COMMISSION AGENT AGREEMENT

 

Jade E-Services Pakistan (Private) Limited (“Jade”), is a private limited company incorporated in Pakistan with its registered office at 12/B, 12th floor, Dolmen Executive Tower, Dolmen City, HC #3, Block 4, Clifton, Karachi and operates an online marketplace at www.daraz.pk. The Seller wishes to sell its Products through Jade on its online marketplace. Jade is willing to sell the Products on the Seller’s behalf on the online marketplace. The Seller appoints Jade as its agent for the purposes of selling the Products on the Seller’s behalf on the online marketplace on the terms herein below.

GENERAL TERMS:

1.0.        INTERPRETATION

1.1.     In this Agreement the words and expressions below shall have the following meanings:

 

Bank Account means the bank account specified by the Seller at the time of entering into this agreement
Business Day means a day (excluding Saturdays and Sundays) on which banks generally are open for business in Pakistan
Buyer means a person, who purchases Products on the Platform
Commission Schedule means the schedule setting out the commission which is payable to Jade by the Seller for each type of Product sold on the Platform
Competitor means any private or corporate person, who directly or indirectly, engages in the sale of Products on the internet in Pakistan. For the avoidance of doubt, any person whose direct or indirect business is only partially similar to the aforementioned would still be deemed to be a Competitor
Contract means the contract entered into between the Seller and a Buyer for the sale and purchase of the Products on the Platform which can be viewed at https://www.daraz.pk/terms-conditions/
FBD means Facilitated By Daraz
General Terms means the terms set out in this agreement in conjunction with the policies and guidelines on the seller hub https://www.daraz.pk/seller-hub/
Handling Time means the time from forwarding of the order by Jade to the Seller till dispatch of the Product by the Seller (excluding Sundays)
in writing/ written means all communications made through the Seller Center or sent by Jade through courier
Intellectual Property means any patent, copyright, registered or unregistered design, design right, registered or unregistered trademark, service mark or other industrial or intellectual property right and includes applications for any of them
Listed Price means the listing price of the Product on the Platform and shall be that price at which the Seller informs Jade that it wishes to sell any Product and which price shall include any taxes, whether federal, provincial or local, which the Seller is required and liable to pay on the sale or supply of each SKU or type of Product. The Listed Price shall not be higher than the price at which the Seller offers the same Product through its own sales channels.
Platform means the website www.daraz.pk or any affiliate website
Platform Policies means the Commission Schedule, Return Policy, Dispatch policy that can be found within the Policies and Guidelines section of https://www.daraz.pk/seller-hub/
Product(s) means the products, which the Seller intends to sell on the Platform.
Rejected Product means an SKU, which has been shipped but could not be successfully delivered to a Buyer, for any reason whatsoever
Required Product Information means, with respect to each of the Products, the following (except to the extent expressly not required under the applicable Platform Policies): (a) detailed description, including as applicable, specifications, location-specific availability and options, scheduling guidelines and service cancellation policies; (b) SKU numbers, and other identifying information as Jade may reasonably request; (c) information regarding in-stock status and availability, shipping limitations or requirements, and shipment information; (d) categorization within each Product category and browse structure as prescribed by Jade from time to time; (e) digitized image that accurately depicts the Product, complies with all Jade image guidelines, and does not include any additional logos, text or other markings; (f) Listed Price; (g) any text, disclaimers, warnings, notices, labels or other content required by applicable law to be displayed in connection with the offer, merchandising, advertising or sale of the Product; (h) any Seller requirements, restocking fees or other terms and conditions applicable to such Product that a buyer should be aware of prior to purchasing the Product; (i) brand; (j) model; (k) product dimensions; (l) weight; (m) a delimited list of technical specifications; (n) SKU numbers (and other identifying information as Jade may reasonably request) for accessories related to the Product that is available in Jade’s catalog; and (o) any other information reasonably requested by Jade (e.g., the condition of used or refurbished products).
Return Policy means the policy governing the return, refund, cancellation or rejection of products and which can be viewed at https://www.daraz.pk/seller-returns/
Rules of dispatch means the rules governing the dispatch and handling of the products sold by the Seller, which can be viewed at https://www.daraz.pk/dispatch-rules/
Seller Center means the login based platform accessible by a Seller  by using the user name and password provided to it by Jade
Special Terms means any terms other than the General Terms agreed to between Jade and the Seller
SKU means every unique item sold by the Seller
3PL means third party logistics provider

 

1.2.    Any reference in this Agreement 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.

1.3.    The Platform Policies are to be read into and incorporated as an integral part of this Agreement.

1.4.    Where the parties agrees to any Special Terms, those terms shall supersede and prevail over the General Terms and the Platform Policies to the extent of any conflict between the two.

