure that all Products sold by Vendor are of high and merchantable quality and hygiene, fit for their purpose, and comply with the descriptions and specifications of the Products provided by Vendor and displayed on the Mamacliqs Platform;
10.2.6. issue a receipt or purchase bill for each Product Order to be included with the Products to be delivered to the Customers; and
10.2.7. maintain and keep updated its own records of Product Orders made by Customers.
10.3. The service-level Terms of Service for handling time to be achieved by the Vendor for each Product Order to be dispatched and delivered is two (2) Business Days (“ Handling Time Limit”). In case of any delay to the Handling Time Limit, whether already materialised or foreseen, the Vendor is required to inform the Mamacliqs team or the contact person immediately via phone call and in writing, and to provide Mamacliqs with a satisfactory reason for such delays.
10.4. In the event that the Vendor exceeds the Handling Time Limit for the processing of any Product Order, Mamacliqs will be entitled to cancel the Product Order which has not been dispatched within the Handling Time Limit, in the case where (a) the relevant Customers are communicated with the notice and reasons for delay, and decides to cancel their Product Order due to the delay in Handling Time Limit (“Late Dispatch Cancellation”), or (b) the Customers make a complain to the Mamacliqs team about the delay and indicated that he/ she would like to make a Late Dispatch Cancellation, and request for a refund.
10.5. In the case of a Late Dispatch Cancellation, Mamacliqs will make a full refund to the Customer in respect the cancelled Purchase Order, and the Vendor shall bear all administrative charges thereto including any delivery charges arranged and incurred by Mamacliqs as a penalty.
10.6. The Vendor shall be responsible to closely monitor, keep track and update the status of each Product Order, and to provide such tracking information on the Platforms in order for Mamacliqs and the Customers to track the status of the delivery of the Products once the parcel is ready to be collected and delivered, depending on the Delivery Method.
11. SALE OF SERVICES (INCLUDING APPOINTMENT AND BOOKING SYSTEM)
11.1. Upon receipt of an order for the rendering of Services from the Customers on the Mamacliqs Platform using the Platforms’ proprietary appointment and booking system (“ Service Order(s)”), Mamacliqs will process the orders and furnish the Vendor with details relating to the ordered Services via email and/or the Vendor Platform.
11.2. The Vendor is responsible to frequently check its dedicated email address that has been provided to Mamacliqs and/or the Vendor Platform on the received Service Orders for fulfilment purposes, and further covenants and undertakes to Mamacliqs that it shall:
11.2.1. ensure that it is available during the scheduled appointment and booking times to perform the Services;
11.2.2. avoid double-booking or over-booking of Services by allowing reasonable breaks in between bookable Services sessions;
11.2.3. mark, update and sync its own private calendars with the Platforms’ appointment and booking system to ensure that it is up to date;
11.2.4. frequently updating its service hours and available days on the Platform;
11.2.5. allow a reasonable period for Customers to reschedule and make amendments to booked Services sessions;
11.2.6. keep Mamacliqs and the Customers updated if Vendor needs to reschedule any of the Services sessions due to any unforeseen circumstances;
11.2.7. carry out Customer verification to ensure that he/she is the rightful Customer in respect of the Service Order; and
11.2.8. update the Platforms upon completion of Services pursuant to each Service Order.
11.3. In the event that for any reason after appropriate verifications, Vendor is found to have not been present to perform the Services at the prescribed time and venue as per the Service Order, and upon notification by the Customer, the appointment and booking session for the Services shall be deemed to be ‘missed’ (“ Missed Booking”), and the Service Order will thereafter be cancelled by Mamacliqs.
11.4. In the case of a Missed Booking, Mamacliqs will make a full refund to the Customer in respect the cancelled Service Order, and the Vendor shall bear all administrative charges thereto including to compensate the Customer at such rate and amount to be determined by Mamacliqs as a penalty, and without prejudice to such penalty, Mamacliqs shall further be entitled to take such action against the Vendor as Mamacliqs may in its sole and absolute discretion determine for a Missed Booking as a warning to the Vendor depending on the severity or frequency of the Missed Booking.
11.5. Where Customers purchase discount vouchers on Mamacliqs Platform in respect of the Services of Vendor, Vendor shall ensure that Customers are allowed to redeem the discount vouchers when the same are presented to Vendor during the schedule appointment, provided that the vouchers are valid, and redeemed by Customers within the permitted redemption date and in accordance with the terms and conditions as indicated on the Mamacliqs Platform at the time of purchase.
12. DELIVERY OF THE PRODUCTS
12.1. Where Vendor has opted for the 3PL delivery option, Vendor shall:
12.1.1. ensure that the parcels for the packaged Products for each Product Order shall be completed within the Handling Time Limit and ready for collection by;
12.1.2. work closely with the Mamacliqs team or contact person in relation to collection timings for collection of the packaged Products by Mamacliqs to be arranged for 3PL delivery;
12.1.3. ensure that the packaged Products are available for collection during normal business hours on the date and at the address provided to Mamacliqs; and
12.1.4. ensure that the Products are only handed over to such persons or parties who are authorised by Mamacliqs for collection, as verified by appropriate identification checks.
