By entering into this SMA, the Merchant (“Merchant”, “you”, "your") represent that you are not a minor and are an adult of at least 18 years of age, a person competent to contract, of sound mind for the purpose of making a contract at the time of reading this SMA to understand and able to promise your performance for your obligations herein.
This SMA shall be read together with J&T Express’ Terms and Conditions for Services and Claims as we collaborate with J&T Express as our strategic logistic service provider.
BY REGISTERING FOR AND USING TOPZMALL’S SERVICES, THE MERCHANT AGREES TO BE BOUND BY ALL THE TERMS OF THIS SMA AND ALL TOPZMALL’S POLICIES.
Any changes to the terms of this SMA may be informed by an announcement.
Welcome to TopzMall! Please read the following terms and conditions (“Terms”) carefully before using this Platform or opening a Yippi account (“Account”) so that you are aware of your legal rights and obligations with respect to TOGL Technology Sdn Bhd (Registration No.: 201701034222 (1248393-W)), and its affiliates and subsidiaries (individually and collectively, "TopzMall","we", "us" or "our"). The "Services" we provide or make available include (a) TopzMall, (b) the services provided by TopzMall and by Platform client software made available through TopzMall, and (c) all information, linked pages, features, data, text, images, photographs, graphics, music, sounds, video (including live streams), messages, tags, content, programming, software, application services (including, without limitation, any mobile application services) or other materials made available through TopzMall or its related services ("Content Material") as further stated in Section 2 of this Terms. Any new features added to or augmenting the Services are also subject to these Terms. These Terms govern your use of Services provided by TopzMall.
The Services include an online platform service that provides a place and opportunity for the sale of goods between the customer (“Customer”) and the Merchant (“Merchant”) (collectively “you”, “Users” or “Parties”). The actual contract for sale is directly between Buyer and Merchant and TopzMall is not a party to that or any other contract between Buyer and Merchant and accepts no obligations in connection with any such contract. Parties to such transaction will be entirely responsible for the sales contract between them, the listing of goods, warranty of purchase and the like. TopzMall is not involved in the transaction between Users. Shopee may or may not pre-screen Users or the Content Material or information provided by Users. TopzMall reserves the right to remove any Content Material or information posted by you on TopzMall in accordance with Section 10 herein. TopzMall cannot ensure that Users will actually complete a transaction.
Before becoming a User of the Site, you must read and accept all of the terms in Schedule 1 and you must consent to the processing of your personal data as described in the Policies linked hereto.
TopzMall reserves the right to change, modify, suspend or discontinue all or any part of this Platform or the Services at any time or upon notice as required by local laws. TopzMall 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. TopzMall may also impose limits on certain features or restrict your access to parts of, or the entire, Platform or Services in its sole discretion and without notice or liability.
TopzMall reserves the right to refuse to provide you access to TopzMall or Services or to allow you to open an Account for any reason.
TopzMall also offers:
and other additional services that you may request and that we may offer you, which shall be determined on a case-to-case basis.
B. Goods You Can Sell
You can sell goods that are legally permitted to be sold in Malaysia and complies with our Policies. Since the goods are sold by you, you are responsible for all Goods warranties, defects, etc. as if you had sold the goods directly to TopzMall platform users or Customers.
Depending on the mode of fulfilment, orders must be ready for collection by delivery partners within twenty (24) hours of the order being notified to you, or as set out in the Policies.
TopzMall will remit to your bank account the Sales Proceeds after deducting Fees due and payable to TopzMall for offering the Services to you.
E. Your Obligations
When listing your goods, you must ensure that you have the right to use the advertising materials (photos, text, etc.) you upload on our site. You are responsible for product returns and warranties for the Goods sold by you to customers.
F. How To End Our Relationship
You may end this contractual relationship with TopzMall at any time and without penalty by providing us thirty (30) days’ written notice of your intention to discontinue the use of our services, and all outstanding payment from you to us shall be paid off by you immediately.
G. Dispute Resolution
This SMA and its accompanying Schedules and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Malaysia.
Each party irrevocably agrees that the courts of Malaysia shall have the exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this SMA or its subject matter or formation (including non-contractual disputes or claims).
H. Definitions and Interpretation
See Schedule 2.
Merchants under required under the law to disclose certain information, such as, (1) the name of the person operating the business / the name of the business (2) the registration number of the business if applicable; (3) the email, number, or address of the e-seller; (4) the description of the main characteristics of the goods or services; (5) the full price of the goods or services, including transportation, costs, and taxes; (6) the method of payment; (7) the terms and conditions; and (8) the estimated time of delivery of the goods or services to the consumers.
Any Merchants who fail to comply with the above may be liable to a fine of up to RM50,000.00, or to imprisonment up to three years, or both. Whereas a corporate body, upon conviction, may be liable to fine of not more than RM100,000.00.
Merchants are also required to (1) provide appropriate means to allow buyers to rectify any errors made to the order, prior to confirmation of the order, and (2) acknowledge receipt of your order without undue delay.
The laws regulating e-commerce transactions ensure transparency when it comes to online businesses and the information provided to consumers. As an online business, you should always ensure your business is in compliance with relevant consumer law / regulation, or risk facing penalties
2. Changes To SMA
TopzMall reserves the right to change at any time in its sole discretion without the need to seek your prior consent any of the terms in the SMA.
These changes will take effect seven (7) days from the date of notification to you or by announcement on TopzMall or otherwise. You are responsible for reviewing the SMA and Policies as and when necessary.
Your continued use of the Services, TopzMall following the changes taking effect will constitute Merchant's acceptance of such changes and if Merchant does not agree to any changes to the SMA or Policies, you must discontinue the use of the Services.
By using the Services, you represent and warrant that: i) you are an adult of at least 18 years of age capable of validly entering into the SMA and performing your obligations hereunder; ii) where you are a business, that you are, and will remain at all times, a business duly organized, registered, validly existing and in good standing under the laws of the country in which the business is registered; have all requisite right, power and authority to enter into the SMA and perform your obligations hereunder; and any information provided or made available by you or your affiliates is at all times accurate and complete.