 

2.     APPOINTMENT AS AGENT AND ACCESS TO THE PLATFORM / SELLER CENTER

2.1.    The Seller appoints Jade as its commission agent for the limited purpose of selling the Products on the Platform

2.2.    Jade shall provide the Seller with a unique username and password to access the Seller Center and complete the registration process, which includes providing the Seller’s legal name, address, phone number and e-mail address. This agreement shall come into force on the completion of the registration process.

2.3.    All information regarding the Seller’s transactions, contracts, inventory, bank details, correspondence with and messages and alerts between Jade and the Seller, the latest version of this agreement and Platform Policies shall be available for viewing at the Seller Center.

2.4.    The Seller shall be solely responsible for the safety and security of its password and shall not disclose its password to any third party. The Seller is solely responsible for any use of or action taken under the password and shall fully indemnify Jade from, any damages or injury resulting from any unauthorized use of its password.

2.5.    Any correspondence or communication received through the Seller Center shall be presumed to originate from and have been made with the approval of the Seller and Jade shall be entitled to rely on such correspondence or communication. The Seller further indemnifies Jade from any third party liability arising as a result of any act done or omission made by Jade in reliance on any communication received by it through the use of the password

2.6.    The Seller’s use of the Platform and access to the Seller Center is subject to this agreement and the Platform Policies and the Seller agrees to be bound by the terms of this agreement and the Platform Policies, as they may be modified or changed from time to time

 

3.     FEATURING PRODUCTS ON THE PLATFORM

3.1.    Jade shall feature Seller’s Products on the Platform for sale at the given Listed Price. The Platform shall show the Product as being sold by the Seller and not by Jade and the Seller’s name shall appear on any invoice issued to a Buyer.

3.2.    The Seller recognises that for the purpose of business development and building an online marketplace, it may be necessary to offer discounts and other promotions to encourage the sale of its Products on the Platform. The Seller agrees that Jade may offer such discounts or other promotions on the sale of the Seller's Products, provided that  Jade shall, at the Seller's request but no more than quarterly, provide details of such discounts or other promotions on the sale of the Seller's Products.

3.3.    The manner in which the Products are featured on the Platform and its placement on the Platform shall be the sole responsibility and at the discretion of Jade.

3.4.    Any particular SKU or Product(s) featured on the Platform may be delisted by Jade if sale of that Product would contravene any law or the Seller breaches any of its obligations under this agreement and in such case, the Seller shall be notified immediately.

3.5.    Featuring any Product on the Platform shall constitute an offer of sale by the Seller to all persons using the Platform.

3.6.    Where a Buyer places an order for purchasing a Product through the Platform, it shall be deemed to be an acceptance of the Seller’s offer to sell the Product and a binding Contract shall come into force between the Buyer and the Seller. The terms of the Contract are offered by the Seller and are agreed to by the Buyer and have no relation with Jade.

3.7.    Jade shall not resolve or mediate any disputes between the Seller and a Buyer.

3.8.    All Contracts entered into between the Seller and a Buyer shall be subject to this agreement and in the case of any conflict between this agreement and the Contract or any document included in the Product(s) sent to a Buyer or implied by trade practice or course of dealing, this agreement shall prevail.

 

4.     SELLER’S OBLIGATIONS

4.1.    Seller shall provide Jade with the Required Product Information in the prescribed format.

 

4.2.    Where at the request of the Seller, Jade produces digitized images and photographs of the Product(s) for display on the Platform, the cost shall be borne by the Seller and Jade and shall be entitled to deduct this amount from payments made to the Seller for the sale of any Product(s) in addition to any other amounts it is entitled to deduct under this agreement.

4.3.    Where a Seller opts for FBD, however, Jade may at its discretion produce content and digitized images and photographs of the Product(s) for display on the Platform, the cost of which may be billed to the Seller at the discretion of Jade.

 

5.     INVENTORY OF PRODUCTS

5.1.    Clauses 5.2 to 5.4 below shall apply to all Sellers except those who have opted for FBD and to store Products at the Product Center. Clauses 5.5 to 5.17 shall only apply to those Sellers who have opted for FBD and to store Products at the Product Center.

5.2.    The Seller shall be obliged to maintain an inventory of all Products featured on the Platform and update its inventory through the Seller Center on a daily basis.

5.3.    In the event that the Seller reasonably anticipates that any Products sold on the Platform may go out of stock, it shall immediately update the inventory information in the Seller Center.

5.4.    If an out of stock Product is shown as in stock on the Platform because of the Seller’s failure to update the inventory information for that Product on the Seller Center and a Buyer places an order for the Product, the order may be cancelled and the Seller and its Products delisted from the Platform.