12.2. Where the Vendor has opted for slf-fulfilment as a delivery option, the Vendor shall solely be responsible for arranging its own delivery service for the completion of the dispatch and delivery of the Products to the Customers as per the Product Order.
12.3. Delivery of the Products for each Product Order shall be deemed completed only upon the receipt of the Product Order by the Customer.
12.4. Vendor agrees neither Mamacliqs nor its Affiliates provide any delivery services. Rather, Mamacliqs provides technology services that enable the Vendor to connect with Customers who may purchase Items from Vendor on the Mamacliqs Platform, and if required by Vendor, to arrange for 3PL services for the delivery of the Products, and shall in no way be individually liable or responsible for the handling and completion of the delivery of the Products.
13. REPRESENTATION AND WARRANTIES
13.1. In respect of the Products, Vendor represents and warrants to Mamacliqs that it shall have full unencumbered title in all of the Products to be sold on the Mamacliqs Platform, whether manufactured, fabricated, or otherwise produced or provided by Vendor or its supplier, and shall:
13.1.1. be free from lien, charges and any other security interest;
13.1.2. correspond with their description and specifications as listed on the Platforms including without limitations to any description indicated on the packaging of the Products;
13.1.3. be of good condition, brand new and excellent quality;
13.1.4. where applicable, be free from defects in design, material and workmanship;
13.1.5. where applicable, have a “use-by” date or expiry date of no less than twelve (12) months from the date of products / services listing. In the event the products are less than twelve (12) months to date of expiry, Vendor is responsible to update the expiry date in the product details to inform Customers;
13.1.6. not infringe the rights of a third party (including but not limited to registered trademark rights) by virtue of being made available, put on the market, exposed for sale;
13.1.7. comply with, at the Vendor’s own expense, all laws, regulations and regulatory regimes in relation to the Products; and
13.1.8. comply with all terms in any reasonable warranty provided by Mamacliqs to its Customers in respect of the Products.
13.2. In respect of the Services, the Vendor represents and warrants that it has the relevant knowledge, experience and expertise in providing the Services, and where such professional qualification and certification is legally required to perform certain procedures, represent and warrant that it, and shall ensure that its personnel shall, possess the required skills, experience, qualification, expertise and certification to administer such procedure as part of the Services, and that it and its personnel shall:
13.2.1. ensure that all equipment and facilities used to perform the Services shall at all times be kept in a clean and hygienic condition;
13.2.2. ensure that the Services are performed in a safe and comfortable environment;
13.2.3. maintain a high standard of ethics and professionalism when performing the Services;
13.2.4. perform the Services with reasonable skill and care to a standard commensurate to the level of service expected of the Vendor;
13.2.5. where necessary, maintain such professional indemnity insurance as may be required;
13.2.6. take necessary precautionary measures to avoid any health-related complications and provide Customers with sufficient health warnings and obtain Customers’ consent before performing any Services; and
13.2.7. comply with, at the Vendor’s own expense, all laws, regulations and regulatory regimes in relation to the Services.
13.3. Vendor further warrants and represents to Mamacliqs that, at all times during the subsistence of these Terms of Service:
13.3.1. it has the full capacity, power and authority to enter into, observe, deliver and carry out the provisions of these Terms of Service;
13.3.2. the entry into these Terms of Service and the performance thereof by the Vendor have been duly authorised by all necessary corporate action and constitutes a valid and binding Terms of Service between Vendor and Mamacliqs, and shall be enforceable against Vendor in accordance with the terms herein;
13.3.3. all formal consents, waivers, approvals, authorisations, exemptions, registrations, licenses or declarations of or by or filing with, any authority or contracting party which are required to be made or
obtained by Vendor in connection with the entry into these Terms of Service and the performance of the same, have been duly obtained; and
13.3.4. if necessary, Vendor shall be obliged to procure all formal consents, waivers, approvals, authorisations, exemptions, registrations and/or licenses necessary for Mamacliqs to feature the Items on the Mamacliqs Platform, as anticipated in these Terms of Service, at its own cost.
13.4. In the event any of the representations and warranties contained in this Clause 13 become untrue, inaccurate or misleading, the Vendor shall provide immediate notification to Mamacliqs no later than 24 hours of such representations and warranties becoming untrue, inaccurate or misleading.
14. BUSINESS OPERATION, BRANDING, ETC.
14.1. In relation to the business and the Vendor’s physical outlet, Vendor covenants and undertakes to Mamacliqs that it shall:
14.1.1. provide Mamacliqs with at least one (1) month written notification prior to the date of cessation of business of Vendor, or any of its outlet; and
14.1.2. provide Mamacliqs with at least fourteen (14) calendar days written notification prior to the date of suspension of business of Vendor, or any of its outlet, whether for renovation, refurbishment, temporary suspension of business or otherwise.