You further represent and warrant that you and any person or entity that has a financial interest in your business, or any person or entity you are acting on behalf of: a) has no affiliation with any TopzMall employee which may result in a potential or actual conflict of interest; b) has not been barred or otherwise prevented from selling on TopzMall; or c) has not been involved in any lawsuit or claim that has a bearing on the SMA.
For individual Merchants, you must be verified Account user with minimum Level 3 / 50,000 followers and subject to our approval.
For corporate Merchants, you must be a verified Account holder and submit all the supporting business documents together with any brands’ authorization or distributorship certification or letters.
By using the Services or opening an Account, you give your irrevocable acceptance of and consent to the SMA and Policies.
3. Services - Fees
TopzMall only acts as a virtual marketplace as a platform for Merchants and Customers to display their goods, shop and complete sale and purchase transactions.
TopzMall is not involved in the transactions between Merchants and Customers. Merchants are responsible, among others, to ensure the sale is legally authorised, accurately describe the Goods in accordance trade description laws, package, ship, insure, warrant and fulfil all other sale and after sale obligations applicable by law or by trade. Merchant uses the Services, TopzMall, at its own risk.
Merchant expressly elects and consents to TopzMall to act as its exclusive payment processing agent for the purpose of: i) collecting the Sales Proceeds and in general any sums due or owing under the SMA and holding the same; ii) processing customer payments, refunds and adjustments; (iii) remitting the Payment; and iv) paying to TopzMall, to TopzMall affiliates and to third parties (including Customers) any amounts Merchant owes to them. As a payment processing agent, TopzMall will have no responsibility with respect to the legality of transactions occurring between Users and Merchant undertakes that all transactions are in compliance with the Laws (including anti money-laundering regulations).
The Services provided by TopzMall under the SMA are classified as:
General Services including but not limited to: i) the listing and publishing of Merchant’s Contents regarding the Goods on TopzMall; ii) the offering for sale of the Goods on behalf of Merchant; iii) limited Customer care services; iv) Order verification; v) management of deliveries and returns; vi) collection, reconciliation and execution of all Sales Proceeds as payment processing agent for Merchant; and vii) other services ancillary to the Services; and
if applicable, Additional Services that may be provided to Merchant by TopzMall or by third parties.
Merchant’s Contents means any information or document uploaded by the Merchant to Topzmall advertising to the public and inviting prospective customers to purchase the Merchant’s goods and/or services. Such Merchant’s Contents is undertaken and declared by the Merchant to be true and accurate at the time of publication.
In consideration of the provision of Services, TopzMall will be entitled to charge and invoice Platform Fee.
Merchant agrees that Customers satisfy their obligations to Merchant as regards the Customer SMA when TopzMall receives the Sales Proceeds. TopzMall's obligation to remit funds received by it on Merchant's behalf is limited to the Payment.
TopzMall will provide to Merchant information in relation to each Order as necessary under the SMA.
TopzMall will provide support services to Merchant by way of coordinating and answering Customer enquiries.
Merchants agrees that TopzMall may at any time issue to the Merchant accounting documents such as invoices, receipts, credit notes, debit notes, or any other document TopzMall may issue in compliance with Malaysian law.
4. Sales Proceeds – Payment
Sales Proceeds will represent as debts against TopzMall by the relevant Merchant whom Topzmall collects the Sales Proceed on behalf of as its payment processing agent.
Topzmall must make payment to the Merchant within a reasonable time and the Merchant is not entitled to impose any interest on late payment from Topzmall to the Merchant.
TopzMall may combine Sales Proceeds and Payments with the funds of other users of its services.
Unless otherwise agreed in writing, Payments will be made by TopzMall to Merchant in accordance with SCHEDULE 6.
TopzMall may delay, suspend or cancel any Payments where a Merchant breaches any term of the SMA, Customer SMA or Policies and any Payments made to Merchant will not in any way be considered as a waiver of TopzMall's rights.
If TopzMall concludes that Merchant's actions and/or performance in connection with the SMA or the Customer SMA are likely to result, or have resulted, in Customer disputes, Disputes, chargebacks or other third party claims, or if there are any sums owed by Merchant to TopzMall, then TopzMall may, at its sole discretion, withhold any Payment for the longer of: i) the Minimum Suspension Period; ii) the completion of any investigation regarding Merchant's actions or performance; or iii) the resolution of any Dispute.
TopzMall reserves the right to impose limits on Order or transaction values, on Customers or on Merchant and will not be liable if: i) TopzMall does not proceed with an Order that would exceed said limit; or ii) TopzMall allows a Customer to cancel an Order because TopzMall or the Goods are unavailable following the commencement of a transaction.
Without prejudice to any other rights and remedies which TopzMall has against Merchant, if any sums payable by Merchant to TopzMall under the provisions of the SMA will become due and be unpaid, Merchant will pay to TopzMall the Late Payment Interest.
To the extent required by Malaysian law, TopzMall will be entitled to withhold any and all taxes, duties, fees and other charges in connection with any Order, Payment or otherwise under the SMA or the Customer SMA. If TopzMall is required under Malaysian law or the law of any jurisdiction to deduct or withhold any sum as taxes imposed on or in respect of any amount due or payable to Merchant, TopzMall will make such deduction or withholding as required and the amount payable to Merchant will be reduced by any such amount necessary. TopzMall will provide Merchant a certificate or any similar document proving that amounts deducted refer to withholding taxes applicable to Merchant.
Any enquiry or dispute about any Payment will be made by in compliance with the internal procedure of TopzMall’s dispute resolution system. Notwithstanding which any such enquiry or dispute will be received by TopzMall on or before the expiration of thirty (30) days after the Order date, failing which, Merchant waives the right to dispute such Payment.