5.5.    On the completion of the registration process and periodically thereafter, as mutually agreed between the Parties, the Parties shall agree on the type and quantity of Products, which the Seller shall deliver to the Product Center located at the address notified by Jade to the Seller through the Seller Center. If, for any reason, the Seller is unable to deliver the Product(s) to the Product Center, it may request Jade to pick up the Product(s) from the Seller's premises or such other location as may be notified by the Seller for which Jade may, at its discretion, charge a fee and may adjust the amount of the fee against any payments to be made to the Seller for the sale of any Product(s).

5.6.    Within seven (7) Business Days of agreement as required under Clause 5.5 the Seller shall deliver the Products to the Product Center. In case the Products are shipped from outside Pakistan to the Product Center, the Seller will list itself as the importer/consignee and nominate a customs broker.

5.7.    Either Party may alter the type and quantity of the Products by providing notice no less than five (5) Business days to the other Party prior to the delivery and uploading of the SKU on the Seller Center.

5.8.    Prior to the delivery, the Seller shall provide to Jade the Required Product Information agreed to be delivered, which shall be accurate (for instance a box marked as “16GB Galaxy Note” shall contain a 16GB Galaxy Note mobile phone or box clothing marked as “Medium” shall contain clothing of medium size). Seller shall ensure that each Product clearly states its unique code and its Seller price, along with other code stickers and tags. Upon delivery to the Product Center, the Seller shall produce a packing list, which shall be confirmed by Jade.

5.9.     All deliveries to the Product Center shall be made between 9am and 5pm on a Business Day in coordination with Jade’s nominated contact at its Product Center

5.10.   After the delivery, Jade shall independently conduct a Quality Check (QC) on the Products at the Product Center. Jade shall only accept the delivery of any Product if it passes the QC, otherwise the Product shall be returned back to the Seller within thirty (30) days of delivery to Jade. The costs of returning any Product shall be borne by the Seller.

5.11.   The Products shall be stored at the Product Center until they are sold on the Platform or returned to the Seller. The Products shall be stored at the Product Center at the Seller’s risk and cost.

5.12.   The Seller warrants and confirms that it shall not create any mortgage, lien, hypothecation or any other security interest over its Products, which are stored at Jade’s Product Center.

5.13.   In case Jade decides to stop featuring any Products on the Platform for any reason whatsoever, it shall return those Products to the Seller at the Seller’s cost.

5.14.   Jade reserves the right to return any Products to the Seller if they have been featured on the Platform for thirty (30) days but remain unsold. The cost of returning the Products shall be borne by the Seller.

5.15.   Jade may charge the Seller a storage fee for storing and handling the Products in its Product Center and shall be entitled to deduct this amount from payments made to the Seller for the sale of any Product(s) in addition to any other amounts it is entitled to deduct under this agreement.

5.16.   Jade may move SKUs among different Product Centers. If there is a loss of or damage to any SKUs while they are being stored or being moved, Jade will, in its capacity as the Seller’s agent and as the Seller’s sole remedy, reimburse the Seller in certain circumstances. Where Jade has reimbursed the Seller for an SKU, title and ownership of the SKU will pass from the Seller to Jade and it will be entitled to dispose off the SKU at its discretion and retain the proceeds thereof.

5.17.   The Seller acknowledges and confirms that:

5.18.1.     Jade shall have no duty as a bailee and the Seller waives all rights and remedies of bailor related to or arising out of any possession, storage or shipment of the Seller’s Products by Jade or any of its contractors or agents.

5.18.2.     Storing its Products at a Product Center may create a tax nexus for it in any country, state, province, or other localities in which the Products are sold, and the Seller will be solely responsible for any taxes owed as a result of such storage. In case any tax is assessed against Jade as a result of acting as commission agent for the Seller in connection with the storage of the Products or otherwise, the Seller will be solely responsible for taxes and will indemnify and hold Jade harmless from such taxes.

 

6.     SALE OF THE PRODUCTS ON THE PLATFORM

6.1.   Upon receipt of an order for the purchase of Products, Jade shall forward the order and furnish the Seller with details relating to the ordered Product(s), including the Seller’s SKU or bar code relating to the Product(s) and any other details provided by the Buyer.

 

7.     ORDER PROCESSING AND CANCELLATION

7.1.    Clauses 7.2 and 7.3 below shall apply to all Sellers except those who have opted for FBD and to store Products at the Product Center. Clause 7.4 shall apply to all Sellers. Clause 7.5 shall only apply to those Sellers who have opted for FBD and to store Products at the Product Center.

7.2.    Upon receipt of information under Clause 6.1 above, the Seller shall be obliged to process each order such that any and all sold Products shall have a Handling Time of two (2) Business Days. In case of any delay, either materialized or foreseen, the Seller shall immediately inform Jade through the Seller Center.