14.1.3. where there is any change of branding or owner of Vendor, Vendor covenants and undertakes to Mamacliqs that it shall:
(i) provide Mamacliqs with at least fourteen (14) calendar days written notification prior to any change to the branding of Vendor; and
(ii) promptly notify Mamacliqs where there is any change to the owner of Vendor and in any event, no later than five (5) calendar days from the date of such change;
15. PROMOTIONAL, MARKETING AND ADVERTISING ACTIVITIES
15.1. Vendor acknowledges and agrees that Mamacliqs and its Affiliates may showcase the availability of Vendor’s Items via the Mamacliqs Platform through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs), and hereby expressly permits Mamacliqs to use videos and images of Vendor and Vendor’s Items for such purposes.
15.2. Vendor shall, from time to time, as and when required by Mamacliqs participate in platform-wide promotions, discounts or special deals as announced or updated by Mamacliqs on Mamacliqs Platform, the costs of which shall be fully funded by Mamacliqs and reimbursed to Vendor (where applicable).
15.3. Notwithstanding the above, Vendor may, at its own costs, either solely or jointly with Mamacliqs, and at all times subject to Mamacliqs’ written approval, implement its own promotions, discounts or special deals in respect of Vendor’s Items to promote the sale of Vendor’s Items on the Mamacliqs Platform.
15.4. Unless otherwise consented by Mamacliqs, Vendor may not market or otherwise advertise a promotion of the Items outside the Mamacliqs Platform. If Mamacliqs authorises Vendor to market a promotion out of the Mamacliqs Platform, all such marketing materials will be subject to Mamacliqs’ prior review and written approval.
15.5. In carrying out any promotional, marketing or advertising activities, Vendor shall not issue any press release or announcement or otherwise refer to Mamacliqs in any manner with respect to these Terms of Service or otherwise, without the prior written consent of Mamacliqs.
16. RETURNS AND REFUNDS OF ITEMS
16.1. All Terms of Services entered into between Vendor and Customers for the sale and purchase of the Items on the Mamacliqs Platform shall be subject to Mamacliqs’ ‘Return and Refund Policy’, the terms of which are set out on the Mamacliqs Platform. The Vendor agrees that such ‘Return and Refund Policy’ shall bind and be complied with by Vendor. In the event of any conflict or inconsistency between these Terms of Service and Mamacliqs’ Return and Refund Policy, the terms of these Terms of Service shall prevail and apply.
16.2. The Vendor is hereby put on notice that Mamacliqs reserves the right to change its terms and conditions of sale and its Return and Return Policy at any time. The Vendor will be informed in the event of any changes to the Return and Policy.
16.3. In any case, Vendor should accept returns and refunds of Items in the following cases:
16.3.1. faulty Products;
16.3.2. damaged Products;
16.3.3. incorrect Products or Services rendered; and/or
16.3.4. upon review of the evidence submitted by Customers, Vendor is satisfied that the Services are not rendered in compliance with the service level as required and agreed under these Terms of Service;
16.4. Mamacliqs further recognises the following instances for returns:
16.4.1. delivery failures (in the case of self-fulfilled delivery, the costs to be borne by Vendor; and in the case of 3PL delivery, the costs to be borne by Mamacliqs);
16.4.2. open returns for manufacturing defects or damages, or incorrect Products delivered (the costs to be borne by Vendor); and
16.4.3. in any other case, in accordance with Mamacliqs’ Return and Refund Policy.
16.5. Vendor agrees to release, defend, protect, indemnify and hold Mamacliqs harmless from and against any costs, expenses, fines, penalties, losses, damages, and liabilities arising from any above-mentioned situations, save and except where any return or refund is by reason of any default act or omission Mamacliqs.
17. CUSTOMER SERVICE
17.1. Mamacliqs will be handling the customer service team in relation to the Platform Services, and will forward to the Vendor all questions and complaints received from Customers (in the event of damaged Products, missing Product Order, wrongly placed Products, unforeseen reactions or complications to the Items, unsatisfied Services rendered, etc.), with regards to the Items.
17.2. The Vendor is required to revert to Mamacliqs on all such questions and complaints on or before the expiry of two (2) Business Days from when such question or complaint is raised to the Vendor. The Vendor is required to inform Mamacliqs before the end of the two (2) Busines Days in the event more time is required to respond to Customers’ enquiry.
18. HANDLING OF COMPLAINTS
18.1. Any complaints or conflicts between Vendor and a Customer shall be directly dealt with by Vendor and Customer amicably and in good faith at the first instance. In the event that a complaint or conflict is unresolved, the matter may be referred to Mamacliqs who will endeavour to resolve such complaint or conflict.
18.2. As part of the provision of Platform Services to Vendor, Mamacliqs and its Affiliates may, on Vendor’s behalf, respond to complaints by Customers about Items sold by Vendor or any Services rendered by Vendor pursuant to an appointment or booking made via the Mamacliqs Platform.