5. Merchant Undertakings
By using the Services, Merchant undertakes, represents and warrants that it will:
comply with all applicable laws, treaties, ordinances, codes and regulations;
comply with all the Policies;
be responsible and pay all taxes, duties, fees and other charges arising out of or associated with the Order, the Payment or in any other way owed by Merchant under the SMA or the Customer SMA;
will issue an invoice and receipt to the Customer that contains all the key information of the transaction between the Customer and Merchant;
obtain all necessary rights, licences, permits or approvals required for the offer, advertising and sale of the Goods on or through TopzMall prior to their listing and will provide, as such time as TopzMall may so request, copies of these documents to TopzMall;
ensure that any information provided under this SMA, including for the listing (including the Merchant’s Contents) of the Goods, is accurate, current, and complete and is not misleading or otherwise deceptive;
fulfil all Orders for Goods at their stated quantity and price to Customers who meet TopzMall's eligibility conditions;
contract appropriate insurance covering its obligations thereunder and the Goods regardless of the fulfilment model chosen;
provide, in the format and at such times as TopzMall may require, accurate, updated and complete information about the availability status, stock level and Listing Price of the Goods;
ensure that the Listing Price for any Good offered to Customers will not exceed the price offered by Merchant outside TopzMall for the same Goods in like or lesser quantities under similar terms and conditions and, where a lower price is so offered, ensure that the Goods benefit from that lower price;
give TopzMall written notice of any requirement or provision of any contract that may conflict with any requirement or provision of the SMA;
ensure that any person filling-in or signing any document, operating the Merchant account, or handling the Goods and Goods, on behalf of Merchant (other than a TopzMall employee, contractor or agent, or a third party specifically mandated by TopzMall) has full power and authority to do so on behalf of Merchant. Merchant may not dispute the actions of such person as agents of the Merchant as they are in compliance with the SMA;
authorized other Merchants/persons to promote your Goods in our platform to earn commission if you configured & enabled the relevant features; and
ensure all the goods is packed nicely and take photos/video of the goods together with the delivery consignment note. All accounting records and other documents to sufficiently explain transactions and the financial position of the company are required under the law to be kept for 7 years.
Merchant further undertakes, represents and warrants that it will not, directly or indirectly:
infringe on any Intellectual Property Rights not belonging to the Merchant;
display any materials that display pornographic materials of any kind;
display any political or religious content;
disclose any personal and identifying information without the person’s consent;
post any content that supports any unlawful activities against the federal and state governments or animals;
conduct unlawful and immoral activities against public policy such as gambling, pyramid or Ponzi schemes, or any other activities against public policy;
use TopzMall or the Services to purchase items sold on TopzMall for commercial use or for use on behalf of a third party;
access content and information that concerns any party other than Merchant, transmit unsolicited commercial or bulk email, interfere with the proper working of TopzMall, transmit any viruses, Trojan horses or other harmful code, or attempt to bypass any mechanism used to detect or prevent such activities;
create liability for TopzMall (and its Afiliates, directors, employees, contractors, agents, subcontractors, etc.) or expose it to undue risk or otherwise engage in activities that TopzMall, in its sole discretion, determines to be harmful to TopzMall's operations, reputation, or goodwill;
contact any Customer and will not enter into any direct arrangements with the Customer for the offer of Goods or other Goods or services, except where notified or permitted by TopzMall to do so for the purposes of fulfilling a Customer SMA;
enrol or offer to enrol Customers in any scheme or program other than as strictly required for warranty purposes;
open multiple shops on TopzMall without TopzMall's prior approval; and
spam & duplicate stock keeping units on TopzMall.
Undertakings in relation to Goods
Merchant undertakes, represents and warrants that:
the Goods are of merchantable quality, fit for their purpose, free from defects, and strictly conform to their listed specifications;
the Goods and their offer for sale are not prohibited and comply with Malaysian law (including all minimum age, marking and labelling requirements, Goods warranties, specifications and performance criteria, etc.) and conform with Policies, including prohibited and restricted items;
it has full unencumbered title in the Goods and in any materials incorporated in the Goods and all the Goods are supplied free of all liens, charges or other security interests;
it will provide the Goods and Goods with all legally required documentation (including warranty card, warranty information and invoice) and update the same when legally required;
it will provide TopzMall and/or Customer any document pertaining to the sale of the Goods or Customer SMA (including sales invoice and tax invoice), as may be requested by TopzMall and/or Customer;
it will not, directly or indirectly, sell Inadequate Goods, or expired (or soon to be expired) Goods; and
it will not, directly or indirectly, sell counterfeit, "replica" and name brand "knock off" Goods or Goods violating any Intellectual Property Rights.
Merchant undertakes and warrants that all its representations, warranties and undertakings in the SMA will be fulfilled and will remain true and correct at all times and will subsist for so long as necessary to give effect to each and every of them in accordance with the Terms, provided that and in the event of any of them becoming or unfulfilled, untrue or incorrect, Merchant will promptly inform TopzMall of the same and rectify the situation.
6. TopzMall Rights
Notwithstanding any provision in the SMA, TopzMall will have the right, in its sole discretion, to delay or suspend listing of, or to refuse to list, or to de-list, or to require Merchant not to list, any or all Goods that the Merchant makes available to be listed for sale through TopzMall if any, provided by TopzMall, or to deactivate the Merchant account(s) of the Merchant.
TopzMall may in its sole discretion withhold any Order for investigation and/or refuse to process. TopzMall may use the services of one or more third party processors or financial institutions or such other service providers in connection with the Services.
The prices indicated in the Order will not be subject to any variations. TopzMall reserves the right to reject any particular form of Order or payment for the Goods, and not to honour or accept any discounts, coupons, gift certificates, or other offers or incentives made available by Merchant.
TopzMall may in its sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any Order. Merchant will stop and/or cancel orders of Goods if so asked by TopzMall (provided that Merchant has transferred the Goods to the applicable carrier or shipper, Merchant will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). Where Merchant has already received Payment, Merchant will refund any Customer that has been charged for an Order that TopzMall has stopped or cancelled.