7.3.    Every order for which the sold Product has not been dispatched in accordance with the Rules of Dispatch may be cancelled by Jade.

7.4.    In case of cancellation or rejection of an order for which payment has already been made by the Buyer, Seller authorizes Jade to refund the entire payment received on behalf of the Seller.

7.5.    Upon receipt of an order for the purchase of any Product(s) through the Platform, Jade shall be responsible for dispatching and delivering the Product(s) to the Buyer.

 

8.     PRODUCT PACKAGING

8.1.    Clauses 8.2 and 8.3 below shall apply to all Sellers except those who have opted for FBD and to store Products at the Product Center. Clause 8.4 shall only apply to those Sellers who have opted for FBD and to store Products at the Product Center.

8.2.    The Seller may be responsible and bear all costs for packing the Product(s) sold by Jade on its behalf through the Platform.

8.3.    In order to market use of the Platform, Jade may, at its option, provide the Seller with branding materials, such as stickers, which identify that the Product(s) was sold through the Platform.

8.4.    Jade may, as mutually agreed between Jade and the Seller, be responsible for packing the Product(s) sold on the Platform on behalf of the Seller, and will bill that cost as a flat fee or embed that cost in the commission charged to the Seller. The Seller acknowledges and confirms that Jade may, at its option, use branding materials, such as stickers, which identify that the Product(s) was sold through the Platform.

 

9.     SHIPPING OF THE PRODUCTS

9.1.    Clauses 9.2 to 9.5 shall apply to all Sellers, except those who have opted for FBD and to store Products at the Product Center. Clause 9.6 shall apply to all Sellers. Clauses 9.7 to 9.9 shall only apply to those Sellers who have opted for FBD and to store Products at the Product Center. Clause 9.6 shall apply to all Sellers. Clauses 9.7 to 9.9 shall only apply to those Sellers who have opted for FBD and to store Products at the Product Center.

9.2.    As soon as a sold Product is ready for dispatch to a Buyer, the Seller shall inform Jade through Seller Center.

9.3.    Where the Seller dispatches and delivers the Product(s) to the Buyer itself, it shall use Jade's preferred local 3PL. Jade reserves the right to change 3PL and inform the Seller accordingly.

9.4.    Where Jade is responsible for picking up the Product(s) from the Seller and delivering it to the Buyer, Jade may charge the Seller a shipping fee in accordance with the prevalent market rate and shall be entitled to deduct this amount from payments made to the Seller for the sale of any Product(s) in addition to any other amounts it is entitled to deduct under this agreement.

9.5.    Seller shall remain sole and undisputed owner of the sold Product(s) until it is successfully delivered to the Buyer, at which point title and ownership shall be transferred to the Buyer. In case any Product is returned or rejected by a Buyer, the title and ownership of the Product shall, immediately upon return or rejection, revert to the Seller who shall be the sole and undisputed owner of the Product. Title and ownership of the Products shall never pass to Jade.

9.6.   The Seller acknowledges and agrees that:

9.6.1. Neither the 3PL nor Jade shall be liable for any loss including but not limited to taxes and duties levied on the consignment arising due to confiscation of shipments by any government agencies due to lack of proper documents.

9.6.2. The 3PL and Jade shall have the right but not the obligation, to inspect any shipment without prior intimation to the Seller for checking the contents.

9.6.3. All parcels shall be accompanied by the respective forms as prescribed by law to meet the requirements of any governmental authority.

9.7.    Jade shall be responsible for the dispatch and delivery of any sold Product(s) from the Product Center to the Buyer in accordance with the Rules of Dispatch.

9.8.    Seller shall remain sole and undisputed owner of the sold Product(s) until it is delivered to the Buyer, at which point ownership shall be transferred to the Buyer. In case any Product is returned or rejected by a Buyer, the property in the Product shall, immediately upon return or rejection, revert to the Seller who shall be the sole and undisputed owner of the Product. Title and ownership of the Products shall not pass to Jade for any reason whatsoever, except where title and ownership passes to Jade in accordance with Clauses 5.16 or 10.10.

9.9.    Jade may charge the Seller a shipping fee for dispatching and delivering the Product(s) to the Buyer in accordance with the prevalent market rate and shall be entitled to deduct this amount from payments made to the Seller for the sale of any Product(s) in addition to any other amounts it is entitled to deduct under this agreement.

 

10.   RETURN, REFUNDS, CANCELLATION AND REJECTION OF PRODUCTS

 

Cancellation

10.1.      The Seller agrees that a Buyer may cancel an order for any Product in any category before it has been shipped to the Buyer.

10.2.      The Seller authorizes Jade to provide the Buyer with a refund where the Buyer has pre-paid for the Product and she cancels the order before it has been shipped to her.