18.3. Mamacliqs will be responsible for investigating all complaints made by Customers about Vendor, or by Vendor in respect of any Customer.
18.4. Vendor agrees to cooperate fully with Mamacliqs in respect of any investigation of complaints, whether made by Customer or Vendor, and shall provide all information as requested by Mamacliqs to assist Mamacliqs with the investigation.
18.5. Vendor acknowledges and agrees that Mamacliqs’ decision in respect of any investigation on complaints or disputes shall be final and binding on Vendor. In the event the result of the investigation shows that Vendor is at fault, Mamacliqs reserves the right to compensate Customer, on behalf of Vendor, by offering any replacement of Item(s), refund, voucher, discount or any form of compensation as Mamacliqs may deem appropriate and necessary.
18.6. Vendor understands that such replacement of Item(s), refund, voucher, discount or compensation shall be given to Customers at the expense of Vendor and shall be recoverable by Mamacliqs as a debt due from Vendor and Mamacliqs shall be entitled to deduct such amount from the Items Revenue payable to Vendor, or by any other means as Mamacliqs may decide in its sole discretion.
18.7. Where a complaint made by a Customer is of a serious nature which results in Mamacliqs’ reputation being affected irreparably, Mamacliqs shall be entitled to terminate these Terms of Service immediately by without giving a written notice to Vendor.
19. RIGHT TO INVESTIGATE
19.1. Further, Mamacliqs reserves the right to investigate any actual, potential or alleged violations of these Terms of Service or other Terms of Services applicable to us and any actual, potential or alleged violations of applicable law, but we undertake no obligation to do so.
19.2. In connection with any such investigation, Mamacliqs may take any action Mamacliqs may deem appropriate including, without limitation, reporting any suspected unlawful activity to law enforcement officials, regulators or other third parties, and disclosing any information necessary or appropriate to such persons relating to the Vendor Account, including your profile, e-mail address, transaction history, IP addresses and traffic information.
19.3. Periodically, Mamacliqs is obliged to undertake due diligence checks on Vendor. Should any of our checks result in the discovery of illegal or unethical conduct, we reserve the right to terminate the provision of Platform Services to you, your access to, or use of, the Platforms, without notice.
20. FEEDBACK AND RATINGS
20.1. Vendor may, but is not obligated to, provide or otherwise make available to
Mamacliqs certain feedback, suggestions, comments, ideas, or other concepts relating to Mamacliqs’ Platform Services (“Feedback”). However, to the extent that Vendor provides or otherwise makes available Feedback to Mamacliqs, Vendor hereby grants to Mamacliqs a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.
20.2. Vendor acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the
Mamacliqs Platform to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Vendor and relevant Item(s) on the Mamacliqs Platform (“Customer Feedback”).
20.3. Mamacliqs reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of Mamacliqs without attribution to, or approval of Vendor. Vendor acknowledges that Mamacliqs is the distributor (without any obligation to verify) and not publisher of Customer Feedback, provided that Mamacliqs reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, such as an individual’s name or other Personal Data, violate any privacy or other applicable laws, or Mamacliqs ‘ policies.
21. PAYMENT AND REMITTANCE TO VENDOR
21.1. Mamacliqs shall receive and process all payments for Items purchased on Mamacliqs on behalf of the Vendor. Mamacliqs shall release the payment to the Vendor within fifteen (15) days from the receipt of the statement from Vendors. The net payment shall be released to the Vendor for all payment received from Customers in respect of the Product Orders and/or Service Orders on all the paid Items (“Items Revenue”) after deducting all the relevant fees and charges under these Terms of Service.
21.2. In the case of any dispute that the Vendor or Mamacliqs has with the Customer, the payment for that order will be released to Vendor on the 15th day of the following month after the dispute has been settled.
21.3. All payments and remittances under these Terms of Service shall be effected via electronic funds transfer with an order summary to Vendor, or such payment and/or remittance arrangement as may be separately agreed between Mamacliqs and Vendor.
22.1. Vendor shall be solely responsible for determining and setting the Listing Price and all applicable Taxes and other fees and identifying and informing Mamacliqs of the appropriate Taxes and other fee amount for Mamacliqs to charge Customers on Vendor’s behalf for Items listed on Mamacliqs Platform.
22.2. Vendor shall be the “retailer” or “seller” of all Items for the purpose of any SST and the responsible party for collection and remittance of applicable SST. For the sake of clarity, the Listing Price for each Item shall include SST.
22.3. To the extent that applicable tax and other fees are not determined by Vendor, Vendor expressly authorises Mamacliqs to make such determination on its behalf and Vendor hereby acknowledges and agrees that Mamacliqs will have no liability for the accuracy of any such determination. Further, Vendor expressly authorises Mamacliqs, at Vendor’s direction, to collect such taxes and other fees on Vendor’s behalf.