TopzMall may use mechanisms that rate, or allow Customers to rate or review the Goods and/or Merchant's performance as a Merchant and TopzMall may make these ratings and reviews publicly available.
7. Use of Tools - Additional Services
Merchant hereby undertakes and represents that its use of the Services, Platform and the selection of its username, store name and store in store name, will not be unlawful, inaccurate, misleading, false, fraudulent, defamatory, trade libellous, or otherwise unsuitable.
Any password provided by TopzMall to Merchant may be used only during the period Merchant is permitted to use TopzMall, manage the catalogue of Goods listed on TopzMall, update information about the Goods (e.g. availability status, stock levels and Prices), electronically accept and fulfil the Orders and review the completed Orders, and may not be shared with any person other than employees of Merchant that need to use it for the execution of the SMA. Merchant is responsible for supplying and authorizing access to its users. Merchant is responsible to terminate or reassign access to any Merchant user that Merchant deems to have become unauthorized to access the Services at any time.
Merchant acknowledges that the availability of the Services, Platform is subject to:
availability of resources, including, without limitation, resources under the control of TopzMall and availability of a suitable network infrastructure at the time at which the Service is requested or delivered;
if applicable, geographic and technical capability of communication networks and other delivery systems at the time at which the Services are requested or delivered;
provisioning time that may be required by TopzMall to provide the Services; and
Merchant meeting the technical requirements for accessing Merchant Center from time to time.
Merchant will not, and will not allow anyone to, directly or indirectly, engage in any fraudulent, inappropriate or unlawful activities in connection with the Services, including: i) generating fraudulent, repetitive or otherwise invalid clicks, impressions, queries or other interactions, whether through the use of automated applications or otherwise; ii) other than through reporting offered by TopzMall collecting any user information, indexing or caching any portion from TopzMall, whether through the use of automated applications or otherwise; iii) targeting communications of any kind on the basis of the intended recipient being a user of TopzMall; iv) interfering with the proper working of TopzMall, the Services or TopzMall's other systems; v) transmitting any viruses, Trojan horses or other harmful code; or vii) attempting to bypass any mechanism TopzMall uses to detect or prevent such activities.
Under terms and conditions agreed to in TopzMall, the SMA and/or in a separate SMA, Merchant may be offered the possibility to purchase goods and services provided by TopzMall and/or third parties ("Additional Services"). TopzMall reserves the right, in its sole discretion and at any time, to amend the terms (including scheduling, suspension and termination), of Additional Services. Payment for Additional Services will be either by deduction from Sales Proceeds, by direct payment or invoice, or by any other means of payment indicated in Platform or agreed to by the Parties.
8. Confidential Information
The recipient of any Confidential Information will not disclose that Confidential Information, except to affiliates, employees, and/or agents who need to know it and who have agreed in writing to keep it confidential. The recipient will ensure that those people and entities use Confidential Information only to exercise rights and fulfil obligations under the SMA and keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving the discloser reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
Save for any copy required to be kept by the recipient of the Confidential Information for legal or regulatory reasons, the recipient will, at any time upon request from the discloser or upon the end of any relationship between the Parties, at the discloser's option either: (i) return to the discloser all Confidential Information in its possession or control together with all information and documentation containing, comprising or relating in any way to the Confidential Information, and certify that all copies of the Confidential Information have been so returned; and/or (ii) destroy all Confidential Information in its possession or control together with all information and documentation containing, comprising or relating in any way to the Confidential Information, and certify that the Confidential Information has been destroyed.
The rights and obligations of the Parties under this Section will survive the termination of the SMA.
9. Personal Data
Merchant undertakes, represents and warrants that it will use and process Personal Data: i) only for the purpose of the execution of the SMA or for its dealings with customers and not disclose it to third parties; ii) in accordance with the requirements under the applicable personal data protection law; and iii) in such manner that ensures TopzMall remains in compliance with the requirement under the applicable personal data protection laws. Merchant further warrants that it does implement sufficient security measures to ensure that the Personal Data are securely kept and maintained as required by the applicable personal data protection law and agrees to subject itself to the necessary audits undertaken by TopzMall to ensure compliance of the above warranties and to immediately inform TopzMall of any Personal Data incident it becomes aware of.
Merchant agrees to indemnify and hold harmless TopzMall and each of its respective officers, employees, directors and agents from, and at TopzMall's option defend against, any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts' fees and other costs of litigation) ("Personal Data Claims"), to the extent such Personal Data Claims arise from or may be in any way attributable to: i) any violation of the SMA or the Customer SMA by Merchant; ii) the negligence, gross negligence, bad faith or intentional or wilful misconduct of Merchant or its subcontractors (whether or not approved by TopzMall); or iii) any security incident for which Merchant is directly or indirectly responsible.
10. Content Material, Industrial and Intellectual Property Rights
Merchant represents and warrants to TopzMall that it is the owner or has lawful rights with respect to the use of Intellectual Property Rights concerning the Goods and the Merchant’s Contents and that it is not aware of any claims made by any third party with regard to any alleged or actual Intellectual Property Right infringement or other claim, demand or action resulting from the Content Material, advertising, publishing, promotion, manufacture, sale, distribution or use of the Goods.
Merchant undertakes, represents and warrants that:
the Merchant’s Contents are not prohibited and comply with Malaysian law (including all minimum age, marking and labelling requirements, Goods warranties, specifications and performance criteria, etc.) and conform with the Policies as posted on TopzMall or Merchant Centre;
it will provide accurate and up to date Merchant’s Contents. The Merchant’s Contents must include all text, disclaimers, warnings, notices, labels or other indications required by law to be displayed in connection with the offer, merchandising, advertising or sale of the Goods and may not contain any sexually explicit (except as expressly permitted in written by TopzMall or allowed under Malaysian law), defamatory or obscene materials;
Merchant will indemnify Topzmall for any third party infringement claims or claims for any loss or damages allegedly to be suffered by third party in breach of any of the terms in the entire SMA, and not just in this clause or Schedule.
it will not directly or indirectly include in the Merchant’s Contents, in the Goods listing of the Goods, or with the Goods or the Goods, any terms and conditions of sale (or of provision of service) other than those agreed under the SMA or any Merchant or third-party marketing materials; and
it will not provide any Merchant’s Contents, or seek to list for sale on TopzMall any Goods, or provide any uniform resource locator ("URL") marks unless it has the right to publish the Content Material.