 

Rejected Goods

10.3.      Where for any reason whatsoever, any Product in any category cannot be delivered to the Buyer (“Rejected Product”) the Seller will bear the entire cost of shipping the Product.

10.4.      The Seller authorizes Jade to provide the Buyer with a refund where the Buyer has pre-paid for the Product and Product is rejected.

10.5.      In case the Rejected Product was shipped to the Buyer from the Product Center, the Rejected Product shall be reincorporated into the Seller’s inventory of Products at the Product Center.

 

Returns

10.6.      Unless stated otherwise in the Return Policy in relation to any particular category of Products, the Seller will accept the return of a Product by a Buyer within seven (7) days of delivery to the Buyer if the Product is returned in its original packing condition.

10.7.      In case of a return, Jade may, at its discretion, bill the Seller for the cost of shipping the Product from the Buyer to Jade or to the Seller

10.8.      In case the Buyer requests a refund, the Seller authorizes Jade to provide a refund to the Buyer and to deduct the amount of the refund from the monthly payments to be made to the Seller by Jade.

 

Return of Damaged Products

10.9.      In case of any dispute with the Buyer as to the condition of the Product when it was delivered, the Seller agrees that it shall be bound by Jade’s inquiry into and decision as to the condition of the Product at the time of delivery.

10.10.    At the Buyer’s option, the Seller will either replace the damaged Product within two (2) Business Days of receipt of notice from Jade or authorize Jade to provide a full refund. The damaged Product will be shipped to the Seller at the Seller’s cost unless the Seller directs Jade to dispose off the Product, in which case, title and ownership to the Product shall pass to Jade and it shall be entitled to dispose off the Product at its sole discretion and retain any proceeds therefrom.

10.11.    In case the returned Product was shipped to the Buyer from Jade’s Product Center and the Buyer requests a replacement, the Seller authorizes Jade to send a replacement Product to the Buyer.

10.12.    The cost of shipping the replacement Product to the Buyer shall be borne by the Seller.

10.13.    The Seller agrees to be bound by and act in accordance with the Return Policy. To the extent that there is any conflict between the Return Policy and Clauses 10.1 to 10.12 above, the Return Policy shall prevail.

 

11.   CUSTOMER SERVICE

11.1.  Jade shall promptly forward all questions or complaints regarding any sold Product(s) to the Seller. The Seller shall be obliged to respond to Jade on all such questions or complaints on or before the expiry of two (2) Business Days of the receipt of such questions or complaints.

11.2.  On receiving Seller’s response to any question or complaint, Jade shall promptly forward the response to the Buyer.

11.3.  If a Seller fails to respond to any question or complaint within forty-eight hours of receiving the same, the Seller or any its Products may be de-listed from the Platform without further notice.

 

12.   COMMISSION

12.1.  As agent for the Seller, Jade shall be entitled to receive a commission for the sale of each Product on the Platform as stipulated in the Commission Schedule unless specified otherwise in the Special Terms.

 

13.   PAYMENT

13.1.  Jade shall receive and process all payments for Products purchased on the Platform on behalf of the Seller. Jade shall make payment of the amount of the Listed Price for the Product(s) received from a Buyer, less its commission for the sale of the Product(s) and subject to its right of set-off under this agreement, to the Seller on a monthly basis to the Bank Account, provided that payment related to any SKU shall be initiated not less than 15 days after the SKU has been successfully delivered to the Buyer. All payments will be made in Pakistan Rupees. In case the Seller wishes to change the information for the Bank Account, it may do so by updating its Bank Account information through the Seller Center.

13.2.  Jade shall be entitled to deduct or withhold from payments to be made to the Seller under this agreement any duties, taxes or other amounts required to be deducted or withheld under any federal, provincial or local law and to remit the same to the taxing authority of any jurisdiction relevant to the transaction.

13.3.  Any sums due to the Seller hereunder may be applied by Jade as a set off against any sums owed by the Seller to Jade, or against any claims of third parties against Jade arising from the Seller’ performance, whether under this agreement, any Contract or other document.

13.4.  The Seller shall be responsible for payment of all customs duties, sales tax, excise tax, value-added tax and any other duties, excess, fees or charges of whatsoever nature which may be imposed by governing authorities of any jurisdiction applicable in connection with sale or supply of its Products on the Platform and their purchase by Buyers. It clarified that the Seller shall be solely responsible for the payment of any sales tax on the supply of these Products to the Buyer through the Platform and Jade shall have no liability in this regard. The Seller shall release, defend, indemnify, and hold Jade harmless from and against any fines, penalties, costs (including attorney’s fees and court costs), losses, damages, liabilities or (whether criminal or civil) claims, arising from, alleged to arise from, or in any way associated with the Seller’ failure to comply with the terms of this clause.