22.4. Each Party shall be responsible for its own taxes arising from the execution and performance of its obligations under these Terms of Service except for SST, withholding tax and stamp duty (if any) which shall be borne by the Vendor.
23. FORCE MAJEURE
23.1. Mamacliqs shall not be liable to the Vendor or any other party or be deemed to be in breach of these Terms of Service by reason of any delay in performing or any failure to perform any of Mamacliqs obligations if the delay or failure was due to any cause beyond Mamacliqs’ reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond Mamacliqs’ reasonable control: act of God, explosion, flood, tempest fire or accident; pandemic, epidemic, medical emergency or medical outbreak; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, by-laws prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Mamacliqs or of a third party) (each, a “Force Majeure Event”).
23.2. Where the access to the Platforms are interrupted or we are unable to perform the services offered on the Platforms for a continuous period of more than twenty one (21) calendar days by reason of a Force Majeure Event, Mamacliqs may at its option: –
23.2.1. fully or partially suspend delivery or performance of its obligations under these Terms of Service while such Force Majeure Event continues; or
23.2.2. terminate these Terms of Service in whole or in part or any transaction so affected with immediate effect by written notice to Vendor and Mamacliqs shall not be liable for any loss or damage suffered by the Vendor as a result thereof.
24. RESTRICTION ON THE VENDOR
24.1. You agree that you shall only use the Platforms for reasonable and lawful business purposes and shall conduct your business transactions with Customers in good faith.
24.2. You must not do or attempt to do anything that is unlawful, prohibited by any laws applicable to the Platforms, which we would consider inappropriate, or which might bring us or the Platforms into disrepute, including (without limitation):
24.2.1. using the Mamacliqs Platform to advertise, promote, market, sell or trade any Items which is prohibited by law;
24.2.2. removing any proprietary notices from the Platforms;
24.2.3. impersonating any person or entity, misrepresent yourself or your affiliation with any person or entity;
24.2.4. engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to the Platforms or data regarding other Vendors or Customers, user ID, password and e-mail address, without our consent;
24.2.5. tampering with or modifying the Platforms, knowingly transmitting viruses, worms or other disabling features, or damaging or interfering with the Platforms, including using trojan horses, viruses, timebombs, keystroke loggers, spyware or other similar feature or piracy or programming routines that may damage or interfere with the Platforms;
24.2.6. using the Platforms in any way that interferes with any user’s access to the Platforms;
24.2.7. attempting to copy, reproduce, exploit or expropriate the Platforms’ various proprietary directories, databases and listings;
24.2.8. anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights;
24.2.9. using the Platforms to defame, harass, threaten, menace or offend any person;
24.2.10. using the Platforms to send unsolicited, bulk or junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise;
24.2.11. modifying, copying, adapting, reproducing, making derivative works of, dissecting, decompiling, disassembling, reverse compiling or reverse engineering any part of the Platforms;
24.2.12. uploading, emailing, posting, transmitting or otherwise making available any content on the Platforms that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
24.2.13. uploading, emailing, posting, transmitting or otherwise making available any content on the Platforms that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure Terms of Services);
24.2.14. otherwise deriving or determining or attempting to derive or determine the source code (or algorithms, structure or organisation) of any software underlying the Platforms;
24.2.15. interfering with, disrupting, or creating an undue burden on servers or networks connected to the Platforms, or violate the regulations, policies or procedures of such servers or networks;
24.2.16. attempting to gain unauthorised access to the unauthorised part of the Platforms (or to other computer systems or networks connected to or used together with the Platforms), whether through password mining or any other means;
24.2.17. forging headers or otherwise manipulating identifiers in order to disguise the origin of any content transmitted through the Platforms;
24.2.18. accessing the Platforms in order to build a similar or competitive application, product, or service;
24.2.19. engaging in any activities that would otherwise create any liability for us or our Affiliates;
24.2.20. bypassing the internal workings (including security features) of the Platforms (including changing the coding or interface of the Platforms);
24.2.21. “doxing” other users on the Platforms, including revealing the personal information of other users (including names, email addresses, addresses and phone numbers);
24.2.22. access the Platforms, open a Vendor Account, or otherwise access the Vendor Account using an emulator, simulator, bot or other similar hardware or software; and/or
24.2.23. instructing, authorising, facilitating or assisting a third party to do any of the above acts.
24.3. Certain areas of the Platforms are restricted from being accessed by you and we may further restrict access by you to any areas of the Platforms, at any time and from time to time, at our absolute discretion.