Merchant hereby grants TopzMall a royalty-free, non-exclusive, right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially and non-commercially exploit in any manner, any and all of the Merchant’s Contents, and to sublicense the foregoing rights to TopzMall affiliates, provided that TopzMall will not alter any third-party trademarks.
TopzMall has no obligation to verify the accuracy, completeness and legality of Merchant’s Contents.
TopzMall retains the right to determine the use and placement of Merchant’s Contents, and the structure, appearance, design, functionality and all other aspects of TopzMall, the Services.
As between the Parties, each Party retains all right, title and interest in and to its technology and Intellectual Property Rights. Neither Party acquires any rights in the foregoing from the other Party except as expressly granted under the SMA; all other rights are reserved, and no implied licenses are granted. Neither Party will attempt to register any distinctive trademarks or domain names that are confusingly similar to those of the other Party.
Merchant will not be entitled to use any intellectual property belonging to TopzMall without Topzmall’s prior approval in writing.
This SMA will not be deemed or construed to create, convey or transfer any Intellectual Property Rights to the Merchant and, other than as instructed by TopzMall, Merchant will not decompile any software or reverse engineer any software, or other Goods or process. This SMA is not a license to use or distribute any software, or other Goods or process.
This SMA confers to Merchant no rights of ownership or title, license, or other Intellectual Property Rights in any tangible or intangible property, including software (e.g. TopzMall and any API's or other software) and data (e.g. Sales data, performance data, Customer data, Platform data and Platform name) used, obtained or created under this SMA. If such rights were nevertheless to have accrued to it for any reason whatsoever, Merchant will assign, dispose or otherwise transfer (and effect the transfer of) the full and exclusive ownership of all such rights to TopzMall or any other party designated by TopzMall, free of charge, or for a nominal fee. Merchant will use and process such software and data only for the purpose of the execution of the SMA, will not claim any Intellectual Property Rights, sell, assign, license, publish, lease or otherwise commercially exploit such software and data, and will immediately cease their use and processing upon termination of the SMA or if so required by TopzMall at any time.
Merchant undertakes, represents and warrants that it will not, directly or indirectly, participate in any of the following actions such as reverse engineering, reverse compiling or otherwise deriving the underlying source code or structure or sequence of any TopzMall solution or technologies, deleting or altering author attributes or copyright notices, and/or fail to obtain all required permissions when using TopzMall to receive, upload, display, distribute, or execute programs or perform other works protected by intellectual- property laws.
Merchant take full responsibility for the uploaded Merchant’s Contents such as, but not limited to Clause 5. Merchant would have the liability to bear at least a total of RM2,000,000 as liquidated ascertained damages, or any applicable amount which is reasonable and permitted by the law, whichever is higher, if such violation is found.
Nothing herein contained will be deemed to limit or restrict the rights of TopzMall or any third party to assert claims for violation of any Intellectual Property Rights against Merchant.
11. Customer Information - Customer Services
Merchant will be responsible for and have sole discretion to deal with Customers relating to Orders such as confirm Orders, deliveries or give any further information about the fulfilment of the Orders to the Customer.
TopzMall will own all information regarding Customers, Orders and the supply of the Services including payments, Fees, disbursements, refunds, Cancellation Penalties, adjustments, etc. and TopzMall will not be liable to pay any royalties or fees to Merchant in connection with the use of any such information.
Merchant will utilise information of Customers or TopzMall’s users, including Personal Data, disclosed by TopzMall to Merchant or which Merchant has otherwise collected or obtained access to pursuant to or in connection with the SMA, solely for purposes of the SMA and will not sell, assign, license, publish, lease or otherwise commercially exploit any such information or utilize such information in any manner for its own benefits or carry out any data mining, data compilation or data extraction for the purposes of statistical or trade analysis or otherwise, based on or in connection with the aforesaid information. No Customer information and TopzMall’s Users information will be disclosed by Merchant to any third party without the prior written consent of TopzMall, and will only be disclosed within Merchant’s organisation on a need-to-know basis.
12. Liability – Indemnification
TopzMall, the Services and the Additional Services are provided on an "as is" basis. Except as expressly provided for in the SMA, TopzMall makes no other representations or warranties of any kind, express or implied, including: i) the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement; ii) that TopzMall, the Services or the Additional Services will meet Merchant's requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error; iii) that the information, content, materials, or Goods included on TopzMall will be as represented by TopzMall, available for sale on a timely manner, lawful to sell, or that TopzMall or the Customers will perform as promised; iv) any implied warranty arising from course of dealing or usage of trade; and v) any obligation, liability, right, claim, or remedy in tort, unless arising from acts of fraud, negligence or wilful misconduct by TopzMall. Merchant acknowledges that any information and any materials provided by or through TopzMall, the Services and the Additional Services may contain inaccuracies or errors and TopzMall expressly excludes liability for any such inaccuracies or errors to the fullest extent permitted by Malaysian law. Any link found on TopzMall or Merchant Center is provided for Merchant's convenience to provide further information. It does not signify that TopzMall endorses the contents thereof and TopzMall has no responsibility for the content of external links.
Because TopzMall is not involved in transactions between Merchant and Customers, Merchant hereby agrees on its behalf and on behalf of Customers to release TopzMall (and its agents and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected therewith, provided such release will not apply where actual claims, demands or damages arise due to TopzMall's fraud, negligence or wilful misconduct.