 

14.   WARRANTIES

14.1.   The Seller warrants to Jade that all its Products sold on the Platform, whether manufactured, imported or otherwise produced or provided by the Seller or others, will: 

14.1.1.   strictly conform to the specifications, drawings, samples, performance criteria, and other descriptions referred to or provided on the Platform;

14.1.2.   be of merchantable quality and fit for the purpose(s) intended; and

14.1.3.   have all relevant regulatory permits and licenses, and conform with all applicable laws, ordinances, codes and regulations.

 

14.2.   The Seller furthermore warrants and represents to Jade that: 

14.2.1.   It is competent to enter into this agreement and any Contract and its entry into this agreement and any Contract and the performance thereof have been duly authorized by all necessary corporate action and constitutes a valid and binding agreement of the Seller, enforceable against the Seller in accordance with the terms thereof. 

14.2.2.   The Products and their packaging will comply with all applicable marking and labeling requirements.

14.2.3.   None of the Products have been or will be produced or manufactured, in whole or in part, by child labor or by convict or forced labor.

14.2.4.   It and its subcontractors, agents and suppliers involved in producing or delivering the Products will strictly adhere to all applicable laws of Pakistan and other countries where the Products are produced or delivered, regarding the operation of their facilities and their business and labor practices, including without limitation working conditions, wages, hours and minimum ages of workers.

14.2.5.   All customs duties, excises tax and any other tax on the import, manufacture or production of the Products have been duly paid.

14.2.6.   It is legally entitled and permitted to sell the Products.

14.2.7.   The Products are not dangerous and do not contain any hazardous substance, contraband, explosives, or any kind of prohibited material as per law.

14.2.8.   It will package and ship all Products in accordance with all applicable laws and the Seller shall be solely responsible for any violation of law and will indemnify Jade against the consequences of any such violation.

14.2.9.   All information, including but not limited to all information furnished to Jade with regards to the Products is accurate and up-to-date.

14.2.10. It shall not host, display, upload, modify, publish, transmit, update or share any information which infringes any patent, trademark, copyright, proprietary rights, third party’s trade secrets, rights of publicity, or privacy, is fraudulent or involves the sale of counterfeit or stolen items.

14.2.11. All formal consents, waivers, approvals, authorizations, 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 the Seller in connection with the entry into this agreement or any Contract and the performance of the same, have been duly obtained.

14.2.12. The entry, delivery and performance of this agreement or any Contract by the Seller will not violate or conflict in any material respect with any law, statute, rule, regulation, ordinance, code, judgment, order, writ, injunction, decree or other requirement of any court or of any governmental body or agency thereof.

14.2.13. In its performance under this agreement and any Contracts entered into with Buyers, the Seller shall strictly comply with all applicable laws, treaties, ordinances, codes and regulations, and specifically with any import and export, and health, safety and environmental, laws, ordinances, codes and regulations of any jurisdiction (whether international, country, region, state, province, city, or local) where this agreement may be performed. Upon Jade’s written request, the Seller shall provide any written certification of compliance required by any federal, state, or local law, ordinance, code, or regulation.

14.2.14. If necessary, the Seller shall be obliged to procure all formal consents, waivers, approvals, authorizations, exemptions, registrations and/or licenses necessary for Jade to feature the Products on the Platform, at its own cost.

14.2.15. Jade may at any point require the Seller to provide any financial, business or personal information for any purpose whatsoever, and the Seller shall provide the same to Jade within seven (7) Business Days of such request being made.

 

15.   INTELLECTUAL PROPERTY

15.1.  The Seller warrants, represents and covenants that its import, manufacture, production, sale, distribution and use of the Products do not infringe directly or indirectly any Intellectual Property. The Seller warrants, represents and covenants that featuring of the Products on the Platform does not, directly or indirectly, infringe any Intellectual Property.

15.2.   The Seller undertakes and represents to Jade that it has all rights and ownership or is a licensed user of all Intellectual Property in relation to the Products and the supply of the Products which shall not be infringed due to marketing, promoting and featuring the Products on the Platform. Jade acknowledges that it will not acquire any rights in respect of the Intellectual Property in relation to the Products.

15.3.  The Seller represents and warrants to Jade that it is not aware of any claims made by any third party with regards to any alleged or actual patent, copyright, trade secret, trademark, trade name, or other intellectual property right infringement or other claim, demand or action resulting from the manufacture, sale, distribution or use of the Products.