25. BREACH BY VENDOR
25.1. If Vendor breaches any of the terms of these Terms of Service, or if Mamacliqs has reasonable grounds to believe that you are in breach of any of the terms of these Terms of Service, Mamacliqs shall have the right to take such disciplinary actions as it deems appropriate, including without limitation:
25.1.1. suspending or terminating your Vendor Account and any and all accounts determined to be related to such Vendor Account by Mamacliqs in its sole discretion without liability for any losses or damages arising out of or in connection with such suspension or termination;
25.1.2. removing any Items from Vendor’s listings that you have submitted, posted or displayed, or imposing restrictions on the number of Items listings that you may post or display;
25.1.3. imposing other restrictions on your use of any features or functions of the Platforms as we may consider appropriate in our sole and absolute discretion;
25.1.4. cancel any transactions associated with your Vendor Account and user ID;
25.1.5. temporarily withhold any Items Revenue and payment to you; and/or
25.1.6. any other corrective actions, discipline or penalties as we may deem necessary or appropriate in our sole and absolute discretion.
26.1. Either Party may terminate this Terms of Service by means of forty-five (45) days’ notice in writing.
26.2. On or at any time after the occurrence of any of the events in Clause 26.3, Mamacliqs shall, in addition to any rights or remedies it may have in law, in equity, or under these Terms of Service, be entitled to terminate these Terms of Service with the Vendor with immediate effect by written notice to Vendor and the Vendor shall not be entitled to any cancellation or other fees or penalty hereunder.
26.3. The Parties agree that Mamacliqs shall be entitled to terminate these Terms of Service with immediate effect in the event that:
26.3.1. the Vendor is in breach of any warranty or representation under these Terms of Service;
26.3.2. the Vendor being in breach of any obligation under these Terms of Service and failing to remedy the same on or before seven (7) Business Days from receipt of a written notice from Mamacliqs of such breach;
26.3.3. the Vendor repeatedly receives bad reviews from Customers or complaints of failure to fulfil the Product Orders and/or Service Orders;
26.3.4. the Vendor passing a resolution for its winding up or a court of competent jurisdiction has made an order for Vendor’s winding up or dissolution;
26.3.5. the making of an administration order in relation to Vendor or the appointment of a receiver over or an encumbrance is created over, or a creditor takes possession of or sells any of the Vendor’s assets;
26.3.6. Vendor makes an arrangement or composition with its creditors generally or applies to a Court of competent jurisdiction for protection from its creditors;
26.3.7. Vendor ceasing or threatening to cease to carry on its business; or
26.3.8. Mamacliqs reasonably apprehends that any of the events mentioned above is about to occur in relation to Vendor and notifies Vendor accordingly.
26.4. For the avoidance of doubt, any suspension by Mamacliqs for the provision of the Platform Services to Vendor does not amount to a termination of these Terms of Service and all provisions in these Terms of Service shall remain enforceable by and against the Parties.
26.5. Upon termination of these Terms of Service, Vendor shall immediately inform Mamacliqs of all concluded Terms of Services entered into with Customers prior to termination of these Terms of Service, which have yet to be fully performed and shall be obliged to perform these Terms of Services to its full extent, and shall:
26.5.1. immediately delete and fully remove the Vendor Platform from Vendor’s devices;
26.5.2. immediately cease using the Vendor Platform; and
26.5.3. promptly (and in any event within three (3) days from the date of termination), pay any money owed to Mamacliqs (which shall become immediately due and payable on termination or expiry).
26.6. The parties shall have no further obligations or rights under these Terms of Service after termination or expiry of the Terms of Service, without prejudice to any obligations or rights which have accrued to either party at the time it is terminated, save that any other clause which expressly or by its nature is intended to survive, shall continue to have effect after the end of these Terms of Service.
27.1. The Vendor agrees to release, defend, indemnify and hold harmless and keep indemnified, defended and held harmless Mamacliqs, including its Affiliates, and any director, officer, employee, contractor, or agent, against any and all losses, deficiencies, claims, actions, judgments, settlements, interest, awards, costs or expenses of whatever kind (including attorney fees and court costs on an indemnity basis), fines, penalties, damages, and liabilities incurred and/or suffered by Mamacliqs, arising from, alleged to arise from, as a result of, in connection with or in any way associated with:
27.1.1. the use of the Platform Services by Vendor not due to the fault of Mamacliqs;
27.1.2. any defect in the products / services sold to any Customer;
27.1.3. any claim made by any Customer under any Terms of Service or transaction entered into with the Vendor;
27.1.4. any breach of these Terms of Service by Vendor;
27.1.5. any negligence, misconduct or fault of whatever nature of the Vendor or its Affiliates, and any director, officer, employee, contractor, or agent; and/or
27.1.6. any breach in any warranty or representation made herein.
28. LIMITATION OF LIABILITY
28.1. In no event shall Mamacliqs, its Affiliates and their respective licensors, shareholders, members, directors, partners, officers, employees, attorneys, agents, representatives or contractors be liable for any incidental, indirect, special, punitive, consequential or similar damages or liabilities whatsoever (including, without limitation, damages for loss of data or exposure of data, information, revenue, goodwill, opportunity, profits or other business or financial benefit) arising out of or in connection with the Platforms or these Terms of Service (whether in contract, tort, breach of statutory duty or otherwise), any performance or non-performance of the Platforms.