Any typographical clerical or other error or omission in any acceptance, invoice, Content Material or other document on the part of TopzMall will be subject to correction without any liability for TopzMall.
Any claim of Merchant under the SMA will be made by in compliance with the claims/dispute process/policy of TopzMall, which may be changed from time to time. Notwithstanding which any such claim must be notified to TopzMall within thirty (30) days from the Order, failing which, Merchant waives the right to make such claim.
Merchant will defend, indemnify and hold harmless, and at TopzMall's option defend against, TopzMall and its Afiliates and their employees, directors, agents and representatives, from and against any and all liens, damages, losses, liabilities, obligations, penalties, fines, fees, Claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts' fees and other costs of litigation) arising out of, or related to: i) any actual or alleged breach of Merchant's undertakings, representations, warranties, or obligations set forth in the SMA or the Customer SMA; ii) any incorrect, misleading, or erroneous information provided to TopzMall or any third party in connection with the Services or Additional Services; iii) any non-compliance by the Merchant with any applicable laws or the Policies, including any losses in respect of carriage or prohibited goods incurred by TopzMall or its sub-contractors; or iv) Merchant's own website or other sales channels, the Goods, the Goods, any Merchant’s Contents, the advertisement, offer, sale or return of the Goods, the Goods, any actual or alleged infringement of any Intellectual Property Rights by the Goods, the Goods or the Merchant’s Contents, or Merchant taxes (duties, fees and other charges, etc.) or the collection, payment or failure to collect or pay Merchant taxes. If at any time TopzMall reasonably determines that any indemnified Claim might adversely affect TopzMall, TopzMall may take control of the defences at the expense of Merchant. Merchant may not consent to the entry of any judgment or enter into any settlement of a Claim against TopzMall without the prior consent by TopzMall in writing, which consent may not be unreasonably withheld.
TopzMall will not be held liable for any damages of any kind, including direct, indirect, incidental, punitive, and consequential, arising out of or in connection with the SMA, the Customer SMA, TopzMall, the Services, the Additional Services, the inability to use the Services, the Additional Services, the Goods, the Goods, or from messages received or transactions entered into, provided that TopzMall will compensate Merchant for any direct damages : i) resulting exclusively, or primarily from TopzMall's fraud, gross negligence or wilful misconduct; and ii) as provided under the TopzMall Rights Section of Schedule 1.
To the fullest extent permitted by Malaysian law, and not withstanding any other provision of this SMA, the total liability, in the aggregate, of TopzMall and TopzMall's Afiliates and their respective oficers, directors, partners, employees and contractors, and any of them, to Merchant and anyone claiming by or through Merchant, for any and all claims, losses, costs or damages, including attorneys’ fees and costs and expert-witness fees and costs of any nature whatsoever or claims expenses resulting from or in any way related to the SMA from any cause or causes will not exceed the Fee that TopzMall is entitled to receive from Merchant for the month preceding the date the liability arose, or US Dollar five thousand (USD5,000.00) (or such equivalent amount in local currencies of the Territory), whichever is greater, provided that the maximum liability of TopzMall towards Merchant will be amended to: i) US Dollar ten thousand (USD10,000.00) (or such equivalent amount in local currencies of the Territory) as regards liability under the TopzMall Rights Section of Schedule 1,and ii) such maximum liability as specified in the Fulfilment Section as regards liability under the Fulfilment Section of Schedule 1. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by the Laws.
Notwithstanding anything to the contrary contained herein, in the event there is any issues, disputes, claims is not been completely resolved within the stipulated period of time within this SMA, Yippi E-shop at its sole discretion to make the final decision and extend the period of time, may change/amend or take any relevant action, to resolve the circumstances.
TopzMall has the right to unilaterally and immediately terminate the SMA upon the occurrence of any of the following: i) Merchant being in breach of any provision of the SMA and failing to remedy the same within fourteen (14) days from being so notified; ii) the Merchant being in breach of any applicable laws or TopzMall’s Policies with respect to Goods and sales of Goods ii) Merchant passing a winding up resolution or a court of competent jurisdiction making an order for the same; iii) the issuance of an administrative order in relation to Merchant, or the appointment of a receiver over, or an encumbrance taking possession of, or the of selling any of, Merchant’s assets; iv) Merchant making an arrangement or composition with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or v) Merchant ceasing or threatening to cease to carry on business.
Provided they have not been corrected by TopzMall within fourteen (14) days from notifying TopzMall of the occurrence of any of the following, Merchant has the right to immediately terminate the SMA: i) TopzMall delaying payment for more than thirty (30) days without reason; ii) TopzMall delaying refunds for more than sixty (60) days without valid reason; iii) the making of an arrangement or composition by TopzMall with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or iv) TopzMall ceasing or threatening to cease to carry on business.
Either Party may unilaterally terminate the SMA without cause by providing fourteen (14) days’ prior written notice to the other Party.
Upon termination of the SMA, Merchant will notify TopzMall of all concluded Customer SMAs which have yet to be performed. For the avoidance of doubt, notwithstanding any termination for any reason, Merchant will remain responsible for the fulfilment of any pending Order in according to the Fulfilment Model and TopzMall will fulfil any pending Payment obligations. Any provision of the SMA that, by its nature, is meant to survive the term or termination.