15.4.  The Seller agrees to release, defend, protect, indemnify and hold Jade, their affiliates, and their respective directors, officers, employees, contractors, agents, suppliers, users, successors, and assigns, harmless from and against any and all costs (including attorney fees and court costs on an indemnity basis), expenses, fines, penalties, losses, damages, and liabilities arising out of any alleged or actual patent, copyright, trade secret, trademark, trade name, or other intellectual property right infringement or other claim, demand or action resulting from the advertising, promotion, manufacture, sale, distribution or use of the Products.

15.5.  The Seller shall not be entitled to use any Intellectual Property belonging to Jade without Jade’s prior approval in writing.

15.6.  The Seller shall not make any negative, denigrating, or defamatory statement(s)/comment(s) about Jade, the brand name, or the Platform, or otherwise engage in any conduct or action that might tarnish the image or reputation of Jade or sellers on the platform or otherwise tarnish or dilute any Jade trade mark, service marks, trade name and/or goodwill associated with such trade, service marks or trade name as may be owned or used by us.

 

16.   CONFIDENTIALITY

16.1.  All Buyer information and data, designs, drawings, specifications, communications, whether written, oral, electronic, visual, graphic, photographic, observational, or otherwise, and documents supplied, revealed or disclosed in any form or manner to the Seller by Jade, or produced or created by the Seller for Jade hereunder are the intellectual property of, and confidential to, Jade and shall be used solely by the Seller for purposes of this agreement. All such information shall be treated and protected by the Seller as strictly confidential, and shall not be disclosed to any third party without the prior written consent of Jade, and shall be disclosed within the Seller’s organization only on a need-to-know basis.

16.2.  Jade may require the Seller’s employees and other personnel involved in the performance of this agreement to execute an individual confidentiality agreement prior to any disclosure. Any non-disclosure agreement heretofore executed by the Seller in connection with the sale of its Products under this agreement is hereby expressly incorporated within the Contract.

16.3.   The Seller shall immediately return to Jade any information provided, either upon demand, or upon termination of this agreement, including all copies made by the Seller.

16.4.  The Seller shall not publicize, disclose, or discuss the existence, content, or scope, whether generalities or details, of this agreement or make any reference to Jade, the business of either 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 Jade.

 

17.   INDEMNIFICATION

17.1.  The Seller agrees to release, defend, indemnify and hold harmless Jade, including its affiliates, and any director, officer, employee, contractor, or agent, against any costs (including attorney fees and court costs on an indemnity basis), fines, penalties, damages, and liabilities, arising from, alleged to arise from, or in any way associated with:

17.1.1.     any defect in Products sold to any Buyer;

17.1.2.     any claim made by any Buyer on the basis of any Contract;

17.1.3.     any defect in the packaging or shipping of a Product by the Seller;

17.1.4.     any violation of any law committed by the Seller, including any failure by the Seller to pay any required tax on the import, manufacture, production, sale, supply, distribution or delivery of a Product;

17.1.5.     any negligence or fault of whatever nature of the Seller or its affiliates, and any director, officer, employee, contractor, or agent; or

17.1.6.     any breach in any warranty or representation made herein. 

 

18.   LIMITATION OF LIABILITY

18.1.  THE PLATFORM AND SELLER CENTER, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SELLER’S ACCESS TO AND USE OF THE PLATFORM AND THE SELLER CENTER, ARE PROVIDED "AS-IS." THE SELLER ACKNOWLEDGES AND CONFIRMS THAT IT WILL ACCESS AND USE THE PLATFORM AND THE SELLER CENTER AT ITS OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, JADE DISCLAIMS: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE CONTRACTS OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM JADE’S NEGLIGENCE. JADE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PLATFORM AND SELLER CENTER WILL MEET THE SELLER’S REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE UNINTERRUPTED OR ERROR FREE, AND JADE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY CONTRACTS OR TRANSACTIONS.

18.2.  BECAUSE JADE IS NOT A PARTY TO THE CONTRACTS BETWEEN BUYERS AND SELLERS, IF A DISPUTE ARISES BETWEEN THEM, THE BUYER AND SELLER RELEASE JADE (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 WITH SUCH DISPUTES.

18.3.  JADE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO THE SELLER OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY THE SELLER IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF JADE HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, JADE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE CONTRACTS OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL COMMISSION DURING THE PRIOR THREE MONTH PERIOD PAID BY THE SELLER TO JADE EXCEPT FOR UNDER CLAUSE 5.6.