28.2. Mamacliqs shall not be liable for any typographical clerical or other error or omission in any acceptance, invoice or other document on the part of Mamacliqs and shall be subject to correction without any liability to Mamacliqs.
28.3. Access to, and use of, the Platforms are entirely at your own discretion and risk. You understand and agree that you will use the Platforms at your own discretion and risk, and that you are solely responsible for any damage to your property (including your computer system or mobile device used in connection with the Platforms), or the loss of data that results from the use of the Platforms.
28.4. Mamacliqs will not be held liable for any and all losses, damages, costs and expenses which you may incur resulting from or in connection with a contract entered into between you and a Customer.
28.5. To maximum extent permitted by applicable law, in the event that any limitation or exclusion of liability in these Terms of Service is not enforceable, total liability of Mamacliqs, its Affiliates and their respective licensors, shareholders, members, directors, partners, officers, employees, attorneys, agents, representatives or contractors for any claim arising under and/or in connection with the Platforms and/or these Terms of Service, whether in contract, tort, breach of statutory duty or otherwise, is limited to the fees that Mamacliqs is entitled to receive from Vendor for the month immediately preceding the date the liability arose, or RM5,000, whichever is the lower. We do not exclude liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, or any other liability which may not be excluded by law.
28.6. Any claims Vendor has against Mamacliqs under or in connection with the Platforms or these Terms of Service must be notified to Mamacliqs within one year after the events giving rise to such claim, failing which (to the maximum extent permitted by applicable law) Vendor shall be deemed as waiving any rights and remedies Vendor has in respect of such claim.
29. DISCLAIMER OF WARRANTIES
29.1. You acknowledge that the Platforms are provided to you on an “as is where is” basis and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, Mamacliqs, on its behalf and on behalf of its affiliates, expressly disclaims all:
29.1.1. conditions and warranties, whether express, implied, statutory or otherwise, with respect to the Platforms including but not limited to the commercial and non-commercial Vendorability, quality, fitness, purpose, title, non-infringement of the Platforms, and the warranty that the Mamacliqs Platform will generate any minimum number of Product Orders or Service Orders or any minimum Items Revenue for Vendor and any implied terms and warranties of the Platforms;
29.1.2. representations, by any means, as to the reliability, timeliness, availability, accessibility, uninterrupted access, operation, performance of the Platforms or any other products or services accessed via the Platforms; and
29.1.3. indemnification arising from course of dealing or course of performance in connection with these Terms of Service.
29.2. Without limitation to the foregoing, we provide no warranty or undertaking, and make no representation of any kind that the Platforms will meet your requirements, achieve any intended results, be compatible or work with any other hardware, software, applications, systems or services, operate without any interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
30. INTELLECTUAL PROPERTY
30.1. Unless otherwise indicated, Mamacliqs and/or its our licensors have valid, unrestricted and exclusive rights, title and interest of the Intellectual Property Rights on the Platforms and the texts, graphics, logos, icons, images, documentations, audios, videos, software, page layout, underlying code, data compilations, materials and any other form of information capable of being stored in a computer that is contained in or published on the Platforms (collectively, the “Content”). By allowing you to access and use the Platforms, Mamacliqs does not grant you any licence or other authorisation in respect of our Intellectual Property Rights and the Content.
30.2. Your use of and access to the Platforms does not grant or transfer to you any rights, title or interest in relation to the Platforms or the Content. You must not:
30.2.1. copy or use, in whole or in part, any Content;
30.2.2. reproduce, retransmit, distribute, disseminate, sell, resell, publish, broadcast or circulate any Content to any third party, unless otherwise indicated on the Platforms or unless given express written permission to do so by Mamacliqs;
30.2.3. breach any Intellectual Property Rights connected with the Platforms or the Content, including (without limitation) altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website or platform, or creating derivative works from the Content; and
30.2.4. use the Platforms to build a competitive product or service, build a product using similar ideas, features, functions or graphics as the Platforms, copy any ideas, features, functions or graphics of the Platforms, or launch an automated program or script which may make multiple server requests per second, or which unduly burdens or hinders the operation and/or performance of the Platforms, or attempt to gain unauthorised access to the Platforms or related systems or networks.
30.3. Mamacliqs reserves the right to change the availability of any feature, function, or content relating to the Platforms, at any time, without notice or liability.
30.5. You acknowledge and agree that Mamacliqs and its Affiliates shall have the right to use or display the Vendor Material in connection with making Items available through the Mamacliqs Platform.
30.6. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in the Vendor Material. You agree that we may use the Vendor Material in any manner that we deem appropriate or necessary.
30.7. For purposes of these Terms of Service, the term ” Vendor Material” means any text, information, data, materials, images (including photos), video, or other content you provide to us or submit, enter into, load, or post to the Vendor Platform or the Mamacliqs Platform relating to the listing of Items on the Mamacliqs Platform, and all results from processing such text, information, data, materials, images, video or content, including such Intellectual Property Rights of Vendor or third party.