|Additional Service||:||is defined in the Use of Tools - Additional Services Section of Schedule 1.|
|Additional Service Fee||:||the fee applicable to an Additional Service.|
|SMA||:||this Marketplace SMA.|
|Schedule||:||any Schedule to the SMA. The Schedule (s) form(s) an integral part of the SMA.|
|Cancellation Penalty||:||the charge applicable for a Cancelled Order by Merchant.|
|Cancelled Order||:||an Order cancelled or rejected by Merchant, or cancelled due to Merchant's lack of compliance with any provision of the SMA.|
|Claim||:||any claim, action, audit, investigation, inquiry or other proceeding instituted by any person or entity.|
|Commission||:||the percentage (as applicable at the time the Order is placed) of the Listing Price|
|Confidential Information||:||any information proprietary to a Party or an affiliate thereof, that is disclosed to the other Party or an affiliate thereof, whether marked as confidential or not, that should be considered confidential information under the circumstances. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully obtained and provided to the recipient by a third party.|
|Content Material||:||Goods information, text, images, and any other relevant and/or legally required information relating to the listing of Goods on TopzMall, including third party and Merchant's trademarks and other Intellectual Property Rights related materials.|
|Customer||:||a third-party, who purchases Goods on TopzMall.|
|Customer SMA||:||an SMA between Merchant and a Customer concerning the purchase of a Goods in fulfilment of an Order, where the execution of such SMA is attested by the Fulfilled Customer SMA status of the Order.|
|Delivery Note||:||is defined in Schedule 5.|
|Dispute||:||a dispute regarding the provision of Additional Services by third parties.|
|Drop-Shipping||:||is defined in Schedule 5.|
|Effective Date||:||the date of Merchant's first use of the Services, as such date is recorded in Platform.|
|Failed Delivery||:||an Order that is cancelled for unsuccessfully execution due to: i) the delivery address (either physical or email) provided by the Customer or by TopzMall being incorrect; ii) where acceptance of delivery of the Goods is required, the Customer being unable to accept the Goods; iii) where the Goods is a physical Goods, the Customer refusing to accept the delivery of the Goods in accordance with the Policies; or iv) where the Customer remain uncontactable after various attempts (the number of delivery attempts will be determined by the relevant carrier). In addition to the provision of Schedule 5, in case of Failed Delivery: iv) where received by TopzMall, Sales Proceeds will be refunded to the Customer and, v) where received by Merchant, Payment will be refunded to TopzMall.|
the fee payable to TopzMall for the Services, which is calculated based on:
|Force Majeure||:||any event or cause beyond a Party’s reasonable control such as, but not limited to: i) act of God, explosion, flood, tempest, fire or accident; ii) war or threat of war, sabotage, insurrection, civil disturbance or requisition, act of terrorism or civil unrest; iii) Acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; iv) import or export regulations or embargoes; v) interruption of trafic, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of TopzMall or of a third party); and vi) health epidemics declared by the World Health Organization.|
|Fulfilled Customer SMA||:||an Order the status of which is showing as "Delivered" in Platform, or is otherwise deemed by TopzMall as having been executed by Merchant, including instalments thereof.|
|Fulfilment Model||:||the model of Order fulfilment of physical Goods agreed to by the Parties.|
|Goods||:||one (1), or several (if sold together under one Listing Price) as the case may be, item(s) owned and offered for sale by Merchant under the SMA.|
|Inadequate Goods||:||any wrong, faulty, defective, damaged, legally non-compliant Goods, that is deemed not to be of merchantable quality or fit for purpose and has been recalled according to the Policies|
|Intellectual Property Rights||:||all copyright, moral rights, trade marks, design rights, rights in or relating to databases, rights in or relating to confidential information, rights in relation to domain names, and any other intellectual property rights (registered or unregistered) throughout the world.|
|Late Payment Interest||:||is the interest payable by Merchant on the overdue sum at the rate of eight per cent (8%) per annum, calculated on daily basis from the date on which such money falls due for payment to the date such money is actually received by TopzMall (as well as after judgment).|
|Taxes||:||the taxes of the Territory.|
|Merchant||:||the user of the Services.|
|Merchant Platform||:||any tool employed by TopzMall to operate any part of the Service. ccc. Services: is defined in the Services Section of Schedule 1.|
|Listing Price||:||the price, including instalments, at which the Goods are represented for sale to Customers by Merchant as indicated on TopzMall at the time the Order is placed. For the avoidance of doubt, the Listing Price includes any tax applicable by law, and excludes any coupons or other discounts provided by TopzMall to the Customer.|
|Minimum Suspension Period||:||a period of sixty (60) days of which TopzMall is allowed to suspend the Payment to Merchant pursuant to the Sales Proceeds – Payment Section of Schedule 1.|
|Order||:||the request placed by a Customer on TopzMall for the purchase of a particular Good as communicated by TopzMall to Merchant. TopzMall reserves the right to unilaterally cancel an Order for any reason.|
|Payments||:||the Sales Proceeds minus any sums owed by Merchant under the SMA or any other SMA entered into by the Parties and subject to any chargeback, reversal, refund, withholding for anticipated claims, deduction due to a Dispute, in accordance with the SMA or any other SMA entered into by the Parties.|
|Platform Fee||:||a fee, calculated on the basis of a percentage of the Sales Proceeds.|
|Personal Data||:||any personal information as defined by the applicable personal data protection laws and regulations in the Territory, pertaining, but not limited, to TopzMall employees, agents, consultants and Customers.|
|Personal Data Claims||:||is defined in the Personal Data Section of Schedule 1.|
|Platform||:||The TopzMall platform, where the Merchant may list Goods for sale under the SMA, and Customer(s) may buy such goods.|
|Goods||:||the individual Goods purchased by a Customer among the Goods.|
|Refurbished||:||means a Goods that has been returned to Merchant or its manufacturer and is identical to the original in all aspects including all packaging, documentation, accessories and software that are found in a new item, without additions. If repaired, it must have been inspected, cleaned and professionally restored to working order to meet manufacturer specifications with genuine spare parts. The fact that a Goods is refurbished must be clearly and prominently stated in the listing comments as well as he manufacturer's or refurbisher's warranty.|