 

19.   FORCE MAJEURE

19.1.  Jade shall not be liable to the Seller or be deemed to be in breach of this agreement by reason of any delay in performing or any failure to perform any of Jade's obligations if the delay or failure was due to any cause beyond Jade's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond Jade's reasonable control:

19.1.1.   Act of God, explosion, flood, tempest, fire or accident war or threat of war, sabotage, insurrection, civil disturbance or requisition;

19.1.2.   Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

19.1.3.   Import or export regulations or embargoes;

19.2.4.   Interruption of traffic, strikes lock-outs or other industrial actions or trade disputes (whether involving employees of Jade or of a third party);

19.1.5.   Interruption of production or operation, difficulties in obtaining raw materials labour, fuel, parts or machinery;

19.1.6.   Power failure or breakdown in machinery.

19.2.  Jade may at its option fully or partially suspend delivery/performance while such circumstances continue and Jade shall not be liable for any loss or damage suffered by the Seller as a result of such suspension, including but not limited to from the Seller’s failure to fulfill any Contract with a Buyer.

 

20.   TERMINATION

20.1.  Either Party may terminate this agreement by means fourteen (14) Business Days notice in writing.

20.2.  On or at any time after the occurrence of any of the events of default in Clause 15.3 below, Jade shall, in addition to any rights or remedies it may have in law, in equity, be entitled to terminate this agreement with immediate effect by written notice to the Seller.

20.3.  The following shall constitute events of default:

20.3.1.   The Seller being in breach of any warranty or representation under this agreement or any Contract;

20.3.2.    The Seller being in breach of any obligation under this agreement or any Contract and failing to remedy the same on or before seven (7) Business Days from receipt of a written notice from Jade of such breach;

20.3.3.   The Seller passing a resolution for its winding up or a court of competent jurisdiction making an order for the Seller’s winding up or dissolution;

20.3.4.   The making of an administration order in relation to the Seller or the appointment of a receiver over or an encumbrance taking possession of or selling any of the Seller’s assets;

20.3.5.   The Seller making an arrangement or settlement with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors;

20.3.6.   The Seller ceasing or threatening to cease to carry on business; or

20.3.7.   Jade reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.

20.4.  The termination of this agreement shall not terminate any Contracts already entered into and the Seller shall be obliged to perform all Contracts entered into with Buyers. 

20.5.  The Parties will settle all outstanding liabilities on termination of this agreement.

 

21.   ASSIGNMENT

21.1.  The Seller may not assign this agreement or any Contract, or any part hereof, or any money due hereunder, without the prior written consent of Jade. If consent is granted, any such assignment by the Seller shall not increase or alter Jade’ obligations nor diminish the rights of Jade, nor relieve the Seller of any of its obligations under this agreement or any Contract.

21.2.  Jade reserves the right to assign this agreement, in whole or in part, to any party, including Jade’ affiliates.

21.3.  The Sellers shall give Jade prompt written notice of any change in its ownership or organization, and changes in the manufacture or production of the Products provided hereunder.

 

22.   NOTICES

22.1. All communications between the Parties shall be through the Seller Center.  

 

23.   RELATIONSHIP OF THE PARTIES

23.1.  Under this agreement, Jade will act as commission agent for the Seller for the limited purpose of selling the Products on the Platform on behalf of the Seller.

23.2.  Nothing in this agreement will create any partnership, joint venture, franchise, sales representative or employment relationship between the Parties or impose any liability on Jade in relation to the Seller beyond that specifically expressed in this agreement as a commission agent.

 

24.   MODIFICATIONS

24.1.  The Seller acknowledges and agrees that Jade may at its sole discretion modify, amend or change any of the General Terms and Platform Policies and such modified, amended or changed General Terms and Platform Policies shall come into force and be binding on the Seller upon the posting of such changes on Seller Center or on the Platform, and the Seller is responsible for reviewing these locations and informing itself of all applicable changes or notices. All notice of changes to the General Terms and Platform Policies will be posted for at least 30 days. The Seller should refer regularly to Seller Center to review the current agreement (including the Platform Policies). THE SELLER’S CONTINUED ACCESS AND USE OF THE PLATFORM AND SELLER CENTER AFTER JADE'S POSTING OF ANY CHANGES WILL CONSTITUTE ITS ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.

 

25.   MISCELLANEOUS

25.1.  Any typographical clerical or other error or omission in any acceptance, invoice or other document on the part of Jade shall be subject to correction without any liability on the part of Jade.

25.2.  No waiver by Jade of any breach of this agreement by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.

25.3.   If any provision of this agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this agreement and the remainder of the provision in question shall not be affected thereby.

25.4.  No person who is not a party to this agreement (including any employee, officer, agent, representative or sub-contractor of either party) shall have any right to enforce any terms of this agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Parties.

25.5.  This agreement shall be governed by the laws of Pakistan and the Parties agree to submit to the exclusive jurisdiction of the competent courts at Karachi.

25.6.  Jade shall be entitled to commence legal proceedings for the purposes of protecting its confidential information or any exclusivity rights, as contained in this agreement, by means of injunctive or other equitable relief.

25.7.  This agreement has been affirmed through electronic signatures as prescribed under the Electronic Transactions Ordinance 2002.