30.8. By posting, uploading, or submitting the Vendor Material on the Platforms, you represent and warrant to us that you have the ownership rights, or you have obtained all necessary licenses or permissions from any relevant parties, to use the Vendor Material in this manner. This includes obtaining the right to grant us the rights to use the Vendor Material in accordance with these Terms of Service. You are in the best position to judge whether the Vendor Material is in violation of intellectual property or personal rights of any third party. You agree to pay all royalties, fees, and any other monies owed to any person by reason of the Vendor Material.
30.9. Mamacliqs has no obligation to verify the accuracy, completeness and legality of Vendor Material. We reserve the right to remove the Vendor Material, in whole or in part, submitted by you for any reason at our sole discretion without notice to you. We do not guarantee that we will publish all of the Vendor Material and we reserve the right to determine the use and placement of Vendor Materials, taking into consideration the structure, appearance, design, functionality and all other aspects of the Mamacliqs and the Platform Services.
30.10. Vendor agrees that Mamacliqs or its Affiliates may remove Vendor Material from the Platforms if Mamacliqs or its Affiliates receive notice or otherwise reasonably believe that such Vendor Material may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights of third party.
30.11. Except as expressly set forth herein, neither Party shall be deemed to grant the other Party any license or rights under any intellectual property or other proprietary rights.
30.12. The Vendor further warrants, represents and covenants to Mamacliqs that its manufacture, sale, distribution and use of the Items, and Mamacliqs’ feature of the Items on the Mamacliqs Platform do not infringe directly or indirectly any Intellectual Property Rights of other third parties.
31.1. All Confidential Information are proprietary and confidential to Mamacliqs and shall be used solely by the Vendor for purposes of these Terms of Service. All such Information shall be treated and protected by the Vendor as strictly confidential, and shall not be disclosed to any third party without the prior written consent of Mamacliqs, and shall be disclosed within the Vendor’s organisation only on a need-to-know basis.
31.2. The Vendor shall not publicise, disclose, or discuss the existence, content, or scope, whether generalities or details, of these Terms of Service or make any reference to Mamacliqs, the business of either, or the project for which these Terms of Service is made, to any third party by any means, and through any medium (including but not limited to advertising, web site references, photographs, articles, press releases or interviews, speeches or programs) without obtaining the prior written consent of Mamacliqs.
32.1. For the purpose of these Terms of Service, any notice required or permitted to be given by either party to the other under these Terms of Service shall be in writing addressed, to the relevant party’s registered office or principal place of business, and you consent:
32.1.1. to receiving communications from us in an electronic form via the last email address you have submitted to us; and
32.1.2. that any terms and conditions, Terms of Services, policies, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
32.2. Notice will be deemed given twenty (24) hours after:
32.2.1. the e-mail is sent to the last email address that you have provided to us; or
32.2.2. the notice is posted on the Vendor Platform or the Mamacliqs Platform.
32.3. Any notice to be sent to Mamacliqs under these Terms of Service shall be forwarded to Mamacliqs’ email at email@example.com
33.1. These Terms of Service shall constitute the entire Terms of Service between you and Mamacliqs with respect to the Platform Services and supersede all prior or contemporaneous understanding and Terms of Services, whether written or oral.
33.2. If any provision of these Terms of Service is found by any court or administrative body or competent jurisdiction to be, illegal, void, invalid, prohibited or unenforceable then:
33.2.1. such provision shall be ineffective to the extent of such illegality, voidness, invalidity, prohibition or unenforceability;
33.2.2. the remaining provisions of these Terms of Service shall remain in full force and effect; and
33.2.3. the parties shall use their respective best endeavours to negotiate and agree a substitute provision which is valid and enforceable and achieves to the greatest extent possible of the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, condition, stipulation, provision, covenant or undertaking.
33.3. You may not assign, transfer or sub-contract any of your rights and obligations under these Terms of Service to any other person without our prior written consent, while we may assign, transfer or sub-contract all or any of our rights and obligations under these Terms of Service at any time without your consent to:
33.3.1. our subsidiary or related/affiliated company;
33.3.2. an acquirer of our equity, business or assets; or
33.3.3. a successor by merger.
33.4. If a party waives any right under these Terms of Service, it must be done in writing. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. A waiver of a breach of a term in these Terms of Service does not operate as a waiver of another breach of the same term or any other term in these Terms of Service.
33.5. These Terms of Service shall be governed by the laws of Malaysia and the Vendor agrees to submit to the exclusive jurisdiction of the Courts of Malaysia.
33.6. You acknowledge that the rights granted, and obligations made under these Terms of Service to us are of a unique and irreplaceable nature, the loss of which shall irreparably harm us, and which cannot be replaced by monetary damages alone. As such, we shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
33.7. Mamacliqs reserves their right to amend these Terms of Service at any time. Vendor will be informed when there are amendments to these Terms of Service.