|Returned Goods||:||the return of a physical Goods to TopzMall by a Customer in accordance with the SMA and/or the Policies, including Inadequate Goods. Merchant will retain or take back from the Customer as the case may be, ownership, title and risk of all Returned Goods.|
|USD or US Dollar||:||United States Dollar|
|Ringgit and RM and MYR||:||Ringgit Malaysia|
|Renminbi and RMB and CNY||:||Chinese Yuan|
|NT$ and TWD||:||New Taiwan Dollar|
|Rp and IDR||:||Indonesian Rupiah|
|₱ and PESO||:||Philippine Piso|
|¥ and JPY||:||Japanese Yen|
|Sales Proceeds||:||the gross proceeds received from Customers by TopzMall which consist of the Listing Price and the Shipping Fee.|
|Sales Track Activities||:||Additional Services consisting in: i) Shop in Shop, which entails a set of specific design features on TopzMall that enhance the visual representation of certain of Merchant's Goods by means of a dedicated landing page; or ii) Search Engine Marketing, which entails the bidding on relevant keywords related to the Goods and/or Merchant on electronic search engines|
|Schedule||:||any schedule to the SMA. The Schedule(s) form(s) an integral part of the SMA.|
|Shipped Date||:||the date a Goods is: i) where the Goods is a physical Goods, dropped off to a carrier by Merchant, or picked up by a carrier from Merchant, for delivery to a Customer, as indicated in Platform, or ii) where the Goods is not a physical Goods, emailed or otherwise made available or provided to a Customer in accordance with the sales stipulations applicable to such Goods.|
|Shipping Fee||:||the fee charged by Merchant to a Customer for the shipping of an Order.|
|Term||:||is defined in the Terms and Conditions of this SMA.|
|Territory||:||Merchant's country (Malaysia, China, Taiwan, Indonesia, Philiphine or Japan).|
|Working Day||:||a day other than Saturday, Sunday, or a national or State (at Merchant’s working premises) public holiday in the Territory.|
|Merchant Earning Commission||:||the commission earning from promoting other Merchant’s Goods via Yippi app.|
|Merchant Earning Commission Platform Fee||:||the percentage (as applicable at the time the Order is placed) of the Merchant earning commission.|
Returns - Failed Deliveries - Inadequate Goods
You shall accept the return of Failed Deliveries and Returned Goods by customers and be responsible for any costs incurred by Topzmall during the refund and return process.
TopzMall has the right to determine at its sole discretion whether a Customer will receive a refund, adjustment, or replacement, and to require Merchant to reimburse TopzMall if TopzMall determines that Merchant is liable to do so in accordance with the SMA. Where TopzMall has refunded or paid any such aforementioned amount (whether on behalf of Merchant or otherwise), such amount will be recoverable by TopzMall from Merchant as a debt due from Merchant and TopzMall will be entitled to deduct such amount from amounts payable to Merchant, or by other methods at TopzMall's election.
Merchant will promptly notify TopzMall of any Inadequate Goods (or the threat of a product recall) and cooperate and assist TopzMall with returns, including by initiating the procedures for returning Goods or Goods to Merchant.
In case of Failed Delivery, TopzMall will bear: i) the Payment Fee, and ii) unless the shipping has been arranged by Merchant, the Shipping Cost for the shipment of the Goods to the Customer and back to Merchant, all other costs being borne by Merchant.
In case of an Inadequate Goods, Merchant will bear all costs associated with the return and refund or replacement, including the Payment Fee.
TopzMall has no obligation to accept any Returned Goods. TopzMall however may at its sole discretion request that the Goods be returned to a designated location for further quality inspection. If TopzMall, directly or through a third party of its choice, determines during the quality inspection that the Returned Goods is faulty or damaged, that it cannot be offered to other Customers because of this fault or damage and that this fault or damage has been caused by the Customer, Merchant will not be liable to accept the Returned Goods.
TopzMall will not be responsible for any risk or liable for any claims, demands, liabilities, expenses, losses, cost or damage in connection with any Failed Delivery and Returned Goods (including due to a threatened recall) and will claim all costs incurred in that respect from Merchant.
1. Fulfilment Models
Orders for physical Goods are fulfilled by Merchants where Merchants are responsible for the delivery of Goods to Customers using its own logistics services.
Merchant will prepare and ship the Order to the address specified in the Order within 7 days, provided that, where the Merchant fails to comply with the deadline, TopzMall reserves the right to modify the deadline and/or to cancel the Order.
Merchant will stop or cancel any Orders if directed by TopzMall.
Merchant will ensure that TopzMall is at all times supplied with updated Order shipment tracking information.
Title and risk of loss for Goods and Goods will remain with Merchant, and TopzMall will have no liability whatsoever related to the Goods and Goods including their shipping, storage, delivery delays, damage or loss.
Merchant will be responsible for obtaining appropriate insurance covering any damage or loss to the Goods.
Merchant must upload shipping proof & documentations for every order into our system for verification.
Merchant will ensure the goods are delivered within a reasonable time and no more than 14 days after shipped the goods.
Unless otherwise agreed in writing, Payments will be made by TopzMall to Merchant on a fortnightly basis in respect of shipping proof & documentations are uploaded & verified by TopzMall, and Orders that have been delivered or completed by the reconciliation cut-off date. The Order status on TopzMall may be subject to delays on weekends, public holidays, caused by third parties, or factors outside of TopzMall’s reasonable control.
From time to time, TopzMall may offer promotional and goodwill rebates or discounts to Merchant in respect of any part of the Fee. The terms of such rebate or discount are determined by TopzMall at its sole discretion. Where required by law, TopzMall may generate an invoice by the Merchant to give effect to the rebate or discount. If TopzMall is held liable for any taxes on behalf of the Merchant, or as a tax agent of the Merchant, in connection with any Order or Payment, the Merchant will indemnify TopzMall for such tax liability or compliance costs, irrespective of when the tax liability is assessed.
The Payments settlement will be deducting all the relevant charges & Fees which applicable to Merchant.
2. Commission, Payment Fee and Other Fees
The Standard Commission rate will be zero percent (0%).
TopzMall’s Platform Fee will be three percent (3%).
Flagship official store's commission rate may vary depends on both party’s SMA in writing.
The cancellation penalty and refund processing fees rate will be three percent (3%) of the Sales Proceeds.
TopzMall may provisionally adjust the fees & rates for from time to time. Merchant will be notified prior to the commencement in writing.